EXHIBIT 10.1
------------
364-DAY REVOLVING CREDIT AGREEMENT
among
NISOURCE FINANCE CORP.,
as Borrower,
NISOURCE INC.
and
NEW NISOURCE INC.,
as Guarantors,
CREDIT SUISSE FIRST BOSTON
and
BARCLAYS BANK PLC,
as Co-Syndication Agents,
THE LENDERS PARTY HERETO,
as Lenders,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
BARCLAYS BANK PLC,
as Documentation Agent
-----------------------------
CREDIT SUISSE FIRST BOSTON
and
BARCLAYS CAPITAL
Co-Lead Arrangers and Joint Book Runners
-----------------------------
Dated as of November 1, 2000
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
SECTION 1.01. DEFINED TERMS . . . . . . . . . . . . . . . . 1
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS . . . 21
SECTION 1.03. TERMS GENERALLY . . . . . . . . . . . . . . . 21
SECTION 1.04. ACCOUNTING TERMS; GAAP . . . . . . . . . . . 22
ARTICLE II THE CREDITS 22
SECTION 2.01. COMMITMENTS. . . . . . . . . . . . . . . . . 22
SECTION 2.02. LOANS AND BORROWINGS . . . . . . . . . . . . 23
SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS; CONVERSION
OF REVOLVING LOANS TO TERM LOANS . . . . . . 24
SECTION 2.04. COMPETITIVE BID PROCEDURE. . . . . . . . . . 25
SECTION 2.05. FUNDING OF BORROWINGS. . . . . . . . . . . . 27
SECTION 2.06. INTEREST ELECTIONS. . . . . . . . . . . . . . 28
SECTION 2.07. MANDATORY TERMINATION OR REDUCTION OF
COMMITMENTS. . . . . . . . . . . . . . . . . 29
SECTION 2.08. MANDATORY PREPAYMENTS. . . . . . . . . . . . 30
SECTION 2.09. OPTIONAL REDUCTION OF COMMITMENTS. . . . . . 31
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT. . . . . 32
SECTION 2.11. OPTIONAL PREPAYMENT OF LOANS. . . . . . . . . 33
SECTION 2.12. FEES. . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.13. INTEREST . . . . . . . . . . . . . . . . . . 34
SECTION 2.14. ALTERNATE RATE OF INTEREST . . . . . . . . . 35
SECTION 2.15. INCREASED COSTS . . . . . . . . . . . . . . . 36
SECTION 2.16. BREAK FUNDING PAYMENTS . . . . . . . . . . . 37
SECTION 2.17. TAXES. . . . . . . . . . . . . . . . . . . . 38
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT;
SHARING OF SET-OFFS. . . . . . . . . . . . . 39
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF
LENDERS . . . . . . . . . . . . . . . . . . . 41
ARTICLE III CONDITIONS 42
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL LOAN . . 42
SECTION 3.02. CONDITIONS PRECEDENT TO EACH LOAN . . . . . . 45
ARTICLE IV REPRESENTATIONS AND WARRANTIES 46
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
CREDIT PARTIES . . . . . . . . . . . . . . . 46
ARTICLE V AFFIRMATIVE COVENANTS 49
SECTION 5.01. AFFIRMATIVE COVENANTS . . . . . . . . . . . . 49
ARTICLE VI NEGATIVE COVENANTS 53
SECTION 6.01. NEGATIVE COVENANTS . . . . . . . . . . . . . 53
ARTICLE VII FINANCIAL COVENANTS 58
SECTION 7.01. INTEREST COVERAGE RATIO . . . . . . . . . . . 58
SECTION 7.02. DEBT TO CAPITALIZATION RATIO . . . . . . . . 58
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ARTICLE VIII EVENTS OF DEFAULT 59
SECTION 8.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . 59
ARTICLE IX THE ADMINISTRATIVE AGENT 62
SECTION 9.01. THE ADMINISTRATIVE AGENT . . . . . . . . . . 62
ARTICLE X GUARANTY 65
SECTION 10.01. THE GUARANTY . . . . . . . . . . . . . . . . 65
SECTION 10.02. WAIVERS . . . . . . . . . . . . . . . . . . . 67
ARTICLE XI MISCELLANEOUS 68
SECTION 11.01. NOTICES . . . . . . . . . . . . . . . . . . . 68
SECTION 11.02. WAIVERS; AMENDMENTS . . . . . . . . . . . . . 69
SECTION 11.03. EXPENSES; INDEMNITY; DAMAGE WAIVER . . . . . 69
SECTION 11.04. SUCCESSORS AND ASSIGNS . . . . . . . . . . . 71
SECTION 11.05. SURVIVAL . . . . . . . . . . . . . . . . . . 74
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS . . 75
SECTION 11.07. SEVERABILITY . . . . . . . . . . . . . . . . 75
SECTION 11.08. RIGHT OF SETOFF . . . . . . . . . . . . . . . 75
SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS. . . . . . . . . . . . . . 76
SECTION 11.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . 76
SECTION 11.11. HEADINGS . . . . . . . . . . . . . . . . . . 77
SECTION 11.12. CONFIDENTIALITY . . . . . . . . . . . . . . . 77
ANNEX A Pricing Grid
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
SCHEDULE 2.01 Commitments
SCHEDULE 4.01(d) Merger Agreement - Waived or Amended Provisions
SCHEDULE 6.01(e) Existing Agreements
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364-DAY REVOLVING CREDIT AGREEMENT, dated as of November 1,
2000, among NISOURCE FINANCE CORP., an Indiana corporation, as
Borrower (the "Borrower"), NISOURCE INC., an Indiana corporation ("Old
NiSource"), and NEW NISOURCE INC., a Delaware corporation ("New
NiSource"), as Guarantors (the "Guarantors"), CREDIT SUISSE FIRST
BOSTON and BARCLAYS BANK PLC, as Co-Syndication Agents, the Lenders
party hereto, CREDIT SUISSE FIRST BOSTON, as Administrative Agent (in
such capacity, the "Administrative Agent"), and BARCLAYS BANK PLC, as
Documentation Agent.
WITNESSETH:
WHEREAS, the parties are willing to enter into this 364-Day
Revolving Credit Agreement on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement,
the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the
Alternate Base Rate.
"Administrative Agent" means Credit Suisse First Boston, in
its capacity as administrative agent for the Lenders hereunder.
"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.
"Alternate Base Rate" means, for any day, a rate PER ANNUM
equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective from
and including the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender,
the percentage of the Aggregate Commitments represented by such
Lender's Commitment. If the Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any
ABR Loan or Eurodollar Revolving Loan, or with respect to the Facility
Fees and the Utilization Fee payable hereunder, as the case may be,
the applicable rate PER ANNUM determined pursuant to the Pricing Grid.
"Arrangers" shall mean each of Credit Suisse First Boston
and Barclays Capital.
"Asset Sale" means any sale, lease or other disposition
(including (x) any such transaction effected by way of merger or
consolidation and (y) any sale-leaseback transaction, whether or not
involving a Capital Lease) (any such transaction, a "disposition"), by
the Parent Guarantor or any of its Subsidiaries, or by the Company or
any of its Subsidiaries, of any asset, but excluding (a) any
disposition of inventory, cash, Cash Equivalents or other cash
management investments or obsolete and unused or unnecessary
equipment, in each case in the ordinary course of business, (b) any
disposition to the Parent Guarantor or any of its Subsidiaries, (c)
any disposition proceeds of which will be used to purchase assets
similar to the assets disposed of within 180 days after the date of
such disposition, but only to the extent such proceeds are actually so
used, (d) any sale-leaseback transaction entered into in respect of
property acquired by the Parent Guarantor or any of its Subsidiaries,
or by the Company or any of its Subsidiaries, if such sale-leaseback
transaction is entered into within 180 days after the date of such
acquisition, (e) any sale of receivables (including in connection with
securitizations thereof) effected to finance working capital
requirements of the Parent Guarantor and its Subsidiaries, and (f) any
disposition of the assets of a Project Financing Subsidiary, to the
extent that the Net Cash Proceeds thereof are retained by such Project
Financing Subsidiary to finance (i) the development or operation of
the Project it was formed to develop, or (ii) activities incidental
thereto.
"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.
"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.
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"Borrowing" means (a) Revolving Loans or Term Loans of the
same Type, made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) a Competitive Loan or group of Competitive Loans of the
same Type made by the same Lender on the same date and as to which a
single Interest Period is in effect or (c) the conversion of Revolving
Loans to Term Loans on the Termination Date.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are authorized
or required by law to remain closed; PROVIDED that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"CAC" means Company Acquisition Corp., a Delaware
corporation.
"Capital Expenditure" means any expenditure (including any
expenditure for the acquisition of Capital Stock of a Person and the
principal portion of payments under Capital Leases) in respect of the
acquisition or improvement of fixed assets, real property, plant and
equipment, determined in accordance with GAAP.
"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 Equivalents" shall mean (a) securities with maturities
of one year or less from the date of acquisition issued or fully
guaranteed or insured by the United States Government or any agency
thereof, (b) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition and
overnight bank deposits of any Lender and certificates of deposit with
maturities of one year or less from the date of acquisition and
overnight bank deposits of any other commercial bank having capital
and surplus in excess of $500,000,000, (c) commercial paper of any
issuer rated at least A-2 by S&P or P-2 by ▇▇▇▇▇'▇, (d) additional
money market investments with maturities of one year or less from the
date of acquisition rated at least A1 or AA by S&P or P-1 or Aa by
3
▇▇▇▇▇'▇ and (e) tax-exempt debt obligations of any State of the United
States or of any county or other municipal government subdivision of
any State of the United States with maturities of one year or less
from the date of acquisition rated at the highest investment grade
rating by S&P or by ▇▇▇▇▇'▇, or publicly traded or open-end bond funds
that invest exclusively in such tax-exempt debt obligations.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act, 42, U.S.C. Section 9601 et seq.,
as amended.
"Change of Control" means (a) except as a result of the
Guarantor Merger, 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 Parent
Guarantor, (b) Continuing Directors shall cease to constitute at least
a majority of the directors constituting the Board of Directors of the
Parent Guarantor, (c) except as a result of the Guarantor Merger, a
consolidation or merger of the Parent Guarantor shall occur after
which the holders of the outstanding voting Capital Stock of the
Parent Guarantor immediately prior thereto hold less than 50% of the
outstanding voting Capital Stock of the surviving entity; (d) except
as a result of the Guarantor Merger, more than 50% of the outstanding
voting Capital Stock of the Parent Guarantor shall be transferred to
an entity of which the Parent 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 Parent Guarantor; or (f) the
Borrower, NIPSCO or (after the Effective Time) the Company shall cease
to be a Wholly-Owned Subsidiary of the Parent Guarantor.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any
law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement
or (c) compliance by any Lender (or, for purposes of Section 2.15(b),
by any lending office of such Lender or by such Lender's holding
company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan is, or the Loans comprising such Borrowing
are, Revolving Loans, Competitive Loans or Term Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commercial Paper" means commercial paper issued by the
Borrower solely to finance the consummation of the Merger, including
4
the payment of fees and expenses related to the Merger, and in respect
of which the Aggregate Commitments are providing liquidity support
required by a rating agency.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder, expressed
as an amount representing the maximum aggregate amount of such
Lender's Revolving Credit Exposure hereunder, or to convert Revolving
Loans to Term Loans as provided herein, in each case, as such
commitment may be (a) reduced from time to time pursuant to Section
2.07 or Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section
11.04. The initial amount of each Lender's Commitment is (x) the
amount set forth on Schedule 2.01 opposite such Lender's name, minus
that portion of the aggregate Net Cash Proceeds, exclusive of Retained
Proceeds, received by the Parent Guarantor and its Subsidiaries in
respect of Reduction Events on or after February 27, 2000, and on or
before the Effective Date, equal to such Lender's ratable share
thereof (based on the ratio of such Lender's Commitment to the
Aggregate Commitments), such that the aggregate Net Cash Proceeds so
received (exclusive of Retained Proceeds) are applied to reduction of
the Aggregate Commitments; or (y) the amount set forth in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable.
"Company" means Columbia Energy Group, a Delaware
corporation.
"Company Merger" means the merger of CAC with and into the
Company pursuant to the Merger Agreement.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable, offered
by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower
for Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section
2.04.
"Consolidated Capitalization" means the sum of (a)
Consolidated Debt, (b) consolidated common equity of the Parent
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 Parent Guarantor and its Consolidated Subsidiaries
upon involuntary liquidation.
5
"Consolidated Debt" means, at any time, the indebtedness of
the Parent Guarantor and its Consolidated Subsidiaries that would be
classified as debt on a balance sheet of the Parent Guarantor
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Parent 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 Parent Guarantor and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, adjusted
to exclude the effect of (a) any extraordinary gain or loss and (b)
any gain or loss on dispositions of capital assets.
"Consolidated Net Tangible Assets" means, at any time, the
total amount of assets appearing on a consolidated balance sheet of
the Parent 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:
(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 Parent Guarantor.
"Consolidated Subsidiary" means, on any date, each
Subsidiary of the Parent Guarantor the accounts of which, in
accordance with GAAP, would be consolidated with those of the Parent
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
6
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 Parent Guarantor who have held office continually
since the Effective Date, and (b) all members of the board of
directors of the Parent Guarantor who were elected as directors after
the Effective Date (and who, if they were elected prior to the
Effective Time, were directors of Old NiSource) and whose nomination
for election was approved by a vote of at least 50% of the Continuing
Directors.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. "Controlling" and "Controlled" have
meanings correlative thereto.
"Co-Syndication Agents" means Credit Suisse First Boston and
Barclays Bank PLC, in their respective capacities as co-syndication
agents for the Lenders hereunder.
"Credit Documents" means (a) this Agreement, the Notes 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, Old NiSource and
New NiSource.
"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 Incurrence" means the incurrence by the Parent
Guarantor or any of its Subsidiaries of Debt for Borrowed Money, other
than Excluded Debt.
"Debt to Capitalization Ratio" means, at any time, the ratio
of Consolidated Debt to Consolidated Capitalization.
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"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 Guarantors,
the Co-Syndication Agents, the initial Lenders, the Administrative
Agent and the Documentation Agent.
"Effective Time" means the time and date that is the later
of (a) the date and time of the filing of the Articles of Merger
relating to the Parent Merger with the Secretary of State of Indiana,
and (b) the date and time of the filing of the Certificate of Merger
relating to the Company Merger with the Secretary of State of the
State of Delaware.
"Environmental Laws" means any and all foreign, federal,
state, local or municipal laws (including, without limitation, common
laws), rules, orders, regulations, statutes, ordinances, codes,
decrees, judgments, awards, writs, injunctions, requirements of any
Governmental Authority or other requirements of law regulating,
relating to or imposing liability or standards of conduct concerning,
pollution, waste, industrial hygiene, occupational safety or health,
the presence, transport, manufacture, generation, use, handling,
treatment, distribution, storage, disposal or release of Hazardous
Substances, or protection of human health, plant life or animal life,
natural resources or the environment, as now or at any time hereafter
in effect.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Parent 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.
"Equity Issuance" means (a) the issuance of any Capital
Stock by the Parent Guarantor or any of its Subsidiaries (other than a
Project Financing Subsidiary, to the extent that the Net Cash Proceeds
thereof are retained by such Project Financing Subsidiary to finance
(x) the development or operation of the Project it was formed to
develop, or (y) activities incidental thereto), other than (i) Capital
Stock issued (A) to the Company or to shareholders of the Company in
connection with the Merger, (B) to Old NiSource or to shareholders of
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Old NiSource in connection with the Parent Merger, or (C) to the
Parent Guarantor or any of its Wholly-Owned Subsidiaries, (ii)
directors' qualifying shares, (iii) Capital Stock issued in the
ordinary course of business in connection with director or employee
stock purchase plans and arrangements and other director or employee
compensation arrangements, and (iv) Capital Stock issued in the
ordinary course of business under any dividend reinvestment and stock
purchase plan maintained by the Parent Guarantor; or (b) any
contribution to the capital of the Parent Guarantor or any of its
Subsidiaries, other than a contribution by the Parent Guarantor or any
of its Subsidiaries to one of its Subsidiaries.
"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 Parent Guarantor's controlled
group, or under common control with the Parent 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 Parent 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 Parent 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.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board, as in effect from time to time.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan is, or the Loans comprising
such Borrowing are, bearing interest at a rate determined by reference
to the LIBO Rate.
"Eurodollar Rate Reserve Percentage" of any Lender for the
Interest Period for any Eurodollar Loan means the reserve percentage
9
applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board (or any successor) for determining the
maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for
such Lender with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excess Commitment Amount" means, at any time, the excess of
(a) the Aggregate Commitments over (b) the sum of (i) the Total
Outstanding Principal plus (b) the principal amount of outstanding
Commercial Paper.
"Excluded Debt" means (a) Debt for Borrowed Money incurred
hereunder; (b) the Commercial Paper, to the extent the proceeds
thereof are used to fund the Merger (including to pay fees and
expenses related to the Merger); (c) Debt for Borrowed Money owed by
the Parent Guarantor or any of its Subsidiaries to the Parent
Guarantor or any of its Subsidiaries; (d) Project Financings, to the
extent that the Net Cash Proceeds thereof are retained by the Project
Financing Subsidiary that incurs such Debt for Borrowed Money to
finance (i) the development or operation of the Project it was formed
to develop, or (ii) activities incidental thereto; (e) Debt for
Borrowed Money of any Person at the time such Person becomes a
Subsidiary of the Parent Guarantor, PROVIDED that such Debt for
Borrowed Money was not incurred in contemplation of such occurrence;
(f) Debt for Borrowed Money, other than Project Financings, incurred
to finance Capital Expenditures (including fees and expenses
incidental to the acquisition of the assets so acquired); (g) Debt for
Borrowed Money incurred by a Utility Subsidiary, to the extent that
the Net Cash Proceeds thereof are used by such Utility Subsidiary to
finance its business and operations; (h) (i) Debt for Borrowed Money
of NiSource Capital Markets, Inc. under the $200,000,000 364-Day
Credit Agreement dated as of September 22, 2000, among NiSource
Capital Markets, Inc., Credit Suisse First Boston, as Administrative
Agent, the lenders party thereto and Barclays Bank PLC, as
Documentation Agent; (ii) Debt for Borrowed Money of the Company under
the $850,000,000 Third Amended and Restated 364-Day Credit Agreement
and the $50,000,000 Amended and Restated Credit Agreement, each dated
as of October 11, 2000, among the Company, as Borrower, Citibank,
N.A., as agent, and the lenders and other Persons party thereto, in
the capacities provided therein; (iii) other Debt for Borrowed Money,
not in excess of $150,000,000 in aggregate principal amount
outstanding at any time, incurred to finance the working capital needs
of the Parent Guarantor or any of its Subsidiaries (other than Utility
Subsidiaries); and (iv) Debt for Borrowed Money incurred under any
10
commercial paper program in respect of which any Debt for Borrowed
Money described in the preceding clauses (i) through (iii) provides
liquidity; and (i) refinancings, replacements and extensions of any of
the foregoing, or of any Debt for Borrowed Money outstanding on June
30, 2000, to the extent that the principal of the Debt for Borrowed
Money so refinanced, replaced or extended is not increased as a result
thereof.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income or net
earnings by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which
its applicable lending office is located and (b) in case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(d)), any withholding tax that (i) is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement, except to the extent that such
Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a) or (ii) is
attributable to such Foreign Lender's failure to comply with Section
2.17 (e) when legally able to do so.
"Facility Fee" has the meaning set forth in Section 2.12.
"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.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest
PER ANNUM specified by the Lender making such Competitive Loan in its
related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest
at a Fixed Rate.
"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.
11
"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 Merger" means the merger of Old NiSource into New
NiSource.
"Guarantors" means each of Old NiSource and New NiSource.
"Guaranty" means the guaranty of the Guarantors pursuant to
Article X of this Agreement.
"Hazardous Materials" means any asbestos; flammables;
volatile hydrocarbons; industrial solvents; explosive or radioactive
materials; hazardous wastes; toxic substances; liquefied natural gas;
natural gas liquids; synthetic gas; oil, petroleum, or related
materials and any constituents, derivatives, or byproducts thereof or
additives thereto; or any other material, substance, waste, element or
compound (including any product) regulated pursuant to any
Environmental Law, including, without limitation, substances defined
as "hazardous substances," "hazardous materials," "contaminants,"
"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
12
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.
"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 Parent Guarantor.
"Initial Credit Event Date" means (a) the Initial Loan Date
or (b) the date on which Commercial Paper is first issued, whichever
first occurs.
"Initial Loan" means, collectively, the first Loans made
pursuant to this Agreement.
"Initial Loan Date" means the date on which the Initial Loan
is funded.
"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
4l2(b)(2)(A) of the Code.
"Interest Coverage Ratio" means, for any period, the ratio
of (i) the sum of (a) Consolidated Net Income for such period PLUS (b)
income taxes deducted in determining such Consolidated Net Income PLUS
(c) Consolidated Interest Expense for such period to (ii) Consolidated
Interest Expense for such period.
"Interest Election Request" means a request by the Borrower
to convert or continue a Revolving or a Term Borrowing in accordance
with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b)
with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, the day that is three months after the
first day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Fixed
13
Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid
Request), each day prior to the last day of such Interest Period that
occurs at intervals of 90 days' duration after the first day of such
Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with
respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that
is one, two, three or six months thereafter, as the Borrower may elect
and (b) with respect to any Fixed Rate Borrowing, the period (which
shall not be less than 5 days or more than 360 days) commencing on the
date of such Borrowing and ending on the date specified in the
applicable Competitive Bid Request; PROVIDED that (x) if any Interest
Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless,
in the case of a Eurodollar Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day; and (y)
any Interest Period pertaining to a Eurodollar Borrowing that
commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business
Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 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.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Telerate Page 3750 (or
on any successor or substitute page of such service, or any successor
to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service,
as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the "LIBO Rate" with
respect to such Eurodollar Borrowing for such Interest Period shall be
the rate at which Dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in
14
the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" has the meaning set forth in Section 6.01(a).
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of
interest, if any, to be added to or subtracted from the LIBO Rate to
determine the rate of interest applicable to such Loan, as specified
by the Lender making such Loan in its related Competitive Bid.
"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 (i) until the Effective Time, the Company
and its Subsidiaries taken as a whole, or (ii) at any time, the Parent
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 New NiSource, Old NiSource, the
Borrower, the Company, PAC or CAC to consummate the Transactions.
"Material Subsidiary" means at any time (a) the Borrower,
(b) NIPSCO, (c) after the Effective Time, the Company, and (d) each
Subsidiary of the Parent Guarantor, other than the Borrower, NIPSCO
and the Company, in respect of which:
(a) the Parent 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
Parent Guarantor and its Subsidiaries taken as a whole, as of the
end of the most recent fiscal year; or
(b) the Parent 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 Parent Guarantor and its
Subsidiaries as of the end of the most recent fiscal year; or
(c) the Parent 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 Parent Guarantor
and its Subsidiaries for the most recent fiscal year;
15
PROVIDED that, until the end of the first fiscal year of New NiSource
to end after the Effective Time, such determination shall be based (x)
until the Effective Time, on the consolidated total assets or
consolidated income, as the case may be, of Old NiSource and its
Subsidiaries as of the end of, or for, as the case may be, the most
recent fiscal year of Old NiSource; and (y) after the Effective Time,
on the combined consolidated total assets or consolidated income, as
the case may be, of Old NiSource and its Subsidiaries and of the
Company and its Subsidiaries, as reflected in the Pro Forma Financial
Statements as of the end of Old NiSource's most recent fiscal year.
"Merger" means, collectively, the Parent Merger, the Company
Merger and the Guarantor Merger, but not including any refinancing of
Indebtedness of the Company in connection therewith.
"Merger Agreement" means the Agreement and Plan of Merger,
dated as of February 27, 2000, as amended and restated as of March 31,
2000, among the Company, Old NiSource, New NiSource, PAC, CAC, and the
Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"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.
"Net Cash Proceeds" means, with respect to any Reduction
Event, an amount equal to the cash proceeds received by the Parent
Guarantor or any of its Subsidiaries (or, if applicable, by the
Company or any of its Subsidiaries) from or in respect of such
Reduction Event (including, when received, any cash proceeds received
as income or other proceeds of any noncash proceeds of any such
transaction), less (a) any investment banking and underwriting fees
and any other fees and expenses reasonably incurred by such Person in
respect of such Reduction Event, and (b) if such Reduction Event is a
disposition of assets, (i) the amount of any Debt for Borrowed Money
secured by a Lien on any asset disposed of in such Reduction Event and
discharged from the proceeds thereof and (ii) any taxes actually paid
or to be payable by such Person (as estimated by a senior financial or
accounting officer of the Parent Guarantor, giving effect to the
overall tax position of the Parent Guarantor) in respect of such
Reduction Event; PROVIDED that if the cash proceeds of such Reduction
Event are received by a Subsidiary that is not a Wholly-Owned
Subsidiary, Net Cash Proceeds shall include only the portion thereof
proportionately equivalent to the Parent Guarantor's direct and
16
indirect interest in such Subsidiary. The Net Cash Proceeds of Debt
Incurrences in respect of a revolving facility shall be deemed to be
the aggregate amount of the commitments thereunder, used or unused.
"NIPSCO" means Northern Indiana Public Service Company, an
Indiana corporation.
"Non-Recourse Debt" means Indebtedness of the Parent
Guarantor or any of its Subsidiaries (a) in the case of any Credit
Party, which is incurred in connection with the acquisition,
construction, sale, transfer or other disposition of assets, to the
extent recourse, whether contractual or as a matter of law, for non-
payment of such Indebtedness is limited to such assets, or (b) in the
case of a Subsidiary of any Credit Party (other than the Borrower or a
Guarantor), to the extent recourse, whether contractual or as a matter
of law, for non-payment of such Indebtedness is limited to such
Subsidiary.
"Obligations" means all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing and whenever incurred (including, without limitation, after
the commencement of any bankruptcy proceeding), owing to the
Administrative Agent or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"Outstanding Loans" means, as to any Lender at any time, the
aggregate principal amount of all Loans made by such Lender then
outstanding.
"PAC" means Parent Acquisition Corp., an Indiana
corporation.
"Parent Guarantor" means (a) until the Effective Time, Old
NiSource, and (b) at and after the Effective Time, New NiSource.
"Parent Merger" means the merger of PAC with and into Old
NiSource pursuant to the Merger Agreement.
"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.
17
"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.
"Pricing Grid" means the pricing grid attached hereto as
Annex A.
"Prime Rate" means the rate of interest PER ANNUM publicly
announced from time to time by Credit Suisse First Boston 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.
"Pro Forma Financial Statements" means the financial
statements delivered pursuant to Section 3.1(i).
"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 Parent 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
18
partnership, limited liability company or other entity having such a
principal purpose, and (b) substantially all the assets of which are
limited to the assets relating to the Project being developed or
Capital Stock in such partnership, limited liability company or other
entity (and substantially all of the assets of any such partnership,
limited liability company or other entity are limited to the assets
relating to such Project); PROVIDED that such Subsidiary incurs no
Indebtedness other than in respect of a Project Financing.
"Reduction Event" means any (a) Asset Sale, (b) Debt
Incurrence or (c) Equity Issuance; PROVIDED THAT if, at the time the
Net Cash Proceeds of such Asset Sale, Debt Incurrence or Equity
Issuance are received, the Index Debt is rated at or above BBB- by S&P
and at or above Baa3 by Moody's, such Asset Sale, Debt Incurrence or
Equity Issuance shall constitute a "Reduction Event" only to the
extent of the lesser of (x) such Net Cash Proceeds, and (y) the amount
by which (i) the Aggregate Commitments, less the sum of (A) any
Unapplied Reduction Amount and (B) the amount of Net Cash Proceeds
whose application to prepayment of the Loans has been deferred to the
end of a pending Interest Period pursuant to Section 2.08(c), then
exceed (ii) $2,500,000,000.
"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.
"Required Lenders" means Lenders having at least 51% in
aggregate amount of (a) at any time prior to the Termination Date, the
sum of the total Revolving Credit Exposures and unused Commitments;
and (b) at any time on or after the Termination Date, the Total
Outstanding Principal; PROVIDED that, for purposes of declaring the
Loans to be due and payable pursuant to Article VIII, and for all
purposes after the Loans become due and payable pursuant to Article
VIII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in the calculation
of the total Revolving Credit Exposures.
"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.
"Retained Proceeds" means the first $475,000,000 in Net Cash
Proceeds received by the Parent Guarantor, the Company and their
respective Subsidiaries in respect of Asset Sales, Debt Incurrences
and Equity Issuances on or after February 27, 2000 less the amount, if
any, of Net Cash Proceeds that the Company is deemed to have received
under Section 2.08(d).
19
"Revolving Credit Exposure" means, with respect to any
Lender at any time, the outstanding principal amount of such Lender's
Revolving Loans.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc.
"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.
"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.
"Term Loan" means a loan made by a Lender pursuant to
Section 2.01(b).
"Term-Out Maturity Date" means the earlier of (a) the date
that is one year after the Termination Date or, if such day is not a
Business Day, then the next preceding Business Day, and (b) the date
upon which the Term Loans become due and payable in full, pursuant to
Section 8.1 or otherwise.
"Termination Date" means the earliest of (a) July 5, 2001,
(b) the date the Merger Agreement is terminated by any party thereto,
(c) if the Effective Time does not occur by the close of business, New
York time, on the Initial Credit Event Date, the Initial Credit Event
Date, and (d) the date upon which the Commitments are terminated
pursuant to Section 8.1 or otherwise.
"Total Outstanding Principal" means the aggregate amount of
the Outstanding Loans of all Lenders.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the Borrowing of Loans and the
Merger.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the LIBO
20
Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
"Unapplied Reduction Amount" means, at any time, an amount
equal to (a) the aggregate Net Cash Proceeds of Reduction Events as of
such time (exclusive of Retained Proceeds), LESS (b) the sum, without
duplication, of all prepayments of Loans and reductions of the
Aggregate Commitments made in respect thereof pursuant to Section 2.07
or 2.08, and LESS (c) the amount of such Net Cash Proceeds whose
application to prepayment of the Loans has been deferred to the end of
a pending Interest Period pursuant to Section 2.08(c).
"Utility Subsidiary" means a Subsidiary of the Parent
Guarantor that is subject to regulation by a Governmental Authority
(federal, state or otherwise) having authority to regulate utilities.
"Utilization Fee" has the meaning set forth in Section 2.12.
"Wholly-Owned Subsidiary" shall mean, with respect to any
Person, any corporation or other entity of which all of the
outstanding shares of stock or other ownership interests in which,
other than directors' qualifying shares (or the equivalent thereof),
are at the time directly or indirectly owned or controlled by such
Person or one or more of the Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Sections 4201, 4203
and 4205 of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar
Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan" or a
"Eurodollar Term Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g.,
a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms
herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The
words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "or" shall not
be exclusive. The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
21
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 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from
time to time; PROVIDED that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after
the Effective Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies
the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS.
(a) Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrower from time
to time during the Availability Period in an aggregate principal
amount that will not result in (i) such Lender's Revolving Credit
Exposure exceeding such Lender's Commitment or (ii) the sum of the
total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans exceeding the Aggregate Commitments.
Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
(b) If the Borrower so elects pursuant to Section 2.03,
each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to convert its outstanding Revolving Loans into Term
Loans on the Termination Date; PROVIDED that (i) the Borrower shall
22
not be entitled to convert outstanding Revolving Loans to Term Loans
in an amount that exceeds the aggregate principal amount of the
outstanding Revolving Loans on the third Business Day before the
Termination Date and (ii) the Borrower pays or repays, as the case may
be, on or before the Termination Date, all amounts required to be paid
or repaid under Section 2.08, including, without limitation, amounts
due and owing as provided in Section 2.09(b).
SECTION 2.02. LOANS AND BORROWINGS
(a) Each Revolving Loan shall be made as part of a
Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section
2.04. If Revolving Loans are converted to Term Loans pursuant to
Section 2.03, then each Lender shall be deemed to have made a Term
Loan in the amount of its Applicable Percentage of the Revolving Loans
outstanding on the Termination Date (after giving effect to any
repayment of Loans required to be made on the Termination Date
pursuant to Section 2.08). The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments and Competitive
Bids of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be comprised entirely of Eurodollar Loans or Fixed
Rate Loans as the Borrower may request in accordance herewith. Each
Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $5,000,000 and not
less than $25,000,000. At the time that each ABR Revolving Borrowing
is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $25,000,000;
provided that an ABR Revolving Borrowing may be to an aggregate amount
that is equal to the entire unused balance of the Aggregate
Commitments. Each Competitive Borrowing shall be in an aggregate
amount that is an integral multiple of $5,000,000 and not less than
$25,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any
time be more than a total of twelve Eurodollar Revolving Borrowings
outstanding.
23
(d) Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with
respect thereto would end after (i) the Termination Date, with respect
to any Revolving Borrowing or Competitive Borrowing, or (ii) the Term-
Out Maturity Date, with respect to any Term Borrowing.
SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS; CONVERSION
OF REVOLVING LOANS TO TERM LOANS. To request a Revolving Borrowing or
to convert Revolving Loans to Term Loans, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case
of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing,
(b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, on the date of the proposed Borrowing, and (c) in the
case of the Borrower's election to convert Revolving Loans into Term
Loans, the third Business Day preceding the Termination Date. Each
such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic
and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing, which
in the case of Term Loans, shall not exceed the aggregate
principal amount of the outstanding Revolving Loans on the third
Business Day before the Termination Date;
(ii) the date of such Borrowing, which shall be (A) a
Business Day in the case of a Revolving Borrowing, and (B) the
Termination Date in the case of the Borrower's election to
convert Revolving Loans to Term Loans;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt
of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof
24
and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. COMPETITIVE BID PROCEDURE.
(a) Subject to the terms and conditions set forth herein,
from time to time during the Availability Period the Borrower may
request Competitive Bids and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Loans; PROVIDED
that the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans at any
time shall not exceed the Aggregate Commitments. To request
Competitive Bids, the Borrower shall notify the Administrative Agent
of such request by telephone, in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed
Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; PROVIDED that
the Borrower may submit up to (but not more than) three Competitive
Bid Requests on the same day, but a Competitive Bid Request shall not
be made within five Business Days after the date of any previous
Competitive Bid Request, unless any and all such previous Competitive
Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Competitive Bid
Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the
term "Interest Period" that does not end after the Termination
Date; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance
with this Section, the Administrative Agent shall notify the Lenders
of the details thereof by telecopy, inviting the Lenders to submit
Competitive Bids.
25
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in
a form approved by the Administrative Agent and must be received by
the Administrative Agent by telecopy, in the case of a Eurodollar
Competitive Borrowing, not later than 9:30 a.m., New York City time,
three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform
substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent, and the Administrative Agent
shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall specify (i) the principal amount (which shall be
a minimum of $25,000,000 and an integral multiple of $5,000,000 and
which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans
(expressed as a percentage rate PER ANNUM in the form of a decimal to
no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal
amount specified in each Competitive Bid and the identity of the
Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy in
a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the
case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m.
New York City time, three Business Days before the date of the
proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date of the Competitive Borrowing; PROVIDED that (i) the
failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept
a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by
the Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii)
above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made
PRO RATA in accordance with the amount of each such Competitive Bid,
and (v) except pursuant to clause (iv) above, no Competitive Bid shall
be accepted for a Competitive Loan unless such Competitive Loan is in
26
a minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; PROVIDED, FURTHER, that if a Competitive Loan must be in
an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000
or any integral multiple thereof, and in calculating the PRO RATA
allocation of acceptances of portions of multiple Competitive Bids at
a particular Competitive Bid Rate pursuant to clause (iv) the amounts
shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Borrower. A notice given by the Borrower pursuant to
this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been
accepted (and, if so, the amount and Competitive Bid Rate so
accepted), and each successful bidder will thereupon become bound,
subject to the terms and conditions hereof, to make the Competitive
Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the Borrower at least one quarter of an
hour earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to
paragraph (b) of this Section.
SECTION 2.05. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts
so received, in like funds, to an account designated by the Borrower
in the applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed time of any Borrowing that
such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such
Lender, the Federal Funds Effective Rate or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender
27
pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate
Borrowing. This Section 2.06 shall not apply to Competitive
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section
2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect
to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect
to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
28
If any such Interest Election Request requests a Eurodollar Borrowing
but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Borrowing
may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. MANDATORY TERMINATION OR REDUCTION OF
COMMITMENTS.
(a) Unless previously terminated, the Commitments shall
terminate on the Termination Date; PROVIDED that, (i) if the Borrower
elects to convert Revolving Loans to Term Loans on the Termination
Date pursuant to Section 2.03, then the Commitments shall terminate on
the Term-Out Maturity Date; and (ii) no additional Loans (other than
Revolving Loans converted to Term Loans on the Termination Date) shall
be made on or after the Termination Date, and no portion of the Term
Loans, once repaid, may be reborrowed.
(b) If the Parent Guarantor or any of its Subsidiaries
shall at any time, or from time to time, receive after the Effective
Date but before the Initial Credit Event Date any Net Cash Proceeds in
respect of any Reduction Event (exclusive of Retained Proceeds), then,
on the day immediately preceding the Initial Credit Event Date, the
Aggregate Commitments shall be permanently reduced by an amount equal
to the aggregate amount of such Net Cash Proceeds.
(c) On the Initial Credit Event Date, the Aggregate
Commitments shall be permanently reduced to an amount equal to the sum
of (i) the amount of the Initial Loan, if any, made thereon, plus (ii)
the principal amount of outstanding Commercial Paper, plus (iii)
$5,000,000.
(d) On each day on which any prepayment of the Loans is
required to be made under Section 2.08(b) or 2.08(c), the Aggregate
Commitments shall be permanently reduced by an amount equal to the
amount of such prepayment.
29
(e) If, on any date, both an Unapplied Reduction Amount and
an Excess Commitment Amount exist, the Aggregate Commitments shall be
permanently reduced on such date by an amount equal to the lesser of
(i) such Unapplied Reduction Amount and (ii) such Excess Commitment
Amount.
(f) If an Unapplied Reduction Amount exists on any maturity
date of Commercial Paper (determined, if applicable, after giving
effect to any reduction of the Aggregate Commitments effected in
accordance with Section 2.07(e)), the Aggregate Commitments shall be
permanently reduced on such date by an amount equal to the lesser of
(i) such Unapplied Reduction Amount and (ii) the principal amount of
the Commercial Paper maturing on such date.
(g) If the Borrower elects to convert any Revolving Loans
to Term Loans on the Termination Date pursuant to Section 2.03, the
Aggregate Commitments shall be permanently reduced to an amount that
is equal to the principal amount of the resulting Term Borrowing.
(h) The Borrower shall give the Administrative Agent at
least three Business Days' notice of each reduction of the Commitments
required pursuant to this Section 2.07. Promptly after receiving a
notice pursuant to this Section 2.07(h), the Administrative Agent
shall notify each affected Lender of the contents thereof.
(i) Each reduction of the Commitments pursuant to this
Section 2.07 shall be made ratably among the Lenders in accordance
with their respective Commitments immediately preceding such
reduction.
SECTION 2.08. MANDATORY PREPAYMENTS.
(a) If at any time the Total Outstanding Principal exceeds
the Aggregate Commitments then in effect for any reason whatsoever
(including, without limitation, as a result of any reduction in the
Aggregate Commitments pursuant to Section 2.07 or Section 2.09), the
Borrower shall prepay Loans in such aggregate amount (together with
accrued interest thereon to the extent required by Section 2.13) as
shall be necessary so that, after giving effect to such prepayment,
the Total Outstanding Principal does not exceed the Aggregate
Commitments.
(b) On the fifth Business Day after the Initial Credit
Event Date, the Borrower shall prepay the principal of the Loans in an
amount equal to the lesser of (i) the aggregate Net Cash Proceeds,
other than Retained Proceeds, received by the Company and its
Subsidiaries in respect of Asset Sales on or after February 27, 2000,
and on or before the Initial Credit Event Date, and (ii) the Total
Outstanding Principal.
(c) If the Parent Guarantor or any of its Subsidiaries
shall at any time, or from time to time, receive on or after the
30
Initial Credit Event Date any Net Cash Proceeds, other than Retained
Proceeds, in respect of any Reduction Event then, on and as of the
date of receipt of such Net Cash Proceeds (or, in the case of Net Cash
Proceeds received on the Initial Credit Event Date, on the next
Business Day thereafter), the Borrower shall prepay the principal of
the Loans in an amount equal to the lesser of (i) such Net Cash
Proceeds, and (ii) the Total Outstanding Principal; PROVIDED that (1)
if the Net Cash Proceeds in respect of any Reduction Event are less
than $5,000,000, such prepayment shall be effected upon receipt of Net
Cash Proceeds in an amount that, together with all other such amounts
not previously applied, are equal to at least $25,000,000; and (2) if
any such prepayment would otherwise require that the Borrower prepay
Eurodollar Loans or Competitive Loans prior to the last day of the
Interest Period applicable thereto, the prepayment in respect of the
portion of such Net Cash Proceeds that would otherwise be applied to
the prepayment of Eurodollar Loans or Competitive Loans shall, unless
a Default or Event of Default exists and the Administrative Agent
otherwise notifies the Borrower upon the instructions of the Required
Lenders, be deferred to such last day.
(d) If all or any portion of the principal of the Company's
6.39% Debentures due November 28, 2000, is extended, renewed, or
replaced, then the Company shall be deemed to have received, on the
date on which such extension, renewal, or replacement becomes
effective, Net Cash Proceeds in respect of a Reduction Event in an
amount equal to the amount of such principal that is so extended,
renewed or replaced.
(e) Each prepayment of Loans pursuant to this Section 2.08
shall be accompanied by the Borrower's payment of any amounts payable
under Section 2.16 in connection with such prepayment. Prepayments of
Revolving Loans and Term Loans shall be applied ratably to the Loans
so prepaid.
SECTION 2.09. OPTIONAL REDUCTION OF COMMITMENTS.
(a) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; PROVIDED that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of
$5,000,000 and not less than $25,000,000 and (ii) the Borrower shall
not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11,
either (A) the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans or (B) the
aggregate principal amount of Term Loans, would exceed the Aggregate
Commitments.
(b) The Borrower shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under Section
2.09(a) at least three 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
31
Administrative Agent shall advise the Lenders of the contents thereof.
Each notice delivered by the Borrower pursuant to this Section shall
be irrevocable; PROVIDED that a notice of termination of the
Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to
the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. Any termination or reduction of
the Commitments shall be permanent.
(c) Each reduction of the Commitments pursuant to this
Section 2.09 shall be made ratably among the Lenders in accordance
with their respective Commitments immediately preceding such
reduction.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay (i)
to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Loan (except to the extent
that such Revolving Loan is converted into a Term Loan as provided
herein) on the Termination Date, (ii) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to
such Loan, and (iii) to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Term Loan on the
Term-Out Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the
Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of
the existence and amounts of the obligations recorded therein;
PROVIDED that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance
with the terms of this Agreement.
32
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable
to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 11.04) be represented by one or
more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.11. OPTIONAL PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, subject to
prior notice in accordance with paragraph (b) of this Section;
PROVIDED that the Borrower shall not have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of
prepayment or (ii) in the case of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day before the
date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing
or portion thereof to be prepaid; PROVIDED that, if a notice of
prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then
such notice of prepayment may be revoked if such notice of termination
is revoked in accordance with Section 2.09. Promptly following
receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Revolving Borrowing of the
same Type as provided in Section 2.02. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.13.
SECTION 2.12. FEES.
(a) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (each a "Facility Fee"),
which shall accrue at the Applicable Rate on the daily amount of the
Commitment of such Lender (whether used or unused) during the period
from and including the Effective Date to but excluding the date on
which such Commitment terminates; PROVIDED that, if such Lender
continues to have any Outstanding Loans after its Commitment
terminates, then such Facility Fee shall continue to accrue on the
33
daily amount of such Lender's Outstanding Loans from and including the
date on which its Commitment terminates to but excluding the date on
which such Lender ceases to have any Outstanding Loans. Accrued
Facility Fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur
after the Effective Date; PROVIDED that any Facility Fees accruing
after the date on which the Commitments terminate shall be payable on
demand. All Facility Fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent,
for its own account and for the account of the other Persons entitled
thereto, the fees provided for in that certain fee letter dated July
6, 2000, and that certain amended and restated supplemental fee letter
dated July 14, 2000, executed and delivered with respect to the credit
facility provided for herein, in each case, in the amounts and at the
times set forth therein and in immediately available funds.
(c) If at any time (including at any time while any portion
of the Term Loans remains outstanding), the Total Outstanding
Principal exceeds 33 1/3% of the Aggregate Commitments, the Borrower
shall pay to the Administrative Agent, for the account of the Lenders
ratably in proportion to their respective Commitments, a utilization
fee (the "Utilization Fee") calculated for each day with respect to
the Total Outstanding Principal on such day at the rate for such day
determined in accordance with the Pricing Grid. The accrued
Utilization Fee shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur
after the Effective Date; PROVIDED that any Utilization Fee accruing
after the date on which the Commitments terminate shall be payable on
demand. The Utilization Fee shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent (for
distribution, in the case of Facility Fees and any Utilization Fee, to
the Lenders). Fees due and paid shall not be refundable under any
circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing shall bear interest at a rate PER ANNUM equal to the
Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall
bear interest at a rate PER ANNUM equal to (i) in the case of a
Eurodollar Revolving Loan or Eurodollar Term Loan, the LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurodollar Competitive Loan, the LIBO
34
Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate PER
ANNUM equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate PER ANNUM equal
to (i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided above or (ii) in the
case of any other amount, 2% plus the rate applicable to ABR Loans as
provided above.
(e) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to
the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion and (iv) all accrued interest shall
be payable upon termination of the Commitments.
(f) All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based
on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for
the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or LIBO
Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent reasonably determines (which
determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the LIBO Rate for
such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that the LIBO Rate for such
Interest Period will not adequately and fairly reflect the cost to
35
such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Revolving Borrowing to, or continuation
of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) any request by the Borrower for a Eurodollar Competitive
Borrowing shall be ineffective; PROVIDED that (1) if the circumstances
giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings may be
made to Lenders that are not affected thereby and (2) if the
circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15. INCREASED COSTS. (a) 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 (except
any such reserve requirement described in paragraph (f) of this
Section); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or
Fixed Rate Loans made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost
to such Lender of making or maintaining any Eurodollar Loan or Fixed
Rate Loan (or of maintaining its obligation to make any such Loan) or
to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender, such additional amount or amounts as
will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender 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 capital or on the capital
of such Lender's holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which
such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with
respect to capital adequacy), then from time to time the Borrower will
pay to such Lender, such additional amount or amounts as will
36
compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as
the case may be, 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 such Lender 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 to demand
compensation pursuant to this Section shall not constitute a waiver of
such Lender's 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 notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions
and of such Lender's intention to claim compensation therefor;
provided, further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the ninety day
period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this
Section, a Lender shall not be entitled to compensation pursuant to
this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant
to which such Loan was made.
(f) The Borrower shall pay (without duplication as to
amounts paid under this Section 2.15) to each Lender, so long as such
Lender shall be required under regulations of the Board to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Loan of such Lender, from the date
of such Loan until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the LIBO Rate for the Interest Period for such Loan
from (ii) the rate obtained by dividing such LIBO Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such
Lender for such Interest Period, payable on each date on which
interest is payable on such Loan. Such additional interest determined
by such Lender and notified to the Borrower and the Administrative
Agent, accompanied by the calculation of the amount thereof, shall be
conclusive and binding for all purposes absent manifest error.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a)
the payment of any principal of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of
any Eurodollar Loan other than on the last day of the Interest Period
37
applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.11(b) and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Loan
after accepting the Competitive Bid to make such Loan, or (e) the
assignment of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount reasonably determined by such Lender to be
equal to the excess, if any, of (x) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such
Loan for the period from the date of such payment, conversion, failure
or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted
from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the LIBO Rate for such Interest
Period, over (y) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to invest
such principal amount for such period at the interest rate that would
be bid by such Lender (or an affiliate of such Lender) for dollar
deposit from other banks in the eurodollar market at the commencement
of such period. A certificate of any Lender setting forth any amount
or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.17. TAXES.
(a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if
the Borrower 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 or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower 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.
38
(c) The Borrower shall indemnify the Administrative Agent
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 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
by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower 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 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 the Borrower hereunder
shall be made by the Borrower in its own name and for its own account
from within the United States by a payor that is a United States
person (within the meaning of Section 7701 of the Code).
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT;
SHARING OF SET-OFFS.
(a) The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest or fees, or under
Section 2.15, 2.16, 2.17 or 11.03, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇, ▇▇ deemed to have been received on the next succeeding Business
Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at Eleven
Madison Avenue, New York, New York, except that payments pursuant to
Sections 2.15, 2.16, 2.17 and 11.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall be
applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii)
second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due
to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or Term Loans
resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its Revolving Loans or Term Loans and accrued
interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans of other
Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their
respective Revolving Loans or Term Loans (as the case may be);
PROVIDED that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the provisions
of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans
to any assignee or participant, other than to the Parent Guarantor,
the Borrower or any other Subsidiary or Affiliate of the Parent
Guarantor (as to which the provisions of this paragraph shall apply).
The Borrower and the Guarantors 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
40
as fully as if such Lender were a direct creditor of the Borrower or
the affected Guarantor in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon,
for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent,
at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required
to be made by it pursuant to Section 2.05(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF
LENDERS. (a) Any Lender claiming reimbursement or compensation from
the Borrower under either of Sections 2.15 and 2.17 for any losses,
costs or other liabilities shall use reasonable efforts (including,
without limitation, reasonable efforts to designate a different
lending office of such Lender for funding or booking its Loans or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates) to mitigate the amount of such losses, costs
and other liabilities, if such efforts can be made and such mitigation
can be accomplished without such Lender suffering (i) any economic
disadvantage for which such Lender does not receive full indemnity
from the Borrower under this Agreement or (ii) otherwise be
disadvantageous to such Lender.
(b) In determining the amount of any claim for
reimbursement or compensation under Sections 2.15 and 2.17, each
Lender will use reasonable methods of calculation consistent with such
methods customarily employed by such Lender in similar situations.
(c) Each Lender will notify the Borrower either directly or
through the Administrative Agent of any event giving rise to a claim
under Section 2.15 or Section 2.17 promptly after the occurrence
thereof which notice shall be accompanied by a certificate of such
Lender setting forth in reasonable detail the circumstances of such
claim.
41
(d) If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section
11.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) 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, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans (other than
Competitive Loans), accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
ARTICLE III
CONDITIONS
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL LOAN.
The obligation of each Lender to make the Initial Loan 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 Lenders, the Administrative Agent, the Arrangers
and each other Person entitled to the payment of fees or the
reimbursement or payment of expenses, pursuant hereto or to that
certain fee letter dated July 6, 2000 or that certain amended and
restated supplemental fee letter date July 14, 2000, in each case,
42
executed and delivered with respect to the credit facility provided
for herein, shall have received all fees required to be paid by the
Initial Credit Event Date, and all expenses for which invoices have
been presented on or before the Initial Credit Event Date.
(c) The Administrative Agent shall have received certified
copies of the resolutions of the Board of Directors of each of the
Guarantors and the Borrower approving this Agreement, and of all
documents evidencing other necessary corporate action and governmental
and regulatory approvals with respect to this Agreement.
(d) The Administrative Agent shall have received from each
of the Borrower and the Guarantors, 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
such Guarantor, as the case may be, and each amendment thereto on file
in such office (and, if possible, reflecting the Merger) and
certifying that such amendments are the only amendments to the
Borrower's or such Guarantor's charter, as the case may be, on file in
such office, and (ii) stating that the Borrower, or such Guarantor, as
the case may be, is duly incorporated and in good standing under the
laws of the jurisdiction of its place of incorporation.
(e) (i) The Administrative Agent shall have received a
certificate or certificates of each of the Borrower and each
Guarantor, signed on behalf of the Borrower and such 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 such Guarantor, as the case may be, since the date of
the certificates referred to in paragraph (d) above, except as
contemplated by the Merger Agreement or this Agreement in connection
with the Transactions, (B) a true and correct copy of the bylaws of
each of the Borrower or such 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 such
Guarantor, as the case may be (but excluding the Guarantor Merger),
(D) the truth, in all material respects, of the representations and
warranties contained in the Credit Documents to which the Borrower or
such Guarantor is a party, as the case may be, as though made on and
as of the Initial Credit Event Date, (E) to the best knowledge of the
officer signing such certificate, the truth, in all material respects,
of the representations and warranties of all parties to the Merger
Agreement contained therein, (1) with respect to representations and
warranties that are not specifically limited to a prior date, as
though made on the Initial Credit Event Date and immediately prior to
the Effective Time, and (2) with respect to representations and
warranties that are specifically limited to a prior date, on and as of
such prior date; and (F) the absence, as of the Initial Credit Event
43
Date, of any Default or Event of Default; and (ii) each of such
certifications shall be true.
(f) The Administrative Agent shall have received a
certificate of the Secretary or an Assistant Secretary of each of the
Guarantors and the Borrower certifying the names and true signatures
of the officers of such 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.
(g) (i) (A) all applicable waiting or appeals periods
relating to the occurrence of the Effective Time shall have expired,
(B) either no appeal shall have been initiated or all such appeals
shall have been resolved, and (C) all requisite Governmental
Authorities and other Persons shall have approved or consented to the
Merger to the extent required, in each case, without the imposition of
any materially burdensome or adverse conditions, (ii) all such
approvals shall be in full force and effect, (iii) the Administrative
Agent shall have received copies, certified by the Parent Guarantor,
of all such filings made with, or approvals obtained from, any
Governmental Authority in connection with the Merger as the
Administrative Agent may request, and (iv) the only events remaining
to occur, or actions remaining to be taken, to effect the occurrence
of the Effective Time in compliance with the Merger Agreement and with
all laws and regulations (including any state anti-takeover law
regulating the Merger) shall be (A) with respect to the issuance of
any Commercial Paper to be issued on the Initial Credit Event Date,
the acknowledgment by the Administrative Agent, on behalf of the
Lenders, that the conditions set forth in this Section 3.01 have been
satisfied or waived, and (B) with respect to the occurrence of the
Effective Time, (1) the issuance of the Commercial Paper, (2) the
filing with the Secretary of State of the State of Delaware of the
Certificate of Merger relating to the Company Merger, and (3) the
filing with the Secretary of State of the State of Indiana of the
Articles of Merger relating to the Parent Merger.
(h) The Administrative Agent shall have received written
confirmation (i) from S&P that, immediately after the Effective Time,
the Index Debt will be rated at least BBB- by S&P, and (ii) from
▇▇▇▇▇'▇ that, immediately after the Effective Time, the Index Debt
will be rated at least Baa3 by ▇▇▇▇▇'▇.
(i) The Administrative Agent shall have received pro forma
balance sheets as of the end of the fiscal quarter immediately
preceding the Initial Credit Event Date and pro forma statements of
operations and cash flows for the immediately preceding fiscal year of
New NiSource and its Consolidated Subsidiaries and for the period from
the end of such fiscal year to the end of the fiscal quarter
immediately preceding the Initial Credit Event Date, (i) giving effect
to the Transactions and (ii) demonstrating that, had the Effective
Time occurred on the first day of the immediately preceding fiscal
44
year of the Parent Guarantor, each of the financial covenants set
forth in Article VII would have been satisfied as at the end of such
fiscal year and at the end of each succeeding fiscal quarter ending on
or before the Initial Credit Event Date, certified by the chief
financial officer or treasurer of the Parent Guarantor.
(j) The Administrative Agent shall have received (i) from
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Guarantors 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, and (ii) from the general counsel of
each Subsidiary of a Credit Party that is subject to regulation as a
public utility, a favorable opinion, in form and substance
satisfactory to the Administrative Agent, as to the sufficiency of the
approvals or consents obtained from the relevant Governmental
Authorities of such State or, if no such approvals or consents were
required, so stating.
(k) The Administrative Agent shall have received a
certificate of the Secretary or Assistant Secretary of the Borrower
certifying as to (i) the aggregate Net Cash Proceeds, exclusive of
Retained Proceeds, received by the Parent Guarantor and its
Subsidiaries in respect of Reduction Events (A) on or after February
27, 2000, and on or before the Effective Date, and (B) after the
Effective Date and before the Initial Credit Event Date; and (ii) if
Commercial Paper will be outstanding on the Initial Credit Event Date,
the aggregate principal amount of such Commercial Paper.
The occurrence of the Initial Credit Event Date shall be deemed to
constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in paragraph (g) of this Section
and that the Effective Time will occur on the Initial Credit Event
Date.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH LOAN. The
obligation of each Lender to make a Loan on the occasion of any
Borrowing (including the Initial Loan and any conversion of Revolving
Loans to Term Loans, but excluding any other conversion or
continuation of any Loan) shall be subject to the satisfaction (or
waiver in accordance with Section 11.02) of each of the following
conditions:
(a) The representations and warranties of the Guarantors
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 Borrowing,
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) (i) After giving effect to (A) such Loan, together with
all other Loans to be made contemporaneously therewith, and (B) the
45
repayment of any Loans that are to be contemporaneously repaid at the
time such Loan is made, such Loan will not result in the sum of the
then Total Outstanding Principal exceeding the Aggregate Commitments
and (ii) with respect to the conversion of Revolving Loans to Term
Loans on the Termination Date, the Total Outstanding Principal after
giving effect thereto shall not exceed the aggregate principal amount
of the Revolving Loans outstanding on the third Business Day before
the Termination Date (after giving effect to any repayment of
Revolving Loans effected on such third Business Day).
(c) At the time of and immediately after giving effect to
such Borrowing, no Default or Event of Default shall have occurred and
be continuing.
(d) In the case of a Revolving Loan or a Term Loan, the
Administrative Agent shall have timely received a Borrowing Request;
and, in the case of a Competitive Loan, the Borrower shall have timely
accepted the Competitive Bid relating to such Competitive Loan.
Each Borrowing 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) and (c) 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 Parent Guarantor, and (as
of the Effective Date) each of Old NiSource, PAC and CAC, is a
corporation duly organized, validly existing and in good standing
under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the
Credit Parties, PAC and CAC of the Merger Agreement and the Credit
Documents to which it is a party are within such Credit Party's or
other Person's corporate powers, (i) have been duly authorized by all
necessary corporate action, (ii) do not contravene (A) such Credit
Party's or other Person'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, PAC, CAC 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, PAC, CAC or any Material Subsidiary
under any Contractual Obligation binding on or affecting such Credit
Party, PAC, CAC or any Material Subsidiary.
46
(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 of the Merger Agreement and each Credit Document
to which any Credit Party, PAC or CAC is a party is a legal, valid and
binding obligation of such Credit Party or such other Person, as the
case may be, enforceable against such Credit Party or such other
Person 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. The Credit Parties have delivered to the Administrative Agent
a true and correct copy of the Merger Agreement, and no material
condition or other provision of the Merger Agreement has been waived,
amended or supplemented except as described on SCHEDULE 4.01(d) or
with the prior written consent of the Required Lenders.
(e) The balance sheet of Old NiSource as at June 30, 2000,
and the related statements of income and retained earnings of Old
NiSource for the six 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 Old NiSource as at
such date and the results of the operations of Old NiSource for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied. To the best knowledge of
each Credit Party, the balance sheet of the Company as at June 30,
2000, and the related statements of income and retained earnings of
the Company for the six 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 Company as at
such date and the results of the operations of the Company for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied.
(f) Since June 30, 2000, 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 the Company.
(g) There is no pending or threatened action or proceeding
affecting such Credit Party, PAC, CAC or any Material Subsidiary,
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, as of the Initial Credit
Event Date, that (i) purports to affect the legality, validity or
enforceability of this Agreement, or (ii) seeks to challenge, or to
prohibit, the consummation of the Transactions or to prohibit the
ownership or operation, by any Credit Party, the Company, PAC or CAC,
47
or any of their respective Subsidiaries, of all or a material portion
of their respective businesses or assets.
(h) The Parent Guarantor and its Subsidiaries, taken as a
whole, do not hold or carry Margin Stock having an aggregate value in
excess of 10% of the value of their consolidated assets, and no part
of the proceeds of any Loan hereunder will be used to buy or carry any
Margin Stock.
(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 1998 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 Parent 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 Parent 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) (i) Until the Effective Time: (A) neither New NiSource
nor the Borrower is a "public utility holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended;
and (B) Old NiSource is such a public utility holding company, but is
exempt from registration under such Act pursuant to an order under
Section 3(a)(1) of such Act dated February 10, 1999; (ii) at the
Effective Time, the Parent Guarantor will have obtained all necessary
approvals for the execution and delivery of, and the performance of
its obligations under, the Credit Documents; and (iii) within 5
Business Days after the Effective Time, the Parent Guarantor will be a
"public utility holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, registered in
compliance therewith.
48
(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).
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Lender
shall have any Commitment hereunder or any principal of any Loan,
interest or fees payable hereunder shall remain unpaid, 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
49
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.; GUARANTOR
MERGER.
(i) 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.
(ii) No later than five Business Days after the Effective
Time, cause the Articles of Merger relating to the Guarantor
Merger to be filed with the Secretary of State of the State of
Indiana.
(f) VISITATION RIGHTS. At any reasonable time and from
time to time, permit the Administrative Agent or any of the Lenders or
any agents or representatives thereof, on not less than five Business
Days' notice, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, such
Credit Party or any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Credit Parties and their respective
Subsidiaries with any of their respective officers and with their
independent certified public accountants; subject, however, in all
cases to the imposition of such conditions as the affected Credit
Party or Subsidiary shall deem necessary based on reasonable
considerations of safety and security and provided that so long as no
Default or Event of Default shall have occurred and be continuing,
each Lender will be limited to one visit each year.
50
(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 Parent Guarantor, balance sheets of the Parent
Guarantor and its Consolidated Subsidiaries in comparative form
as of the end of such quarter and statements of income and
retained earnings of the Parent Guarantor and its Consolidated
Subsidiaries for the period commencing at the end of the previous
fiscal year of the Parent Guarantor and ending with the end of
such quarter, certified by the chief financial officer of the
Parent Guarantor.
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Parent Guarantor, a copy
of the annual report for such year for the Parent Guarantor and
its Consolidated Subsidiaries containing financial statements for
such year reported on by independent public accountants of
recognized national standing acceptable to the Required Lenders,
together with a certificate of such accounting firm to the
Administrative Agent and the Lenders stating that in the course
of the regular audit of the business of the Parent Guarantor and
its Consolidated Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default or an Event of Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default or an Event
of Default has occurred and is continuing, a statement as to the
nature thereof;
(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 Parent 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 Parent 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
Parent Guarantor, setting forth calculations, in reasonable
detail, establishing Borrower's compliance, as at the end of such
51
fiscal quarter, with the financial covenants contained in Article
VII;
(iv) as soon as possible and in any event within five days
after the occurrence of each Default or Event of Default
continuing on the date of such statement, a statement of the
chief financial officer of the Borrower setting forth details of
such Event of Default or event and the action which the Borrower
has taken and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof, copies of
all reports which the Parent 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 Parent Guarantor, the Borrower or any Subsidiary of the
Parent 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
Parent 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 Parent 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 Parent Guarantor (or knowledge being
obtained by the Parent 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 Parent Guarantor (or knowledge being
obtained by the Parent Guarantor of the receipt thereof by any
ERISA Affiliate) from the sponsor of a Multiemployer Plan, a copy
of each notice received by the Parent 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 Parent Guarantor or any ERISA
Affiliate in connection with any event described in clause (A) or
(B) above;
52
(x) promptly after the Parent 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 Parent Guarantor or any Material
Subsidiary of the type described in Section 4.01(g);
(xi) promptly after the Parent Guarantor or the Borrower
knows of any change in the rating of the Index Debt by S&P's or
▇▇▇▇▇'▇, a notice of such changed rating; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Parent Guarantor or
any of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
Notwithstanding the foregoing, the Credit Parties' obligations to
deliver the documents or information required under any of clauses
(i), (ii) and (v) above shall be deemed to be satisfied upon (x) the
relevant documents or information being publicly available on the
Parent 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 Parent Guarantor or the Borrower of notice
to the Administrative Agent and the Lenders, within the time period
required by such clause, that such documents or information are so
available.
(i) USE OF PROCEEDS. Use the proceeds of the Loans
hereunder to fund the Merger (including to pay related fees and
expenses) or to provide liquidity support for Commercial Paper, and
for no other purpose.
(j) AMENDMENT OF CREDIT DOCUMENTS. Amend this Agreement
and the other Credit Documents, and execute such additional documents,
as may be reasonably requested by the Arrangers, after consultation
with the Borrower and prior to completion of the successful
syndication of the credit facility provided hereby, to change the
pricing, terms and structure of such credit facility if the Arrangers
determine that such changes are advisable to ensure the successful
syndication thereof.
(k) RATINGS. At all times maintain ratings by both ▇▇▇▇▇'▇
and S&P with respect to the Index Debt.
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. NEGATIVE COVENANTS. So long as any Lender
shall have any Commitment hereunder or any principal of any Loan,
interest or fees payable hereunder shall remain unpaid, no Credit
Party will, without the written consent of the Required Lenders:
53
(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 Loans (together with, if the Parent Guarantor
shall so determine, any other Debt for Borrowed Money of or guaranteed
by the Parent Guarantor or any of its Subsidiaries ranking equally
with the Loans and then existing or thereafter created) equally and
ratably with (or prior to) such Debt for Borrowed 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 Parent 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 Parent Guarantor or any such Subsidiary
other than, in the case of any such construction or improvement,
(1) unimproved real property on which the property so constructed
or the improvement is located, (2) other property (or
improvements thereon) that is an improvement to or is acquired or
constructed for specific use with such acquired or constructed
property (or improvement thereof), and (3) any rights and
interests (A) under any agreements or other documents relating
to, or (B) appurtenant to, the property being so constructed or
improved or such other property;
(ii) existing Liens on any property or indebtedness of a
corporation that is merged with or into or consolidated with any
Credit Party or any of its Subsidiaries; PROVIDED that such Lien
was not created in contemplation of such merger or consolidation;
(iii) Liens on any property or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary of any
Credit Party; PROVIDED that such Lien was not created in
contemplation of such occurrence;
54
(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 Parent 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 secured 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); or
(ix) Liens on any property or assets of a Project Financing
Subsidiary, or on any Capital Stock in a Project Financing
Subsidiary, in either such case, that secure only a Project
Financing or a Contingent Guaranty that supports a Project
Financing; or
(x) Any Lien, other than a Lien described in any of the
foregoing clauses (i) through (ix), inclusive, to the extent that
it secures Debt for Borrowed Money, or guaranties thereof, the
outstanding principal balance of which at the time of creation of
55
such Lien, when added to the aggregate principal balance of all
Debt for Borrowed Money secured by Liens incurred under this
clause (x) then outstanding, does not exceed 5% of Consolidated
Net Tangible Assets.
If at any time any Credit Party or any of its Subsidiaries
shall create, issue, assume or guaranty any Debt for Borrowed Money
secured by any Lien and the first paragraph of this Section 6.01(a)
requires that the Loans be secured equally and ratably with such Debt
for Borrowed Money, the Borrower shall promptly deliver to the
Administrative Agent and each Lender:
(1) a certificate of a duly authorized officer of the
Borrower stating that the covenant contained in the first
paragraph of this Section 6.01(a) has been complied with; and
(2) an opinion of counsel acceptable to the Required
Lenders to the effect that such covenant has been complied with
and that all documents executed by any Credit Party or any of its
Subsidiaries in the performance of such covenant comply with the
requirements of such covenant.
(b) MERGERS, ETC. Merge or consolidate with or into, or,
except in a transaction permitted under paragraph (c) of this Section,
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired) to any Person,
or permit any of its Subsidiaries to do so, except for the Merger and
except that:
(i) any Subsidiary of the Borrower may merge or consolidate
with or transfer assets to or acquire assets from any other
Subsidiary of the Borrower; and
(ii) any Subsidiary of the Borrower may merge into or
transfer assets to the Borrower; and
(iii) the Parent Guarantor or any Subsidiary of the Parent
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 Parent
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 Parent 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
56
party (other than a merger, consolidation or transfer of assets
between the Borrower and the Parent Guarantor), the Borrower
shall be the continuing or surviving corporation; (C) in the case
of any merger, consolidation, or transfer of assets to which
NIPSCO or the Company is a party (other than a merger,
consolidation or transfer of assets between such Person and a
Credit Party), NIPSCO or the Company, as the case may be, shall
be the continuing or surviving corporation; (D) in the case of
any merger, consolidation or transfer of assets to which the
Parent Guarantor is a party, the Parent Guarantor shall be the
continuing or surviving corporation; and (E) the Index Debt
continues to 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) (a) is
for a price not materially less than the fair market value of such
assets, (b) would not materially impair the ability of any Credit
Party to perform its obligations under this Agreement and (c) together
with all other such sales, conveyances, leases, transfers and other
dispositions, would have no Material Adverse Effect, or (2) 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
Parent Guarantor and its Subsidiaries at the Effective Time (after
giving effect to the Merger), determined in accordance with GAAP; and
(B) with respect to which the Borrower complies, if applicable, with
Sections 2.07 and 2.08.
(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 either 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
57
the foregoing shall not apply to prohibitions and restrictions imposed
by this Agreement or (i) (A) imposed under an agreement in existence
on the date of this Agreement, and (B) described on Schedule 6.01(e),
(ii) existing with respect to a Subsidiary on the date it becomes a
Subsidiary that are not created in contemplation thereof (but shall
apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such prohibition or restriction), (iii)
contained in agreements relating to the sale of a Subsidiary pending
such sale, PROVIDED that such prohibitions or restrictions apply only
to the Subsidiary that is to be sold and such sale is permitted
hereunder, (iv) imposed on a Project Financing Subsidiary in
connection with a Project Financing, or (v) that could not reasonably
be expected to have a Material Adverse Effect.
ARTICLE VII
FINANCIAL COVENANTS
After the Effective Time, so long as any of the Commitments
remains in effect, any Loan remains outstanding or any other amount is
owing to any Lender or the Administrative Agent hereunder, the Parent
Guarantor shall:
SECTION 7.01. INTEREST COVERAGE RATIO. Maintain:
(a) until the end of the fourth full fiscal quarter to end
after the Effective Time, for each period commencing at the Effective
Time and ending on the last day of a fiscal quarter, and
(b) commencing with the period of four consecutive fiscal
quarters ending on the last day of the fourth full fiscal quarter to
end after the Effective Time, for each period of four consecutive
fiscal quarters:
an Interest Coverage Ratio of not less than 2.00 to 1.00.
SECTION 7.02. DEBT TO CAPITALIZATION RATIO. Maintain a
Debt to Capitalization Ratio of not more than:
(a) 0.72 to 1.00 at the end of each of the fiscal quarters
ending December 31, 2000 and March 31, 2001;
(b) 0.70 to 1.00 at the end of the fiscal quarter ending
June 30, 2001; and
(c) 0.68 to 1.00 at the end of each fiscal quarter
thereafter, commencing with the fiscal quarter ending September 30,
2001.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Loan 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(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 Parent Guarantor, the Borrower or any of their
respective Subsidiaries shall fail to pay any principal of or premium
or interest on any Indebtedness (excluding Non-Recourse Debt) which is
outstanding in a principal amount of at least $50,000,000 in the
aggregate (but excluding the Loans) of the Parent Guarantor, the
Borrower or such Subsidiary, as the case may be, when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the scheduled maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof;
or
(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
59
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 Parent Guarantor (other
than any Credit Party) in which the aggregate sum of (i) the amounts
invested by the Parent 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 Parent
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
Parent 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
60
Parent Guarantor or any of its other Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) Any ERISA Event shall have occurred with respect to a
Plan and, 30 days after notice thereof shall have been given to the
Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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
61
(k) of this Section), and a Material Adverse Effect could reasonably
be expected to occur as a result thereof; or
(m) Any Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice
to the Borrower, declare the Commitment of each Lender 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 if
any Event of Default shall occur at any time while any Term Loan is
outstanding, it shall not be necessary to declare the Commitments
terminated, but, upon any acceleration of the Term Loans pursuant to
the preceding clause (ii), the Commitments shall automatically
terminate, without further notice of any kind, which is hereby
expressly waived by the Borrower; and PROVIDED, FURTHER, 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 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.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. THE ADMINISTRATIVE AGENT
(a) Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental
thereto.
(b) The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were
not the Administrative Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind
of business with the any Credit Party or any of such Credit Party's
Subsidiaries or other Affiliates thereof as if it were not the
Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting
62
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 Parent 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.
(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
63
apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the Lenders
and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, with the consent of the Borrower (which consent
shall not unreasonably be withheld), to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank, in any event
having total assets in excess of $500,000,000 and who shall serve
until such time, if any, as an Agent shall have been appointed as
provided above. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder,
the provisions of this Article and Section 11.03 shall continue in
effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender
and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder.
(h) No Lender identified on the signature pages of this
Agreement as a "Co-Syndication Agent", "Documentation Agent" or
"Managing Agent", or that is given any other title hereunder other
than the "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 "Co-
Syndication Agent", "Documentation Agent" or "Managing Agent" or that
is given any other title hereunder, shall have, or be deemed to have,
any fiduciary relationship with any Lender. Each Lender acknowledges
64
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.
ARTICLE X
GUARANTY
SECTION 10.01. THE GUARANTY
(a) Each 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) Each 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 each 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. The
obligations of the Guarantors under this Guaranty shall be joint and
several.
65
(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 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 Guarantors
hereunder shall not be conditioned or contingent upon the pursuit by
any Beneficiary or any other Person at any time of any right or remedy
against the Borrower or any other Person that may be or become liable
in respect of all or any part of the Obligations or against any
collateral security or guaranty therefor or right of setoff with
respect thereto.
(e) Each 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) Each Guarantor's obligations under this Guaranty shall
be unconditional, irrespective of any lack of capacity of the Borrower
or the other Guarantor 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 Guarantors 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, each 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.
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SECTION 10.02. WAIVERS
(a) Each 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 either 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
either 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, either Guarantor's obligations hereunder.
(b) No failure on the part of any Beneficiary to exercise,
and no delay in exercising, any right, remedy, power or privilege
hereunder or under any Credit Document or any other agreement or
instrument relating thereto shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under any Credit Document or any other
agreement or instrument relating thereto preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. This Guaranty is in addition to and not in limitation of
any other rights, remedies, powers and privileges the Beneficiaries
may have by virtue of any other instrument or agreement heretofore,
contemporaneously herewith or hereafter executed by either 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 Guarantors 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) Each 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 each
Guarantor hereby expressly and irrevocably waives, until the
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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,
the other Guarantor 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 such
Guarantor's execution, delivery or performance of this Guaranty.
(d) Each 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 such 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: (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to the Administrative Agent, to Credit Suisse First
Boston,
Eleven Madison Avenue
New York, New York 10010
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any Party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
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SECTION 11.02. WAIVERS; AMENDMENTS (a) No failure or delay
by the Administrative Agent 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 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, the making of a Loan shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent 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 Parent
Guarantor and the Required Lenders or by the Borrower, the Parent
Guarantor and the Administrative Agent with the consent of the
Required Lenders; PROVIDED that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any
Loan, or any interest thereon, or 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
2.18(b) or (c) in a manner that would alter the PRO RATA sharing of
payments required thereby, without the written consent of each Lender,
(v) release either 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 hereunder
without the prior written consent of the Administrative Agent.
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
69
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), and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the fees, charges and disbursements of any counsel
for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in connection
with the Loans made hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent,
each Co-Syndication Agent, the Documentation Agent, 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
Loan 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
Parent Guarantor or any of its other Subsidiaries, or any
Environmental Liability related in any way to the Borrower, the Parent
Guarantor or any of its other Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto;
PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities
or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent 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 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
70
damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the
Transactions or any Loan or the use of the proceeds thereof.
(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, except that no Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (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, in consultation with the Borrower,
assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); PROVIDED that (i)
except in the case of an assignment to a Lender or an Affiliate of a
Lender, the Administrative Agent must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld),
(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
$10,000,000 unless each of the Borrower and the Administrative Agent
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, except that this clause
(iii) shall not apply to rights in respect of outstanding Competitive
Loans, (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; PROVIDED, FURTHER, that any consent
of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (f) or (g) of Article
VIII has occurred and is continuing. 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
71
Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17
and 11.03), any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amount of the Loans
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive
(absent manifest error), and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); PROVIDED that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii)
the Borrower, the Guarantors and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
72
modification or waiver described in the first proviso to Section
11.02(b) that affects such Participant. Subject to paragraph (f) of
this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same
extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.l5 or 2.17 than the applicable Lender
would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is
notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to a
Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; PROVIDED that no such
pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such assignee
for such Lender as a party hereto.
(h) Anything herein to the contrary notwithstanding, each
Lender (the "Granting Lender") shall have the right, without the prior
consent of the Borrower, to grant to a special purpose funding vehicle
(the "SPFV") that is an Affiliate of such Granting Lender, identified
as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide all or
any part of any Loan that such Granting Lender would otherwise be
obligated to make hereunder, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPFV or shall relieve
its Granting Lender of any obligation of such Granting Lender
hereunder or under any other Credit Document, except to the extent
that such SPFV actually funds all or part of any Loan such Granting
Lender is obligated to make hereunder, (ii) if an SPFV elects not to
exercise such option or otherwise fails to provide all or any part of
such Loan, such Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof, (iii) the Granting Lender hereby
indemnifies and holds the Administrative Agent harmless from and
against any liability, loss, cost or expense (including for or in
respect of Taxes) arising out of such identification and grant or any
transaction contemplated thereby, and (iv) the provisions of this
paragraph (h) shall not impose any increased cost or liability on any
Credit Party. The making of a Loan by an SPFV hereunder shall utilize
the Commitment of its Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto agrees
that no SPFV shall be liable for any payment under this Agreement or
any other Credit Document for which a Lender would otherwise be
73
liable, for so long as, and to the extent that, its Granting Lender
makes such payment. As to any Loans or portions of Loans made by it,
each SPFV shall have all the rights that a Lender making such Loans or
such portions of Loans would have had under this Agreement and
otherwise; provided that (1) its voting rights under this Agreement
shall be exercised solely by its Granting Lender and (2) its Granting
Lender shall remain solely responsible to the other parties hereto for
the performance of such SPFV's obligations under this Agreement,
including its obligations in respect of the Loans or portions of Loans
made by it. No additional Notes, if any, shall be required to
evidence the Loans or portions of Loans made by a SPFV; and the
Granting Lender shall be deemed to hold its Note, if any, as agent for
its SPFV to the extent of the Loans or portions of Loans funded by
such SPFV. Each Granting Lender shall act as administrative agent for
its SPFV and give and receive notices and other communications on its
behalf. Any payments for the account of any SPFV shall be paid to its
Granting Lender as administrative agent for such SPFV, and neither any
Credit Party nor the Administrative Agent shall be responsible for any
Granting Lender's application of such payments. In furtherance of the
foregoing, each party hereto hereby agrees that, until the date that
is one year and one day after the payment in full of all outstanding
senior Debt of any SPFV, it shall not institute against, or join any
other Person in instituting against, such SPFV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings (or
any similar proceedings) under the laws of the United States of
America or any State thereof. In addition, notwithstanding anything
to the contrary contained in this paragraph (h), an SPFV may (1) (A)
with notice to, but without the prior written consent of, the
Administrative Agent or the Borrower and without paying any processing
fee therefor, assign all or any portion of its interest in any Loan to
its Granting Lender or (B) with the consent (which consent shall not
be unreasonably withheld) of the Administrative Agent and (if no Event
of Default has occurred and is continuing) the Borrower, but without
paying any processing fee therefor, assign all or any portion of its
interest in any Loan to any financial institution providing liquidity
or credit facilities to or for the account of such SPFV to fund the
Loans funded by such SPFV or to support any securities issued by such
SPFV to fund such Loans, and (2) disclose, on a confidential basis,
any non-public information relating to Loans funded by it to any
rating agency, commercial paper dealer or provider of a surety,
guaranty or credit or liquidity enhancement to such SPFV. The
Borrower shall not be required to pay, or to reimburse any Granting
Lender for, its expenses relating to any SPFV identified by such
Granting Lender pursuant to this paragraph (h).
SECTION 11.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans. The
provisions of Sections 2.15, 2.16, 2.17 and 11.03 and Article IX shall
74
survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS.
This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall
constitute a single contract. This Agreement, the commitment letter
relating to the credit facility provided hereby (to the extent
provided therein) and any separate letter agreements with respect to
fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 3.01, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery
of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 11.07. SEVERABILITY. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any
other jurisdiction.
SECTION 11.08. RIGHT OF SETOFF. If an Event of Default
shall have occurred and be continuing, each Lender or any Affiliate
thereof 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, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such
Obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
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SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS.
(a) This Agreement shall be construed in accordance with
and governed by the law of the State of New York, without regard to
principles of conflicts of law.
(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
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ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.11. HEADINGS. Article and Section headings and
the Table of Contents used herein are for convenience of reference
only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 11.12. CONFIDENTIALITY. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e)
in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any
of its rights or obligations under this Agreement (PROVIDED that so
long as no Default or Event of Default shall have occurred and be
continuing, the Borrower has given its prior consent to such assignee,
which consent shall not be unreasonably withheld), (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.
77
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/ ▇▇▇▇▇▇▇ ▇. Adik
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. Adik
Title: Vice President
NEW NISOURCE INC., as a
Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. Adik
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. Adik
Title: Vice President
NISOURCE INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. Adik
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. Adik
Title: Senior Executive
Vice President
CREDIT SUISSE FIRST BOSTON, as
a Lender and as Administrative
Agent and Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
78
BARCLAYS BANK PLC as a Lender
and as Documentation Agent and
Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
THE BANK OF TOKYO-MITSUBISHI,
LTD., as a Lender and Managing
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General
Manager
BNP PARIBAS, as a Lender and
Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
TORONTO DOMINION (TEXAS),
INC., as a Lender and Managing
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
79
BANK OF MONTREAL
as a Lender and Managing Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender and
Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Joint General
Manager
THE BANK OF NOVA SCOTIA, as a
Lender and Managing Agent
By: /s/ F.C.H. ▇▇▇▇▇
--------------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager
Loan Operations
BANK ONE, NA, as a Lender and
Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
80