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File No. 70-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM U-1 APPLICATION-DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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Interstate Energy Corporation
222 West Washington Avenue
Madison, Wisconsin 53703
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(Names of companies filing this statement and
addresses of principal executive offices)
None
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(Name of top registered holding company,
parent of each applicant or declarant)
Erroll B. Davis, Jr.
President and
Chief Executive Officer
Interstate Energy Corporation
222 West Washington Avenue
Madison, Wisconsin 53703-0192
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(Names and addresses of agents for service)
The Commission is requested to send copies of all notices, orders and
communications in connection with this Application-Declaration to:
Barbara J. Swan M. Douglas Dunn
General Counsel Milbank, Tweed, Hadley & McCloy
Interstate Energy Corporation One Chase Manhattan Plaza
222 West Washington Avenue New York, New York 10005
Madison, Wisconsin 53703-0192
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ITEM. 1. DESCRIPTION OF PROPOSED TRANSACTIONS.
In this Application-Declaration, Interstate Energy Corporation
("IEC"), a registered holding company under the Public Utility Holding Company
Act of 1935, as amended (the "Act") seeks authorization for (i) IEC and Alliant
Industries, Inc. ("Alliant") to issue notes and/or commercial paper, (ii) IEC
and Alliant to make capital contributions, (iii) the subsidiaries of each of
IEC and Alliant, including Alliant Services Company ("Services"), to incur
short-term borrowings and (iv) IEC and its subsidiaries, including Alliant, to
establish and utilize a system of separate money pools to coordinate and
provide for the short-term cash requirements of the applicants, as provided
herein.
DESCRIPTION OF THE APPLICANTS
The Securities and Exchange Commission (the "Commission") issued an
order on April 14, 1998 (the "Order") approving the combination of WPL Holdings,
Inc. ("WPLH"), IES Industries, Inc. ("IES") and Interstate Power Company
("IPC"), pursuant to which the utility subsidiary of IES, IES Utilities Inc.
("Utilities"), and IPC would become subsidiaries of WPLH (the "Transaction"),
and Alliant would become the successor to IES Diversified, Inc.
("Diversified") and would hold all of the non-utility businesses formerly owned
by WPLH, IES and IPC. Upon the Consummation of the Transaction, WPLH was
renamed IEC. Also, Services was incorporated in Iowa as a non-utility
subsidiary of WPLH and will function as the service company for IEC. IEC
registered with the Commission as a holding company under the Act.
Additional information about the applicants and their businesses is set
forth in the Form U-1 Application-Declaration filed in respect of the
Transaction in File No. 70-8891 of the Commission, and the amendments and
exhibits thereto.
NOTES, GUARANTEES AND COMMERCIAL PAPER
The parties request authority for IEC to issue commercial paper that
will have a commercial rating of at least A-1 by Standard & Poor's ("S&P") or
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at least P-1 by Moody's Investor Services ("Moody's") and for Alliant to issue
commercial paper that will have a commercial rating of at least A-2 by S&P or
P-2 by Moody's, in aggregate principal amounts not to exceed their respective
limits, as stated below. The parties request further that they be authorized by
the Commission to incur borrowings in an aggregate principal amount at any one
time outstanding not to exceed their respective limits, as stated below, with
the aggregate amount for all of the parties together not to exceed the combined
respective borrowing limitations for IEC, Alliant and Services.
BORROWING AUTHORITY
Under the authority requested herein, the maximum anticipated principal
amounts of such commercial paper or bank lines of credit outstanding at any one
time for IEC, Alliant and Services, will not exceed:
<TABLE>
<CAPTION>
MONEY POOL/SHORT TERM BORROWING AUTHORITY AGGREGATE AMOUNT
----------------------------------------- ----------------
<S> <C>
Utility Money Pool (IEC) $300,000,000
Non-Utility Money Pool (Alliant) $600,000,000
Services(IEC) $100,000,000
Total $1,000,000,000
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</TABLE>
USE OF PROCEEDS
The maximum anticipated borrowing authorization that will be required
by the regulated utility subsidiaries of IEC from the Utility Money Pool that
shall be established pursuant to the authority requested herein shall be
$300,000,000. The utilities intend to use the funds for general corporate
purposes such as interim funding of the construction program until permanent
financing can be arranged. The maximum anticipated borrowing authorization that
will be required by the unregulated non-utility subsidiaries of IEC from
the Non-Utility Money Pool that shall be established pursuant to the authority
requested herein shall be $600,000,000. The maximum anticipated borrowing
authorization that will be required by Services shall be $100,000,000. Pursuant
to the authority requested herein, borrowings will not exceed those levels
permitted from time to time by the particular borrowing company's Articles or
Certificate of Incorporation. Also, proceeds of borrowings by the subsidiaries
will be used to provide working capital for their operations or to repay
borrowings used for such purpose. The borrowings by IEC and Alliant will be used
to loan to the subsidiaries for such purposes. Certain of the
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borrowings of Alliant, in addition, may be used to acquire a foreign utility
company ("FUCO") prior to refunding the acquisition costs with long-term
securities.
THE MONEY POOLS
The applicant named above hereby submits this Application-Declaration
with respect to the proposed establishment of three separate short-term
borrowing authorities, including two money pools, that will be administered by
Services. One Money Pool will be exclusively for the non-regulated, non-utility
subsidiaries of IEC ("Non-Utility Money Pool"). The Non-Utility Money Pool will
be funded by Alliant on a short-term basis and, to a lesser degree, by the
non-utility subsidiaries that participate in that Money Pool. The funds will be
made available by Alliant to the non-utility subsidiaries that have a need for
short-term funds.
The second Money Pool will be exclusively for regulated utility
subsidiaries of IEC ("Utility Money Pool"), which include Wisconsin Power &
Light Company ("WP&L"), South Beloit Water, Gas & Electric Comapny ("South
Beloit") Utilities and IPC. The funds available to the Utility Money Pool will
be loaned by IEC on a short-term basis to applicants that are regulated utility
subsidiaries and, to a lesser extent, will also come from the utility
participants themselves through the investment of surplus into that Money Pool.
The third short-term borrowing authority will be for short-term
borrowings required by Services (the "Services Authority"). The Services
Authority will be funded by IEC and credit facilities established by Services.
Generally, under the proposed terms of the respective Money Pools, from
time to time, short-term funds will be made available by IEC and Alliant for
short-term loans to the participants. Funds will be made available from such
sources in such order as Services, as administrator of the Money Pools, may
determine will result in a lower cost of borrowing, consistent with the
individual borrowing needs and financial standing of the participating
subsidiaries. The proposed terms of the Money Pools are memorialized in
definitive forms of agreement filed herewith as Exhibit A ("Non-Utility Money
Pool Agreement") and Exhibit B ("Utility Money Pool Agreement" and, together
with the Non-Utility Agreement, the "Money Pool Agreements").
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Services will provide each Money Pool participant with periodic
activity and cash accounting reports that include, among other things, reports
of cash activity, the daily balance of loans outstanding and the calculation of
daily interest charged. No party will be required to effect a borrowing through
a Money Pool if it is determined that it could (and had authority to) effect a
borrowing at lower cost directly from banks.
The operation of the Money Pools is designed to match, on a daily
basis, the available cash and short-term borrowing requirements of the
applicants, thereby minimizing the need for external short-term borrowings by
IEC and Alliant. To this end, the short-term borrowing requirements of the
applicants may be met internally with the proceeds of borrowings available
through the Money Pools. To the extent necessary, IEC and Alliant will use the
proceeds of external borrowings, up to the approved limits which are
subsequently authorized by this Commission, to accommodate the short-term
requirements of the other participants. Requirements satisfied by the Money
Pools will be in the form of open account advances and will not exceed the
approved limits contained in the financing program of IEC, Alliant and the
other subsidiaries that may be subsequently authorized by this Commission.
IEC and Alliant will be participants in the Money Pools only insofar as
they have funds available for lending obtained either through internal
generation or from external sources, except that IEC may borrow from the
Non-Utility Money Pool. Under no circumstances will IEC or Alliant be permitted
to borrow funds available through the Utility Money Pool. If at any
time there are funds remaining in the Money Pools after satisfaction of the
borrowing needs of the participating subsidiaries, Services, as the agent of
the Money Pools, will invest these funds appropriately and consistent with
applicable state and federal regulations and allocate the earnings on any such
investments between or among those applicants within each respective Money Pool
according to the amount of excess funds provided by each respective applicant.
All borrowings from, and contributions to, the Money Pools will be
adequately documented and will be evidenced on the books of each applicant that
is borrowing or contributing funds through the Money Pools. All loans will be
payable on demand, may be prepaid by any borrowing applicant at any
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time without premium or penalty and will be subject to interest that shall be
calculated and added to the outstanding loan balance. Such rates shall be
adjusted periodically (see below). Any participating subsidiary that contributes
funds to a Money Pool may withdraw them at any time to satisfy its daily need of
funds.
These procedures, as proposed, will be beneficial to the IEC financial
system because they will create significant economies from the effective use of
funds that will result in the reduction of bank balances; the reduction of
administrative costs associated with borrowings and investments created by,
among other things, eliminating the need for the participants to maintain their
own separate bank accounts, cash balances and credit facilities; provide
increased flexibility and control in cash management; and the ability of IEC and
Alliant, which will obtain external financing, to defer or pre-pay short-term
financing, such as loans with banks and commercial paper borrowings.
COMMERCIAL PAPER BORROWINGS
The applicants request authority for IEC to issue and sell commercial
paper rated at least A-1/P-1 and for Alliant to issue and sell commercial
paper rated at least A-2/P-2 to one or more dealers subject to the limitations
on aggregate outstanding principal amounts stated above. IEC will offer and
sell commercial paper issues for the Utility Money Pool and for Services;
Alliant will offer and sell commercial paper issues for the Non-Utility Money
Pool. There will not be an affiliation between IEC or any of its subsidiaries,
including Alliant, and any dealer or any of its affiliates.
The proceeds from the sales of the commercial paper issues intended
to fund the Non-Utility Money Pool will be added to Alliant's treasury funds
in a separate Non-Utility account and will be loaned by Alliant through the
Non-Utility Money Pool from that account from time to time to, or invested in,
the non-utility subsidiaries in the manner herein described. Similarly, the
proceeds from the sales of the commercial paper issues intended to fund the
Utility Money Pool and Services will be added to IEC's treasury funds in
separate Utility and Services accounts, respectively. The funds to be loaned by
IEC to the utility subsidiaries will be through the Utility Money Pool.
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The commercial paper that IEC and Alliant will issue to dealers will
be in the form of book-entry unsecured promissory notes (in substantially the
form filed herewith as Exhibit C (IEC) and Exhibit D (Alliant)), will be in
varying denominations of not less than $100,000 each and will have varying
maturities of not more than two-hundred and seventy days from the date of
issue. Such notes will be issued and sold by IEC and Alliant directly to
dealers at rates not to exceed the rate per annum prevailing at the time of
issuance for commercial paper of comparable qualities and maturities sold by
issuers thereof to commercial paper dealers. No commission or fee will be
payable in connection with the issuance and sale of the commercial paper. The
purchasing dealer, however, will reoffer such notes at a rate less than the
rate to the issuer. The dealers, as principals, will reoffer such notes in
such a manner as not to constitute a public offering under the Securities Act
of 1933.
The IEC and Alliant commercial paper notes that are sold to dealers
are expected to be held by purchasers to maturity, except that if purchasers
wish to sell such notes prior thereto, the dealers generally will repurchase
such notes and reoffer them to other purchasers. The IEC and Alliant
commercial paper shall not be extended, although certain of the commercial
paper shall be paid at maturity by application of proceeds from the issuance
and sale by IEC and Alliant of other commercial paper or bank notes (referred
to below) issued prior to or contemporaneously with such maturity. At final
maturity, the commercial paper borrowings will be repaid by IEC and Alliant
from the repayment of loans made to the subsidiaries in the respective Money
Pools and to Services, as well as from other internal sources, or from other
short-term borrowings if authorized by the Commission.
The applicants also request authorization for IEC and Alliant to sell
commercial paper directly to certain financial institutions. Sales of commercial
paper directly to such institutions will be undertaken only if the resulting
cost of money will be equal to or less than that available from dealer-placed
commercial paper or bank borrowings. Terms for directly-placed notes would be
similar to those of dealer-placed notes.
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BANK BORROWINGS
a. EXISTING BANK FACILITIES
Alliant has two unsecured credit facilities totaling $600 million (the
"Credit Facilities"), with Citibank N.A. acting as agent. The Credit Facilities
were established originally by Diversified, which was the intermediate holding
company for non-regulated affiliates of IES. Diversified was merged into Alliant
upon the consummation of the Transaction. Pursuant to an Assumption Agreement,
dated November 21, 1997, among WPLH, IES, Diversified, Alliant (which was named
Heartland Development Company at the time the agreement was executed), Citibank
N.A. and Citicorp Securities, Inc., Alliant assumed all of the obligations of
Diversified under the Credit Facilities. The first Credit Facility is a
364-day facility totaling $150 million which terminates on October 19, 1998.
The second is a three-year facility totaling $450 million which terminates on
October 20, 2000. Both facilities are available for direct borrowing or
commercial paper back up.
IEC has a $150 million 364-day syndicated credit facility (the
"Parent Facility") with The First National Bank of Chicago acting as agent.
The Parent Facility was obtained originally by WPLH; upon the consummation of
the Transaction, the Parent Facility became the obligation of IEC. It will be
available for direct borrowing or for back-up of commercial paper. The Parent
Facility is unsecured and terminates on November 4, 1998. A Form of Credit
Agreement (which is actually the credit agreement for the Parent Facility)
establishing the credit facilities is included as Exhibit J to this
Application-Declaration.
b. AUTHORIZATION REQUESTED
The issuance of commercial paper by IEC and Alliant will, in most
periods result in effective interest costs lower than the interest costs of
borrowing from commercial banks. In the event, however, that borrowings from
banks will produce a lower cost of money than the issuance of IEC's or Alliant's
commercial paper, and to the extent that IEC's and Alliant's corporate funds and
subsidiaries' loans of excess funds through the Money Pools are inadequate to
fulfill the subsidiaries' requests for short-term loans, IEC and Alliant will
borrow from banks, subject to the limitations on aggregate principal amounts
stated above. Services also requests permission to borrow directly from banks.
IEC and Alliant may, from time to time, negotiate increases or decreases to
existing lines of credit or arrange new lines of credit in order to minimize the
cost of these lines by matching the amount of the lines to the subsidiaries'
short-term borrowing needs. In no event will the total lines exceed the
subsidiaries' total borrowing authority.
Borrowings from banks will be evidenced by promissory notes; the form
of the notes is filed as Exhibit E. Each of such notes, whether issued pursuant
to a term loan or an open credit line, shall be for the principal amount
available to be borrowed at the time from the lending bank and be payable to the
order of such bank, shall be dated the date of the closing of the loan, shall
bear interest at a rate no higher than the effective cost of money for unsecured
prime commercial bank loans prevailing on the date of such borrowing, and shall
be subject to repayment by the borrower in whole at any time or in part from
time to time without premium or penalty.
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The cost of compensating balances and fees paid to banks to maintain
credit lines will be initially allocated to the subsidiaries of IEC and Alliant
on the basis of relative maximum outstanding short-term borrowings for
the prior calendar year from the particular Money Pool in which a subsidiary
participates, and such costs will be retroactively reallocated at the end of
each calendar year on the basis of that year's actual relative maximum
outstanding short-term borrowings of each subsidiary in its particular Money
Pool. Except that in the first calendar year of operation of the Money Pools,
such costs will be initially allocated to the subsidiaries based on the
relative maximum borrowing authority of each subsidiary, and, similar to the
calculations to be made in subsequent years of operation, such costs will be
retroactively reallocated at the end of that first calendar year on the basis
of that year's actual relative maximum outstanding short-term borrowings for
each subsidiary. Thus, each company will be reallocated that proportion of the
total line of credit costs which is equal to the percentage which its maximum
short-term borrowings from a particular Money Pool during the year represent of
the aggregate of the maximum short-term borrowings, on a noncoincidental basis,
of all the subsidiaries in that particular Money Pool.
TERM AND MATURITIES
IEC and Alliant request authority to enter into arrangements described
herein for a period ending September 30, 2001. Subject to the limitations set
forth above, commercial paper borrowings will be tailored to mature at such
time as excess funds from IEC and Alliant, respectively, are expected to become
available for loans through one of the Money Pools described above or at such
time, from time to time, that Services is expected to generate excess funds.
Upon the availability of any such excess funds, external borrowings will be
retired and loans refinanced to the extent such funds became available.
FORM OF LOANS TO PROPOSED SUBSIDIARIES
Loans to the subsidiaries through the Money Pools will be made pursuant
to open account advances pursuant to the terms of the Money Pool Agreements. A
separate promissory note will not be required for each individual transaction.
Instead, a promissory grid note evidencing the terms of the transactions shall
be signed by the parties to the transactions. Any such note will be
substantially in the form filed herewith as Exhibits F (IEC)
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and G (Alliant), dated as of the date of the initial borrowing, maturing on a
date agreed to by the parties to the transaction and prepayable in whole at
any time or in part from time to time without premium or penalty.
INTEREST RATES
The interest rates applicable on any day to the then outstanding loans
through the Money Pools, or to Services from IEC, may be fixed or variable and
may be adjusted based on the weighted average daily effective cost incurred by
IEC and Alliant, respectively, for each Money Pool for borrowings from external
sources. If there are not external borrowings outstanding from a particular
Money Pool, however, then the rate will be the CD yield equivalent of the 30-day
Federal Reserve "AA" Industrial Commercial Paper Composite Rate (the
"Composite"), or if no Composite is established for that day, then the
applicable rate will be the Composite for the next preceding day for which the
Composite is established. The calculations to be used to determine the
appropriate interest rates are described in detail in the forms of the
Non-Utility and Utility Money Pool Agreements, which are included herewith as
Exhibits A and B, respectively.
REPORTING
As stated above, operation of the Non-Utility and Utility Money Pools,
including record keeping and coordination of loans, will be handled by Services
under the authority of the appropriate officers of the participating companies.
Services will administer the Utility Money Pool on an "at cost" basis and may
administer the Non-Utility Money Pool on a different cost basis. It will
maintain separate records for each Money Pool. Funds in the Money Pools shall
be separately invested.
Services will also provide cash management and banking services to the
subsidiaries of IEC that participate in the Money Pools. These services shall
include maintaining controlled-disbursement checking accounts, electronic
disbursement facilities and cash concentration facilities. These services will
be paid for by the subsidiaries through fees calculated pursuant to different
cost bases for the Utility and the Non-Utility Money Pools to be determined by
Services and may be collected through a variety of means,
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including the payment of a fee or the inclusion of the fee into the interest
payments made by the respective subsidiaries.
Within 45 days after the end of each calendar quarter, Services, on
behalf of the applicants, will file a certificate with the Commission pursuant
to Rule 24 under the Act setting forth (i) each applicant's maximum principal
amount of short-term borrowings outstanding during such quarter, (ii) the
average rate for the Utility Money Pool during such period, and (iii) the
maximum amount outstanding during such period for each source of outside
borrowings.
Also, within 45 days after the end of each calendar quarter, Services,
on behalf of the participating subsidiaries in the Non-Utility Money Pool and on
its own behalf, will file with the Commission a certificate of notification on
Form U-6B-2 pursuant to Rule 52 including the following information for each
participating subsidiary:
(i) the aggregate dollar amount borrowed from the Non-Utility
Money Pool by such subsidiaries in the preceding calendar
quarter, including as to each month thereof;
(ii) a statement explaining the subsidiaries' use of the proceeds
of such borrowings during such calendar quarter; and
(iii) the type of business engaged in by such subsidiaries during
such calendar quarter.
STATEMENT PURSUANT TO RULE 54
The applicants do not intend at present to use the Utility Money Pool
proposed herein to finance the acquisition of an exempt wholesale generator
("EWG") or a FUCO. If the applicants' intention changes, an amended Form U-1
Application-Declaration will be filed requesting authorization for such use. The
applicants request, however, the authority to use proceeds from the Non-Utility
Money Pool to finance such a FUCO acquisition.
Under Rule 54, in determining whether to approve the issuance or sale
of a security by a registered holding company for purposes other than the
acquisition of an EWG or FUCO or other transactions by such registered holding
company or its subsidiaries other than with respect to EWGs or FUCOs, the
Commission shall not consider the effect of the capitalization or earnings of
any subsidiary which is an EWG or FUCO upon the registered holding company
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system, if the conditions set forth in Rule 53(a), (b) and (c) are satisfied. As
set forth below, all applicable conditions set forth in Rule 53(a) are
satisfied, and none of the conditions set forth in Rule 53(b) exists.
Four companies in the IEC system are FUCO's. IES International Inc.
("International"), IES New Zealand Ltd. ("IES New Zealand"), Interstate Energy
Corporation PTE Ltd. ("PTE") and IES Brazil Ltd. ("IES Brazil") are FUCO's and
have filed a Notification of FUCO status on Form U-57 with the Commission.
As for Rule 53(a)(1), the aggregate investment of IEC in EWG's and
FUCO's does not exceed fifty percent of IEC's consolidated retained earnings.
The average consolidated retained earnings of IEC for the four consecutive
quarters ended March 30, 1998, was $594,631,000, and the aggregate investment
of IEC in EWG's and FUCO's at March 30, 1998 was $59,000,000, or roughly
10% of consolidated retained earnings.
Pursuant to Rule 53(a)(2), IEC will maintain books and records to
identify investments in and earnings from any EWG and any FUCO in which it will
directly or indirectly hold an interest. In accordance with Rule 53(a)(2)(i)
and (ii), the books and records and financial statements of each EWG and FUCO
that will be a "majority-owned subsidiary company" of IEC will be kept in
conformity with and prepared according to U.S. generally accepted accounting
principles ("GAAP"). IEC will provide the Commission access to such books and
records and financial statements, or copies thereof, in English, as the
Commission may request.
In accordance with Rule 53(a)(2)(iii), for each EWG or FUCO in which
IEC will directly or indirectly own 50 percent or less of the voting securities,
IEC will proceed in good faith, to the extent reasonable under the
circumstances, to cause each such entity's books and records to be kept in
conformity with, and the financial statements of each such entity to be prepared
according to, GAAP. If such books and records are maintained, or such financial
statements are prepared, according to a comprehensive body of
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accounting principles other than GAAP, IEC will, upon request of the Commission,
describe and quantify each material variation from GAAP in the accounting
principles, practices and methods used to maintain such books and records and
each material variation from GAAP in the balance sheet line items and net income
reported in such financial statements, as the case may be. In addition, IEC will
proceed in good faith, to the extent reasonable under the circumstances, to
cause access by the Commission to such books and records and financial
statements, or copies thereof, in English, as the Commission may request, and in
any event will make available to the Commission any such books and records that
are available to IEC.
Consistent with Rule 53(a)(3), no more than two percent of the
employees of IEC's domestic public utility companies will render services, at
any one time, to an EWG or a FUCO in which IEC will own an interest.
Approximately 7 employees of IEC at any one time will render services to IES
New Zealand, PTE, IES Brazil and International. Based on current staffing
levels, this represents approximately 0.1% of the 6,137 full-time employees of
the public utility subsidiary companies of IEC.
In accordance with Rule 53(a)(4), IEC will simultaneously
submit a copy of this Application-Declaration, and will submit copies of any
Rule 24 certificates required hereunder, as well as a copy of Item 9 of IEC's
Form U5S and Exhibits thereto, to each of the public service commissions having
jurisdiction over the retail rates of IEC's utility subsidiaries at the time
such documents will be filed with the Commission. The provisions of Rule 53(a)
are not made inapplicable to the authorizations herein requested by reason of
the provisions of Rule 53(b). Inasmuch as Rule 53(c) will apply only if an
applicant will be unable to satisfy the requirements of Rules 53(a) and (b), it
will be inapplicable here.
ITEM 2. FEES, COMMISSIONS AND EXPENSES.
An estimate of the fees and expenses to be paid or incurred by the
applicants in connection with the proposed transactions is set forth below:
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<TABLE>
<CAPTION>
Description Amount
----------- ------
<S> <C>
Rating agency fees for commercial
paper (annual)......................................... $ 25,000
Fees with respect to bank borrowings.................... $ 1,015,000
Counsel fees............................................ $ 10,000
Total................................................... $ 1,050,000
</TABLE>
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ITEM 3. APPLICABLE STATUTORY PROVISIONS.
Sections 2(a)(8), 6, 7, 9(a), 10, 12(b), 12(f) and 13 of the Act and
Rules 40, 43, 45, 53, 54 and 80-95 thereunder are or may be applicable to one or
more of the proposed transactions described herein. To the extent any other
sections of the Act and the Commission's rules thereunder may be applicable to
the proposed transactions, the Applicants hereby request appropriate orders
thereunder.
ITEM 4. REGULATORY APPROVAL.
The Minnesota Public Utilities Commission will have jurisdiction over
the transactions as they relate to the public utility subsidiaries with
operations in Minnesota. Except as described above, no state or federal
regulatory authority, other than the Commission under the Act, has jurisdiction
over any of the proposed transactions, and no other state or federal
authorizations are required for the transactions described herein.
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ITEM 5. PROCEDURE.
It is requested that the Commission issue and publish no later than
July 10, 1998 the requisite notice under Rule 23 with respect to the filing of
this Application-Declaration, such notice to specify a date not later than
July 17, 1998, as the date after which an order granting and permitting this
Application-Declaration to become effective may be entered by the Commission and
that the Commission enter not later than July 18, 1998 an appropriate order
granting and permitting this Application-Declaration to become effective.
No recommended decision by a hearing officer or other responsible
officer of the Commission is necessary or required in this matter. The Division
of Investment Management of the Commission may assist in the preparation of the
Commission's decision in this matter. There should be no thirty-day waiting
period between the issuance and the effective date of any order issued by the
Commission in this matter, and it is respectfully requested that any such order
be made effective immediately upon the entry thereof.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS.
The following exhibits are filed as part of this statement:
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
- -------- -----------
<S> <C>
Exhibit A Non-Utility Money Pool Agreement
(filed herewith)
Exhibit B Utility Money Pool Agreement
(filed herewith)
Exhibit C Form of commercial paper note of IEC
(filed herewith)
Exhibit D Form of commercial paper note of Alliant
(filed herewith)
Exhibit E Form of note to evidence borrowing from banks
(filed herewith)
Exhibit F Form of note to be executed by borrowing
applicants to IEC as lending applicant
(filed herewith)
Exhibit G Form of note to be executed by borrowing
applicants to Alliant as lending applicant
(filed herewith)
Exhibit H Preliminary opinion of counsel
(filed herewith)
Exhibit I Final or "past tense" opinion of counsel
(to be filed with Certificate of Notification)
Exhibit J Form of Credit Agreement
Exhibit K-1 Application for Approval to Minnesota Public
Utilities Commission
(to be filed)
Exhibit K-2 Order of Minnesota Public Utilities Commission
(to be filed)
</TABLE>
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ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS.
The proposed transactions do not involve major federal action
having a significant effect on the human environment. To the best of the
Applicants' knowledge, no federal agency has prepared or is preparing an
environmental impact statement with respect to the proposed transactions.
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S I G N A T U R E
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, as amended, the undersigned companies have duly caused this statement
to be signed on their behalf by the undersigned thereunto duly authorized.
Date: June 16, 1998
INTERSTATE INTERSTATE CORPORATION
By: /s/ Erroll B. Davis, Jr.
------------------------------
Erroll B. Davis, Jr.
President and Chief Executive
Officer
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EXHIBIT A
NON-UTILITY MONEY POOL AGREEMENT
This Non-Utility Money Pool Agreement (the "Agreement"), dated
as of ________________, 199__, is made and entered into by and among Alliant
Industries, Inc. ("Alliant"), a Wisconsin corporation, Alliant Services
Company ("Services"), an Iowa corporation and a non-utility subsidiary of
Interstate Energy Corporation ("IEC"), a Wisconsin corporation and a registered
holding company under the Public Utility Holding Company Act of 1935, as amended
(the "Act"), and each of the non-utility subsidiaries of IEC whose name appears
on the signature pages hereof (each a "Party" and collectively, the "Parties").
WITNESSETH:
WHEREAS, the Parties desire to establish a Money Pool (the
"Non-Utility Money Pool") to coordinate and provide for certain of their
short-term cash and working capital requirements; and
WHEREAS, the non-utility subsidiaries that will participate in
the Non-Utility Money Pool (each a "Subsidiary" and collectively, the
"Subsidiaries") will from time to time have need to borrow funds on a short-term
basis, and certain of the Parties from time to time have funds available to loan
on a short-term basis;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, covenants and provisions contained herein, the Parties hereto
agree as follows:
ARTICLE I
CONTRIBUTIONS AND BORROWINGS
Section 1.01 Contributions to Non-Utility Money Pool.
(a) Alliant will make short-term funds available from time to
time to the Non-Utility Money Pool. To the extent necessary, Alliant will use
the proceeds of external borrowings to accommodate the short-term borrowing
needs of the Subsidiaries consistent with Section 1.03(a) of this Agreement.
(b) Services shall establish on behalf of each Subsidiary one
or more zero-balance bank accounts ("Zero-Balance Accounts") that are linked to
the Non-Utility Money Pool. Each Subsidiary shall use these accounts to take
loans from and make repayments to the Non-Utility Money Pool. A Subsidiary may
have, from time to time, excess funds that it wants to lend to the Non-Utility
Money Pool. The Subsidiary may loan these funds to the Non-Utility Money Pool by
depositing them into one of its Zero-Balance Accounts. Services shall transfer
the loaned funds from the Zero-Balance Account to the Non-Utility Money Pool
and, only to the extent that the Subsidiary has no outstanding loans from
<PAGE> 2
the Non-Utility Money Pool, the funds shall be loaned from the Subsidiary to the
Non-Utility Money Pool (the "Loans"). Each Subsidiary may withdraw any of its
Loans at any time upon notice to Services as administrative agent of the
Non-Utility Money Pool.
Section 1.02 Rights to Borrow.
Subject to the provisions of Section 1.04(a) of this
Agreement, all short-term borrowing needs of the Subsidiaries will be met by
funds in the Non-Utility Money Pool to the extent such funds are available. The
Non-Utility Money Pool shall automatically provide funds to cover any net debit
balance that exists at the end of each day in each Subsidiary's Zero-Balance
Accounts subject to the limitations and conditions set forth herein and in the
applicable orders of the Securities and Exchange Commission (the "Commission")
and other regulatory authorities, resolutions of such Subsidiary's shareholders
and board of directors, such Subsidiary's governing corporate documents and any
agreements binding upon such Subsidiary.
Section 1.03 Source of Funds.
(a) Funds will be available through the Non-Utility Money Pool
from the following sources for use by the Subsidiaries from time to time: (i)
surplus funds in the treasuries of the Subsidiaries ("Internal Funds"), (ii)
Alliant bank borrowings and (iii) the sale of commercial paper by Alliant (the
funds referred to in clauses (ii) and (iii), the "External Funds"), in each
case to the extent permitted by applicable laws and regulatory orders. Funds
will be made available from such sources in such order as Services, as
administrator of the Non-Utility Money Pool, determines will result in a lower
cost of borrowing to the Subsidiaries borrowing from the Non-Utility Money
Pool, consistent with the individual borrowing needs and financial standing of
the Subsidiaries lending funds to the Non-Utility Money Pool.
(b) Each borrowing Subsidiary will borrow pro rata from each
lending Subsidiary in the proportion that the amount loaned by each Subsidiary
bears to the total amount then contributed to the Non-Utility Money Pool by all
lending Subsidiaries. On any day when more than one fund source (Internal Funds
and External Funds), with different rates of interest, are used to fund loans
through the Non-Utility Money Pool, each borrowing Subsidiary will borrow pro
rata from each fund source in the same proportion that the amount of funds
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provided by that fund source bears to the total amount of short-term funds
available to the Non-Utility Money Pool.
Section 1.04 Authorization.
(a) All borrowings from the Non-Utility Money Pool shall be
authorized by the borrowing subsidiary's chief financial officer or treasurer,
or by a designee thereof, pursuant to a reasonable method to be determined by
that subsidiary.
(b) Services, as administrator of the Non-utility Money Pool,
will provide each Party with periodic activity and cash accounting reports
that include, among other things, reports of cash activity, the daily balance of
loans outstanding and the calculation of interest charged.
(c) No Subsidiary shall be required to effect a borrowing
through the Non-Utility Money Pool if such Subsidiary determines that it can
effect such borrowing at lower cost directly from banks.
Section 1.05 Interest.
The daily outstanding balance of all loans to any Subsidiary
shall accrue interest as follows:
(a) If only Internal Funds comprise the daily outstanding
balance of all loans outstanding during a calendar month, the interest rate
applicable to such daily outstanding balances shall be the average for the
month of the CD yield equivalent of the 30-day Federal Reserve "AA" Industrial
Commercial Paper Composite Rate (the daily rate, the "Composite," the monthly
average of the Composite, the "Average Composite") or, if no such Composite is
established for that day, then the applicable rate shall be the Composite for
the next preceding day for which such Composite was established.
(b) If only External Funds comprise the daily outstanding
balance of all loans outstanding during a calendar month, the interest rate
applicable to such daily outstanding balances shall be the lender's cost for
such External Funds or, if more than one Party had made available External
Funds at any time during the month, the applicable interest rate shall be a
composite rate, equal to the weighted average of the costs incurred by the
respective Parties for such External Funds.
(c) In cases where the daily outstanding balances of all
loans outstanding at any time during the month include both Internal Funds and
External Funds, the interest rate applicable to the daily outstanding balances
for the month shall be equal to the weighted average of (i) the cost of all
Internal Funds contributed by Parties, as
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<PAGE> 4
determined pursuant to Section 1.05(a) of this Agreement, and (ii) the cost of
all such External Funds, as determined pursuant to Section 1.05(b) of this
Agreement.
(d) The interest rate applicable to Loans made by a Subsidiary
to the Non-Utility Money Pool under Section 1.01(b) of this Agreement shall be
the Average Composite as determined pursuant to Section 1.05(a) of this
Agreement.
Section 1.06 Certain Costs.
The cost of compensating balances and fees paid to banks to
maintain credit lines by Parties lending External Funds to the Non-Utility Money
Pool shall initially be paid by the Party maintaining such line. A portion of
such costs shall be retroactively allocated every month to the Subsidiaries
borrowing such External Funds through the Non-Utility Money Pool in proportion
to their respective daily outstanding borrowings of such External Funds.
Section 1.07 Repayment.
Each Subsidiary receiving a loan from the Non-Utility Money
Pool hereunder shall repay the principal amount of such loan, together with all
interest accrued thereon, on demand and in any event within 365 days of the date
on which such loan was made. A Subsidiary shall make a repayment to the
Non-Utility Money Pool by depositing the repayment funds into its Zero-Balance
Account; Services shall transfer such funds from the Zero-Balance Account to the
Non-Utility Money Pool.
Section 1.08 Form of Loans to Subsidiaries.
Loans to the Subsidiaries from the Non-Utility Money Pool
shall be made as open-account advances, pursuant to the terms of this
Agreement. A separate promissory note will not be required for each individual
transaction. Instead, a promissory grid note evidencing the terms of the
transactions shall be signed by the parties to the transaction. Any such note
shall: (a) be in substantially the form filed as Exhibits F and G to the Form
U-1 Application-Declaration in File No. 70-_____ of the Commission; (b) be
dated as of the date of the initial borrowing; (c) mature on demand or on a
date agreed by the Parties to the transaction, but in any event not later than
one year after the date of the applicable borrowing; and (d) be repayable in
whole at any time or in part from time to time, without premium or penalty.
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<PAGE> 5
ARTICLE II
OPERATION OF NON-UTILITY MONEY POOL
Section 2.01 Operation.
Operation of the Non-Utility Money Pool, including record
keeping and coordination of loans, will be handled by Services under the
authority of the appropriate officers of the Parties. Services shall be
responsible for the determination of all applicable interest rates and charges
to be applied to advances outstanding at any time hereunder, shall maintain
records of all advances, interest charges and accruals and interest and
principal payments for purposes hereof, and shall prepare periodic reports
thereof for the Parties. Services will administer the Non-Utility Money Pool on
either an "at cost" basis or, in its sole discretion, on a different basis.
Separate records shall be kept by Services for the Non-Utility Money Pool
established by this Agreement and any other money pool administered by Services.
Section 2.02 Investment of Surplus Funds in the Non-
Utility Money Pool.
Funds not required to meet Non-Utility Money Pool loans (with
the exception of funds required to satisfy the Non-Utility Money Pool's
liquidity requirements) will ordinarily be invested in one or more short-term
investments, including (i) interest-bearing accounts with banks; (ii)
obligations issued or guaranteed by the U.S. government and/or its agencies and
instrumentalities, including obligations under repurchase agreements; (iii)
obligations issued or guaranteed by any state or political subdivision thereof,
provided that such obligations are rated not less than A by a nationally
recognized rating agency; (iv) commercial paper rated not less than A-1 by S&P
or P-1 by Moody's, or their equivalent by a nationally recognized rating
agency; (v) money market funds; (vi) bank certificates of deposit; (vii)
Eurodollar funds; and (viii) such other investments as are permitted by Section
9(c) of the Act and Rule 40 thereunder.
Section 2.03 Allocation of Investment Earnings.
Any income earned by the Non-Utility Money Pool shall be
allocated among the Parties at the end of each calendar month in accordance
with the proportion that each Party's average contribution of funds in the
Non-Utility Money Pool for the month bears to the average total amount of funds
in the Non-Utility Money Pool for the month.
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<PAGE> 6
Section 2.04 Event of Default.
If any Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors, or
any proceeding shall be instituted by or against any Party seeking to adjudicate
it bankrupt or insolvent, then Services, on behalf of the Non-Utility Money
Pool, may, by notice to the Subsidiary, terminate the Non-Utility Money Pool's
commitment to the Subsidiary and/or declare the principal amount then
outstanding of, and the accrued interest on, the loans and all other amounts
payable to the Non-Utility Money Pool by the Subsidiary hereunder to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by each Subsidiary.
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments.
No amendment to this Agreement shall be adopted except in a
writing executed by the Parties.
(a) Prior to filing any amendment to this Agreement with the
Commission, the Parties will file for approval of the amendment, if required,
with the Public Service Commission of Wisconsin, the Iowa Utilities Board, the
Illinois Commerce Commission and the Minnesota Public Utilities Commission
(together, the "Regulatory Commissions").
(b) In the event that an amendment is finally rejected or
disapproved or found to be unreasonable by one or more of the Regulatory
Commissions prior to filing with the Commission, the amendment will not become
effective and the Parties will not request Commission approval of the amendment.
(c) In the event that an amendment is rejected or disapproved
or found to be unreasonable by one or more of the Regulatory Commissions after
it has been filed with the Commission but before it has been approved by the
Commission, the amendment will be terminated and the Parties agree to request
withdrawal of the filing.
(d) Notwithstanding paragraphs (b) and (c) above, in the event
that an amendment is rejected, disapproved or found to be unreasonable by one or
more of the Regulatory Commissions before it has been approved by the
Commission, the Parties shall have the right to request further revisions of the
amendment in order to cure or remove the cause of the Commission's rejection,
disapproval or finding of unreasonableness. Upon request by a
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<PAGE> 7
Party, the other Parties agree promptly to negotiate in good faith to revise the
amendment, and thereafter to file for any necessary regulatory authorization of
the renegotiated amendment. If the Parties are unable to reach agreement
satisfactory to each of them and to each affected Regulatory Commission after
good faith negotiations, then paragraphs (b) and (c) above, as applicable, will
apply.
(e) In the event that each Regulatory Commission has
previously approved an amendment prior to Commission approval, paragraph (f)
below shall not apply.
(f) In the event that an amendment has become effective and is
subsequently rejected, disapproved or found to be unreasonable by one or more of
the Regulatory Commissions, the Parties will make a good faith effort to
terminate, amend or modify the amendment in a manner which remedies the
Regulatory Commission's adverse findings without adverse impact on any of the
Parties. The Parties will request to meet with representatives of the Regulatory
Commissions and make a good faith attempt to resolve any differences in the
affected states regarding the subject amendment. If agreement can be reached to
terminate, amend or modify the amendment in a manner satisfactory to the Parties
and to the representatives of each Regulatory Commission, the Parties shall file
such amended contract with the appropriate state and federal regulatory
agencies, seeking all necessary regulatory authorizations. If the Parties are
unable to reach agreement satisfactory to each of them and to each affected
Regulatory Commission, after good faith negotiations, then they shall be under
no obligation to further amend the amendment.
(g) Nothing in this Section 3.01, is intended to amend, modify
or alter the authority of the Commission under the Act.
Section 3.02 Legal Responsibility.
Nothing herein contained shall render any Party liable for the
obligations of any other Party hereunder and the rights, obligations and
liabilities of the Parties are several in accordance with their respective
obligations, and not joint.
Section 3.03 Rules for Implementation.
The Parties may develop a set of guidelines for implementing
the provisions of this Agreement, provided that the guidelines are consistent
with all of the provisions of this Agreement.
Section 3.04 Governing Law.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each company hereto as of the date
first above written.
INTERSTATE ENERGY CORPORATION
By
-----------------------------------
Name:
Title:
ALLIANT SERVICES COMPANY
By
-----------------------------------
Name:
Title:
ALLIANT INDUSTRIES, INC.
By
-----------------------------------
Name:
Title:
Date: __________, 199__
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<PAGE> 1
EXHIBIT B
UTILITY MONEY POOL AGREEMENT
This Utility Money Pool Agreement (the "Agreement"), dated as
of ______ , 199_, is made and entered into by and among Interstate Energy
Corporation ("IEC"), a Wisconsin corporation and a registered holding company
under the Public Utility Holding Company Act of 1935, as amended (the "Act"),
Alliant Services Company ("Services"), an Iowa corporation and a non-utility
subsidiary of IEC, and each of the utility subsidiaries whose name appears on
the signature pages hereof (each a "Party" and collectively, the "Parties").
WITNESSETH:
WHEREAS, the Parties desire to establish a Money Pool (the
"Utility Money Pool") to coordinate and provide for certain of their short-term
cash and working capital requirements; and
WHEREAS, the utility subsidiaries that will participate in the
Utility Money Pool (each a "Subsidiary" and collectively, the "Subsidiaries")
will from time to time have need to borrow funds on a short-term basis, and
certain of the Parties will from time to time have funds available to loan on a
short-term basis;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, covenants and provisions contained herein, the Parties hereto
agree as follows:
ARTICLE I
CONTRIBUTIONS AND BORROWINGS
Section 1.01 Contributions to Utility Money Pool.
(a) IEC will make short-term funds available from time to time
to the Utility Money Pool. To the extent necessary, IEC will use the proceeds of
external borrowings to accommodate the short-term borrowing needs of the
Subsidiaries consistent with Section 1.03(a) of this Agreement.
(b) Services shall establish on behalf of each Subsidiary one
or more zero-balance bank accounts ("Zero-Balance Accounts") that are linked to
the Utility Money Pool. Each Subsidiary shall use these accounts to take loans
from and make repayments to the Utility Money Pool. A Subsidiary may have, from
time to time, excess funds that it wants to lend to the Utility Money Pool. The
Subsidiary may loan these funds to the Utility Money Pool by depositing them
into one of its Zero-Balance Accounts. Services shall transfer the loaned funds
from the Zero-Balance Accounts to the Utility Money Pool and, only to the extent
that the Subsidiary has no outstanding loans from the Utility Money Pool, the
funds shall be loaned from the Subsidiary to the Utility Money Pool (the
"Loans"). Each Subsidiary may
<PAGE> 2
withdraw any of its Loans at any time upon notice to Services as administrative
agent of the Utility Money Pool.
Section 1.02 Rights to Borrow.
Subject to the provisions of Section 1.04(a) of this
Agreement, all short-term borrowing needs of the Subsidiaries will be met by
funds in the Utility Money Pool to the extent such funds are available. The
Utility Money Pool shall automatically provide funds to cover any net debit
balance that exists at the end of each day in each Subsidiary's Zero-Balance
Accounts subject to the limitations and conditions set forth herein and in the
applicable orders of the Securities and Exchange Commission (the "Commission")
and other regulatory authorities, resolutions of such Subsidiary's shareholders
and board of directors, such Subsidiary's governing corporate documents, and
agreements binding upon such Subsidiary. No borrowings through the Utility
Money Pool shall be made by IEC or Services.
Section 1.03 Source of Funds.
(a) Funds will be available through the Utility Money Pool
from the following sources for use by the Subsidiaries from time to time: (i)
surplus funds in the treasuries of the Subsidiaries ("Internal Funds"), (ii) IEC
bank borrowings and (iii) the sale of commercial paper by IEC (the funds
referred to in clauses (ii) and (iii), the "External Funds"), in each case to
the extent permitted by applicable laws and regulatory orders. Funds will be
made available from such sources in such order as Services, as administrator of
the Utility Money Pool, determines will result in a lower cost of borrowing to
Subsidiaries borrowing from the Utility Money Pool, consistent with the
individual borrowing needs and financial standing of the Subsidiaries lending
funds to the Utility Money Pool.
(b) Each borrowing Subsidiary will borrow pro rata from each
lending Subsidiary in the proportion that the amount loaned by each Subsidiary
bears to the total amount then contributed to the Utility Money Pool by all
lending Subsidiaries. On any day when more than one fund source (Internal
Funds and External Funds), with different rates of interest, are used to fund
loans through the Utility Money Pool, each borrowing Subsidiary will borrow
pro rata from each fund source in the same proportion that the amount of funds
provided by that fund source bears to the total amount of short-term funds
available to the Utility Money Pool.
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<PAGE> 3
Section 1.04 Authorization.
(a) All borrowings from the Utility Money Pool shall be
authorized by the borrowing subsidiary's chief financial officer or treasurer,
or by a designee thereof, pursuant to a reasonable method to be determined by
that subsidiary.
(b) Services, as administrator of the Utility Money Pool, will
provide each Party with periodic activity and cash accounting reports that
include, among other things, reports of cash activity, the daily balance of
loans outstanding and the calculation of interest charged.
(c) No Subsidiary shall be required to effect a borrowing
through the Utility Money Pool if such Subsidiary determines that it can effect
such borrowing at lower cost directly from banks.
Section 1.05 Interest.
The daily outstanding balance of all loans to any Subsidiary
shall accrue interest as follows:
(a) If only Internal Funds comprise the daily outstanding
balance of all loans outstanding during a calendar month, the interest rate
applicable to such daily balances shall be the average for the month of the CD
yield equivalent of the 30-day Federal Reserve "AA" Industrial Commercial Paper
Composite Rate (the daily rate, the "Composite," the monthly average of the
Composite, the "Average Composite") or, if no such Composite is established
for that day, then the applicable rate shall be the Composite for the next
preceding day for which such Composite was established.
(b) If only External Funds comprise the daily outstanding
balance of all loans outstanding during a calendar month, the interest rate
applicable to such daily outstanding balance shall be the lender's cost for
such External Funds or, if more than one Party had made available External
Funds at any time during the month, the applicable interest rate shall be a
composite rate, equal to the weighted average of the costs incurred by the
respective Parties for such External Funds.
(c) In cases where the daily outstanding balances of all
loans outstanding at any time during the month include both Internal Funds
and External Funds, the interest rate applicable to the daily outstanding
balances for the month shall be equal to the weighted average of the (i) cost
of all Internal Funds contributed by Parties, as determined pursuant to Section
1.05(a) of this Agreement, and (ii) the cost
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<PAGE> 4
of all such External Funds, as determined pursuant to Section 1.05(b) of this
Agreement.
(d) The interest rate applicable to Loans made by a Subsidiary
to the Utility Money Pool under Section 1.01(b) of this Agreement shall be the
Average Composite as determined pursuant to Section 1.05(a) of this Agreement.
Section 1.06 Certain Costs.
The cost of compensating balances and fees paid to banks to
maintain credit lines by Parties lending External Funds to the Utility Money
Pool shall initially be paid by the Party maintaining such line. A portion of
such costs shall be retroactively allocated every month to the Subsidiaries
borrowing such External Funds through the Utility Money Pool in proportion to
their respective daily outstanding borrowings of such External Funds.
Section 1.07 Repayment.
Each Subsidiary receiving a loan from the Utility Money Pool
hereunder shall repay the principal amount of such loan, together with all
interest accrued thereon, on demand and in any event within 365 days of the date
on which such loan was made. A Subsidiary shall make a repayment to the Utility
Money Pool by depositing the repayment funds into its Zero-Balance Account;
Services shall transfer such funds from the Zero-Balance Account to the Utility
Money Pool.
Section 1.08 Form of Loans to Subsidiaries.
Loans to the Subsidiaries from the Utility Money Pool shall be
made as open-account advances, pursuant to the terms of this agreement. A
separate promissory note will not be required for each individual transaction.
Instead, a promissory grid note evidencing the terms of the transactions shall
be signed by the parties to the transaction. Any such note shall: (a) be in
substantially the form filed as Exhibits F and G to the Form U-1
Application-Declaration in File No. 70-_____ of the Commission; (b) be dated as
of the date of the initial borrowing; (c) mature on demand or on a date agreed
by the Parties to the transaction, but in any event not later than one year
after the date of the applicable borrowing; and (d) be repayable in whole at any
time or in part from time to time, without premium or penalty.
ARTICLE II
OPERATION OF UTILITY MONEY POOL
Section 2.01 Operation.
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<PAGE> 5
Operation of the Utility Money Pool, including record keeping
and coordination of loans, will be handled by Services under the authority of
the appropriate officers of the Parties. Services shall be responsible for the
determination of all applicable interest rates and charges to be applied to
advances outstanding at any time hereunder, shall maintain records of all
advances, interest charges and accruals and interest and principal payments for
purposes hereof, and shall prepare periodic reports thereof for the Parties.
Services will administer the Utility Money Pool on an "at cost" basis. Separate
records shall be kept by Services for the Utility Money Pool established by this
Agreement and any other money pool administered by Services.
Section 2.02 Investment of Surplus Funds in the
Utility Money Pool.
Funds not required to meet Utility Money Pool loans (with the
exception of funds required to satisfy the Utility Money Pool's liquidity
requirements) will ordinarily be invested in one or more short-term investments,
including (i) interest-bearing accounts with banks; (ii) obligations issued or
guaranteed by the U.S. government and/or its agencies and instrumentalities,
including obligations under repurchase agreements; (iii) obligations issued or
guaranteed by any state or political subdivision thereof, provided that such
obligations are rated not less than A by a nationally recognized rating agency;
(iv) commercial papaer rated not less than A-1 by S&P or P-1 by Moody's, or
their equivalent by a nationally recognized rating agency; (v) money market
funds; (vi) bank certificates of deposit; (vii) Eurodollar funds; and (viii)
such other investments as are permitted by Section 9(c) of the Act and Rule 40
thereunder.
Section 2.03 Allocation of Investment Earnings.
Any income earned by the Utility Money Pool shall be
allocated among the Parties at the end of each calendar month in accordance
with the proportion that shall Party's average contribution of funds in the
Utility Money Pool for the month bears to the average total amount of funds in
the Utility Money Pool for the month.
Section 2.04 Event of Default.
If any Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors, or
any proceeding shall be instituted by or against any Party seeking to adjudicate
it bankrupt or insolvent, then Services, on behalf of the Utility Money Pool,
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<PAGE> 6
may, by notice to the Subsidiary, terminate the Utility Money Pool's commitment
to the Subsidiary and/or declare the principal amount then outstanding of, and
the accrued interest on, the loans and all other amounts payable to the Utility
Money Pool by the Subsidiary hereunder to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by each Subsidiary.
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments.
No amendment to this Agreement shall be adopted except in a
writing executed by the Parties.
(a) Prior to filing any amendment to this Agreement with the
Commission, the Parties will file for approval, if required, with the Public
Service Commission of Wisconsin, the Iowa Utilities Board, the Illinois Commerce
Commission and the Minnesota Public Utilities Commission (together, the
"Regulatory Commissions").
(b) In the event that an amendment is finally rejected or
disapproved or found to be unreasonable by one or more of the Regulatory
Commissions prior to filing with the Commission, the amendment will not become
effective and the Parties will not request Commission approval of the amendment.
(c) In the event that an amendment is rejected or disapproved
or found to be unreasonable by one or more of the Regulatory Commissions after
it has been filed with the Commission but before it has been approved by the
Commission, the amendment will be terminated and the Parties agree to request
withdrawal of the filing.
(d) Notwithstanding paragraphs (b) and (c) above, in the event
that an amendment is rejected, disapproved or found to be unreasonable by one or
more of the Regulatory Commissions before it has been approved by the
Commission, the Parties shall have the right to request further revisions of the
amendment in order to cure or remove the cause of the Regulatory Commission's
rejection, disapproval or finding of unreasonableness. Upon request by a Party,
the other Parties agree promptly to negotiate in good faith to revise the
amendment, and thereafter to file for any necessary regulatory authorization of
the renegotiated amendment. If the Parties are unable to reach agreement
satisfactory to each of them and to each affected Regulatory Commission after
good faith negotiations, then paragraphs (b) and (c) above, as applicable, will
apply.
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<PAGE> 7
(e) In the event that each Regulatory Commission has
previously approved an amendment prior to Commission approval, paragraph (f)
below shall not apply.
(f) In the event that an amendment has become effective and is
subsequently rejected, disapproved or found to be unreasonable by one or more of
the Regulatory Commissions, the Parties will make a good faith effort to
terminate, amend or modify the amendment in a manner which remedies the
Regulatory Commission's adverse findings without adverse impact on any of the
Parties. The Parties will request to meet with representatives of the Regulatory
Commissions and make a good faith attempt to resolve any differences in the
affected states regarding the subject amendment. If agreement can be reached to
terminate, amend or modify the amendment in a manner satisfactory to the Parties
and to the representatives of each Regulatory Commission, the Parties shall file
such amended contract with the appropriate state and federal regulatory
agencies, seeking all necessary regulatory authorizations. If the Parties are
unable to reach agreement satisfactory to each of them and to each affected
Regulatory Commission, after good faith negotiations, then they shall be under
no obligation to further amend the amendment.
(g) Nothing in this Section 3.01, is intended to amend, modify
or alter the authority of the Commission under the Act.
Section 3.02 Legal Responsibility.
Nothing herein contained shall render any Party liable for the
obligations of any other Party hereunder and the rights, obligations and
liabilities of the Parties are several in accordance with their respective
obligations, and not joint.
Section 3.03 Rules for Implementation.
The Parties may develop a set of guidelines for implementing
the provisions of this Agreement, provided that the guidelines are consistent
with all of the provisions of this Agreement.
Section 3.04 Governing Law.
This Agreement shall be governed by and construed in
accordance with, the laws of the State of New York.
- 7 -
<PAGE> 8
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each company hereto as of the date
first above written.
INTERSTATE ENERGY CORPORATION
By
-----------------------------------
Name:
Title:
ALLIANT SERVICES COMPANY
By
-----------------------------------
Name:
Title:
WISCONSIN POWER & LIGHT COMPANY
By
-----------------------------------
Name:
Title:
IES UTILITIES INC.
By
-----------------------------------
Name:
Title:
SOUTH BELOIT WATER, GAS AND ELECTRIC COMPANY
By
-----------------------------------
Name:
Title:
INTERSTATE POWER COMPANY
By
-----------------------------------
Name:
Title:
Date: ________, 199__
<PAGE> 1
EXHIBIT C
FORM OF COMMERCIAL PAPER NOTE
(BOOK-ENTRY)
INTERSTATE ENERGY CORPORATION
COMMERCIAL PAPER MASTER NOTE
______________________________
(Date of Issuance)
Interstate Energy Corporation, Inc., a corporation organized and
existing under the laws of the State of Wisconsin (the "Issuer"), for value
received, hereby promises to pay to Cede & Co. or registered assigns on the
maturity date of each commercial paper note identified on the records of the
Issuer (which records are maintained by Bank (the "Paying Agent")) the principal
amount for each such commercial paper note. Payment shall be made by wire
transfer to the registered owner from the Paying Agent without the necessity of
presentation and surrender of this Master Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
MASTER NOTE SET FORTH ON THE REVERSE HEREOF
This Master Note is a valid and binding obligation of the Issuer.
INTERSTATE ENERGY CORPORATION
By:__________________________
(Issuer)
<PAGE> 2
(Reverse Side of Note)
At the request of the registered owner, Interstate Energy Corporation shall
promptly issue and deliver one or more separate note certificates evidencing
each commercial paper note evidenced by this Master Note. As of the date any
such note certificate or certificates are issued, the commercial paper notes
which are evidenced thereby shall no longer be evidenced by this Master Note.
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________ the Master Note and all rights thereunder, hereby
irrevocably constituting and appointing ____________________ Attorney to
transfer said Master Note on the books of the Issuer with full power of
substitution in the premises.
Dated: ________________________________
(Signature)
Signature(s) Guaranteed:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of this Master Note, in every particular, without
alteration or enlargement or any change whatsoever.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 1
EXHIBIT D
FORM OF COMMERCIAL PAPER NOTE
(BOOK-ENTRY)
ALLIANT INDUSTRIES, INC.
COMMERCIAL PAPER MASTER NOTE
______________________________
(Date of Issuance)
Alliant Industries, Inc., a corporation organized and existing under
the laws of the State of Wisconsin (the "Issuer"), for value received, hereby
promises to pay to Cede & Co. or registered assigns on the maturity date of
each commercial paper note identified on the records of the Issuer (which
records are maintained by Bank (the "Paying Agent")) the principal amount for
each such commercial paper note. Payment shall be made by wire transfer to the
registered owner from the Paying Agent without the necessity of presentation
and surrender of this Master Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
MASTER NOTE SET FORTH ON THE REVERSE HEREOF
This Master Note is a valid and binding obligation of the Issuer.
ALLIANT INDUSTRIES, INC.
By:
----------------------
(Issuer)
<PAGE> 2
(Reverse Side of Note)
At the request of the registered owner, Alliant Industries, Inc. shall promptly
issue and deliver one or more separate note certificates evidencing each
commercial paper note evidenced by this Master Note. As of the date any such
note certificate or certificates are issued, the commercial paper notes which
are evidenced thereby shall no longer be evidenced by this Master Note.
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________ the Master Note and all rights thereunder, hereby
irrevocably constituting and appointing ____________________ Attorney to
transfer said Master Note on the books of the Issuer with full power of
substitution in the premises.
Dated: ________________________________
(Signature)
Signature(s) Guaranteed:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of this Master Note, in every particular, without
alteration or enlargement or any change whatsoever.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 1
EXHIBIT E
FORM OF NOTE TO EVIDENCE
BORROWINGS FROM BANK
US $ [Amount] [Date]
FOR VALUE RECEIVED, the undersigned borrower ("Borrower"),
hereby promises to pay to the [Bank Name] ("Bank"), at the lending office of the
Bank or at such other place as the holder hereof shall designate in accordance
with the below-referenced Agreement, the unpaid principal amount of each loan
made to the Borrower by the Bank under the Agreement referred to below in U.S.
Dollars and in immediately available funds on the respective maturity date for
such loan with interest on the unpaid principal amount of each such loan (as
well as any overdue payments and overdue interest) as specified in the Agreement
[if Note is a "grid" note, the following language will be included: and as may
be set forth on the schedule attached hereto].
The Note is expressly subject to the terms of that certain
Agreement ("Agreement") dated [Date] between the Borrower and the Bank, which
provides, among other things, for the acceleration of the maturity hereof upon
the occurrence of certain events specified therein. The Borrower hereby waives
demand, presentment for payment, notice of dishonor or default, notice of intent
to accelerate, notice of acceleration, protest and diligence in collection.
This Note may be prepaid in whole or in part to the extent set
forth in the Agreement.
<PAGE> 2
[If Note is a "grid" note, the following language will be
included: The Bank shall record on the schedule attached hereto (including
additional pages, if any) an appropriate notation evidencing the date, amount,
rate of interest and due date of each loan as well as the date and amount of
each payment by the undersigned in respect thereto. The obligation of the
Borrower to repay each loan made hereunder shall be absolute and unconditional
notwithstanding any failure of the Bank to enter such amounts on the schedule
attached hereto. In the event of a disagreement as to the terms of a
transaction, the Bank's records shall govern, absent manifest error.]
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
[Bank Name]
By
-------------------------
Title:
[Borrower Name]
By
-------------------------
Title:
- 2 -
<PAGE> 1
EXHIBIT F
FORM OF NOTE TO BE EXECUTED BY
BORROWING APPLICANT TO
INTERSTATE ENERGY CORPORATION
FOR VALUE RECEIVED, the undersigned _________________________
(the "Borrower"), hereby promises to pay to the order of Interstate Energy
Corporation (the "Lender") at its principal office in Madison, Wisconsin, on
demand but in any event not later than one year after the date of such loan, the
principal sum set forth on the grid on the reverse side hereof as "Principal
Amount Outstanding." This note may be prepaid in full at any time or in part
from time to time without premium or penalty. The Principal Amount Outstanding
shall bear interest, calculated daily, at a rate equal to [fill in rate].
Interest will be calculated on the daily Principal Amount Outstanding as
indicated on the grid on the reverse side hereof or attached hereto.
______________________________
(Name of Borrower)
By: __________________________
Title: _______________________
Date: ________________________
<PAGE> 2
<TABLE>
<CAPTION>
Principal
Loan Amount
Date (Repayment) Outstanding Rate Interest
<S> <C> <C> <C> <C>
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
</TABLE>
2.
<PAGE> 1
EXHIBIT G
FORM OF NOTE TO BE EXECUTED BY
BORROWING APPLICANT TO
ALLIANT INDUSTRIES, INC.
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby
promises to pay to the order of Alliant Industries, Inc. (the "Lender") at its
principal office in Madison, Wisconsin, on demand but in any event not later
than one year after the date of such loan, the principal sum set forth on the
grid on the reverse side hereof as "Principal Amount Outstanding." This note may
be prepaid in full at any time or in part from time to time without premium or
penalty. The Principal Amount Outstanding shall bear interest, calculated daily,
at a rate equal to . Interest will be calculated on the daily Principal Amount
Outstanding as indicated on the grid on the reverse side hereof or attached
hereto.
___________________________
(Name of Borrower)
By: _______________________
Title: ____________________
Date: _____________________
<PAGE> 2
<TABLE>
<CAPTION>
Principal
Loan Amount
Date (Repayment) Outstanding Rate Interest
<S> <C> <C> <C> <C>
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
- --------- ---------------- ------------------- -------- -----------------
</TABLE>
<PAGE> 1
DRAFT EXHIBIT H
FILE 70-
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005
June 16, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form U-1 Application-Declaration
Dear Ladies and Gentlemen:
We refer to the Form U-1 Application-Declaration (the
"Application-Declaration"), filed by Interstate Energy Corporation ("IEC") a
Wisconsin corporation and a registered holding Company under the Public Utility
Holding Company Act of 1935, as amended. Capitalized terms and parties not
defined herein shall have the meanings ascribed to such terms and parties in the
Application-Declaration.
The Application-Declaration requests authorization for: (i)
IEC and Alliant Industries, Inc. ("Alliant") to issue notes and/or commercial
paper, (ii) IEC and Alliant to make capital contributions, (iii) the
subsidiaries of each of IEC and Alliant to incur short-term borrowings, and
(iv) IEC and its subsidiaries, including Alliant, to establish and utilize a
system of separate money pools to coordinate and provide for the short-term
cash requirements of the applicants (collectively, the "Transaction"). We have
acted as counsel for IEC in connection with the Transaction and, as such
counsel, we are familiar with the corporate proceedings taken and to be taken
by IEC
<PAGE> 2
in connection with the Transaction as described in the Application-Declaration.
We have examined originals, or copies certified to our
satisfaction, of such corporate records of IEC, certificates of public
officials, certificates of officers and representatives of IEC and other
documents as we have deemed it necessary to require as a basis for the opinions
hereinafter expressed. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity with authentic original documents of all documents submitted
to us as copies. When relevant facts were not independently established, we
have relied upon statements of governmental officials and upon representations
made by officers of IEC and other appropriate persons, and statements contained
in the Application-Declaration.
The opinions expressed below in respect of the Transaction
described in the Application-Declaration are subject to the following
assumptions or conditions:
a. The Transaction shall have been duly authorized and
approved to the extent required by federal and state law and by the Board of
Directors of IEC;
b. The Securities and Exchange Commission shall have duly
entered an appropriate order or orders granting the Application-Declaration and
permitting the Application-Declaration to become effective with respect to the
Transaction;
c. The Transaction shall have been accomplished in accordance
with all approvals, authorizations, consents, certificates and orders of any
applicable state commission or regulatory authority required for the
consummation of the Transaction, and all such required approvals,
authorizations, consents, certificates and orders shall have been obtained and
remain in effect;
d. The commercial paper and other notes proposed to be issued
by IEC and Alliant to non-associate companies, and the notes proposed to be
issued by borrowing applicants to lending Applicants, shall be substantially in
the form attached as exhibits to the Application-Declaration and shall be
properly completed and executed and, where required, countersigned;
e. The rates of interest on the commercial paper and notes
that are the subject of the Application-Declaration shall not exceed the
interest rates permitted by applicable state and federal law;
2
<PAGE> 3
f. Borrowings will not exceed those levels permitted from time
to time by the borrowing Applicant's Articles or Certificate of Incorporation or
other governing corporate documents and debt instruments and agreements to which
the borrowing Applicant is a party or by which its property is bound, and
applicable laws and orders of governmental and regulatory authorities with
jurisdiction over such borrowing Applicant;
g. No act or event other than as described herein shall have
occurred subsequent to the date hereof which would change the opinions expressed
above; and
h. The consummation of the Transaction shall be conducted
under our supervision, and all legal matters incident thereto shall be
satisfactory to us, including the receipt in satisfactory form of such opinions
of other counsel, qualified to practice in jurisdictions pertaining to such
transaction in which we are not admitted to practice, as we may deem
appropriate.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that, in the event
that the Transaction is consummated in accordance with the
Application-Declaration, and subject to the assumptions and conditions set forth
above:
1. IEC will be validly organized and duly existing under the
laws of the State of Wisconsin. Alliant will be validly organized and duly
existing under the laws of the State of Wisconsin;
2. All state laws applicable to the Transaction will
have been complied with;
3. The lending Applicants will legally acquire any promissory
notes of the borrowing Applicants issued in connection with the Transaction;
4. The commercial paper and notes proposed to be issued by
IEC and Alliant to non-associate companies will be valid and binding
obligations of IEC and Alliant, enforceable in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and
5. The consummation of the Transaction will not violate the
legal rights of the holders of any securities issued by any Applicant.
3
<PAGE> 4
We hereby consent to the use of this opinion as an exhibit to
the Application-Declaration. The opinions set forth herein are issued and
expressed as of the date hereof. We do not assume or undertake any
responsibility to advise you of changes in either fact or law which may come to
our attention after the date hereof.
Very truly yours,
Milbank, Tweed, Hadley & McCloy
MDD/____
4
<PAGE> 1
EXHIBIT J
FORM OF
CREDIT AGREEMENT
dated as of December 17, 1997
among
WPL HOLDINGS, INC.,
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,
as Lenders,
BARCLAYS BANK PLC, THE BANK OF
TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH,
THE FUJI BANK, LIMITED, THE LONG-TERM CREDIT
BANK OF JAPAN, LTD., MELLON BANK, N.A., and
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as Co-Agents,
CITICORP SECURITIES, INC.,
as Syndication Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
<PAGE> 2
CREDIT AGREEMENT
This Agreement, dated as of December 17, 1997, is among WPL Holdings,
Inc., the Lenders, Barclays Bank PLC, The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch, The Fuji Bank, Limited, The Long Term Credit Bank of Japan,
Ltd., Mellon Bank, N.A., and The Norinchukin Bank, New York Branch, as
Co-Agents, Citicorp Securities, Inc., as Syndication Agent, and The First
National Bank of Chicago, as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to
the Borrower of the same Type and, in the case of Eurodollar Advances, for the
same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
<PAGE> 3
"Agent" means The First National Bank of Chicago in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Agent appointed pursuant to
Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the number of basis points
set forth below in columns identified as Level 1, Level 2, Level 3, Level 4,
Level 5 or Level 6 below, based on the Reference Ratings.
<TABLE>
<CAPTION>
====================================================================================================================
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basis for If the If the If the If the If the If the
Pricing Reference Reference Reference Reference Reference Reference
Ratings are Ratings are Ratings are Ratings are Ratings are Ratings are
at least A+ at least A- by at least at least at least below BBB-
by S&P and S&P and at BBB+ by BBB by BBB- by by S&P or
at least A1 least A3 by S&P and at S&P and at S&P and at below Baa3
by Moody's Moody's least Baa1 least Baa2 least Baa3 by Moody's
by Moody's by Moody's by Moody's of if such
ratings
cannot be
determined
- --------------------------------------------------------------------------------------------------------------------
Basis
Points Per
Annum
- --------------------------------------------------------------------------------------------------------------------
Applicable 7.0 7.5 10.0 12.5 15.0 20.0
Fee Rate
====================================================================================================================
</TABLE>
The Applicable Fee Rate will be based upon the Level corresponding to
the Reference Ratings at the time of determination. Any change in the Applicable
Fee Rate resulting from a change in the Reference Ratings shall be effective as
of the date on which the applicable rating agency announces the applicable
change in ratings.
2
<PAGE> 4
"Applicable Margin" means, for a Eurodollar Advance, the number of
basis points set forth below in the columns identified as Level 1, Level 2,
Level 3, Level 4, Level 5 or Level 6 below, based on the Reference Ratings.
<TABLE>
<CAPTION>
====================================================================================================================
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basis for If the If the If the If the If the If the
Pricing Reference Reference Reference Reference Reference Reference
Ratings are Ratings are Ratings are Ratings are Ratings are Ratings are
at least A+ at least A- by at least at least at least below BBB-
by S&P and S&P and at BBB+ by BBB by BBB- by by S&P or
at least A1 least A3 by S&P and at S&P and at S&P and at below Baa3
by Moody's Moody's least Baa1 least Baa2 least Baa3 by Moody's
by Moody's by Moody's by Moody's of if such
ratings
cannot be
determined
- --------------------------------------------------------------------------------------------------------------------
Basis
Points Per
Annum
- --------------------------------------------------------------------------------------------------------------------
Eurodollar 18.0 20.0 22.0 27.5 35.0 40.0
Rate
====================================================================================================================
</TABLE>
The Applicable Margin will be based upon the Level corresponding to the
Reference Ratings at the time of determination. Any change in the Applicable
Margin resulting from a change in the Reference Ratings shall be effective as of
the Borrowing Date following the date on which the applicable rating agency
announces the applicable change in ratings.
"Arranger" means each of First Chicago Capital Markets, Inc., a
Delaware corporation, and Citicorp Securities, Inc., a Delaware corporation, and
their respective successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President, the Chief Financial
Officer, the Treasurer, or any Assistant Treasurer of the Borrower, acting
singly.
"Borrower" means WPL Holdings, Inc., a Wisconsin corporation, and its
successors and permitted assigns, including as survivor under the Merger and as
its name may be changed to "Interstate Energy Corporation" pursuant thereto.
3
<PAGE> 5
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalent Investment" means, with respect to any Person, the
aggregate amount of the following, to the extent owned by such Person free and
clear of all Liens, encumbrances and rights of others and not subject to any
judicial, regulatory or other legal constraint: (i) cash on hand; (ii) U.S.
Dollar demand deposits maintained in the United States with any commercial bank
and U.S. Dollar time deposits maintained in the United States with, or
certificates of deposit having a maturity of one year or less issued by, any
commercial bank which has its head office in the United States and which has a
combined capital and surplus of at least $100,000,000; (iii) eurodollar time
deposits maintained in the United States with, or eurodollar certificates of
deposit having a maturity of one year or less issued by, any commercial bank
having outstanding unsecured indebtedness that is rated (on the date of
acquisition thereof) A- or better by S&P or A3 or better by Moody's (or an
equivalent rating by another nationally-recognized credit rating agency of
similar standing neither of such corporations is then in the business of rating
unsecured bank indebtedness); (iv) direct obligations of, or unconditionally
guaranteed by, the United States and having a maturity of one year or less; (v)
commercial paper rated (on the date of acquisition thereof) A-1 or P-1 or better
by S&P or Moody's, respectively (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing if neither of
such corporations is then in the business of rating commercial paper), and
having a maturity of one year or less; (vi) obligations with any Lender or any
other commercial bank in respect of the repurchase of obligations of the type
described in clause (iv) above, provided that such repurchase obligations shall
be fully secured by obligations of the
4
<PAGE> 6
type described in said clause (iv) and the possession of such obligations shall
be transferred to, and segregated from other obligations owned by, such Lender
or such other commercial bank; and (vii) preferred stock of any Person that is
rated A- or better by S&P or A3 or better by Moody's (or an equivalent rating by
another nationally-recognized credit rating agency of similar standing if
neither of such corporations is then in the business of rating preferred stock
of entities engaged in such businesses).
"Change" is defined in Section 3.2.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of the
Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Total Capitalization" means at any time the sum of
Consolidated Indebtedness and Consolidated Net Worth, each calculated at such
time.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
5
<PAGE> 7
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at the
applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate per annum equal to the average (rounded
to the next higher multiple of 1/16 of 1% if such average is not such a
multiple) of the rates per annum at which each Reference Bank offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of such Reference Bank's
relevant Eurodollar Loan and having a maturity approximately equal to such
Interest Period. The Eurodollar Base Rate shall be determined by the Agent for
any Eurodollar Advance and Interest Period on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.8.
"Eurodollar Loan" means a Loan which bears interest at the applicable
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as
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a decimal) applicable to such Interest Period, plus the Applicable Margin. The
Eurodollar Rate shall be rounded to the next higher multiple of 1/100 of 1% if
the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Date" is defined in Section 2.19.
"Extension Request" is defined in Section 2.19.
"Facility Termination Date" means December 16, 1998 or any later date
as may be specified as the Facility Termination Date in accordance with Section
2.19 or any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
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"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"GAAP" means generally accepted accounting principles as in effect from
time to time.
"IES" means IES Utilities Inc., an Iowa corporation.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or other
property arising out of or in connection with the sale of the same or
substantially similar securities or property, (vi) Capitalized Lease
Obligations, (vii) reasonably quantifiable obligations under direct guaranties
or indemnities, or under support agreements, in respect of, and reasonably
quantifiable obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of, or to
assure an obligee against failure to make payment in respect of, indebtedness
or obligations of others of the kinds referred to in clauses (i) through (vi),
above and (viii) any other obligation for borrowed money or other financial
accommodation which in accordance with GAAP would be shown as a liability on
the consolidated balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other
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securities owned by such Person; any deposit accounts and certificate of deposit
owned by such Person; and structured notes, derivative financial instruments and
other similar instruments or contracts owned by such Person.
"IPC" means Interstate Power Company, a Delaware corporation.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement and any Notes issued pursuant to
Section 2.13.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Merger" means the merger of IES Industries Inc. with and into the
Borrower, with the Borrower being the survivor thereof, as contemplated by that
certain joint proxy statement/prospectus of the Borrower, IES Industries, Inc.
and IPC dated July 11, 1996 and supplement thereto dated August 21, 1996, and
with IES, IPC and Wisconsin
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Power as wholly-owned Subsidiaries of the Borrower, which will be renamed
Interstate Energy Corporation.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit E.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent or any indemnified party arising under the Loan
Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
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"Purchasers" is defined in Section 12.3.1.
"Reference Banks" means The First National Bank of Chicago, Citibank,
N.A. and Barclays Bank PLC or any additional or substitute Lenders as may be
selected from time to time to act as Reference Banks hereunder by the Agent, the
Required Lenders and the Borrower.
"Reference Ratings" means the ratings assigned by S&P and Moody's to
(i) prior to the consummation of the Merger, the Reference Securities of
Wisconsin Power and (ii) following the consummation of the Merger, the lower of
the two most highly rated Reference Securities. For purposes of the foregoing
clause (i) and clause (ii), if the ratings assigned to such Reference Security
by S&P and Moody's, respectively are not comparable (i.e. a "split rating"), the
higher of such two ratings shall control, unless either rating is below BBB- (in
the case of S&P) or Baa3 (in the case of Moody's) in which case the lower of the
two ratings shall control.
"Reference Securities" means, for each of IES, Wisconsin Power and IPC,
such Utility Subsidiary's first mortgage bonds or other most senior secured
non-credit enhanced long-term debt.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
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"Required Lenders" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Response Date" is defined in Section 2.19.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Service Co." means Alliant Services Company, an Iowa corporation.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible
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for more than 10% of the consolidated net sales or of the consolidated net
income of the Borrower and its Subsidiaries as reflected in the financial
statements referred to in clause (i) above.
"Syndication Agent" means Citicorp Securities, Inc., a Delaware
corporation, and its successors.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Utility Money Pool Agreements" means those certain Utility Money Pool
Agreements between the Borrower, Service Co. (as agent for Borrower) and the
Borrower's Utility Subsidiaries, respectively, which agreements create a money
pool and provide specified lines-of-credit for the Borrower's Utility
Subsidiaries, which lines-of-credit provide the Borrower's Utility Subsidiaries
with short-term funds to finance their day-to-day operations.
"Utility Subsidiaries" of the Borrower means Wisconsin Power and, after
the Merger, IES and IPC.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
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"Wisconsin Power" means Wisconsin Power & Light Company, a Wisconsin
corporation.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDIT
2.1. Commitment. From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
from time to time in amounts not to exceed in the aggregate at any one time
outstanding the amount of its Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at any time prior to the
Facility Termination Date. The Commitments to lend hereunder shall expire on the
Facility Termination Date.
2.2. Required Payments; Termination. Any outstanding Advances and all
other unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.3. Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.
2.4. Types of Advances. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9.
2.5. Facility Fee; Reductions in Aggregate Commitment. The Borrower
agrees to pay to the Agent for the account of each Lender a facility fee at the
Applicable Fee Rate on such Lender's Commitment from the date hereof to and
including the Facility Termination Date, payable on the last day of March, June,
September and December of each year, commencing March 31, 1998, and on the
Facility Termination Date. The Borrower may permanently reduce the Aggregate
Commitment in whole, or in part ratably among the Lenders in an amount not less
than $10,000,000, (or in multiples of $1,000,000 in excess thereof) upon at
least three Business Days' written notice to the Agent, which notice shall
specify the amount of any such reduction, provided, however, that the amount of
the Aggregate Commitment may not be reduced below the aggregate principal amount
of the outstanding Advances. All accrued facility fees shall
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be payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance shall be
in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Commitment.
2.7. Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances, or, in
a minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000
in excess thereof, any portion of the outstanding Floating Rate Advances upon
one Business Day's prior notice to the Agent. The Borrower may from time to time
pay, subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $1,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances
upon three Business Days' prior notice to the Agent.
2.8. Method of Selecting Types and Interest Periods for New Advances;
Interest Rate Determination. (a) The Borrower shall select the Type of Advance
and, in the case of each Eurodollar Advance, the Interest Period applicable
thereto from time to time. The Borrower shall give the Agent irrevocable notice
(a "Borrowing Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing
Date of each Floating Rate Advance and three Business Days before the Borrowing
Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
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(b) Each Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Eurodollar Base Rate. If any one
or more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Bank(s).
2.9. Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance with Section 2.7. Each Eurodollar
Advance shall continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such Eurodollar Advance shall
be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 2.6, the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a Eurodollar
Advance. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating Rate Advance
into a Eurodollar Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Chicago time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and
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including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate per annum
equal to the Eurodollar Rate determined by the Agent as applicable to such
Eurodollar Advance based upon the Borrower's selections under Section 2.8 and
2.9 and otherwise in accordance with the terms hereof. No Interest Period may
end after the Facility Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each Eurodollar Advance
shall bear interest for the remainder of the applicable Interest Period at the
rate otherwise applicable to such Interest Period plus 2% per annum and (ii)
each Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum, provided that,
during the continuance of a Default under Section 7.2, 7.6 or 7.7, the interest
rates set forth in clauses (i) and (ii) above shall be applicable to all
Advances without any election or action on the part of the Agent or any Lender.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (local time) on the date when due
and shall be applied ratably by the Agent among the Lenders. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge the account of the Borrower maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
2.13. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
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(ii) The Agent shall also maintain accounts in which it will record (a)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
with respect thereto, (b) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (c) the amount of any sum received by the Agent hereunder from the Borrower
and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note (a "Note"). In such event, the Borrower shall prepare, execute and deliver
to such Lender a Note payable to the order of such Lender in a form supplied by
the Agent. Thereafter, the Loans evidenced by such Note and interest thereon
shall at all times (including after any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee named therein
or any assignee pursuant to Section 12.3, except to the extent that any such
Lender or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in paragraphs (i)
and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrower. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date
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on which the Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance having
an Interest Period longer than three months shall also be payable on the last
day of each three-month interval during such Interest Period. Interest and fees
shall be calculated for actual days elapsed on the basis of a 360-day year
(except for interest accruing at a rate based on the Corporate Base Rate, which
shall be calculated for actual days elapsed on the basis of a 365- or 366-day
year, as the case may be). Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent (or, in the case of a Floating Rate
Advance, prior to 11:00 a.m. (Chicago time) on the Borrowing Date for such
Floating Rate Advance) of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Borrower, a payment of principal, interest or fees to
the Agent for the account of the Lenders, that it does not intend to make such
payment, the Agent may assume that such payment has been made. The Agent may,
but shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the
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amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Agent until the date the Agent recovers such amount at a rate per annum
equal to (x) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day or (y) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan.
2.19. Extension of Facility Termination Date. The Borrower may request
an extension of the Facility Termination Date by submitting a request for an
extension to the Agent (an "Extension Request") at least 30 days but no more
than 60 days prior to the Facility Termination Date. The Extension Request must
specify the new Facility Termination Date requested by the Borrower and the date
(which must be at least 10 days after the Extension Request is delivered to the
Agent) as of which the Lenders must respond to the Extension Request (the
"Response Date"). The new Facility Termination Date shall be no more than 364
days after the Facility Termination Date in effect at the time the Extension
Request is received, including the Facility Termination Date as one of the days
in the calculation of the days elapsed. Promptly upon receipt of an Extension
Request, the Agent shall notify each Lender of the contents thereof and shall
request each Lender to respond to the Extension Request. Each Lender approving
the Extension Request shall deliver its written consent no later than the
Response Date. The response by each Lender to the Extension Request shall be in
such Lender's sole and absolute discretion. The failure of any Lender to respond
to the Extension Request on or before the Response Date shall be deemed to be a
refusal by such Lender to consent to the Extension Request. If the consent of
each of the Lenders is received by the Agent, the Facility Termination Date
specified in the Extension Request shall become effective on the existing
Facility Termination Date and the Agent shall promptly notify the Borrower and
each Lender of the new Facility Termination Date.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
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(i) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect
of its Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Eurodollar Loans or
reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with its Eurodollar Loans,
or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of
Eurodollar Loans held or interest received by it, by an amount
deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or its
Commitment to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital
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Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance and require
any affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders or a Eurodollar Advance is not paid on the date
specified by the Borrower for prepayment, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Advance.
3.5. Taxes. (i) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall furnish
to the Agent the original copy of a receipt evidencing payment thereof within 30
days after such payment is made.
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(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Agent or such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent or such
Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after the date of this Agreement, (i)
deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(ii) deliver to each of the Borrower and the Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent (x) renewals
or additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Borrower or the Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form or amendment with respect to it and such Lender advises the Borrower and
the Agent that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date
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on which a form originally was required to be provided), such Non-U.S. Lender
shall not be entitled to indemnification under this Section 3.5 with respect to
Taxes imposed by the United States; provided that, should a Non-U.S. Lender
which is otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a form required under
clause (iv), above, the Borrower shall take such steps as such Non-U.S. Lender
shall reasonably request to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of Eurodollar Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Agent) as to the amount due, if any, under Section
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the Borrower in the absence of manifest
error. Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be required to make the
initial Advance hereunder unless the Borrower has furnished to the Agent with
sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of the
Borrower, together with all amendments, and a certificate of
good standing, each certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of
the Borrower, of its by-laws and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the
Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by
name and title and bear the signatures of the Authorized
Officers and any other officers of the Borrower authorized to
sign the Loan Documents to which the Borrower is a party, upon
which certificate the Agent and the Lenders shall be entitled
to rely until informed of any change in writing by the
Borrower.
(iv) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Borrowing Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's general counsel, addressed
to the Lenders in substantially the form of Exhibit A-1; and a
written opinion of Milbank, Tweed, Hadley & McCloy, special
counsel to the Borrower in substantially the form of Exhibit
A-2.
(vi) Any Notes requested by a Lender pursuant to Section 2.13
payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Agent and signed by an
Authorized Officer, together with such other related money
transfer authorizations as the Agent may have reasonably
requested.
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(viii) A written opinion of the Agent's counsel, addressed to the
Lenders in substantially the form of Exhibit A-3.
(ix) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Advance. The Lenders shall not be required to make any
Advance (other than an Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the aggregate amount of
outstanding Advances), unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date except to the
extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation
or warranty shall have been true and correct on and as of such
earlier date.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied. Any Lender may
require a duly completed compliance certificate in substantially the form of
Exhibit B as a condition to making an Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries
is a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2. Authorization and Validity. The Borrower has the power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and
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the performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents to which the Borrower is a
party constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or (ii) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the
execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of the Loan
Documents.
5.4. Financial Statements; Projections. The June 30, 1997 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended. All projections, pro forma and similar
forward-looking statements regarding the Merger or the Borrower after giving
effect thereto heretofore delivered to the Lenders were prepared in good faith
and are based upon assumptions which the Borrower determined were reasonable.
5.5. Material Adverse Change. Since June 30, 1997 there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results
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of operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with GAAP and as to which no Lien
exists. The United States income tax returns of the Borrower and its
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1992. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of
any Loans. Other than any liability incident to any litigation, arbitration or
proceeding which could not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 1 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $25,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $25,000,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other member of the Controlled
Group has withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan.
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5.10. Accuracy of Information. The information, reports, exhibits and
schedules furnished in writing by the Borrower or any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation, preparation or
delivery of, or compliance with, the Loan Documents, when taken as a whole do
not contain any untrue statement of material fact or omit to state any material
fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 2, on
the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.13, to all of
the Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Agent as owned by the Borrower and its
Subsidiaries.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
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5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. The Borrower is a "holding
company", and each Subsidiary is a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as amended
("PUHCA"), but the Borrower and each Subsidiary are exempt from the provisions
of PUHCA, except Section 9(a)(2) thereof, by virtue of having filed with the
Securities and Exchange Commission a Statement by Holding Company Claiming
Exemption Under Rule U-2 from the Provisions of the Public Utility Holding
Company Act of 1935 on Form U-3A-2.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 120 days after the close of each of its fiscal years,
an audit report certified by independent certified public
accountants acceptable to the Lenders, prepared in accordance
with GAAP on a consolidated and consolidating basis
(consolidating statements need not be certified by
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such accountants) for itself and its Subsidiaries, including
balance sheets as of the end of such period, related profit
and loss and reconciliation of surplus statements, and a
statement of cash flows, accompanied by a certificate of said
accountants that, in the course of their examination necessary
for their certification of the foregoing, they have obtained
no knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof
(which certificate may be limited to the extent required by
accounting rules and guidelines).
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated and consolidating unaudited balance
sheets as at the close of each such period and consolidated
and consolidating profit and loss and reconciliation of
surplus statements and a statement of cash flows for the
period from the beginning of such fiscal year to the end of
such quarter, all certified by its chief financial officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer
showing the calculations necessary to determine compliance
with this Agreement and stating that no Default or Unmatured
Default exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing
said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(v) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
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(vi) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files
with the Securities and Exchange Commission.
(viii) As promptly as practicable following the Merger, the Borrower
shall furnish to the Agent any changes to the information
specified in clauses (i), (iii) and (vii) of Section 4.1,
certified (where applicable) as therein required.
(ix) Promptly after the Borrower becomes aware of the occurrence
thereof, notice of all litigation, arbitration, proceedings,
inquiries or other events (A) of the type described in Section
5.7 or (B) for which the Agent or any Lender will be entitled
to indemnity under Section 9.6(ii).
(x) Promptly after the Borrower becomes aware of the occurrence
thereof, notice of any change in Reference Rating.
(xi) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances solely for general corporate
purposes of the Utility Subsidiaries and Service Co. (but not any other
Subsidiary), including liquidity support for the Borrower's commercial paper,
and to repay outstanding Advances. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or carry any
"margin stock" (as defined in Regulation U) or to make any "hostile" or
"unfriendly" Acquisition.
6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
fields of enterprise as it is presently conducted and do all things necessary to
remain duly incorporated or organized, validly existing and (to the extent such
concept applies to such entity) in good standing as a domestic corporation,
partnership or limited liability company in its
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jurisdiction of incorporation or organization, as the case may be, and maintain
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, provided, however, that the Merger may be
consummated.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with GAAP.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Agent or any Lender may designate.
6.10. Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (x) the
Borrower may consummate the Merger and (y) a Subsidiary may merge into the
Borrower (with the Borrower as the surviving entity) or a Wholly-Owned
Subsidiary.
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6.11. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other
than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of
the Property of the Borrower and its Subsidiaries.
6.12. Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments
described in Schedule 1.
(iii) Investments after the date hereof in the Utility Subsidiaries
and Subsidiaries thereof.
(iv) Investments after the date hereof in Service Co. in an
aggregate amount not to exceed $100,000,000 at any time
outstanding.
(v) Investments made by Heartland Development Corporation,
provided that at the time any such Investment is made by
Heartland Development Corporation no Default under Section
6.15 then exists or would result from the financing or making
of such Investment.
6.13. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith
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and by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its
books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v) Liens described in Schedule 2.
6.14. Utility Money Pool Agreements. The Borrower will maintain and
cause to remain in effect a Utility Money Pool Agreement with respect to each
Utility Subsidiary and Service Co.
6.15. Leverage Ratio. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i) Consolidated
Indebtedness to (ii) Consolidated Total Capitalization to be greater than 0.65
to 1.0.
6.16. Termination of Replaced Facilities. The Borrower will cause the
commercial paper program liquidity and other related facilities listed in
Schedule 3 to be terminated within 60 days after the effective date of the
Merger.
6.17. Utility Subsidiaries. The Borrower shall maintain at all times
prior to the Merger direct ownership of 100% of the shares of capital stock (or
comparable interests) of Wisconsin Power, now or hereafter issued and
outstanding, other than the preferred and preference stock of Wisconsin Power,
and, at all times following the Merger, direct ownership of 100% of the shares
of capital stock (or comparable interests) of each of the Utility Subsidiaries,
other than the preferred and preference stock of each of the Utility
Subsidiaries.
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ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Misrepresentation. Any representation or warranty made or deemed
made by or on behalf of the Borrower or any of its Subsidiaries to the Lenders
or the Agent under or in connection with this Agreement, any Loan, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false on the date as of which made.
7.2. Payment Default. Nonpayment of principal of any Loan when due, or
nonpayment of interest upon any Loan or of any facility fee or other obligations
under any of the Loan Documents within five days after the same becomes due.
7.3. Certain Defaults. The breach by the Borrower of any of the terms
or provisions of Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15 or 6.16.
7.4. Other Defaults. The breach by the Borrower (other than a breach
which constitutes a Default under another Section of this Article VII) of any of
the terms or provisions of this Agreement which is not remedied within five days
after written notice from the Agent or any Lender.
7.5. Cross Default. Failure of the Borrower or any of its Subsidiaries
to pay when due any Indebtedness aggregating in excess of $25,000,000 ("Material
Indebtedness"); or the default by the Borrower or any of its Subsidiaries in the
performance (beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event shall occur
or condition exist, the effect of which default or event is to cause, or to
permit the holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6. Voluntary Bankruptcy. The Borrower or any of its Subsidiaries
shall (i) have an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply
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for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7. Involuntary Bankruptcy. Without the application, approval or
consent of the Borrower or any of its Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Borrower or
any of its Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7.6(iv) shall be instituted against the Borrower
or any of its Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 30 consecutive
days.
7.8. Taking. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of, all or
any portion of the Property of the Borrower and its Subsidiaries which, when
taken together with all other Property of the Borrower and its Subsidiaries so
condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action occurs,
constitutes a Substantial Portion.
7.9. Judgments. The Borrower or any of its Subsidiaries shall fail
within 30 days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $25,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith.
7.10. Single Employer Plan Matters. The Unfunded Liabilities of all
Single Employer Plans shall exceed in the aggregate $25,000,000 or any
Reportable Event shall occur in connection with any Plan.
7.11. Certain Multiemployer Plan Matters. The Borrower or any other
member of the Controlled Group 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 Borrower or any other member
of the Controlled Group as withdrawal liability
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(determined as of the date of such notification), exceeds $25,000,000 or
requires payments exceeding $25,000,000 per annum.
7.12. Other Multiemployer Plan Matters. The Borrower or any other
member of the Controlled Group 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 Borrower
and the other members of the Controlled Group (taken as a whole) 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 years of each such Multiemployer Plan immediately
preceding the plan year in which the reorganization or termination occurs by an
amount exceeding $25,000,000.
7.13. Environmental Matters. The Borrower or any of its Subsidiaries
shall (i) be the subject of any proceeding or investigation pertaining to the
release by the Borrower, any of its Subsidiaries or any other Person of any
toxic or hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or
clause (ii), could reasonably be expected to have a Material Adverse Effect.
7.14. Change in Control. Any Change in Control shall occur.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Agent or any Lender. If any other Default occurs, the Required Lenders (or
the Agent with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations
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due shall have been obtained or entered, the Required Lenders (in their sole
discretion) shall so direct, the Agent shall, by notice to the Borrower, rescind
and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan or forgive all or any
portion of the principal amount thereof, or reduce the rate or
extend the time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Commitment of
any Lender hereunder, or permit the Borrower to assign its
rights under this Agreement.
(iv) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or
the Agent to exercise any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or an acquiescence therein, and
the making of a Loan notwithstanding the existence of a Default or the inability
of the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive the making of the
Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition arising as a result
of any adoption of or change in any applicable law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation or
directive after the date of this Agreement.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof other than the fee letter
described in Section 10.13.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Syndication Agent and each Arranger shall enjoy
the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the
Agent, the Syndication Agent and each Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys'
fees and time charges of the principal law firm representing the Agent, the
Syndication Agent and the Arrangers)
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paid or incurred by the Agent, the Syndication Agent or such Arranger, as the
case may be, in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Agent, the
Syndication Agent, each Arranger and the Lenders for any costs, internal charges
and out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Agent, the Syndication Agent, each Arranger and the Lenders,
which attorneys may be employees of the Agent, the Syndication Agent, any
Arranger or the Lenders) paid or incurred by the Agent, the Syndication Agent,
any Arranger or any Lender in connection with the collection and enforcement of
the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Agent, the
Syndication Agent, each Arranger and each Lender, its directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent, the Syndication Agent, any
Arranger or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the Borrower
under this Section 9.6 shall survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders and the Agent on the other hand shall be solely
that of borrower and lender. Neither the Agent, the Syndication Agent, any
Arranger nor any Lender
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shall have any fiduciary responsibilities to the Borrower. Neither the Agent,
the Syndication Agent, any Arranger nor any Lender undertakes any responsibility
to the Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower's business or operations. The Borrower agrees
that neither the Agent, the Syndication Agent, any Arranger nor any Lender shall
have liability to the Borrower (whether sounding in tort, contract or otherwise)
for losses suffered by the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable judgment
by a court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is sought.
Neither the Agent, the Syndication Agent, any Arranger nor any Lender shall have
any liability with respect to, and the Borrower hereby waives, releases and
agrees not to sue for, any special, indirect or consequential damages suffered
by the Borrower in connection with, arising out of, or in any way related to the
Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which that Lender is a party, and (vi) permitted by Section 12.4.
In the event of any request for disclosure under clause (iv) of the preceding
sentence, the applicable Lender agrees to use reasonable efforts to inform the
Borrower as promptly as practicable.
9.12. Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the Loans
provided for herein.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. The First National Bank of
Chicago is hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Agent") hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the Agent to
act as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other
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Loan Documents. The Agent agrees to act as such contractual representative upon
the express conditions contained in this Article X. Notwithstanding the use of
the defined term "Agent," it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by reason of this
Agreement or any other Loan Document and that the Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives. The Co-Agents, in their capacities as such, shall have no rights or
duties hereunder or under any other Loan Document.
10.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency,
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creation, perfection or priority of any Lien in any collateral security; or (g)
the financial condition of the Borrower or any guarantor of any of the
Obligations or of any of the Borrower's or any such guarantor's respective
Subsidiaries. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the Agent at
such time, but is voluntarily furnished by the Borrower to the Agent (either in
its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any costs, charges
and expenses not reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents (it being understood that
such amounts do not include any amounts owing to First Chicago (or any
institution
44
<PAGE> 46
acting as a successor Agent) in its capacity as a Lender), (ii) for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the Agent
in connection with any dispute between the Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Agent. The obligations of the Lenders under this
Section 10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Syndication Agent, any
Arranger or any other Lender and based on the financial statements prepared by
the Borrower and such other documents and information as it has deemed
appropriate,
45
<PAGE> 47
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, the Syndication Agent, any Arranger or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Corporate Base Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new Agent.
46
<PAGE> 48
10.13. Agent's Fee. The Borrower agrees to pay to the Agent, for its
own account, the fees agreed to by the Borrower and the Agent pursuant to that
certain letter agreement dated November 5, 1997, or as otherwise agreed from
time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
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<PAGE> 49
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Agent may
treat the Person which made any Loan or which holds any Note as the owner
thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Agent. Any assignee
or transferee of the rights to any Loan or any Note agrees by acceptance of such
transfer or assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder, transferee or assignee
of the rights to such Loan.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Loans and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
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<PAGE> 50
12.2.2 Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment, extends the Facility Termination Date, or postpones any date fixed
for any regularly-scheduled payment of principal of, or interest or fees on, any
such Loan or Commitment.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit C or in such other form as may be agreed to
by the parties thereto. The consent of the Borrower and the Agent shall be
required prior to an assignment becoming effective with respect to a Purchaser;
provided that no such consent shall be required for a Purchaser which is a
Lender or an Affiliate of a Lender unless such Purchaser does not have a
long-term debt rating of A or better from S&P, A2 or better from Moody's or the
equivalent from Thompson Bank Watch, in which case the consent of the Borrower
shall be required; provided, however, that, in the case of any Purchaser, if a
Default has occurred and is continuing, the consent of the Borrower shall not be
required. Such consent (if required) shall not be unreasonably withheld or
delayed. Each such assignment shall (unless each of the Borrower and the Agent
otherwise consents) be in an amount not less than the lesser of (i) $5,000,000
or (ii) the remaining amount of the assigning Lender's Commitment (calculated as
at the date of such assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent
of a notice of assignment, substantially in the form attached as Exhibit I to
Exhibit C (a "Notice of
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<PAGE> 51
Assignment"), together with any consents required by Section 12.3.1, and (ii)
payment of a $3,000 fee to the Agent for processing such assignment, such
assignment shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by or on behalf of the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as if it
were an original party hereto, and no further consent or action by the Borrower,
the Lenders or the Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 12.3.2, the transferor Lender, the Agent and the Borrower shall, if
the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
12.4. Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
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<PAGE> 52
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this Section 13.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; provided that notices to the Agent under Article II shall not
be effective until received.
13.2. Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent, the Syndication Agent and the Lenders and each party has notified the
Agent by facsimile transmission or telephone that it has taken such action.
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<PAGE> 53
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK CITY, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW
YORK CITY.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
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<PAGE> 54
IN WITNESS WHEREOF, the Borrower, the Lenders, the Syndication Agent
and the Agent have executed this Agreement as of the date first above written.
WPL HOLDINGS, INC.
By ________________________________
Title:
222 West Washington Avenue
P.O. Box 2568
Madison, Wisconsin 53701-2568
Attention: Steven F. Price
Telephone: 608-252-5728
FAX: 608-252-5782
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By ________________________________
Title:
One First National Plaza
Chicago, Illinois 60670
Attention: Robert G. Bussa
Telephone: 312-732-9780
FAX: 312-732-3055
S-1
<PAGE> 55
CITICORP SECURITIES, INC.,
as Syndication Agent
By ________________________________
Title:
399 Park Avenue
Global Loans - 11th Floor
New York, NY 10043
Attention: Anita Brickell
Telephone: 212-559-1288
FAX: 212-583-7185
S-2
<PAGE> 56
Commitments
$9,900,000 THE FIRST NATIONAL BANK OF CHICAGO, as a
Lender
By ________________________________
Title:
One First National Plaza
Chicago, Illinois 60670
Attention: Robert G. Bussa
Telephone: 312-732-9780
FAX: 312-732-3055
S-3
<PAGE> 57
$9,900,000 CITIBANK, N.A., as a Lender
By ________________________________
Title:
2 Penns Way, Suite 200
New Castle, DE 19720
Attention: Pia Saenganan
Telephone: 302-894-6006
FAX: 302-894-6120
S-4
<PAGE> 58
$9,900,000 BARCLAYS BANK PLC, as a Lender and as
Co-Agent
By ________________________________
Title:
222 Broadway, 11th Floor
New York, NY 10038
Attention: Sydney Dennis
Telephone: 212-412-2470
FAX: 212-412-6709
S-5
<PAGE> 59
$9,900,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender and
Co-Agent
By ________________________________
Title:
227 West Monroe
Suite 2300
Chicago, IL 60606
Attention: Wayne Yamanaka
Telephone: (312) 696-4664
FAX: (312) 696-4535
S-6
<PAGE> 60
$9,900,000 THE FUJI BANK, LIMITED, as a Lender and
Co-Agent
By ________________________________
Title:
225 West Wacker Drive,
Suite 2000
Chicago, IL 60606
Attention: Stephen P. Peca
Telephone: (312) 621-9484
FAX: (312) 621-0539 or
(312) 419-3677
S-7
<PAGE> 61
$9,900,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
as a Lender and Co-Agent
By ________________________________
Title:
190 S. LaSalle Street,
Suite 800
Chicago, IL 60603
Attention: Kris A. Grosshans
Telephone: 312-704-5474
FAX: 312-701-8505
S-8
<PAGE> 62
$9,900,000 MELLON BANK, N.A., as a Lender and
Co-Agent
By ________________________________
Title:
One Mellon Bank Center
Room 151-4425
Pittsburgh, PA 15258-0001
Attention: Jacquelyn S. Peters
Telephone: 412-236-2988
FAX: 412-236-1840
S-9
<PAGE> 63
$9,900,000 THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Lender and Co-Agent
By ________________________________
Title:
245 Park Avenue
29th Floor
New York, NY 10167-0104
Attention: Mr. Tsuneo Tsukasaki
Telephone: (212) 808-4186
FAX: (212) 808-4195
S-10
<PAGE> 64
$7,000,000 THE CHASE MANHATTAN BANK, as a Lender
By ________________________________
Title:
270 Park Avenue, 32nd Floor
New York, New York 10017
Attention: Paul V. Farrell
Telephone: (212) 270-7653
FAX: (212) 270-3089
S-11
<PAGE> 65
$7,000,000 DEN DANSKE BANK AKTIESELSKAB, CAYMAN
ISLANDS BRANCH, as a Lender
By ________________________________
Title:
By ________________________________
Title:
c/o Den Danske Bank, New York Branch
280 Park Avenue, 4th Floor East Building
New York, NY 10017
Attention: Mogens Sondergaard
Telephone: (212) 984-8472
FAX: (212) 599-2493
S-12
<PAGE> 66
$7,000,000 FIRST UNION NATIONAL BANK, as a Lender
By ________________________________
Title:
First Union National Bank
One First Union Center
TW-5
Charlotte, NC 28288-0735
Attention: Tom Bohrer
Telephone: 704-383-3535
Fax: 704-383-6670
S-13
<PAGE> 67
$3,600,000 ABN AMRO BANK N.V., as a Lender
By ________________________________
Title:
By ________________________________
Title:
135 S. LaSalle Street
Suite 711
Chicago, IL 60603
Attention: David B. Bryant
Telephone: (312) 904-2799
Fax: (312) 904-6217
S-14
<PAGE> 68
$3,600,000 BANKBOSTON N.A., as a Lender
By ________________________________
Title:
100 Federal Street
Boston, MA 02110
Attention: Rita Cahill
Telephone: 617-434-2613
FAX: 617-434-3652
S-15
<PAGE> 69
$3,600,000 BANK HAPOALIM B.M., as a Lender
By ________________________________
Title:
By ________________________________
Title:
225 N. Michigan Avenue, Suite 900
Chicago, IL 60601
Attention: Michael J. Kearney
Telephone: (312) 228-6425
FAX: (312) 228-6490
S-16
<PAGE> 70
$3,600,000 BANK OF NEW YORK, as a Lender
By ________________________________
Title:
One Wall Street
New York, New York 10286
Attention: Timothy M. Lynch
Telephone: (212) 635-7863
FAX: (212) 635-7923
S-17
<PAGE> 71
$3,600,000 BANK ONE, WISCONSIN, as a Lender
By ________________________________
Title:
111 E. Wisconsin Avenue
Milwaukee, WI 53202
Attention: Danielle M. Clarke
Telephone: (414) 765-2075
FAX: (414) 765-2176
S-18
<PAGE> 72
$3,600,000 BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH, as a Lender
By ________________________________
Title:
By ________________________________
Title:
560 Lexington Avenue
New York, NY 10022
Attention: Sean O'Sullivan
Telephone: (212) 310-3941
FAX: (212) 310-9868
S-19
<PAGE> 73
$3,600,000 FIRST BANK NATIONAL ASSOCIATION, as a
Lender
By ________________________________
Title:
201 W. Wisconsin Avenue
Milwaukee, WI 53259
Attention: Dennis J. Ciche
Telephone: 414-227-5707
FAX: 414-227-5881
S-20
<PAGE> 74
$3,600,000 FIRSTAR BANK MILWAUKEE, N.A.,
as a Lender
By ________________________________
Title:
777 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Desiree Leto
Telephone: (414) 765-4419
FAX: (414) 765-5367
S-21
<PAGE> 75
$3,600,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By ________________________________
Title:
227 West Monroe Street
Suite 2600
Chicago, IL 60606
Attention: Bruce Davis
Telephone: (312) 855-8484
FAX: (312) 855-8200
S-22
<PAGE> 76
$3,600,000 NORWEST BANK IOWA, National
Association, as a Lender
By ________________________________
Title:
101 3rd Avenue SW
Cedar Rapids, IA 52404
Attention: John R. Falb
Telephone: (319) 368-1221
FAX: (319) 368-1299
S-23
<PAGE> 77
$3,600,000 THE SANWA BANK, LIMITED, CHICAGO BRANCH,
as a Lender
By ________________________________
Title:
10 S. Wacker Drive, 31st Floor
Chicago, IL 60606
Attention: Joseph P. Howard
Telephone: (312) 368-3007
FAX: (312) 346-6677
S-24
<PAGE> 78
$3,600,000 WACHOVIA BANK, N.A., as a Lender
By ________________________________
Title:
191 Peachtree Street, N.E.
Atlanta, GA 30303
Attention: Todd Eagle
Telephone: (404) 332-4392
FAX: (404) 332-6898
S-25
<PAGE> 79
$3,600,000 THE SUMITOMO BANK, LIMITED, as a Lender
By ________________________________
Title:
233 South Wacker Drive,
Suite 4800
Chicago, IL 60606
Attention: Dan Casey
Telephone: (312) 879-7672
FAX: (312) 876-6436
S-26
<PAGE> 80
$1,500,000 AMERICAN TRUST & SAVINGS BANK,
as a Lender
By ________________________________
Title:
895 Town Clock Plaza
Dubuque, IA 52004-0938
Attention: Scott R. Strebe
Telephone: (319) 589-0849
FAX: (319) 589-0839
S-27
<PAGE> 81
$1,500,000 DUBUQUE BANK AND TRUST COMPANY, as a
Lender
By ________________________________
Title:
1398 Central Avenue
Dubuque, IA 52001
Attention: Douglas J. Horstmann
Telephone: (319) 589-2104
FAX: (319) 589-2184
$150,000,000
============
S-28
<PAGE> 82
EXHIBIT A-1 and A-2
FORM OF OPINION 1
--------------, -----
The Agent and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
We are counsel for WPL Holdings, Inc. (the "Borrower"), and have
represented the Borrower in connection with its execution and delivery of a
Credit Agreement dated as of December 17, 1997 (the "Agreement") among the
Borrower, the Lenders named therein, Citicorp Securities, Inc., as Syndication
Agent, and The First National Bank of Chicago, as Agent, and providing for
Advances in an aggregate principal amount not exceeding $_______________ at any
one time outstanding. All capitalized terms used in this opinion and not
otherwise defined herein shall have the meanings attributed to them in the
Agreement.
We have examined the Borrower's [describe constitutive documents of
Borrower and appropriate evidence of authority to enter into the transaction],
the Loan Documents and such other matters of fact and law which we deem
necessary in order to render this opinion. Based upon the foregoing, it is our
opinion that:
l. Each of the Borrower and its Subsidiaries is a corporation,
partnership or limited liability company duly and properly incorporated or
organized, as the case may be, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
2. The execution and delivery by the Borrower of the Loan Documents and
the performance by the Borrower of its obligations thereunder have been duly
authorized by proper corporate proceedings on the part of the Borrower and will
not:
(a) require any consent of the Borrower's shareholders or
members (other than any such consent as has already been given and
remains in full force and effect);
- --------
1 The opinions of the Borrower's general counsel and special counsel
shall collectively cover the substance of this form of opinion.
A-1
<PAGE> 83
(b) violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of
its Subsidiaries or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or
operating or other management agreement, as the case may be, or (iii)
the provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a
default thereunder; or
(c) result in, or require, the creation or imposition of any
Lien in, of or on the Property of the Borrower or a Subsidiary pursuant
to the terms of any indenture, instrument or agreement binding upon the
Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the
Borrower and constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms except to the
extent the enforcement thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and
subject also to the availability of equitable remedies if equitable remedies are
sought.
4. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of our knowledge after due
inquiry, threatened against the Borrower or any of its Subsidiaries which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
5. No order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement, the payment and performance by
the Borrower of the Obligations, or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
A-2
<PAGE> 84
EXHIBIT A-3
FORM OF OPINION OF COUNSEL TO AGENT
December __, 1997
The First National Bank of Chicago,
as Agent, Citicorp Securities, Inc,
as Syndication Agent, and
the other financial institutions
which are Co-Agents and Lenders
party to the Credit
Agreement referred to below
Re: WPL Holdings, Inc.
Ladies and Gentlemen:
We have acted as special counsel to The First National Bank of Chicago,
as Agent (in such capacity, the "Agent"), in connection with the Credit
Agreement dated as of December 17, 1997 (the "Credit Agreement"), among WPL
Holdings, Inc.(the "Borrower"), various financial institutions, as Co-Agents and
Lenders, Citicorp Securities, Inc., as Syndication Agent, and The First National
Bank of Chicago, as Agent. Capitalized terms used herein and not otherwise
defined shall have the meanings attributed to them in the Credit Agreement.
In connection herewith, we have examined the following (the "Closing
Documents"): (i) counterparts of the Credit Agreement executed by the Borrower,
each of the Lenders, the Co-Agents, the Syndication Agent and the Agent; (ii)
the Notes issued by the Borrower on the date hereof pursuant to the Credit
Agreement; and (iii) the certificates and opinions of counsel delivered pursuant
to Section 4.1 of the Credit Agreement. In connection with such examination, we
have assumed the genuineness of all signatures, the authority of the persons
signing such documents and the authenticity of such documents.
A-3
<PAGE> 85
Based upon the foregoing, and while we have not independently
considered the matters covered by the opinions of counsel referred to in Section
4.1(v) of the Credit Agreement to the extent necessary to enable us to express
the conclusions stated therein, we are of the opinion that such opinions of
counsel and the other Closing Documents are substantially responsive to the
requirements of the Credit Agreement.
Very truly yours,
MAYER, BROWN & PLATT
A-4
<PAGE> 86
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of _______________ (as amended, modified, renewed or
extended from time to time, the "Agreement") among WPL Holdings, Inc. (the
"Borrower"), the lenders party thereto, Citicorp Securities, Inc., as
Syndication Agent, and The First National Bank of Chicago, as Agent for the
Lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
5. Schedule II attached hereto sets forth the various reports and
deliveries which are required at this time under the Credit Agreement and the
other Loan Documents and the status of compliance.
B-1
<PAGE> 87
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
The foregoing certifications, together with the computations set forth
in Schedule I [and Schedule II] hereto and the financial statements delivered
with this Certificate in support hereof, are made and delivered this _____ day
of _______________.
______________________________
B-2
<PAGE> 88
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _______________, _____ with
Provisions of __________and __________ of
the Agreement
<PAGE> 89
SCHEDULE II TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
<PAGE> 90
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
______________________________ (the "Assignor") and
______________________________ (the "Assignee") is dated as of _______________,
19__ . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after a
Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. Such Notice of Assignment must include any
consents required to be delivered to the Agent by Section 12.3.1 of the Credit
Agreement. In no event will the Effective Date occur if the payments required to
be made by the Assignee to the Assignor on the Effective Date under Sections 4
and 5 hereof are not made on the proposed Effective Date. The Assignor will
notify the Assignee of the proposed Effective Date no later than the Business
Day prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released from
its corresponding obligations under the Loan Documents with respect to the
rights and obligations assigned to the Assignee hereunder.
C-1
<PAGE> 91
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Floating Rate Loans
assigned to the Assignee hereunder and (ii) with respect to each Fixed Rate Loan
made by the Assignor and assigned to the Assignee hereunder which is outstanding
on the Effective Date, (a) on the last day of the Interest Period therefor or
(b) on such earlier date agreed to by the Assignor and the Assignee or (c) on
the date on which any such Fixed Rate Loan becomes due (by acceleration or
otherwise)(the date as described in the foregoing clauses (a), (b) or (c) being
hereinafter referred to as the "Payment Date"), the Assignee shall pay the
Assignor an amount equal to the principal amount of the portion of such Fixed
Rate Loan assigned to the Assignee which is outstanding on the Payment Date. If
the Assignor and the Assignee agree that the Payment Date for such Fixed Rate
Loan shall be the Effective Date, they shall agree to the interest rate
applicable to the portion of such Loan assigned hereunder for the period from
the Effective Date to the end of the existing Interest Period applicable to such
Fixed Rate Loan (the "Agreed Interest Rate") and any interest received by the
Assignee in excess of the Agreed Interest Rate shall be remitted to the
Assignor. In the event interest for the period from the Effective Date to but
not including the Payment Date is not paid by the Borrower with respect to any
Fixed Rate Loan sold by the Assignor to the Assignee hereunder, the Assignee
shall pay to the Assignor interest for such period on the portion of such Fixed
Rate Loan sold by the Assignor to the Assignee hereunder at the applicable rate
provided by the Credit Agreement. In the event a prepayment of any Fixed Rate
Loan which is existing on the Payment Date and assigned by the Assignor to the
Assignee hereunder occurs after the Payment Date but before the end of the
Interest Period applicable to such Fixed Rate Loan, the Assignee shall remit to
the Assignor the excess of the prepayment penalty paid with respect to the
portion of such Fixed Rate Loan assigned to the Assignee hereunder over the
amount which would have been paid if such prepayment penalty was calculated
based on the Agreed Interest Rate. The Assignee will also promptly remit to the
Assignor (i) any principal payments received from the Agent with respect to
Fixed Rate Loans prior to the Payment Date and (ii) any amounts of interest on
Loans and fees received from the Agent which relate to the portion of the Loans
assigned to the Assignee hereunder for periods prior to the Effective Date, in
the case of Floating Rate Loans or fees, or the Payment Date, in the case of
Fixed Rate Loans, and not previously paid by the Assignee to the Assignor. In
the event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
**Each Assignor may insert its standard payment provisions in lieu of
the payment terms included in this Exhibit.
C-2
<PAGE> 92
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or fees is made under the
Credit Agreement with respect to the amounts assigned to the Assignee hereunder
(other than a payment of interest or facility fees for the period prior to the
Effective Date or, in the case of Fixed Rate Loans, the Payment Date, which the
Assignee is obligated to deliver to the Assignor pursuant to Section 4 hereof).
The amount of such fee shall be the difference between (i) the interest or fee,
as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts assigned to the Assignee hereunder if each
interest rate was _____ of 1% less than the interest rate paid by the Borrower
or if the facility fee was _____ of 1% less than the facility fee paid by the
Borrower, as applicable. In addition, the Assignee agrees to pay _____ % of the
recordation fee required to be paid to the Agent in connection with this
Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such
C-3
<PAGE> 93
powers under the Loan Documents as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vi) confirms
that none of the funds, monies, assets or other consideration being used to make
the purchase and assumption hereunder are "plan assets" as defined under ERISA
and that its rights, benefits and interests in and under the Loan Documents will
not be "plan assets" under ERISA, [(vii) confirms that it is an Eligible
Assignee,] [and (viii) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any United
States federal income taxes].
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 12.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of New York.
C-4
<PAGE> 94
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
C-5
<PAGE> 95
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:________________________________
Title:
[NAME OF ASSIGNEE]
By:________________________________
Title:
C-6
<PAGE> 96
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: _______________, 19__
3. Amounts (As of Date of Item 2 above):
<TABLE>
<CAPTION>
Facility Facility Facility Facility
1* 2* 3* 4*
-------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
a. Total of
Commitments
(Loans)** under
Credit Agreement $_________ $_________ $_________ $_________
b. Assignee's
Percentage of
each Facility
purchased under
the Assignment
Agreement*** ________% ________% ________% ________%
c. Amount of
Assigned Share
in each Facility
purchased under
the Assignment
Agreement $_________ $_________ $_________ $_________
</TABLE>
4. Assignee's Aggregate (Loan Amount)** Commitment Amount Purchased
Hereunder:
$---------------
5. Proposed Effective Date: _______________
1
<PAGE> 97
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_______________________ By:________________________________
Title: Title:
* Insert specific facility names per Credit Agreement
** If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
*** Percentage taken to 10 decimal places
2
<PAGE> 98
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet,
which must include notice addresses for the Assignor
and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name:________________________ Telephone No.:_____________________
Fax No.:_____________________ Telex No.:_________________________
Answerback:________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:______________________________________________
_______________________________________________________________________________
Account Name & Number for Wire Transfer:_______________________________________
_______________________________________________________________________________
Other Instructions:____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR:______________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name:________________________ Telephone No.:_____________________
Fax No.:_____________________ Telex No.:_________________________
Answerback:________________________
3
<PAGE> 99
KEY OPERATIONS CONTACTS:
Booking Installation:__________________ Booking Installation:______________
Name:__________________________________ Name:______________________________
Telephone No.:_________________________ Telephone No.:_____________________
Fax No.:_______________________________ Fax No.:___________________________
Telex No.:_____________________________ Telex No.:_________________________
Answerback:____________________________ Answerback:________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:______________________________________________
_______________________________________________________________________________
Account Name & Number for Wire Transfer:_______________________________________
_______________________________________________________________________________
Other Instructions:____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNEE:______________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
4
<PAGE> 100
FNBC INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name:John Loizzo Name:
_____________________________ ______________________________
Telephone No.: (312) 732-4118 Telephone No.:(312)
____________________ _____________________
Fax No.: (312) 732-7455 Fax No.:(312)
__________________________ ___________________________
FNBC Telex No.:190201 (Answerback: FNBC UT)
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
FNBC WIRE INSTRUCTIONS: The First National Bank of Chicago, ABA # 071000013
BNF = 7521-7653/DES, Ref:______________________________
ADDRESS FOR NOTICES FOR FNBC: One First National Plaza, Chicago, IL 60670
Attn: Agency/Compliance Division, Suite 0353
Fax No. (312) 732-2038 or (312) 732-4339
5
<PAGE> 101
EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
_______________, 19__
To: WPL Holdings, Inc.
____________________
____________________
The First National Bank of Chicago
____________________
____________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Borrower and the Agent pursuant to Section 12.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _______________, 19__ (the "Assignment"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed to
by the Agent) after this Notice of Assignment and any consents and fees required
by Sections 12.3.1 and 12.3.2 of the Credit Agreement have been delivered to
I-1
<PAGE> 102
the Agent, provided that the Effective Date shall not occur if any condition
precedent agreed to by the Assignor and the Assignee has not been satisfied.
*To be included only if consent must be obtained from the Borrower pursuant to
Section 12.3.1 of the Credit Agreement.
4. The Assignor and the Assignee hereby give to the Borrower and the
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Agent to determine the
Effective Date pursuant to Section 3 hereof if it occurs thereafter. The
Assignor shall notify the Agent if the Assignment Agreement does not become
effective on any proposed Effective Date as a result of the failure to satisfy
the conditions precedent agreed to by the Assignor and the Assignee. At the
request of the Agent, the Assignor will give the Agent written confirmation of
the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before the
Effective Date the processing fee of $3,000 required by Section 12.3.2 of the
Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Agent prepare and cause the Borrower to
execute and deliver new Notes or, as appropriate, replacement notes, to the
Assignor and the Assignee. The Assignor and, if applicable, the Assignee each
agree to deliver to the Agent the original Note received by it from the Borrower
upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment instructions
are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
I-2
<PAGE> 103
9. The Assignee authorizes the Agent to act as its agent under the Loan
Documents in accordance with the terms thereof. The Assignee acknowledges that
the Agent has no duty to supply information with respect to the Borrower or the
Loan Documents to the Assignee until the Assignee becomes a party to the Credit
Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:_______________________________ By:________________________________
Title: Title:
ACKNOWLEDGED AND CONSENTED ACKNOWLEDGED AND CONSENTED
TO BY THE FIRST NATIONAL BANK TO BY WPL HOLDINGS, INC.
OF CHICAGO, as Agent
By:_______________________________ By:________________________________
Title: Title:
[Attach photocopy of Schedule 1 to Assignment]
I-3
<PAGE> 104
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated _______________ (as the same may be amended or
modified, the "Credit Agreement"), among ______________________________
(the "Borrower"), the Lenders named therein and the Agent. Capitalized
terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.14 of the Credit Agreement.
Facility Identification Number(s)______________________________________________
Customer/Account Name__________________________________________________________
Transfer Funds To______________________________________________________________
_______________________________________________________________________________
For Account No.________________________________________________________________
Reference/Attention To_________________________________________________________
D-1
<PAGE> 105
Authorized Officer (Customer Representative) Date____________________________
__________________________________ ___________________________________
(Please Print) Signature
Bank Officer Name Date____________________________
__________________________________ ___________________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
D-2
<PAGE> 106
EXHIBIT E
NOTE
$______________ _______________, _____
WPL Holdings, Inc., a Wisconsin corporation (the "Borrower"), promises
to pay to the order of ______________________________ (the "Lender") the lesser
of the principal sum of ______________________________ Dollars or the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrower pursuant
to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of The First National Bank of Chicago in
Chicago, Illinois, as Agent, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay the principal of and accrued and unpaid interest on the Loans
in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement dated as of December 17, 1997 (which, as
it may be amended or modified and in effect from time to time, is herein called
the "Agreement"), among the Borrower, the lenders party thereto, including the
Lender, and The First National Bank of Chicago, as Agent, to which Agreement
reference is hereby made for a statement of the terms and conditions governing
this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.
This Note shall be construed in accordance with the internal laws (and
not the law of conflicts) of the State of New York.
WPL HOLDINGS, INC.
By_________________________________
Print Name:
Title:
E-1
<PAGE> 107
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF WPL HOLDINGS, INC.
DATED ---------------
<TABLE>
<CAPTION>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ---- ---- ------ ---- -------
<S> <C> <C> <C> <C>
</TABLE>
E-2
<PAGE> 108
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See Sections 5.8 and 6.12)
<TABLE>
<CAPTION>
Jurisdiction of Amount of Percent
Investment In Organization Owned By Investment Ownership
- ------------- ------------ -------- ---------- ---------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 109
SCHEDULE 2
INDEBTEDNESS AND LIENS
(See Sections 5.14, 6.11 and 6.13)
<TABLE>
<CAPTION>
Maturity and
Indebtedness Indebtedness Property Amount of
Incurred By Owed To Encumbered (If Any) Indebtedness
- ----------- ------- ------------------- ------------
<S> <C> <C> <C>
</TABLE>
<PAGE> 110
SCHEDULE 3
FACILITIES TO BE TERMINATED
(See Section 6.16)
<PAGE> 111
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ARTICLE I
DEFINITIONS...................................................1
ARTICLE II
THE CREDIT...................................................13
2.1. Commitment...................................................................................13
2.2. Required Payments; Termination...............................................................13
2.3. Ratable Loans................................................................................13
2.4. Types of Advances............................................................................13
2.5. Facility Fee; Reductions in Aggregate Commitment.............................................14
2.6. Minimum Amount of Each Advance...............................................................14
2.7. Optional Principal Payments..................................................................14
2.8. Method of Selecting Types and Interest Periods for New Advances;
Interest Rate Determination..................................................................14
2.9. Conversion and Continuation of Outstanding Advances..........................................15
2.10. Changes in Interest Rate, etc................................................................15
2.11. Rates Applicable After Default...............................................................16
2.12. Method of Payment............................................................................16
2.13. Noteless Agreement; Evidence of Indebtedness.................................................16
2.14. Telephonic Notices...........................................................................17
2.15. Interest Payment Dates; Interest and Fee Basis...............................................17
2.16. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions...................................................................................18
2.17. Lending Installations........................................................................18
2.18. Non-Receipt of Funds by the Agent............................................................18
2.19. Extension of Facility Termination Date.......................................................19
ARTICLE III
YIELD PROTECTION; TAXES............................................19
3.1. Yield Protection.............................................................................19
3.2. Changes in Capital Adequacy Regulations......................................................20
3.3. Availability of Types of Advances............................................................21
3.4. Funding Indemnification......................................................................21
3.5. Taxes........................................................................................21
3.6. Lender Statements; Survival of Indemnity.....................................................23
ARTICLE IV
CONDITIONS PRECEDENT..............................................23
4.1. Initial Advance..............................................................................23
</TABLE>
i
<PAGE> 112
<TABLE>
<CAPTION>
<S> <C> <C> <C>
4.2. Each Advance.................................................................................24
ARTICLE V
REPRESENTATIONS AND WARRANTIES.........................................25
5.1. Existence and Standing.......................................................................25
5.2. Authorization and Validity...................................................................25
5.3. No Conflict; Government Consent..............................................................25
5.4. Financial Statements; Projections............................................................26
5.5. Material Adverse Change......................................................................26
5.6. Taxes........................................................................................26
5.7. Litigation and Contingent Obligations........................................................26
5.8. Subsidiaries.................................................................................27
5.9. ERISA........................................................................................27
5.10. Accuracy of Information......................................................................27
5.11. Regulation U.................................................................................27
5.12. Material Agreements..........................................................................27
5.13. Compliance With Laws.........................................................................27
5.14. Ownership of Properties......................................................................28
5.15. Plan Assets; Prohibited Transactions.........................................................28
5.16. Environmental Matters........................................................................28
5.17. Investment Company Act.......................................................................28
5.18. Public Utility Holding Company Act...........................................................28
ARTICLE VI
COVENANTS...................................................29
6.1. Financial Reporting..........................................................................29
6.2. Use of Proceeds..............................................................................30
6.3. Notice of Default............................................................................31
6.4. Conduct of Business..........................................................................31
6.5. Taxes........................................................................................31
6.6. Insurance....................................................................................31
6.7. Compliance with Laws.........................................................................31
6.8. Maintenance of Properties....................................................................31
6.9. Inspection...................................................................................31
6.10. Merger.......................................................................................32
6.11. Sale of Assets...............................................................................32
6.12. Investments and Acquisitions.................................................................32
6.13. Liens........................................................................................33
6.14. Utility Money Pool Agreements................................................................33
6.15. Leverage Ratio...............................................................................33
6.16. Termination of Replaced Facilities...........................................................33
6.17. Utility Subsidiaries.........................................................................33
</TABLE>
ii
<PAGE> 113
iii
<PAGE> 114
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ARTICLE VII
DEFAULTS....................................................34
7.1. Misrepresentation..............................................................................34
7.2. Payment Default................................................................................34
7.3. Certain Defaults...............................................................................34
7.4. Other Defaults.................................................................................34
7.5. Cross Default..................................................................................34
7.6. Voluntary Bankruptcy...........................................................................35
7.7. Involuntary Bankruptcy.........................................................................35
7.8. Taking.........................................................................................35
7.9. Judgments......................................................................................35
7.10. Single Employer Plan Matters ..................................................................35
7.11. Certain Multiemployer Plan Matters ............................................................35
7.12. Other Multiemployer Plan Matters ..............................................................36
7.13. Environmental Matters .........................................................................36
7.14. Change in Control .............................................................................36
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................................36
8.1. Acceleration.................................................................................36
8.2. Amendments...................................................................................37
8.3. Preservation of Rights.......................................................................37
ARTICLE IX
GENERAL PROVISIONS...............................................38
9.1. Survival of Representations..................................................................38
9.2. Governmental Regulation......................................................................38
9.3. Headings.....................................................................................38
9.4. Entire Agreement.............................................................................38
9.5. Several Obligations; Benefits of this Agreement..............................................38
9.6. Expenses; Indemnification....................................................................38
9.7. Numbers of Documents.........................................................................39
9.8. Accounting...................................................................................39
9.9. Severability of Provisions...................................................................39
9.10. Nonliability of Lenders......................................................................39
9.11. Confidentiality..............................................................................40
9.12. Nonreliance..................................................................................40
</TABLE>
iv
<PAGE> 115
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ARTICLE X
THE AGENT...................................................40
10.1. Appointment; Nature of Relationship.........................................................40
10.2. Powers......................................................................................41
10.3. General Immunity............................................................................41
10.4. No Responsibility for Loans, Recitals, etc..................................................41
10.5. Action on Instructions of Lenders...........................................................41
10.6. Employment of Agents and Counsel............................................................42
10.7. Reliance on Documents; Counsel..............................................................42
10.8. Agent's Reimbursement and Indemnification...................................................42
10.9. Notice of Default ..........................................................................43
10.10. Rights as a Lender .........................................................................43
10.11. Lender Credit Decision .....................................................................43
10.12. Successor Agent ............................................................................43
10.13. Agent's Fee ................................................................................44
10.14. Delegation to Affiliates ...................................................................44
ARTICLE XI
SETOFF; RATABLE PAYMENTS.....................................................45
11.1. Setoff......................................................................................45
11.2. Ratable Payments............................................................................45
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS........................................45
12.1. Successors and Assigns......................................................................45
12.2. Participations..............................................................................46
12.3. Assignments.................................................................................47
12.4. Dissemination of Information................................................................48
12.5. Tax Treatment...............................................................................48
ARTICLE XIII
NOTICES.............................................................48
13.1. Notices.....................................................................................48
13.2. Change of Address...........................................................................48
</TABLE>
v
<PAGE> 116
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
ARTICLE XIV
COUNTERPARTS...........................................................49
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL.......................................................49
15.1. CHOICE OF LAW...............................................................................49
15.2. CONSENT TO JURISDICTION.....................................................................49
15.3. WAIVER OF JURY TRIAL........................................................................49
</TABLE>
vi
<PAGE> 117
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule 1 Subsidiaries and Other Investments
Schedule 2 Indebtedness and Liens
Schedule 3 Facilities to be Terminated
EXHIBITS
Exhibit A-1 Form of Opinion of Borrower's General Counsel
Exhibit A-2 Form of Opinion of Borrower's Special Counsel
Exhibit A-3 Form of Opinion of Agent's Counsel
Exhibit B Form of Compliance Certificate
Exhibit C Form of Assignment Agreement
Exhibit D Form of Loan/Credit Related Money Transfer Instruction
Exhibit E Form of Note
</TABLE>
vii
