EXHIBIT J-1
CONFORMED COPY
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$300,000,000
364-DAY
CREDIT AGREEMENT
Dated as of October 16, 2000
Among
ALLIANT ENERGY CORPORATION
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
BANK ONE, NA
as Administrative Agent
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SALOMON SMITH BARNEY INC.
Syndication Agent
BANK OF AMERICA, N.A.
Documentation Agent
BANC ONE CAPITAL MARKETS, INC.
Co-Lead Arranger
SALOMON SMITH BARNEY INC.
Co-Lead Arranger
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<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.....................................1
SECTION 1.01. Certain Defined Terms......................................1
SECTION 1.02. Computation of Time Periods...............................14
SECTION 1.03. Computations of Outstandings..............................14
SECTION 1.04. Accounting Terms..........................................14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES..................................15
SECTION 2.01. The A Advances............................................15
SECTION 2.02. Making the A Advances.....................................15
SECTION 2.03. The B Advances............................................16
SECTION 2.04. Fees......................................................20
SECTION 2.05. Reduction of the Commitments; Commitment Increase.........20
SECTION 2.06. Repayment of A Advances...................................22
SECTION 2.07. Interest on A Advances....................................22
SECTION 2.08. Additional Interest on Eurodollar Rate Advances...........22
SECTION 2.09. Interest Rate Determination...............................23
SECTION 2.10. Voluntary Conversion of A Advances........................24
SECTION 2.11. Optional Prepayments of Advances..........................24
SECTION 2.12. Mandatory Prepayments.....................................25
SECTION 2.13. Increased Costs...........................................26
SECTION 2.14. Illegality................................................26
SECTION 2.15. Payments and Computations.................................27
SECTION 2.16. Noteless Agreement; Evidence of Indebtedness..............28
SECTION 2.17. Taxes.....................................................28
SECTION 2.18. Sharing of Payments, Etc..................................30
SECTION 2.19. Extension of Revolving Period; Term Election..............30
ARTICLE III CONDITIONS OF LENDING.............................................32
SECTION 3.01. Conditions Precedent to Closing...........................32
SECTION 3.02. Conditions Precedent to Each A Borrowing..................33
SECTION 3.03. Conditions Precedent to Each B Borrowing..................34
SECTION 3.04. Conditions Precedent to Each Extension of the Revolving
Period....................................................35
SECTION 3.05. Reliance on Certificates..................................35
ARTICLE IV REPRESENTATIONS AND WARRANTIES.....................................36
SECTION 4.01. Representations and Warranties of the Borrower............36
ARTICLE V COVENANTS OF THE BORROWER...........................................38
SECTION 5.01. Affirmative Covenants.....................................38
SECTION 5.02. Negative Covenants........................................42
ARTICLE VI EVENTS OF DEFAULT..................................................45
SECTION 6.01. Events of Default.........................................45
i
<PAGE>
ARTICLE VII THE AGENT.........................................................48
SECTION 7.01. Authorization and Action..................................48
SECTION 7.02. Agent's Reliance, Etc.....................................48
SECTION 7.03. Bank One and Affiliates...................................49
SECTION 7.04. Lender Credit Decision....................................49
SECTION 7.05. Indemnification...........................................49
SECTION 7.06. Successor Agent...........................................49
ARTICLE VIII MISCELLANEOUS....................................................50
SECTION 8.01. Amendments, Etc...........................................50
SECTION 8.02. Notices, Etc..............................................51
SECTION 8.03. No Waiver; Remedies.......................................51
SECTION 8.04. Costs, Expenses, Taxes and Indemnification................51
SECTION 8.05. Right of Set-off..........................................52
SECTION 8.06. Binding Effect............................................53
SECTION 8.07. Assignments and Participations............................53
SECTION 8.08. Confidentiality...........................................56
SECTION 8.09. WAIVER OF JURY TRIAL......................................56
SECTION 8.10. Governing Law.............................................57
SECTION 8.11. Relation of the Parties; No Beneficiary...................57
SECTION 8.12. Execution in Counterparts.................................57
ii
<PAGE>
EXHIBITS AND SCHEDULES
Exhibit 1.01A-1 - Form of A Note
Exhibit 1.01A-2 - Form of B Note
Exhibit 2.02(a) - Form of Notice of A Borrowing
Exhibit 2.03(a)(i) - Form of Notice of B Borrowing
Exhibit 2.10 - Form of Notice of Conversion
Exhibit 3.01(a)(viii)-1 - Form of Opinion of Foley & Lardner
Exhibit 3.01(a)(viii)-2 - Form of Opinion of General Counsel
Exhibit 3.01(a)(viii)-3 - Form of Opinion of King & Spalding
Exhibit 8.07 - Form of Assignment and Acceptance Agreement
Schedule I - Commitment Schedule
Schedule II - Existing Liens
Schedule III - Existing Debt
Schedule IV - List of Indentures
iii
<PAGE>
364-DAY
CREDIT AGREEMENT
Dated as of October 16, 2000
THIS 364-DAY CREDIT AGREEMENT (this "AGREEMENT") is made by and among:
(i) ALLIANT ENERGY CORPORATION, a Wisconsin corporation (the "BORROWER"),
(ii) the banks (the "BANKS") listed on the signature pages hereof and the
other Lenders (as hereinafter defined) from time to time party hereto,
and
(iii) BANK ONE, NA ("BANK ONE"), as administrative agent (the "AGENT") for
the Lenders hereunder.
PRELIMINARY STATEMENTS
(1) The Borrower, certain banks (the "EXISTING BANKS") and Bank One,
NA, as agent for the Existing Banks, are parties to that certain 364-Day
Credit Agreement, dated as of December 17, 1997, as amended (the "EXISTING
Facility").
(2) The Borrower desires to replace the Existing Facility with the
revolving credit facility created under this Agreement.
(3) The Banks and the Agent are prepared to provide such facilities on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A ADVANCE" means an advance by a Lender to the Borrower as part of an
A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "TYPE" of A Advance.
"A BORROWING" means a Borrowing consisting of simultaneous A Advances
of the same Type, having the same Interest Period and ratably made or
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2
Converted on the same day by each of the Lenders pursuant to Section 2.02
or 2.10, as the case may be. All Advances of the same Type, having the same
Interest Period and made or Converted on the same day shall be deemed a
single Borrowing hereunder until repaid or next Converted.
"A NOTE" means a promissory note issued at the request of a Lender
pursuant to Section 2.16, in substantially the form of Exhibit 1.01A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the A Advances made by such Lender.
"ADDITIONAL LENDER" is defined in Section 2.05(d).
"ADVANCE" means an A Advance or a B Advance.
"AER AGREEMENTS" means the 364-Day Credit Agreement and the 3-Year
Credit Agreement, each dated approximately as of the date hereof, among
Alliant Energy Resources, Inc., the lenders from time to time party thereto
and Citibank, N.A., as agent.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of such entity, whether through the ownership of voting securities, by
contract, or otherwise.
"ALTERNATE BASE RATE" means a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by Bank One or its
corporate parent, Bank One Corporation, from time to time, as its corporate
base rate or prime rate of interest; and
(ii) 1/2 of one percent per annum above the Federal Funds Rate.
Each change in the Alternate Base Rate shall take effect concurrently with
any change in such base rate or the Federal Funds Rate.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance, the office of such Lender notified
by such Lender to the Agent as its Applicable Lending Office with respect
to such B Advance.
"APPLICABLE MARGIN" means, for any Eurodollar Rate Advance or Base
Rate Advance, (i) on any date the Utilization Percentage equals or is less
than 33-1/3%, 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,
opposite the Eurodollar Rate or the Base Rate, as applicable, and (ii) on
any date the Utilization Percentage exceeds 33-1/3%, the number of basis
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3
points set forth below in the columns identified as Level 1, Level 2, Level
3, Level 4, Level 5 or Level 6 below, opposite the Utilized Eurodollar Rate
or the Utilized Base Rate, as applicable.
<TABLE>
<CAPTION>
=================== ========= ========= ========== ========== ========== ==========
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
BASIS FOR Reference Reference Reference Reference Reference Reference
PRICING Ratings Ratings Ratings Ratings Ratings Ratings
At Least Less Than Less Less Than Less Than Less Than
A+ By Level 1 Than Level 3 Level 4 Level 5*
S&P's/A1 But At Level 2 But At But At
By Least A- But At Least BBB Least
Moody's. By Least By BBB- By
S&P'S/A3 BBB+ By S&P'S/BAA2 S&P's/BAA3
By S&P's/BAA1 By By
Moody's. By Moody's. Moody's.
Moody's.
-----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basis Points Per Annum
-----------------------------------------------------------------------------------
Eurodollar Rate 27.0 28.5 40.0 50.0 70.0 92.5
------------------- --------- --------- ---------- ---------- ---------- ----------
Base Rate 0 0 0 0 0 0
------------------- --------- --------- ---------- ---------- ---------- ----------
Utilized Eurodollar 37.0 38.5 52.5 62.5 95.0 117.5
Rate
------------------- --------- --------- ---------- ---------- ---------- ----------
Utilized Base Rate 10.0 10.0 12.5 12.5 25.0 25.0
=================== ========= ========= ========== ========== ========== ==========
</TABLE>
* or unrated
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 to any Advance, as of the Borrowing date for such Advance
following the date on which the applicable rating agency announces the
applicable change in ratings.
"APPLICABLE RATE" means:
(i) the case of each Base Rate Advance, a rate per annum equal at all
times to the sum of the Alternate Base Rate in effect from time to time
plus the Applicable Margin in effect from time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising part of
the same A Borrowing, a rate per annum during each Interest Period equal at
all times to the sum of the Eurodollar Rate for such Interest Period plus
the Applicable Margin in effect from time to time during such Interest
Period.
"AVAILABLE COMMITMENT" means, for each Lender at any time on any day,
the unused portion of such Lender's Commitment, computed after giving
effect to all Advances made or to be made on such day, the application of
proceeds therefrom and all prepayments and repayments of Advances made on
such day.
"AVAILABLE COMMITMENTS" means the aggregate of the Lenders' Available
Commitments hereunder.
"B ADVANCE" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
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4
"B BORROWING" means a Borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part
of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"B NOTE" means a promissory note issued at the request of a Lender
pursuant to Section 2.16, in substantially the form of Exhibit 1.01A-2
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from a B Advance(s) made by such Lender.
"B REDUCTION" has the meaning assigned to that term in Section 2.01.
"BASE RATE ADVANCE" means an A Advance that bears interest as provided
in Section 2.07(a).
"BORROWING" means an A Borrowing or a B Borrowing. Any A Borrowing
consisting of A Advances of a particular Type may be referred to as being
an A Borrowing of such "TYPE".
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in New York City, Chicago, Illinois or Madison,
Wisconsin and, if the applicable Business Day relates to any Eurodollar
Rate Advance or a B Advance made pursuant to Section 2.03(a)(iii)(B), on
which dealings are carried on in the London interbank market.
"CAPITALIZED LEASE OBLIGATIONS" means obligations to pay rent or other
amounts under any lease of (or other arrangement conveying the right to
use) real and/or personal property which obligation is required to be
classified and accounted for as a capital lease on a balance sheet prepared
in accordance with generally accepted accounting principles, and for
purposes hereof the amount of such obligations shall be the capitalized
amount determined in accordance with such principles.
"CASH AND CASH EQUIVALENTS" 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) Dollar demand deposits maintained in the United States with any
commercial bank and 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 an 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 if 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
<PAGE>
5
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 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).
"CLOSING" means the day upon which each of the applicable conditions
precedent enumerated in Section 3.01 shall be fulfilled to the satisfaction
of, or waived with the consent of, the Lenders, the Agent and the Borrower.
All transactions contemplated by the Closing shall take place on a Business
Day on or prior to October 16, 2000, at the offices of King & Spalding,
1185 Avenue of the Americas, New York, New York 10036, at 10:00 a.m. (New
York City time), or such later Business Day as the parties hereto may
mutually agree.
"COMMITMENT" means, for each Lender, the obligation of such Lender to
make Advances to the Borrower in an amount no greater than the amount set
forth on Schedule I hereto or, if such Lender has entered into one or more
Lender Assignments, set forth for such Lender in the Register maintained by
the Agent pursuant to Section 8.07(c), in each such case as such amount may
be (i) reduced from time to time pursuant to Section 2.05(a), (b) or (c) or
(ii) increased pursuant to Section 2.05(d).
"COMMITMENTS" means the total of the Lenders' Commitments hereunder.
"COMMITMENT INCREASE" is defined in Section 2.05(d).
"COMMITMENT INCREASE APPROVALS" means any Governmental Approval or
resolution of the Board of Directors of the Borrower not obtained by or on
behalf of the Borrower and in full force and effect on the date hereof,
which Governmental Approval or resolution is required to be obtained in
order to authorize the Commitment Increase and the performance by the
Borrower and the Parent of their respective obligations under the Loan
Documents after giving effect to the Commitment Increase.
"CONSOLIDATED CAPITAL" means, with respect to any Person, at any date
of determination, the sum of (i) Consolidated Debt of such Person, (ii)
consolidated equity of the common stockholders of such Person and its
Consolidated Subsidiaries, (iii) consolidated equity of the preference
stockholders of such Person and its Consolidated Subsidiaries and (iv)
consolidated equity of the preferred stockholders of such Person and its
Consolidated Subsidiaries, in each case determined at such date in
accordance with generally accepted accounting principles.
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6
"CONSOLIDATED DEBT" means, with respect to any Person, at any date of
determination, the aggregate Debt of such Person and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with
generally accepted accounting principles, but shall not include Nonrecourse
Debt of any Subsidiary of the Borrower.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person whose accounts are or are required to be
consolidated with the accounts of such Person in accordance with generally
accepted accounting principles.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
Advances of one Type into Advances of another Type, or to the selection of
a new, or the renewal of the same, Interest Period for Advances, as the
case may be, pursuant to Section 2.09 or 2.10.
"DEBT" means, for any Person, any and all indebtedness, liabilities
and other monetary obligations of such Person (i) for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, (ii) to
pay the deferred purchase price of property or services (except trade
accounts payable arising and repaid in the ordinary course of business),
(iii) Capitalized Lease Obligations, (iv) under reimbursement or similar
agreements with respect to letters of credit (other than trade letters of
credit) issued to support indebtedness or obligations of such Person or of
others of the kinds referred to in clauses (i) through (iii) above and
clause (v) below, (v) reasonably quantifiable obligations under direct
guaranties or indemnities, or under support agreements, in respect of, and
reasonably quantifiable obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in
respect of, or to assure an obligee against failure to make payment in
respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iv) above, and (vi) in respect of unfunded vested
benefits under Plans. In determining Debt for any Person, there shall be
included accrued interest on the principal amount thereof to the extent
such interest has accrued for more than six months.
"DEFAULT RATE" means (i) with respect to the unpaid principal of or
interest on any Advance, the greater of (A) 2% per annum above the
Applicable Rate in effect from time to time for such Advance and (B) 2% per
annum above the Applicable Rate in effect from time to time for Base Rate
Advances and (ii) with respect to any other unpaid amount hereunder, 2% per
annum above the Applicable Rate in effect from time to time for Base Rate
Advances.
"DIRECT SUBSIDIARY" means, with respect to any Person, any Subsidiary
directly owned by such Person.
"DOLLARS" and the sign "$" each means lawful money of the United
States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office or affiliate of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender, or such other office or affiliate of
<PAGE>
7
such Lender as such Lender may from time to time specify in writing to the
Borrower and the Agent.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank or trust company
organized under the laws of the United States, or any State thereof; (ii) a
commercial bank organized under the laws of any other country that is a
member of the OECD, or a political subdivision of any such country,
provided that such bank is acting through a branch or agency located in the
United States; (iii) the central bank of any country that is a member of
the OECD; and (iv) any other commercial bank or other financial institution
engaged generally in the business of extending credit or purchasing debt
instruments; provided, however, that (A) any such Person shall also (1)
have outstanding unsecured indebtedness 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 unsecured
indebtedness of entities engaged in such businesses) or (2) have combined
capital and surplus (as established in its most recent report of condition
to its primary regulator) of not less than $250,000,000 (or its equivalent
in foreign currency), (B) any Person described in clause (ii), (iii) or
(iv) above shall, on the date on which it is to become a Lender hereunder,
(x) be entitled to receive payments hereunder without deduction or
withholding of any United States Federal income taxes (as contemplated by
Section 2.17) and (y) not be incurring any losses, costs or expenses of the
type for which such Person could demand payment under Section 2.13, and (C)
any Person described in clause (ii), (iii) or (iv) above shall, in
addition, be reasonably acceptable to the Agent and, so long as no Event of
Default shall have occurred and be continuing, to the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a member of a group of
which such Person is a member and which is under common control within the
meaning of the regulations under Section 414(b) or (c) of the Internal
Revenue Code of 1986, as amended from time to time.
"ERISA EVENT" means (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, unless the 30-day notice requirement
with respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Plan of notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (iii)
the cessation of operations at a facility in the circumstances described in
Section 4062(e) of ERISA; (iv) the withdrawal by the Borrower or an ERISA
Affiliate of the Borrower from a Multiple Employer Plan or a Multiemployer
Plan during a plan year for which it was a "substantial employer", as
defined in Section 4001(a)(2) of ERISA; (v) the failure by the Borrower or
an ERISA Affiliate of the Borrower to make a payment to a Plan required
under Section 302(f)(1) of ERISA, which failure results in the imposition
of a lien for failure to make required payments; (vi) the adoption of an
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8
amendment to a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office or affiliate of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office or affiliate of such
Lender as such Lender may from time to time specify in writing to the
Borrower and the Agent.
"EURODOLLAR RATE" means, for each Interest Period for each Eurodollar
Rate Advance made as part of the same A Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Advance made as part of such
A Borrowing and for a period equal to such Interest Period. The Eurodollar
Rate for the Interest Period for each Eurodollar Rate Advance made as part
of the same A Borrowing shall be determined by the Agent 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 2.09.
"EURODOLLAR RATE ADVANCE" means an A Advance that bears interest as
provided in Section 2.07(b).
"EURODOLLAR RESERVE PERCENTAGE" of any Lender for each Interest Period
for each Eurodollar Rate Advance means the reserve percentage applicable to
such Lender during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under Regulation D or other regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) then applicable to such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning assigned to that term in Section
6.01.
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9
"EXISTING BANKS" has the meaning assigned to that term in Preliminary
Statement (1) to this Agreement.
"EXISTING FACILITY" has the meaning assigned to that term in
Preliminary Statement (1) to this Agreement.
"EXTENSION APPROVALS" means any Governmental Approval or resolution of
the Board of Directors of the Borrower not obtained by or on behalf of the
Borrower and in full force and effect on the date hereof, which
Governmental Approval or resolution is required to be obtained in order to
authorize an extension of the Revolving Period or the Term Election.
"FACILITY FEE" means a fee which shall be payable on the aggregate
amount of the Commitment of each Lender, irrespective of usage, payable to
each Lender on the amount of its Commitment at the rate (expressed in basis
points per annum) set forth below in the columns identified as Level 1,
Level 2, Level 3, Level 4, Level 5 or Level 6 based on the Reference
Ratings.
=============== ========= ========= ========= ========= ========= ==========
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
BASIS FOR Reference Reference Reference Reference Reference Reference
PRICING Ratings Ratings Ratings Ratings Ratings Ratings
At Least Less Than Less Less Than Less Than Less Than
A+ By Level 1 Than Level 3 Level 4 Level 5*
S&P/A1 But At Level 2 But At But At
By Least A- But At Least BBB Least
Moody's. By S&P/A3 Least By S&P BBB- By
By BBB+ By /BAA2 By S&P/BAA3
Moody's. S&P/BAA1 Moody's. By
By Moody's.
Moody's.
--------------- --------- --------- --------- --------- --------- ----------
Basis Points 8.0 9.0 10.0 12.5 17.5 20.0
=============== ========= ========= ========= ========= ========= ==========
* or unrated
The Facility Fee will be based upon the Level corresponding to the
Reference Ratings at the time of determination. Any change in the Facility
Fee 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.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
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 for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"FEE LETTER" means that certain letter agreement, dated September 7,
2000, among the Borrower, the Agent and Banc One Capital Markets, Inc.
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10
"GOVERNMENTAL APPROVAL" means any authorization, consent, approval,
license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any governmental authority or
other legal or regulatory body.
"HAZARDOUS SUBSTANCE" means any waste, substance, or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau, or instrumentality of the United
States or of the State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or material.
"IES UTILITIES" means IES Utilities Inc., an Iowa corporation, all of
whose common stock is owned on the date hereof by the Borrower.
"INCREASING LENDER" is defined in Section 2.05(d).
"INTEREST PERIOD" means, for each Eurodollar Rate Advance made as part
of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Advance into
such a Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected
by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be 1, 2, 3 or 6 months, as the Borrower may, upon
notice received by the Agent not later than 11:00 a.m. (Chicago, Illinois
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends after
the Termination Date (or, if the Borrower shall make the Term
Election, the Termination Date as extended pursuant to Section
2.19);
(ii) Interest Periods commencing on the same date for A Advances
comprising part of the same A Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that if such extension would cause the
last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day.
"IPC" means Interstate Power Company, a Delaware corporation.
"LENDERS" means the Banks listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to Section
8.07.
"LENDER ASSIGNMENT" means an assignment and acceptance agreement
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit 8.07.
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11
"LIEN" has the meaning assigned to that term in Section 5.02(a).
"LOAN DOCUMENTS" means this Agreement, any Note issued pursuant to
Section 2.16, the Fee Letter and all other agreements, instruments and
documents now or hereafter executed and/or delivered pursuant hereto or
thereto.
"MAJORITY LENDERS" means, on any date of determination, Lenders that,
collectively, on such date (i) hold at least 51% of the then aggregate
unpaid principal amount of the A Advances owing to Lenders and (ii) if no A
Advances are then outstanding, have Percentages in the aggregate of at
least 51%. Any determination of those Lenders constituting the Majority
Lenders shall be made by the Agent and shall be conclusive and binding on
all parties absent manifest error.
"MOODY'S" means Moody's Investors Service, Inc. or any successor
thereto.
"MORTGAGE BOND INDENTURES" means the indentures listed on Schedule IV
hereto.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, which is subject to Title IV of ERISA and to which the
Borrower or any ERISA Affiliate of the Borrower is making or accruing an
obligation to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make contributions, such plan
being maintained pursuant to one or more collective bargaining agreements.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA and
which (i) is maintained for employees of the Borrower or an ERISA Affiliate
of the Borrower and at least one Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate of the Borrower could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NONRECOURSE DEBT" means any Debt that finances the acquisition,
development, ownership or operation of an asset in respect of which the
Person to which such Debt is owed has no recourse whatsoever to the
Borrower or any of its Affiliates other than:
(i) recourse to the named obligor with respect to such Debt (the
"DEBTOR") for amounts limited to the cash flow or net cash flow
(other than historic cash flow or historic net cash flow) from
the asset; and
(ii) recourse to the Debtor for the purpose only of enabling amounts
to be claimed in respect of such Debt in an enforcement of any
security interest or lien given by the Debtor over the asset or
the income, cash flow or other proceeds deriving from the asset
(or given by any shareholder or the like in the Debtor over its
shares or like interest in the capital of the Debtor) to secure
the Debt, but only if the extent of the recourse to the Debtor is
limited solely to the amount of any recoveries made on any such
enforcement; and
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12
(iii) recourse to the Debtor generally or indirectly to any Affiliate
of the Debtor, under any form of assurance, undertaking or
support, which recourse is limited to a claim for damages (other
than liquidated damages and damages required to be calculated in
a specified way) for a breach of an obligation (other than a
payment obligation or an obligation to comply or to procure
compliance by another with any financial ratios or other tests of
financial condition) by the Person against which such recourse is
available.
"NOTE" means an A Note or a B Note.
"NOTICE OF A BORROWING" has the meaning assigned to that term in
Section 2.02(a).
"NOTICE OF B BORROWING" has the meaning assigned to that term in
Section 2.03(a).
"NOTICE OF CONVERSION" has the meaning assigned to that term in
Section 2.10.
"NUCLEAR FUEL CAPITAL LEASES" means the nuclear fuel lease dated
August 21, 1973, as from time to time supplemented, amended or modified,
between IES Utilities as lessee and Arnold Fuel, Inc., a Delaware
corporation, as lessor.
"OECD" means the Organization for Economic Cooperation and
Development.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"PERCENTAGE" means, for any Lender on any date of determination, the
percentage obtained by dividing such Lender's Commitment on such day by the
total of the Commitments on such date, and multiplying the quotient so
obtained by 100%.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"POST DECEMBER 31, 2000 BORROWING APPROVALS" means any Governmental
Approval not obtained by or on behalf of the Borrower and in full force and
effect on the date hereof, which Governmental Approval is required to be
obtained in order to authorize a Borrowing after December 31, 2000
hereunder.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended from time to time.
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13
"REFERENCE BANKS" means Citibank, N.A. and Bank One, NA (Main Office
Chicago), and any additional or substitute Lenders as may be selected from
time to time to act as Reference Banks hereunder by the Agent, the Majority
Lenders and the Borrower.
"REFERENCE RATINGS" means the ratings assigned by S&P and Moody's to
the lower of the two most highly rated Reference Securities. For purposes
of the foregoing, 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 Utilities, Wisconsin
Power and IPC, such Utility's first mortgage bonds or other most senior
secured non-credit enhanced long-term debt.
"REGISTER" has the meaning assigned to that term in Section 8.07(c).
"REVOLVING PERIOD" means the period beginning on the date hereof and
ending on October 15, 2001, or such later date as to which the Lenders may
from time to time agree pursuant to Section 2.19.
"S&P" means Standard & Poor's Corporation or any successor thereto.
"SENIOR FINANCIAL OFFICER" means the President, the Chief Executive
Officer, the Chief Financial Officer or the Treasurer of the Borrower.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Borrower that, on
a consolidated basis with any of its Subsidiaries as of any date of
determination, accounts for more than 20% of the consolidated assets
(valued at book value) of the Borrower and its Subsidiaries.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA and
which (i) is maintained for employees of the Borrower or an ERISA Affiliate
of the Borrower and no Person other than the Borrower and its ERISA
Affiliates, or (ii) was so maintained and in respect of which the Borrower
or an ERISA Affiliate of the Borrower could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"SUBSIDIARY" means, with respect to any Person, any corporation or
unincorporated entity of which more than 50% of the outstanding capital
stock (or comparable interest) having ordinary voting power (irrespective
of whether at the time capital stock (or comparable interest) of any other
class or classes of such corporation or entity shall or might have voting
power upon the occurrence of any contingency) is at the time directly or
indirectly owned by said Person (whether directly or through one or more
other Subsidiaries). In the case of an unincorporated entity, a Person
shall be deemed to have more than 50% of interests having ordinary voting
power only if such Person's vote in respect of such interests comprises
<PAGE>
14
more than 50% of the total voting power of all such interests in the
unincorporated entity.
"TERM ELECTION" has the meaning assigned to that term in Section
2.19(a).
"TERMINATION DATE" means the earlier to occur of (i) the last day of
the Revolving Period, or, if the Borrower shall have made the Term
Election, the first anniversary of the last day of the Revolving Period and
(ii) the date of termination or reduction in whole of the Commitments
pursuant to Section 2.05 or 6.01.
"TYPE" has the meaning assigned to that term (i) in the definition of
"A Advance" when used in such context and (ii) in the definition of
"Borrowing" when used in such context.
"UNMATURED DEFAULT" means an event that, with the giving of notice or
lapse of time, or both, would constitute an Event of Default.
"UTILITIES" means, collectively, IES Utilities, Wisconsin Power and
IPC.
"UTILIZATION PERCENTAGE" means, as of any time for the determination
thereof, the percentage obtained by dividing the aggregate outstanding A
Advances by the aggregate Commitments then in effect.
"WISCONSIN POWER" means Wisconsin Power & Light Company, a Wisconsin
corporation.
"YIELD" means, for any B Advance, the effective rate per annum at
which interest on such B Advance is payable, computed on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
SECTION 1.02. COMPUTATION OF TIME PERIODS. Unless otherwise indicated, each
reference in this Agreement to a specific time of day is a reference to Chicago,
Illinois time. In the computation of periods of time under this Agreement, any
period of a specified number of days or months shall be computed by including
the first day or month occurring during such period and excluding the last such
day or month. In the case of a period of time "from" a specified date "to" or
"until" a later specified date, the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding".
SECTION 1.03. COMPUTATIONS OF OUTSTANDINGS. Whenever reference is made in
this Agreement to the "principal amount outstanding" on any date under this
Agreement, such reference shall refer to the aggregate principal amount of all
Advances outstanding on such date after giving effect to all Advances to be made
on such date and the application of the proceeds thereof.
SECTION 1.04. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
<PAGE>
15
accounting principles ("GAAP") consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE A ADVANCES.
(a) Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make A Advances to the Borrower from time to time on any Business
Day during the Revolving Period in an aggregate outstanding amount not to exceed
at any time such Lender's Available Commitment, provided that the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount of the B Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be applied to
the Lenders ratably according to their respective Percentages (such deemed use
of the aggregate amount of the Commitments being a "B REDUCTION"). Each A
Borrowing shall be in an aggregate amount not less than $5,000,000 (or, if
lower, the amount of the Available Commitments) or an integral multiple of
$1,000,000 in excess thereof and shall consist of A Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Percentages. Within the limits of each Lender's Commitment and as hereinabove
and hereinafter provided, the Borrower may request Borrowings hereunder, and
repay or prepay Advances pursuant to Section 2.11 and utilize the resulting
increase in the Available Commitments for further Borrowings in accordance with
the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any
Borrowings that would cause the principal amount outstanding hereunder to exceed
the Commitments.
SECTION 2.02. MAKING THE A ADVANCES.
(a) Each A Borrowing shall be made on notice, given not later than 12:00
noon (i) on the third Business Day prior to the date of the proposed A
Borrowing, in the case of an A Borrowing comprised of Eurodollar Rate Advances
and (ii) on the date of the proposed A Borrowing, in the case of an A Borrowing
comprised of Base Rate Advances, in each case by the Borrower to the Agent,
which shall give to each Lender prompt notice thereof by telecopier, telex or
cable. Each such notice of an A Borrowing (a "NOTICE OF A BORROWING") shall be
by telecopier, telex or cable, in substantially the form of Exhibit 2.02(a)
hereto, specifying therein the requested (A) date of such A Borrowing, (B) Type
of A Advances comprising such A Borrowing, (C) aggregate amount of such A
Borrowing and (D) in the case of an A Borrowing comprised of Eurodollar Rate
Advances, initial Interest Period for each such A Advance. Each Lender shall,
before (x) 12:00 noon on the date of such A Borrowing, in the case of an A
Borrowing comprised of Eurodollar Rate Advances, and (y) 1:00 p.m. on the date
of such A Borrowing, in the case of an A Borrowing comprised of Base Rate
Advances, make available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such A Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
<PAGE>
16
III, the Agent will promptly make such funds available to the Borrower at the
Agent's aforesaid address.
(b) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower. In the case of any A Borrowing which the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of A Borrowing for such A Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by such Lender as part
of such A Borrowing when such A Advance, as a result of such failure, is not
made on such date.
(c) Unless the Agent shall have received notice from a Lender prior to the
date of any A Borrowing that such Lender will not make available to the Agent
such Lender's A Advance as part of such A Borrowing, the Agent may assume that
such Lender has made such A Advance available to the Agent on the date of such A
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such A Advance available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to A Advances comprising such A Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's A
Advance as part of such A Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the A Advance to be made by it as
part of any A Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. THE B ADVANCES.
(a) Each Lender severally agrees that the Borrower may request B Borrowings
under this Section 2.03 from time to time on any Business Day during the period
from the date hereof until the date occurring 30 days prior to the last day of
the Revolving Period in the manner, and subject to the terms and conditions, set
forth below.
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Agent, by telecopier, telex or cable, a notice of a B
Borrowing (a "NOTICE OF B BORROWING"), in substantially the form of Exhibit
2.03(a)(i) hereto, specifying the date and aggregate amount of the proposed
B Borrowing, the maturity date for repayment of each B Advance to be made
as part of such B Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such B Borrowing nor later
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17
than the earliest to occur of the last day of the then-current Revolving
Period, the then-scheduled Termination Date and the date occurring 180 days
following the date of such B Borrowing), the interest payment date or dates
relating thereto, and any other terms to be applicable to such B Borrowing,
not later than 2:00 p.m. (Chicago, Illinois time) (x) at least one Business
Day prior to the date of the proposed B Borrowing, if the Borrower shall
specify in the Notice of B Borrowing that the rates of interest to be
offered by the Lenders shall be fixed rates per annum and (y) at least four
Business Days prior to the date of the proposed B Borrowing, if the
Borrower shall specify in the Notice of B Borrowing that the rates of
interest to be offered shall be based on quoted London interbank offered
rates. The Agent shall in turn promptly notify each Lender of each request
for a B Borrowing received by it from the Borrower by sending such Lender a
copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower as part of
such proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 a.m. (Chicago,
Illinois time), (A) on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (x) of paragraph
(i) above, and (B) three Business Days before the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant to
clause (y) of paragraph (i), above, of the minimum amount and maximum
amount of each B Advance which such Lender would be willing to make as part
of such proposed B Borrowing (which amounts may, subject to the limitation
contained in subsection (d) below, exceed such Lender's Commitment), the
rate or rates of interest therefor, the basis (including, if applicable,
the method for computing the London interbank offered rate), rate (if
applicable) and margin (if applicable) used by such Lender in determining
the rate or rates of interest so offered and the Yield (if different from
such rate or rates), the interest period relating thereto and such Lender's
Applicable Lending Office with respect to such B Advance; provided that if
the Agent in its capacity as a Lender shall, in its sole discretion, elect
to make any such offer, it shall notify the Borrower of such offer before
9:30 a.m. on the date on which notice of such election is to be given to
the Agent by the other Lenders. If any Lender shall elect not to make such
an offer, such Lender shall so notify the Agent before 10:00 a.m. on the
date on which notice of such election is to be given to the Agent by the
other Lenders, and such Lender shall not be obligated to, and shall not,
make any B Advance as part of such B Borrowing; provided that the failure
by any Lender to give such notice shall not cause such Lender to be
obligated to make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 11:00 a.m. (Chicago,
Illinois time) (A) on the date of such proposed B Borrowing in the case of
a Notice of B Borrowing delivered pursuant to clause (x) of paragraph (i)
above and (B) three Business Days before the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant to
clause (y) of paragraph (i) above, either
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18
(x) cancel such B Borrowing by either giving the Agent
notice to that effect or failing to accept one or more offers as
provided in clause (y) below, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion,
by giving written notice to the Agent of the amount of each B
Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender
for such B Advance pursuant to paragraph (ii) above) to be made
by each Lender as part of such B Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above
by giving the Agent written notice to that effect, provided,
however, that (A) the Borrower shall not accept an offer made
pursuant to paragraph (ii) above, at any Yield if the Borrower
shall have, or shall be deemed to have, rejected any other offer
made pursuant to paragraph (ii) above, at a lower Yield, (B) if
the Borrower declines to accept, or is otherwise restricted by
the provisions of this Agreement from accepting, the maximum
aggregate principal amount of B Advances offered at the same
Yield pursuant to paragraph (ii) above, then the Borrower shall
accept a pro rata portion of each offer made at such Yield, based
as nearly as possible on the ratio of the aggregate principal
amount of such offers to be accepted by the Borrower to the
maximum aggregate principal amount of such offers made pursuant
to paragraph (ii) above (rounding up or down to the next higher
or lower multiple of $1,000,000).
(iv) If the Borrower cancels such B Borrowing pursuant to paragraph
(iii)(x) above, the Agent shall give prompt notice thereof to the Lenders
and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, such acceptance
shall be irrevocable and binding on the Borrower and, subject to the
satisfaction of the applicable conditions set forth in Article III, on such
Lender or Lenders. The Borrower shall indemnify each such Lender against
any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill, on or before the date specified in the notice provided
pursuant to paragraph (vii)(A) below, the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or redeployment of deposits or other
funds acquired by such Lender to fund the B Advance to be made by such
Lender as part of such B Borrowing when such B Advance, as a result of such
failure, is not made on such date.
(vi) Unless the Agent shall have received notice from a Lender prior
to the date of any B Borrowing in which such Lender is required to
participate that such Lender will not make available to the Agent such
Lender's B Advance as part of such B Borrowing, the Agent may assume that
such Lender has made such B Advance available to the Agent on the date of
such B Borrowing in accordance with paragraph (vii) below, and the Agent
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19
may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender
shall not have so made such B Advance available to the Agent, such Lender
and the Borrower severally agree to repay to the Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the
interest rate applicable to such B Advance and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such
Lender's B Advance as part of such B Borrowing for purposes of this
Agreement.
(vii) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in
turn promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above of the date and aggregate amount of such B Borrowing
and whether or not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by the Borrower, (B) each Lender
that is to make a B Advance as part of such B Borrowing of the amount of
the B Advance to be made by such Lender as part of such B Borrowing and (C)
each Lender that is to make a B Advance as part of such B Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a B Advance as part of such B Borrowing shall, before 1:00
p.m. on the date of such B Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent pursuant to
clause (C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at its address referred to in
Section 8.02 such Lender's B Advance, in same day funds. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will promptly make such funds available
to the Borrower at the Agent's aforesaid address. Promptly after each B
Borrowing the Agent will notify each Lender of the amount of the B
Borrowing, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(c) Within the limits and on the conditions set forth in this Section 2.03,
the Borrower may from time to time borrow under this Section 2.03, repay
pursuant to subsection (e) below, prepay pursuant to Section 2.11 and reborrow
under this Section 2.03, provided that a B Borrowing shall not be made within
three Business Days of the date of any other B Borrowing.
(d) In no event shall the Borrower be entitled to request or receive any B
Advances that would cause the principal amount outstanding hereunder to exceed
the Commitments.
(e) The Borrower shall repay to the Agent for the account of each Lender
which has made a B Advance, on or before the maturity date of each B Advance
(such maturity date being that specified by the Borrower for repayment of such B
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20
Advance in the related Notice of B Borrowing delivered pursuant to subsection
(a)(i), above), the then unpaid principal amount of such B Advance.
(f) The Borrower shall pay interest on the unpaid principal amount of each
B Advance from the date of such B Advance to the date the principal amount of
such B Advance is repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii), above, payable on the interest payment
date or dates specified by the Borrower for such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i), above, provided,
however, that upon the occurrence and during the continuance of any Event of
Default, each B Advance shall bear interest at the Default Rate.
SECTION 2.04. FEES.
(a) The Borrower agrees to pay to the Agent for the account of each Lender
the Facility Fee from the date hereof, in the case of each Bank, and from the
effective date specified in the Lender Assignment pursuant to which it became a
Lender, in the case of each other Lender, until the Termination Date, payable
quarterly in arrears on the last day of each March, June, September and December
during the term of such Lender's Commitment, commencing December 31, 2000, and
on the Termination Date.
(b) In addition to the fee provided for in subsection (a) above, the
Borrower shall pay to the Agent, for the account of the Agent, such fees as are
provided for in the Fee Letter.
SECTION 2.05. REDUCTION OF THE COMMITMENTS; COMMITMENT INCREASE.
(a) The Borrower shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders; provided that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount which is less than the aggregate principal amount of the A and B Advances
then outstanding; and provided, further, that each partial reduction shall be in
a minimum amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof. Any termination or reduction of the Commitments shall be irrevocable,
and the Commitments shall not thereafter be reinstated.
(b) If the Borrower shall make the Term Election: (i) on the last day of
the Revolving Period, the Commitments shall be reduced to an amount equal to the
aggregate principal amount of A Advances then outstanding, and (ii) thereafter,
if at any time the Borrower shall fail to Convert the full principal amount of
any A Borrowing on the last day of any Interest Period therefor the resulting
Available Commitments of the Lenders shall automatically be reduced by the full
principal amount of any A Borrowing that was not Converted or terminated.
(c) On the Termination Date, the Commitments of the Lenders shall be
reduced to zero.
(d) (i) At any time prior to the last day of the Revolving Period, the
Borrower may increase the aggregate amount of the Commitments by an amount not
greater than $300,000,000 and to an amount not greater than $600,000,000 (any
such increase, a "COMMITMENT INCREASE") by designating either one or more of the
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21
existing Lenders (each of which, in its sole discretion, may determine whether
and to what degree to offer to participate in such Commitment Increase) or one
or more other banks or other financial institutions reasonably acceptable to the
Agent that at the time agree, in the case of any such bank or financial
institution that is an existing Lender to increase its Commitment (an
"INCREASING LENDER") and, in the case of any other such bank or financial
institution (an "ADDITIONAL LENDER"), to become a party to this Agreement;
provided that the sum of the Commitments hereunder and the "Commitments" of the
lenders under, and as defined in, the AER Agreements shall not exceed $1.2
billion. The sum of the increases in the Commitments of the Increasing Lenders
pursuant to this subsection (d) plus the Commitments of the Additional Lenders
upon giving effect to the Commitment Increase shall not in the aggregate exceed
the amount of the Commitment Increase. The Borrower shall provide prompt notice
of any proposed Commitment Increase pursuant to this Section 2.05(d) to the
Agent, which shall promptly provide a copy of such notice to the Lenders.
(ii) Any Commitment Increase shall become effective upon (A) the receipt by
the Agent of (1) an agreement in form and substance satisfactory to the Agent
signed by the Borrower, each Increasing Lender and each Additional Lender,
setting forth the new Commitment of each such Lender and setting forth the
agreement of each Additional Lender to become a party to this Agreement and to
be bound by all the terms and provisions hereof binding upon each Lender, (2)
certified copies of the Commitment Increase Approvals and such opinions of
counsel for the Borrower with respect to the Commitment Increase as the Agent
may reasonably request, and (3) a certificate (the statements contained in which
shall be true) of a duly authorized officer of the Borrower stating that both
before and after giving effect to such Commitment Increase (x) no Event of
Default has occurred and is continuing, (y) all representations and warranties
made by the Borrower in this Agreement are true and correct in all material
respects, and (z) all Commitment Increase Approvals have been obtained and are
in full force and effect, and (B) the funding by each Increasing Lender and
Additional Lender of the A Advance(s) to be made by each such Lender described
in paragraph (iii) below.
(iii) Upon the effective date of any Commitment Increase, each
Increasing Lender and each Additional Lender shall provide funds to the Agent in
the manner described in Section 2.02 in an amount equal to the product of (x)
the aggregate principal amount of A Advances outstanding hereunder, expressed as
a percentage of the Commitments (calculated, in each case, immediately prior to
such Commitment Increase) and (y) such Lender's pro rata share of the
Commitments (calculated, in each case, after giving effect to such Commitment
Increase). The funds so provided by any Lender shall be deemed to be an A
Advance or A Advances made by such Lender on the date of such Commitment
Increase, with such A Advance(s) being (A) in an amount equal to the product of
(x) the aggregate outstanding principal amount of each A Borrowing expressed as
a percentage of the Commitments (calculated, in each case, immediately prior to
such Commitment Increase) and (y) such Lender's pro rata share of the
Commitments (calculated, in each case, after giving effect to such Commitment
Increase) and (B) of the same Type(s) and having the same Interest Period(s) as
each A Borrowing described in the preceding clause (A), such that after giving
effect to such Commitment Increase and the A Advances made on the date of such
Commitment Increase, each A Borrowing outstanding hereunder shall consist of A
Advances made by the Lenders ratably in accordance with their pro rata shares of
the Commitments.
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22
(iv) Notwithstanding any provision contained herein to the contrary,
from and after the date of any Commitment Increase and the making of any A
Advances on such date pursuant to paragraph (iii) above, all calculations and
payments of interest on the A Advances comprising any A Borrowing shall take
into account the actual Commitment of each Lender and the principal amount
outstanding of each A Advance made by such Lender during the relevant period of
time.
SECTION 2.06. REPAYMENT OF A ADVANCES. The Borrower shall repay the
principal amount of each A Advance made by each Lender on the Termination Date.
SECTION 2.07. INTEREST ON A ADVANCES. The Borrower shall pay interest on
the unpaid principal amount of each A Advance owing to each Lender from the date
of such A Advance until such principal amount shall be paid in full, at the
Applicable Rate for such A Advance (except as otherwise provided in this Section
2.07), payable as follows:
(a) Base Rate Advances. If such A Advance is a Base Rate Advance,
interest thereon shall be payable quarterly in arrears on the last day of
each March, June, September and December, on the date of any Conversion of
such Base Rate Advance and on the date such Base Rate Advance shall become
due and payable or shall otherwise be paid in full; provided that at any
time an Event of Default shall have occurred and be continuing, thereafter
each Base Rate Advance shall bear interest payable on demand, at a rate per
annum equal at all times to the Default Rate.
(b) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
Advance, interest thereon shall be payable on the last day of such Interest
Period and, if the Interest Period for such A Advance has a duration of
more than three months, on that day of each third month during such
Interest Period that corresponds to the first day of such Interest Period
(or, if any such month does not have a corresponding day, then on the last
day of such month); provided that at any time an Event of Default shall
have occurred and be continuing, thereafter each Eurodollar Rate Advance
shall bear interest payable on demand, at a rate per annum equal at all
times to the Default Rate.
SECTION 2.08. ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES. The Borrower
shall pay to Agent for the account of each Lender any costs actually incurred by
such Lender with respect to Eurodollar Rate Advances which are attributable to
such Lender's compliance with regulations of the Board of Governors of the
Federal Reserve System requiring the maintenance of reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities. Such
costs shall be paid to the Agent for the account of such Lender in the form of
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender, from the date of such A Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such A Advance from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Reserve
Percentage of such Lender for such Interest Period, payable on each date on
which interest is payable on such A Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through the Agent. A
certificate as to the amount of such additional interest, submitted to the
Borrower and the Agent by such Lender, shall be conclusive and binding for all
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23
purposes, absent manifest error, provided that the determination thereof shall
have been made by such Lender in good faith.
SECTION 2.09. INTEREST RATE DETERMINATION.
(a) Each Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Eurodollar 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 Banks.
(b) The Agent shall give prompt notice to the Borrower and the Lenders of
the applicable interest rate determined by the Agent for purposes of Section
2.07(a) or (b), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(b).
(c) If fewer than two Reference Banks furnish timely information to the
Agent for determining the Eurodollar Rate, due to the unavailability of funds to
such Reference Banks in the relevant financial markets:
(i) the Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurodollar Rate Advances;
(ii) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance); and
(iii) the obligation of the Lenders to make, or to Convert A Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon:
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance; and
(ii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(e) If the Borrower shall fail to (i) select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "INTEREST PERIOD" in Section 1.01 or (ii) provide
a Notice of Conversion with respect to any Eurodollar Rate Advances on or prior
to 12:00 noon on the third Business Day prior to the last day of the Interest
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24
Period applicable thereto, the Agent will forthwith so notify the Borrower and
the Lenders and such Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of A
Advances comprising any A Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than the product of (i) $1,000,000 and (ii) the number of
Lenders on such date, such A Advances shall, if they are Advances of a Type
other than Base Rate Advances, automatically Convert into Base Rate Advances,
and on and after such date the right of the Borrower to Convert such A Advances
into Advances of a Type other than Base Rate Advances shall terminate; provided,
however, that if and so long as each such A Advance shall be of the same Type
and have the same Interest Period as A Advances comprising another A Borrowing
or other A Borrowings, and the aggregate unpaid principal amount of all such A
Advances shall equal or exceed the product of (i) $1,000,000 and (ii) the number
of Lenders on such date, the Borrower shall have the right to continue all such
A Advances as, or to Convert all such A Advances into, Advances of such Type
having such Interest Period.
(g) Upon the occurrence and during the continuance of any Event of Default,
each outstanding Eurodollar Rate Advance shall automatically Convert to a Base
Rate Advance at the end of the Interest Period then in effect for such
Eurodollar Rate Advance.
SECTION 2.10. VOLUNTARY CONVERSION OF A ADVANCES. Subject to the conditions
set forth below, the Borrower may on any Business Day, by delivering a notice of
Conversion (a "NOTICE OF CONVERSION") to the Agent not later than 12:00 noon (i)
on the third Business Day prior to the date of the proposed Conversion, in the
case of a Conversion to or in respect of Eurodollar Rate Advances and (ii) on
the date of the proposed Conversion, in the case of a Conversion to or in
respect of Base Rate Advances, and subject to the provisions of Sections 2.09
and 2.13, Convert all A Advances of one Type comprising the same A Borrowing
into Advances of another Type; provided, however, that, in the case of any
Conversion of any Eurodollar Rate Advances into Base Rate Advances on a day
other than the last day of an Interest Period for such Eurodollar Rate Advances,
the Borrower shall be obligated to reimburse the Lenders in respect thereof
pursuant to Section 8.04(b). Each such Notice of Conversion shall be in
substantially the form of Exhibit 2.10 and shall, within the restrictions
specified above, specify (A) the date of such Conversion, (B) the A Advances to
be Converted, (C) if such Conversion is into Eurodollar Rate Advances, the
duration of the Interest Period for each such A Advance, and (D) the aggregate
amount of A Advances proposed to be Converted. Notwithstanding the foregoing,
the Borrower may not Convert Base Rate Advances into Eurodollar Rate Advances
and may not select a new Interest Period for Eurodollar Rate Advances at any
time an Event of Default has occurred and is continuing.
SECTION 2.11. OPTIONAL PREPAYMENTS OF ADVANCES. The Borrower may, upon at
least three Business Day's notice to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amounts of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that each partial prepayment shall be in an aggregate
principal amount not less than $1,000,000 (or, if lower, the principal amount
outstanding hereunder on the date of such prepayment) or an integral multiple of
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25
$1,000,000 in excess thereof. In the case of any such prepayment of a Eurodollar
Rate Advance or a B Advance, the Borrower shall be obligated to reimburse the
Lender(s) in respect thereof pursuant to Section 8.04(b). Except as provided in
this Section 2.11 and in Section 2.12, the Borrower shall have no right to
prepay any principal amount of any Advances.
SECTION 2.12. MANDATORY PREPAYMENTS.
(a) On the date of any termination or reduction of the Commitments pursuant
to Section 2.05, the Borrower shall pay or prepay for the ratable accounts of
the Lenders so much of the principal amount outstanding under this Agreement as
shall be necessary in order that the principal amount outstanding (after giving
effect to such prepayment) will not exceed the amount of Commitments following
such termination or reduction, together with (A) accrued interest to the date of
such prepayment on the principal amount repaid or prepaid and (B) in the case of
prepayments of Eurodollar Rate Advances or B Advances, any amount payable to the
Lenders pursuant to Section 8.04(b).
(b) All prepayments required to be made pursuant to this Section 2.12 shall
be applied by the Agent as follows:
(i) first, to the prepayment of the A Advances (without reference to
minimum dollar requirements), applied to outstanding Base Rate Advances up
to the full amount thereof before they are applied to Eurodollar Rate
Advances; and
(ii) second, to the prepayment of the B Advances (without reference to
minimum dollar requirements), applied ratably among all the Lenders holding
B Advances.
(c) In lieu of prepaying any Eurodollar Rate Advances or B Advances under
any provision (other than Sections 2.14 and 6.01) of this Agreement, the
Borrower may, upon notice to the Agent, deliver such funds to the Agent, to be
held as additional cash collateral securing the obligations hereunder. The Agent
shall deposit all amounts delivered to it in a non-interest-bearing special
purpose cash collateral account, to be governed by a cash collateral agreement
in form and substance satisfactory to the Borrower and the Agent, and shall
apply all such amounts in such account against such Advances on the last day of
the Interest Period therefor. The Agent shall promptly notify the Lenders of any
election by the Borrower to deliver funds to the Agent under this subsection
(c).
SECTION 2.13. INCREASED COSTS.
(a) If, due to either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements, in the case of
Eurodollar Rate Advances, included in the Eurodollar Rate Reserve Percentage) in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender additional amounts sufficient to compensate such
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26
Lender for such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error, provided that
the determination thereof shall have been made by such Lender in good faith.
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender (with a copy of such
demand to the Agent), the Borrower shall immediately pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's Commitment. A certificate as to such amounts submitted to the Borrower
and the Agent by such Lender, describing in reasonable detail the manner in
which such amounts have been calculated, shall be conclusive and binding for all
purposes, absent manifest error, provided that the determination and allocation
thereof shall have been made by such Lender in good faith.
(c) Notwithstanding the provisions of subsections (a) or (b) above to the
contrary, no Lender shall be entitled to demand compensation or be compensated
thereunder to the extent that such compensation relates to any period of time
more than 60 days prior to the date upon which such Lender first notified the
Borrower of the occurrence of the event entitling such Lender to such
compensation (unless, and to the extent, that any such compensation so demanded
shall relate to the retroactive application of any event so notified to the
Borrower).
SECTION 2.14. ILLEGALITY. Notwithstanding any other provision of this
Agreement to the contrary, if any Lender (the "AFFECTED LENDER") shall notify
the Agent and the Borrower that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for the Affected
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, all Eurodollar Rate Advances of the Affected Lender shall, on the
fifth Business Day following such notice from the Affected Lender, automatically
be Converted into a like number of Base Rate Advances, each in the amount of the
corresponding Eurodollar Rate Advance of the Affected Lender being so Converted
(each such Advance, as so Converted, being an "AFFECTED LENDER ADVANCE"), and
the obligation of the Affected Lender to make, maintain, or Convert A Advances
into Eurodollar Rate Advances shall thereupon be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist, or the Affected Lender has been replaced pursuant to
Section 8.07(g). For purposes of any prepayment under this Agreement, each
Affected Lender Advance shall be deemed to continue to be part of the same
Borrowing as the Eurodollar Rate Advances to which it corresponded at the time
of the Conversion of such Affected Lender Advance pursuant to this Section 2.14.
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27
SECTION 2.15. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder not later than 1:00 p.m.
on the day when due in Dollars to the Agent at its address referred to in
Section 8.02 in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section 2.03, 2.08, 2.12(b)(ii),
2.17, 2.19(c) or 8.04(b)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of a Lender Assignment and recording of the
information contained therein in the Register pursuant to Section 8.07(d), from
and after the effective date specified in such Lender Assignment, the Agent
shall make all payments hereunder in respect of the interest assigned thereby to
the Lender assignee thereunder, and the parties to such Lender Assignment shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder held by such Lender,
to charge from time to time against any or all of the Borrower's accounts with
such Lender any amount so due.
(c) All computations of interest based on clause (i) of the definition of
"Alternate Base Rate" and of fees shall be made by the Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate and the Federal Funds Rate shall be made by the
Agent, and all computations of interest pursuant to Section 2.09 shall be made
by a Lender, on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest or fees are payable. Each determination by
the Agent (or, in the case of Section 2.09, by a Lender) of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error, provided that such determination shall have been made by the Agent or
such Lender, as the case may be, in good faith.
(d) Whenever any payment hereunder shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; provided,
however, that if such extension would cause payment of interest on or principal
of Eurodollar Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
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28
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.16. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(a) 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 Advance 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.
(b) The Agent shall also maintain accounts in which it will record (i) the
amount of each Advance made hereunder, the Type thereof and the Interest Period
(if any) with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant to
subsections (a) and (b) 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 such
obligations in accordance with their terms.
(d) Any Lender may request that its Advances be evidenced by an A Note or B
Note, as the case may be. In such event, the Borrower shall prepare, execute and
deliver to such Lender an A Note or B Note, as the case may be, payable to the
order of such Lender. Thereafter, the Advances evidenced by such Note and
interest thereon shall at all times (including after any assignment pursuant to
Section 8.07) be represented by one or more Notes payable to the order of the
payee named therein or any assignee pursuant to Section 8.07, 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 subsections (a) and (b) above.
SECTION 2.17. TAXES.
(a) Any and all payments by the Borrower hereunder and under the other Loan
Documents shall be made, in accordance with Section 2.15, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its
overall net income and franchise taxes imposed on it by any jurisdiction, unless
such Lender or the Agent (as the case may be) would not have had such taxes
imposed on it by such jurisdiction but for such Lender's or the Agent's (as the
case may be) having entered into this Agreement, having consummated the
transactions contemplated hereby or having received payments by the Borrower
hereunder or under the other Loan Documents (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to any Lender or the Agent, (i) the sum payable shall be
<PAGE>
29
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.17) 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, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "OTHER TAXES").
(c) The Borrower will indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.17) paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor. Nothing
herein shall preclude the right of the Borrower to contest any such Taxes or
Other Taxes so paid, and the Lenders in question or the Agent (as the case may
be) will, following notice from, and at the expense of, the Borrower, reasonably
cooperate with the Borrower to preserve the Borrower's rights to contest such
Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment thereof.
(e) Each Lender agrees that, on or prior to the date upon which it shall
become a party hereto, and upon the reasonable request from time to time of the
Borrower or the Agent, such Lender will deliver to the Borrower and the Agent
either (i) a statement that it is organized under the laws of a jurisdiction
within the United States or (ii) duly completed copies of such form or forms as
may from time to time be prescribed by the United States Internal Revenue
Service indicating that such Lender is entitled to receive payments without
deduction or withholding of any United States federal income taxes, as permitted
by the Internal Revenue Code of 1986, as amended from time to time. Each Lender
that delivers to the Borrower and the Agent the form or forms referred to in the
preceding sentence further undertakes to deliver to the Borrower and the Agent
further copies of such form or forms, or successor applicable form or forms, as
the case may be, as and when any previous form filed by it hereunder shall
expire or shall become incomplete or inaccurate in any respect. Each Lender
represents and warrants that each such form supplied by it to the Agent and the
Borrower pursuant to this subsection (e), and not superseded by another form
supplied by it, is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 2.17 shall use its best efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the need for, or
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30
reduce the amount of, any such additional amounts which may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.17 shall survive the payment in full of principal and interest
hereunder.
SECTION 2.18. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.08, 2.13, 2.17, 2.19(c) or 8.04(b)) in excess of its
ratable share of payments on account of the A Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery, together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.18 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.19. EXTENSION OF REVOLVING PERIOD; TERM ELECTION.
(a) At least 30 but not more than 60 days prior to the end of the
then-current Revolving Period, the Borrower may, by delivering a written request
to the Agent (each such request being irrevocable), request that the Revolving
Period be extended for an additional period of 364 days, commencing on the last
day of the then-current Revolving Period. Any such notice shall also indicate
whether the Borrower elects, in the event that the Lenders determine not to
extend the Revolving Period as requested by the Borrower, to extend the
then-stated Termination Date from the last day of the then-current Revolving
Period to the first anniversary of the last day of the then-current Revolving
Period, subject to the delivery to the Agent of certified copies of the
Extension Approvals (any such election to so extend the Termination Date being
the "TERM ELECTION"). Upon receipt of any such notice, the Agent shall promptly
communicate such request to the Lenders.
(b) No earlier than 30 days prior, and no later than 20 days prior, to the
end of the then-current Revolving Period, the Lenders shall indicate to the
Agent whether the Borrower's request to so extend the then-current Revolving
Period is acceptable to the Lenders (and, if so, the conditions, if any,
relating to such acceptance), it being understood that the determination by each
Lender will be in its sole and absolute discretion and that the failure of any
Lender to so respond within such period shall be deemed to constitute a refusal
by such Lender to consent to such request, with the result being that such
request is denied (any Lender refusing or deemed to refuse any such request, a
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31
"NON-CONSENTING LENDER"). The Agent shall notify the Borrower, in writing, of
the Lenders' decisions no later than 15 days prior to the end of the
then-current Revolving Period.
(c) Subject to the satisfaction of the conditions set forth in Section
3.04, in the event that the sum of the Commitments of the Lenders that have
consented to the Borrower's request to extend the then-current Revolving Period
(the "CONSENTING LENDERS") plus the Commitments of Non-Consenting Lenders with
respect to such request that have been assigned pursuant to Section 8.07(g)
hereof shall constitute at least 51% of the aggregate Commitments, the
then-current Revolving Period shall be extended for an additional period of 364
days with respect to the Commitments of such Consenting Lenders. The Commitments
of Non-Consenting Lenders with respect to such request shall automatically
terminate on the last day of the then-current Revolving Period (and the
principal amount of all Advances made by such Non-Consenting Lenders, together
with accrued interest and fees to such date, shall be repaid), unless assigned
pursuant to Section 8.07(g) hereof; provided that, before the Borrower may
solicit Eligible Assignees other than the Consenting Lenders, the Consenting
Lenders shall have at least five days before the end of the then-current
Revolving Period to determine whether to purchase by assignment the Commitments
of such Non-Consenting Lenders.
(d) In the event that any request by the Borrower pursuant to subsection
(a) above shall be denied and the Borrower shall have indicated in such request
that, in the event of such denial, it has determined to effect the Term
Election, then, effective as of the last day of the then-current Revolving
Period, the Termination Date shall automatically be extended to the first
anniversary of such day. In addition, in the event that the Borrower shall
determine not to request an extension of the then-current Revolving Period
pursuant to subsection (a) above, it may nonetheless make the Term Election by
giving written notice to such effect to the Agent at least ten Business Days
prior to the last day of the then-current Revolving Period (which shall promptly
give notice thereof to the Lenders), whereupon, effective as of such last day,
the Termination Date shall automatically be extended to the first anniversary of
such last day.
(e) Notwithstanding anything contained herein to the contrary, the
Borrower's right to effect the Term Election as provided in either subsection
(a) or (b) above shall not affect any rights or remedies which the Lenders or
the Agent may have at such time under Section 6.01 as a result of any Event of
Default or Unmatured Default which may have occurred and then be continuing,
either at the time of the giving of such notice or on the last day of the
then-current Revolving Period.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO CLOSING. The Commitments of the
Lenders shall not become effective unless the following conditions precedent
shall have been fulfilled:
(a) The Agent shall have received the following, each dated the date of the
Closing, in form and substance satisfactory to the Lenders and in sufficient
copies for each Lender:
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32
(i) this Agreement, duly executed by the Borrower, each Bank and the
Agent;
(ii) any A Note requested by a Lender pursuant to Section 2.16 payable
to the order of each such Lender, duly completed and executed by the
Borrower;
(iii) copies of (A) the resolutions of the Board of Directors of the
Borrower approving this Agreement and the other Loan Documents to which it
is, or is to be, a party, and (B) all documents evidencing other necessary
corporate action on the part of the Borrower with respect to this Agreement
and the other Loan Documents (other than, in the case of clause (A) or (B),
any Commitment Increase Approvals or Extension Approvals not yet obtained),
certified by the Secretary or an Assistant Secretary of the Borrower;
(iv) a certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names, true signatures and incumbency of the
officers of the Borrower authorized to sign this Agreement and the other
Loan Documents to which it is, or is to be, a party;
(v) copies of the Certificate of Incorporation (or comparable charter
document) and by-laws of the Borrower, together with all amendments
thereto, certified by the Secretary or an Assistant Secretary of the
Borrower;
(vi) copies of all Governmental Approvals (other than any Commitment
Increase Approvals, Post December 31, 2000 Borrowing Approvals or Extension
Approvals not yet obtained), if any, required in connection with the
execution, delivery and performance of this Agreement and the other Loan
Documents, certified by the Secretary or an Assistant Secretary of the
Borrower;
(vii) copies of the financial statements referred to in Section
4.01(f), certified by the Secretary or an Assistant Secretary of the
Borrower;
(viii) favorable opinions of:
(A) Foley & Lardner, special counsel for the Borrower, in
substantially the form of Exhibit 3.01(a)(viii)-1 and as to such
other matters as the Majority Lenders, through the Agent, may
reasonably request;
(B) Barbara J. Swan, General Counsel of the Borrower, in
substantially the form of Exhibit 3.01(a)(viii)-2 and as to such
other matters as the Majority Lenders, through the Agent, may
reasonably request;
(C) King & Spalding, special New York counsel to the Agent,
in substantially the form of Exhibit 3.01(a)(viii)-3 and as to
such other matters as the Majority Lenders, through the Agent,
may reasonably request; and
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33
(ix) such other approvals, opinions and documents as any Lender,
through the Agent, may reasonably request.
(b) The following statements shall be true and correct and the Agent shall
have received a certificate of a duly authorized officer of the Borrower, dated
the date of the Closing and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.01 of
this Agreement are true and correct on and as of the date of the Closing as
though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an
Unmatured Default or an Event of Default.
(c) The Borrower shall have paid (i) all fees payable hereunder or payable
pursuant to the Fee Letter to the extent then due and payable, and (ii) all
costs and expenses of the Agent (including counsel fees and disbursements)
incurred through (and for which statements have been provided prior to) the
Closing.
(d) The Borrower shall have terminated the commitments under the Existing
Facility, and all amounts accrued and outstanding thereunder (whether for
principal, interest, fees or other amounts) shall have been paid in full.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH A BORROWING. The obligation of
each Lender to make an A Advance on the occasion of each A Borrowing (including
the initial A Borrowing) that would cause the aggregate principal amount of A
Advances outstanding hereunder to increase shall be subject to the conditions
precedent that, on the date of such A Borrowing:
(a) the following statements shall be true and correct (and each of the
giving of the applicable Notice of A Borrowing and the acceptance by the
Borrower of the proceeds therefrom shall constitute a representation and
warranty by the Borrower that, on the date of such A Borrowing, such statements
are true and correct):
(i) the representations and warranties contained in Section 4.01 are
true and correct on and as of the date of such A Borrowing, before and
after giving effect to the application of the proceeds therefrom, as though
made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from
such A Borrowing or from the application of the proceeds therefrom, that
constitutes an Event of Default or an Unmatured Default;
(b) the Agent shall have received certified copies of the Post December 31,
2000 Borrowing Approvals (in the case of any A Borrowing on or after December
31, 2000); and
(c) the Agent shall have received such other approvals, opinions, or
documents as the Agent, or the Majority Lenders through the Agent, may
reasonably request, and such approvals, opinions, and documents shall be
satisfactory in form and substance to the Agent.
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34
SECTION 3.03. CONDITIONS PRECEDENT TO EACH B BORROWING. The obligation of
each Lender to make a B Advance on the occasion of a B Borrowing (including the
initial B Borrowing) shall be subject to the conditions precedent that (a) the
Agent shall have received certified copies of the Post December 31, 2000
Borrowing Approvals (in the case of any B Borrowing on or after December 31,
2000); (b) the Agent shall have received the written confirmatory Notice of B
Borrowing with respect thereto; (c) on or before the date of such B Borrowing,
but prior to such B Borrowing, the Agent shall have received a B Note requested
by such Lender pursuant to Section 2.16, payable to the order of such Lender for
each of the one or more B Advances to be made by such Lender as part of such B
Borrowing, in a principal amount equal to the principal amount of the B Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such B
Advance in accordance with Section 2.03; and (d) on the date of such B Borrowing
the following statements shall be true and correct (and each of the giving of
the applicable Notice of B Borrowing and the acceptance by the Borrower of the
proceeds therefrom shall constitute a representation and warranty by the
Borrower that, on the date of such B Borrowing, such statements are true and
correct):
(i) the representations and warranties contained in Section 4.01 are
true and correct on and as of the date of such B Borrowing, before and
after giving effect to such B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, that
constitutes an Event of Default or an Unmatured Default; and
(iii) the Agent shall have received such other approvals, opinions, or
documents as the Agent, or the Majority Lenders through the Agent, may
reasonably request, and such approvals, opinions, and documents shall be
satisfactory in form and substance to the Agent.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH EXTENSION OF THE REVOLVING
PERIOD. In the event that the Borrower shall request an extension of the
Revolving Period pursuant to Section 2.19, such extension shall take effect only
upon the satisfaction of the following conditions precedent, together with such
other conditions precedent as the Consenting Lenders may require in connection
with such extension:
(a) the Agent shall have prepared and delivered to the Borrower and each
Lender (including each new bank and other financial institution to which a
Non-Consenting Lender's Commitment has been assigned pursuant to Section 8.07(g)
hereof) a revised Schedule I that reflects the Commitments of each Lender;
(b) the Borrower shall have paid all fees payable hereunder or payable
under or referenced in Section 2.04, to the extent then due and payable;
(c) the Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated by
Section 2.19 as the Agent shall reasonably request, including, without
limitation, copies of the resolutions, in form and substance satisfactory to the
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35
Agent, of the Board of Directors of the Borrower authorizing the extension of
the Revolving Period;
(d) the following statements shall be true on and as of the last day of the
then-current Revolving Period:
(i) The representations and warranties contained in Section 4.01 are
correct on and as of such date as though made on and as of such date; and
(ii) No event has occurred and is continuing, or would result from
such extension of the Revolving Period, that constitutes an Event of
Default or an Unmatured Default; and
(e) the Agent shall have received certified copies of the Extension
Approvals.
SECTION 3.05. RELIANCE ON CERTIFICATES. The Lenders and the Agent shall be
entitled to rely conclusively upon the certificates delivered from time to time
by officers of the Borrower as to the names, incumbency, authority and
signatures of the respective Persons named therein until such time as the Agent
may receive a replacement certificate, in form acceptable to the Agent, from an
officer of such Person identified to the Agent as having authority to deliver
such certificate, setting forth the names and true signatures of the officers
and other representatives of such Person thereafter authorized to act on behalf
of such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to do business in,
and is in good standing in, all other jurisdictions where the nature of its
business or the nature of property owned or used by it makes such
qualification necessary (except where the failure to so qualify would not
have a material adverse affect on the business, financial condition,
operations, results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole).
(b) The execution, delivery and performance by the Borrower of this
Agreement and the other Loan Documents to which it is or will be a party
are within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action (other than any corporate action
constituting a Commitment Increase Approval or an Extension Approval, each
of which, on and at all times following the date of any Commitment
Increase, in the case of Commitment Increase Approvals, or on and at all
times following the date of any extension of the Revolving Period or Term
Election, in the case of Extension Approvals, will have been obtained and
will not have been revoked), and do not and will not contravene (i) the
Borrower's charter or by-laws, (ii) any law, subject to the receipt of all
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36
Commitment Increase Approvals, Post December 31, 2000 Borrowing Approvals
and Extension Approvals, as applicable, or (iii) any legal or contractual
restriction binding on or affecting the Borrower; and such execution,
delivery and performance do not and will not result in or require the
creation of any Lien (other than pursuant to the Loan Documents) upon or
with respect to any of its properties.
(c) No Governmental Approval is required in connection with the
execution, delivery or performance by the Borrower of any Loan Document,
other than (i) Release No. 35-26956; 70-9317, issued by the Securities and
Exchange Commission on December 18, 1998, and Release No. 35-27069;
70-9455, issued by the Securities and Exchange Commission on August 26,
1999, which releases are final and in full force and effect and not subject
to appeal, rehearing, review or reconsideration and (ii) any Governmental
Approval constituting a Commitment Increase Approval, each of which, on and
at all times following the date of any Commitment Increase, will have been
obtained and will be final and in full force and effect and not subject to
appeal, rehearing, review or reconsideration; (iii) any Governmental
Approval constituting a Post December 31, 2000 Borrowing Approval, each of
which, on and at all times following the date of any Borrowing on or after
December 31, 2000, will have been obtained and will be final and in full
force and effect and not subject to appeal, rehearing, review or
reconsideration; and (iv) any Governmental Approval constituting an
Extension Approval, each of which, on and at all times following the date
of any extension of the Revolving Period or the Term Election, will have
been obtained and will be final and in full force and effect and not
subject to appeal, rehearing, review or reconsideration.
(d) This Agreement is, and each other Loan Document to which the
Borrower will be a party when executed and delivered hereunder will be,
legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their respective terms, subject to the
qualifications, however, that the enforcement of the rights and remedies
herein and therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors and that the
remedy of specific performance or of injunctive relief is subject to the
discretion of the court before which any proceedings therefor may be
brought.
(e) Since December 31, 1999, there has been no material adverse change
in the business, financial condition, operations, results of operations or
prospects of the Borrower and its Subsidiaries, taken as a whole, or in the
Borrower's ability to perform its obligations under this Agreement or any
other Loan Document to which it is or will be a party.
(f) The audited consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1999, and the related audited statements of
income of the Borrower and its Subsidiaries for the fiscal year then ended,
and the unaudited consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at June 30, 2000 and the related unaudited
consolidated and consolidating statements of income for the six-month
period then ended, copies of each of which have been furnished to each
Bank, fairly present (subject, in the case of such balance sheets and
<PAGE>
37
statements of income for the six months ended June 30, 2000, to year-end
adjustments) the consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the consolidated results of operations of
the Borrower and its Subsidiaries for the periods ended on such dates, all
in accordance, in all material respects, with generally accepted accounting
principles consistently applied.
(g) Except as disclosed in the Borrower's Report on Form 10-K for the
year ended December 31, 1999 and Report on Form 10-Q for the period ended
June 30, 2000, there is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries or properties before any
court, governmental agency or arbitrator, that might reasonably be expected
to materially adversely affect (i) the business, financial condition,
results of operations or prospects of the Borrower and its Subsidiaries,
taken as a whole, or (ii) the ability of the Borrower to perform its
obligations under this Agreement or any other Loan Document to which the
Borrower is or is to be a party; and since December 31, 1999 there have
been no material adverse developments in any action or proceeding so
disclosed.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of the Borrower or any of its ERISA Affiliates
which would result in a material liability to the Borrower. No "prohibited
transaction" has occurred with respect to any Plan of the Borrower that is
reasonably expected to result in a material liability to the Borrower.
Neither the Borrower nor any of its ERISA Affiliates has incurred nor
reasonably expects to incur any material withdrawal liability under ERISA
to any Multiemployer Plan.
(i) The Borrower has filed all tax returns (Federal, state and local)
required to be filed and paid all taxes shown thereon to be due, including
interest and penalties, or, to the extent the Borrower is contesting in
good faith an assertion of liability based on such returns, has provided
adequate reserves for payment thereof in accordance with generally accepted
accounting principles.
(j) On the date hereof, not more than 25 percent of the value of the
assets of the Borrower and its Subsidiaries on a consolidated basis will be
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System).
(k) The Borrower is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any amount in respect of
this Agreement shall remain unpaid or any Lender shall have any Commitment, the
Borrower will, unless the Majority Lenders shall otherwise consent in writing:
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(a) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
all taxes, assessments and governmental charges, royalties or levies
imposed upon it or upon its property except, in the case of taxes, to the
extent the Borrower or such Subsidiary is contesting the same in good faith
and by appropriate proceedings and has set aside adequate reserves for the
payment thereof in accordance with generally accepted accounting
principles.
(b) Maintenance of Insurance. Maintain, or cause to be maintained,
insurance or other risk management program covering the Borrower and each
of its Subsidiaries and their respective properties in effect at all times
in such amounts and covering such risks and using such means as are usual
and customary for companies of a similar size (based on the aggregate book
value of the Borrower's assets, as determined on a consolidated basis in
accordance with generally accepted accounting principles consistently
applied), engaged in similar businesses and owning similar properties,
either with reputable insurance companies or, in whole or in part, by
establishing reserves of one or more insurance funds or other risk
management mechanisms, either alone or with other corporations or
associations.
(c) Preservation of Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence,
material rights (statutory and otherwise) and franchises; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to preserve and maintain any such right or franchise, and no such
Subsidiary shall be required to preserve and maintain its corporate
existence, unless the failure to do so would have a material adverse effect
on the business, financial condition, operations, results of operations or
prospects of the Borrower and its Subsidiaries, taken as a whole, or on the
Borrower's ability to perform its obligations under this Agreement or any
other Loan Document to which it is or will be a party.
(d) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with the requirements of all applicable laws,
rules, regulations and orders of any governmental authority, including
without limitation any such laws, rules, regulations and orders relating to
zoning, environmental protection, use and disposal of Hazardous Substances,
land use, ERISA, construction and building restrictions, and employee
safety and health matters relating to business operations, the
non-compliance with which would have a material adverse effect on the
business, financial condition, operations, results of operations or
prospects of the Borrower and its Subsidiaries, taken as a whole, or on the
Borrower's ability to perform its obligations under this Agreement or any
other Loan Document to which it is or will be a party.
(e) Inspection Rights. At any time and from time to time upon
reasonable notice, permit or arrange for the Agent, the Lenders and their
respective agents and representatives to examine and make copies of and
abstracts from the records and books of account of, and the properties of,
the Borrower and each of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with the
Borrower and its Subsidiaries and their respective officers, directors and
accountants.
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39
(f) Keeping of Books. Keep, and cause its Subsidiaries to keep, proper
records and books of account, in which full and correct entries shall be
made of all financial transactions of the Borrower and its Subsidiaries and
the assets and business of the Borrower and its Subsidiaries, in accordance
with generally accepted accounting principles consistently applied.
(g) Maintenance of Properties, Etc. Maintain, and cause each of its
Subsidiaries to maintain, good and marketable title to, and preserve,
maintain, develop, and operate in substantial conformity with all laws and
material contractual obligations, all of its properties which are used or
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so would
not have a material adverse effect on the business, financial condition,
operations, results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, or on the Borrower's ability to perform its
obligations under this Agreement or any other Loan Document to which it is
or will be a party.
(h) Reporting Requirements. Furnish to each Lender:
(i) as soon as possible and in any event within five Business
Days after the occurrence of each Unmatured Default or Event of
Default continuing on the date of such statement, a statement of a
Senior Financial Officer setting forth details of such Unmatured
Default or Event of Default and the action that the Borrower proposes
to take with respect thereto;
(ii) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter and consolidated statements
of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, provided,
however, such financial statements shall be deemed delivered if within
the time periods specified such financial statements are available to
be downloaded from the Borrower's website, unless otherwise requested
by any Lender all in reasonable detail and duly certified (subject to
year-end audit adjustments) by a Senior Financial Officer as having
been prepared in accordance (in all material respects) with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section
4.01(f), together with a certificate of said officer stating that no
Unmatured Default or Event of Default has occurred and is continuing
or, if an Unmatured Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action that
the Borrower proposes to take with respect thereto;
(iii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries
for such fiscal year, in each case (x) accompanied by the audit report
<PAGE>
40
of Arthur Andersen LLP (or another nationally-recognized independent
public accounting firm acceptable to the Majority Lenders) if at any
time during such fiscal year the Reference Ratings were Baa2 or lower
(in the case of Moody's) or BBB or lower (in the case of S&P) or (y)
in reasonable detail and duly certified by a Senior Financial Officer
as having been prepared in accordance (in all material respects) with
generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section
4.01(f), together with a certificate of a Senior Financial Officer
stating that no Unmatured Default or Event of Default has occurred and
is continuing or, if an Unmatured Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower proposes to take with respect thereto;
(iv) as soon as possible and in any event (A) within 30 days
after any ERISA Event described in clause (i) of the definition of
ERISA Event with respect to any Plan of the Borrower or any ERISA
Affiliate of the Borrower has occurred and (B) within 10 days after
any other ERISA Event with respect to any Plan of the Borrower or any
ERISA Affiliate of the Borrower has occurred, a statement of a Senior
Financial Officer describing such ERISA Event and the action, if any,
which the Borrower or such ERISA Affiliate proposes to take with
respect thereto;
(v) promptly after receipt thereof by the Borrower or any of its
ERISA Affiliates from the PBGC copies of each notice received by the
Borrower or such ERISA Affiliate of the PBGC's intention to terminate
any Plan of the Borrower or such ERISA Affiliate or to have a trustee
appointed to administer any such Plan;
(vi) promptly after receipt thereof by the Borrower or any ERISA
Affiliate of the Borrower from a Multiemployer Plan sponsor, a copy of
each notice received by the Borrower or such ERISA Affiliate
concerning the imposition or amount of withdrawal liability in an
aggregate principal amount of at least $250,000 pursuant to Section
4202 of ERISA in respect of which the Borrower or such ERISA Affiliate
is reasonably expected to be liable;
(vii) promptly after the Borrower becomes aware of the occurrence
thereof, notice of all actions, suits, proceedings or other events (A)
of the type described in Section 4.01(g) or (B) for which the Agent,
the Lenders will be entitled to indemnity under Section 8.04(c);
(viii) promptly after the sending or filing thereof, copies of
all such proxy statements, financial statements, and reports which the
Borrower sends to its public security holders (if any), and copies of
all regular, periodic and special reports, and all registration
statements and periodic or special reports, if any, which the Borrower
or any Subsidiary of the Borrower files with the Securities and
Exchange Commission or any governmental authority which may be
substituted therefor, or with any national securities exchange; and
<PAGE>
41
(ix) promptly after requested, such other information respecting
the business, properties, results of operations, prospects, revenues,
condition or operations, financial or otherwise, of the Borrower or
any of its Subsidiaries as the Agent or any Lender through the Agent
may from time to time reasonably request.
(i) Use of Proceeds. Use the proceeds of the Advances hereunder solely
for the Borrower's general corporate purposes (including supporting
commercial paper issued by the Borrower), and not to finance any "hostile"
or "unfriendly" acquisition.
(j) Further Assurances. At the expense of the Borrower, promptly
execute and deliver, or cause to be promptly executed and delivered, all
further instruments and documents, and take and cause to be taken all
further actions, that may be necessary or that the Majority Lenders through
the Agent may reasonably request to enable the Lenders and the Agent to
enforce the terms and provisions of this Agreement and to exercise their
rights and remedies hereunder or under any other Loan Document. In
addition, the Borrower will use all reasonable efforts to duly obtain
Governmental Approvals required in connection with the Loan Documents from
time to time on or prior to such date as the same may become legally
required, and thereafter to maintain all such Governmental Approvals in
full force and effect.
SECTION 5.02. NEGATIVE COVENANTS. So long as any amount in respect of this
Agreement shall remain unpaid or any Lender shall have any Commitment, the
Borrower will not, without the written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume, or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume, or suffer to exist, any
lien, security interest, or other charge or encumbrance (including the lien
or retained security title of a conditional vendor) of any kind, or any
other type of arrangement intended or having the effect of conferring upon
a creditor a preferential interest upon or with respect to any of its
properties of any character (including, without limitation, accounts) (any
of the foregoing being referred to herein as a "LIEN"), excluding, however,
from the operation of the foregoing restrictions the Liens created under
the Loan Documents and the following:
(i) Liens for taxes, assessments or governmental charges or
levies to the extent not past due;
(ii) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's liens and other similar Liens
arising in the ordinary course of business securing obligations which
<PAGE>
42
are not overdue or which are being contested in good faith, provided
that any such contested Lien securing an amount claimed in excess of
$1,000,000 shall be fully bonded within 90 days after the imposition
of such Lien;
(iii) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation, to secure public or
statutory obligations of the Borrower or such Subsidiary, or to secure
the utility obligations of any such Subsidiary incurred in the
ordinary course of business;
(iv) (A) purchase money Liens upon or in property now owned or
hereafter acquired by the Borrower or any of its Subsidiaries in the
ordinary course of business (consistent with present practices) to
secure (1) the purchase price of such property or (2) Debt incurred
solely for the purpose of financing the acquisition, construction or
improvement of any such property to be subject to such Liens, or (B)
Liens existing on any such property at the time of acquisition, or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount, provided that no such Lien shall extend to or
cover any property other than the property being acquired, constructed
or improved and replacements, modifications and proceeds of such
property, and no such extension, renewal or replacement shall extend
to or cover any property not theretofore subject to the Lien being
extended, renewed or replaced;
(v) Liens on the capital stock of any of the Borrower's
single-purpose Subsidiaries or any such Subsidiary's assets to secure
the repayment of project financing or Nonrecourse Debt for such
Subsidiary;
(vi) attachment, judgment or other similar Liens arising in
connection with court proceedings, provided that the execution or
other enforcement of such Liens is effectively stayed and the claims
secured thereby are being actively contested in good faith by
appropriate proceedings or the payment of which is covered in full
(subject to customary deductible amounts) by insurance maintained with
responsible insurance companies;
(vii) Liens securing obligations under agreements entered into
pursuant to the Iowa Industrial New Jobs Training Act or any similar
or successor legislation, provided that such obligations do not exceed
$1,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
and
(ix) other Liens set forth in Schedule II hereto, and any
extensions or renewals of any such Liens upon or in the same property
theretofore subject thereto.
Notwithstanding the foregoing, the restrictions of this subsection (a)
shall not apply to property of the Borrower and its Subsidiaries constituting
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System to the extent the value of such property exceeds 25
percent of the value of the assets of the Borrower and its Subsidiaries on a
consolidated basis.
(b) Debt. Create, incur, assume, or suffer to exist any Debt other
than:
(i) Debt hereunder and under the other Loan Documents;
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43
(ii) Debt under guaranties and other types of support agreements
in respect of Debt of Alliant Energy Resources, Inc.;
(iii) unsecured Debt owing to the Utilities; provided, however,
that the aggregate amount of all such Debt owing to any Utility at any
time shall not exceed the amount that such Utility could, in
conformance with applicable law, dividend to the Borrower at such
time; further provided, however, that the foregoing shall not restrict
the Borrower's ability to incur unsecured Debt owing to any Utility in
connection with the cash management program of the Borrower and the
Utilities known as the "Utility Money Pool"; and
(iv) other Debt that is pari passu with, or subordinate to, the
Debt hereunder, provided that the Borrower is in compliance with
Section 5.02(h).
(c) Compliance with ERISA. (i) Permit to exist any "accumulated
funding deficiency" (as defined in Section 412(a) of the Internal Revenue
Code of 1986, as amended from time to time) (unless such deficiency exists
with respect to a Multiple Employer Plan or Multiemployer Plan and the
Borrower has no control over the reduction or elimination of such
deficiency), (ii) terminate, or permit any ERISA Affiliate of the Borrower
to terminate, any Plan of the Borrower or such ERISA Affiliate so as to
result in any material (in the opinion of the Majority Lenders) liability
of the Borrower to the PBGC, or (iii) permit to exist any occurrence of any
Reportable Event (as defined in Title IV of ERISA), or any other event or
condition, which presents a material (in the opinion of the Majority
Lenders) risk of such a termination by the PBGC of any Plan of the Borrower
or such ERISA Affiliate and such a material liability to the Borrower.
(d) Transactions with Affiliates. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with an Affiliate of the
Borrower, unless such transaction is on terms no less favorable to the
Borrower or such Subsidiary, as the case may be, than if the transaction
had been negotiated in good faith on an arm's length basis with a Person
which was not an Affiliate of the Borrower, or such transaction has been
approved by the Securities and Exchange Commission pursuant to the Public
Utility Holding Company Act of 1935.
(e) Mergers, Etc.
(i) Merge with or into or consolidate with or into any other
Person, except the Borrower may merge with or into or consolidate with
or into any of its Subsidiaries, provided that immediately after
giving effect thereto, (A) no event shall occur and be continuing that
constitutes an Unmatured Default or an Event of Default, (B) the
Borrower is the surviving corporation and (C) the Borrower shall not
be liable with respect to any Debt or allow its property to be subject
to any Lien which it could not become liable with respect to or allow
its property to become subject to under this Agreement or any other
Loan Document on the date of such transaction; or
<PAGE>
44
(ii) permit any of its Subsidiaries to merge with or into or
consolidate with or into any other Person, except that any such
Subsidiary may merge with or into any other Person, provided that
immediately after giving effect thereto, (A) the surviving corporation
is a Subsidiary of the Borrower, (B) no event shall occur and be
continuing that constitutes an Unmatured Default or an Event of
Default and (C) the Borrower or any of its Subsidiaries shall not be
liable with respect to any Debt or allow its property to be subject to
any Lien which it could not become liable with respect to or allow its
property to become subject to under this Agreement or any other Loan
Document on the date of such transaction.
(f) Sales, Etc., of Assets. Sell, lease, transfer, assign or otherwise
dispose of any of its assets, or permit any of its Subsidiaries to sell,
lease, transfer, assign or otherwise dispose of any of its assets, except
(i) sales, leases, transfers and assignments from one Subsidiary of the
Borrower to another such Subsidiary, (ii) in any transaction in which the
proceeds from such sale, lease, transfer, assignment or disposition are
solely in Cash and Cash Equivalents and such proceeds are (A) reinvested,
or held for no more than 180 days in Cash and Cash Equivalents pending
reinvestment, in lines of business (other than real estate) in which the
Borrower or any of its Subsidiaries is engaged in at the time of the
Closing, (B) applied as a reduction of the Commitments and prepayment of
Advances pursuant to Sections 2.05, 2.11 and 2.12, or (C) applied to pay or
prepay Debt incurred by the Borrower or any such Subsidiary in connection
with the project comprising such assets, (iii) in connection with a sale
and leaseback transaction entered into by any Subsidiary of the Borrower,
(iv) sales, leases, transfers and assignments of other assets representing
not in excess of 5% of the consolidated assets (valued at book value) of
the Borrower and its Subsidiaries in the aggregate during any
12-calendar-month period in any single or series of transactions, whether
or not related and sales, leases, transfers and assignments of worn out or
obsolete equipment no longer used and useful in the business of the
Borrower and its Subsidiaries and (v) dispositions of the transmission
assets of Wisconsin Power and its Subsidiaries to American Transmission
Company LLC pursuant to Section 196.485 of the Wisconsin Statutes and (vi)
distribution of nuclear generation assets to Nuclear Management Company
LLC; provided in each case that no Unmatured Default or Event of Default
shall have occurred and be continuing after giving effect thereto.
Notwithstanding the foregoing, the restrictions of this clause (f) shall
not apply to assets of the Borrower and its Subsidiaries constituting
margin stock within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System to the extent such assets exceed 25 percent
of the value of the assets of the Borrower and its Subsidiaries on a
consolidated basis.
(g) Maintenance of Ownership of Significant Subsidiaries. Sell,
assign, transfer, pledge or otherwise dispose of any shares of capital
stock of any of its Significant Subsidiaries or any warrants, rights or
options to acquire such capital stock, or permit any of its Significant
Subsidiaries to issue, sell or otherwise dispose of any shares of its
capital stock or the capital stock of any other of its Subsidiaries or any
warrants, rights or options to acquire such capital stock, except (and only
to the extent) as may be necessary to give effect to a transaction
permitted by subsection (e) above.
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45
(h) Capitalization Ratio. Permit the ratio of Consolidated Debt of the
Borrower to Consolidated Capital of the Borrower to exceed .65 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events (each an
"EVENT OF DEFAULT") shall occur and be continuing after the applicable grace
period and notice requirement (if any):
(a) The Borrower shall fail to pay any principal of any Borrowing when the
same becomes due and payable; or
(b) The Borrower shall fail to pay any interest on any Borrowing or any
other amount due under this Agreement for two days after the same becomes due;
or
(c) Any representation or warranty made by or on behalf of the Borrower in
any Loan Document or in any certificate or other writing delivered pursuant
thereto shall prove to have been incorrect in any material respect when made or
deemed made; or
(d) The Borrower shall fail to perform or observe any term or covenant on
its part to be performed or observed contained in Section 5.02 (other than
subsection (c) or (d) thereof); or
(e) The Borrower shall fail to perform or observe any other term or
covenant on its part to be performed or observed contained in this Agreement or
in any other Loan Document, and any such failure shall remain unremedied, after
written notice thereof shall have been given to the Borrower by the Agent, for a
period of 30 days; or
(f) The Borrower or any of its Subsidiaries (excluding the Utilities) shall
fail to pay any of its Debt (including any interest or premium thereon but
excluding Debt hereunder) aggregating $25,000,000 or more when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) and
such failure shall continue after the applicable grace period, if any, specified
in any agreement or instrument relating to such Debt; or any other default under
any agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment) prior to the stated
maturity thereof as a result of a default or other similar adverse event; or
(g) Any of the Utilities shall fail to pay any of its Debt (including any
interest or premium thereon) aggregating $25,000,000 or more when due (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise)
and such failure shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other than
<PAGE>
46
by a regularly scheduled required prepayment) prior to the stated maturity
thereof as a result of a default or other similar adverse event; or
(h) The Borrower or any of the Utilities 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 an assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Borrower or any of the
Utilities seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the case of
a proceeding instituted against the Borrower or any of the Utilities, either
such proceeding shall remain undismissed or unstayed for a period of 60 days or
any of the actions sought in such proceeding (including without limitation the
entry of an order for relief against the Borrower or such Utility or the
appointment of a receiver, trustee, custodian or other similar official for the
Borrower or such Utility or any of its property) shall occur; or the Borrower or
any of the Utilities shall take any corporate or other action to authorize any
of the actions set forth above in this subsection (h); or
(i) Any judgment or order for the payment of money equal to or in excess of
$25,000,000 shall be rendered against the Borrower or any of its Direct
Subsidiaries (including, without limitation, the Utilities) or their respective
properties and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(j) Any material provision of any Loan Document to which the Borrower is a
party shall for any reason cease to be valid and binding on the Borrower or the
Borrower shall so assert in writing; or
(k) Any Governmental Approval required in connection with the execution,
delivery and performance of the Loan Documents shall be rescinded, revoked,
otherwise terminated, or amended or modified in any manner which is materially
adverse to the interests of the Lenders and the Agent; or
(l) Any ERISA Event shall have occurred with respect to a Plan which could
reasonably be expected to result in a material liability to the Borrower, and,
30 days after notice thereof shall have been given to the Borrower by the Agent
or any Lender, such ERISA Event shall still exist; or
(m) (A) Any Person or "group" (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall either (1) acquire
beneficial ownership of more than 50% of any outstanding class of common stock
of the Borrower having ordinary voting power in the election of directors of the
Borrower or (2) obtain the power (whether or not exercised) to elect a majority
of the Borrower's directors or (B) the Board of Directors of the Borrower shall
not consist of a majority of Continuing Directors. "CONTINUING DIRECTORS" shall
mean the directors of the Borrower on the date of this Agreement and each other
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47
director of the Borrower, if such other director's nomination for election to
the Board of Directors of the Borrower is recommended by a majority of the then
Continuing Directors.
then, and in any such event, the Agent (i) shall at the request, or may
with the consent, of the holders of at least 51% in principal amount of the
A Advances then outstanding or, if no A Advances are then outstanding,
Lenders having at least 51% of the Commitments (without giving effect to
any B Reduction), by notice to the Borrower, declare the obligation of each
Lender to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the
consent, of the holders of at least 51% in principal amount of the Advances
then outstanding or, if no Advances are then outstanding, Lenders having at
least 51% of the Commitments, by notice to the Borrower, declare the
Advances (if any), all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code, (A)
the Commitments and the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement or any other Loan
Document (including, without limitation, enforcement or collection of the
Borrowings), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes (if any); provided, however, that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or applicable law. The Agent agrees to give
to each Lender prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement. The Agent shall be deemed to have exercised
reasonable care in the administration and enforcement of this Agreement and the
other Loan Documents if it undertakes such administration and enforcement in a
manner substantially equal to that which Bank One accords credit facilities
similar to the credit facility hereunder for which it is the sole lender.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement or
<PAGE>
48
any other Loan Document, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts a Lender Assignment entered into by the Lender which is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 8.07; (ii) may consult with legal counsel (including counsel
for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement or any
other Loan Document; (iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
this Agreement or any other Loan Document on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. BANK ONE AND AFFILIATES. With respect to its Commitment, the
Advances made by it, Bank One shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Agent; and the term "Bank" or "Banks" and "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Bank One in its individual
capacity. Bank One and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if Bank
One were not the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01(f) and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent 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.
SECTION 7.05. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to (i) on or
before the Termination Date, the respective Percentages of the Lenders, or (ii)
after the Termination Date, the respective outstanding principal amounts of the
Advances, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
<PAGE>
49
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Majority Lenders, with any such resignation or
removal to become effective only upon the appointment of a successor Agent
pursuant to this Section 7.06. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Agent, which shall
be a Lender or shall be another commercial bank or trust company reasonably
acceptable to the Borrower organized under the laws of the United States or of
any State thereof. If no successor Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a Lender or shall be another
commercial bank or trust company organized under the laws of the United States
of any State thereof reasonably acceptable to the Borrower. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Majority Lenders and, in the case of any amendment, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive, modify or eliminate any of the conditions specified in
Section 3.01 or 3.02, (b) increase or extend the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) reduce the principal of,
or interest on, the A Advances, any Applicable Margin or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the A Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Advances, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
<PAGE>
50
hereunder, (f) amend this Section 8.01 or (g) release the Guaranty; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Lenders making or maintaining such B Advances, do any of the
following: (a) waive, modify or eliminate any of the conditions to any B Advance
specified in Section 3.03, (b) reduce the principal of, or interest on, any B
Advance or other amounts payable in respect thereof, (c) postpone any date fixed
for any payment of principal of, or interest on, any B Advance or any other
amounts payable in respect thereof; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note; and provided, further that this
Agreement may be amended and restated without the consent of any Lender or the
Agent if, upon giving effect to such amendment and restatement, such Lender or
the Agent, as the case may be, shall no longer be a party to this Agreement (as
so amended and restated) or have any Commitment or other obligation hereunder
and shall have been paid in full all amounts payable hereunder to such Lender or
the Agent, as the case may be.
SECTION 8.02. NOTICES, ETC. All notices and other communications provided
for hereunder and under the other Loan Documents shall be in writing (including
telecopier, telegraphic, telex or cable communication) and mailed, telecopied,
telegraphed, telexed, cabled or delivered, if to the Borrower, at its address at
222 West Washington Avenue, Madison, Wisconsin, 53703 Attn: Treasurer; if to any
Bank, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Lender Assignment pursuant to which it became a Lender; and if to the Agent, at
its address at 1 Bank One Plaza, Chicago, Illinois 60670, Attention: Robert G.
Bussa; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed or cabled,
be effective five days after being deposited in the mails, or when delivered to
the telegraph company, telecopied, confirmed by telex answerback or delivered to
the cable company, respectively, except that notices and communications to the
Agent pursuant to Article II or VII shall not be effective until received by the
Agent.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. COSTS, EXPENSES, TAXES AND INDEMNIFICATION.
(a) The Borrower agrees to pay on demand all costs and expenses of the
Agent in connection with the preparation (including, without limitation,
printing costs), negotiation, execution, delivery, modification and amendment of
this Agreement and the other Loan Documents, and the other documents and
instruments to be delivered hereunder and thereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to the administration of, and
advising the Agent as to its rights and responsibilities under, this Agreement
and the other Loan Documents. The Borrower further agrees to pay on demand all
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
<PAGE>
51
negotiations, legal proceedings or otherwise) of this Agreement and the other
Loan Documents and the other documents and instruments to be delivered hereunder
and thereunder, including, without limitation, reasonable counsel fees and
expenses in connection with the enforcement of rights under this Section
8.04(a). In addition, the Borrower shall pay any and all stamp and other taxes
payable or determined to be payable in connection with the execution and
delivery of this Agreement and the other Loan Documents, and the other documents
and instruments to be delivered hereunder and thereunder, and agrees to save the
Agent and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance or B Advance is made other than on the last day of the Interest Period
for such A Advance or other than on the maturity date of such B Advance, as a
result of a payment or Conversion pursuant to Section 2.03(e), 2.09(f), 2.10,
2.11, 2.12 or 2.14 or acceleration of the maturity of the Advances pursuant to
Section 6.01 or for any other reason, the Borrower shall, upon demand by any
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment or Conversion, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent
and their respective officers, directors, employees, professional advisors and
affiliates (each, an "INDEMNIFIED PERSON") harmless from and against any and all
claims, damages, losses, liabilities, costs or expenses (including reasonable
attorney's fees and expenses, whether or not such Indemnified Person is named as
a party to any proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) which any of them may incur or which may be
claimed against any of them by any Person (except for such claims, damages,
losses, liabilities, costs and expenses resulting from such Indemnified Person's
gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or
performance of any of the Loan Documents or any transaction contemplated
thereby, or the use by the Borrower of the proceeds of any Advance;
(ii) in connection with any documentary taxes, assessments or charges
made by any governmental authority by reason of the execution and delivery
of any of the Loan Documents; or
(iii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (i) at, upon, or under any property of the Borrower
or any of its Affiliates or (ii) by or on behalf of the Borrower or any of
its Affiliates at any time and in any place.
(d) The Borrower's obligations under this Section 8.04 shall survive the
repayment of all amounts owing to the Lenders hereunder and the termination of
the Commitments. If and to the extent that the obligations of the Borrower under
this Section 8.04 are unenforceable for any reason, the Borrower agrees to make
<PAGE>
52
the maximum contribution to the payment and satisfaction thereof which is
permissible under applicable law.
SECTION 8.05. RIGHT OF SET-OFF.
(a) Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent by the
Majority Lenders specified by Section 6.01 to authorize the Agent to declare all
amounts owing hereunder due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under any Loan Document, irrespective of whether or
not such Lender shall have made any demand under such Loan Document and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of set-off, deduction
or counterclaim in respect of its obligations hereunder, and that the
obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of the Borrower's
rights to any independent claim that the Borrower may have against the Agent or
any Lender for the Agent's or such Lender's, as the case may be, gross
negligence or wilful misconduct, but no Lender shall be liable for the conduct
of the Agent or any other Lender, and the Agent shall not be liable for the
conduct of any Lender.
SECTION 8.06. BINDING EFFECT. This Agreement shall become effective when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified in writing by each Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes (if any) held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations under this Agreement, (ii) the amount
of the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Lender Assignment with respect to
such assignment) shall in no event be less than the lesser of the amount of such
Lender's then remaining Commitment and $5,000,000 or any whole multiple of
$1,000,000 in excess thereof (except in the case of assignments between Lenders
at the time already parties hereto), (iii) so long as no Event of Default shall
<PAGE>
53
have occurred and be continuing, the Borrower shall have consented to such
assignment (which may not be unreasonably withheld or delayed), and (iv) the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, a Lender Assignment, together with any
Note or Notes (if any) subject to such assignment and a processing and
recordation fee of $3,000. Promptly following its receipt of such Lender
Assignment, Note or Notes (if any) and fee, the Agent shall accept and record
such Lender Assignment in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Lender Assignment, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Lender Assignment, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Lender Assignment, relinquish its rights and be released from its obligations
under this Agreement (and, in the case of a Lender Assignment covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto). Notwithstanding
anything to the contrary contained in this Agreement, any Lender may at any time
assign all or any portion of the Advances owing to it to any Affiliate of such
Lender. No such assignment, other than to an Eligible Assignee, shall release
the assigning Lender from its obligations hereunder.
(b) By executing and delivering a Lender Assignment, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such Lender
Assignment, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of each Loan Document, together with copies of the financial statements
referred to in Section 4.01(f) hereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee 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.
(c) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Lender Assignment delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the "REGISTER"). The entries in the Register shall be conclusive and binding
<PAGE>
54
for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee, together with any
Note or Notes (if any) subject to such assignment, the Agent shall, if such
Lender Assignment has been completed and is in substantially the form of Exhibit
8.07 hereto, (i) accept such Lender Assignment, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower.
(e) Each Lender may sell participations to one or more banks, financial
institutions or other entities in all or a portion of its rights and obligations
under the Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes (if any) held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note (if any) for all purposes of this Agreement,
and (iv) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree, in accordance with
the terms of Section 8.08, to preserve the confidentiality of any Confidential
Information relating to the Borrower received by it from such Lender.
(g) If any Lender (or any bank, financial institution, or other entity to
which such Lender has sold a participation) shall (i) make any demand for
payment under Section 2.08 or 2.13, (ii) give notice to the Agent pursuant to
Section 2.14 or (iii) determine not to extend the Revolving Period in response
to any request by the Borrower pursuant to Section 2.19, then (A) in the case of
any demand made under clause (i) above, or the occurrence of the event described
in clause (ii) above, within 30 days after any such demand or occurrence (if,
but only if, in the case of any demanded payment described in clause (i), such
demanded payment has been made by the Borrower), and (B) in the case of the
occurrence of the event described in clause (iii) above, at any time prior to
the then-scheduled Termination Date, the Borrower may, with the approval of the
Agent (which approval shall not be unreasonably withheld), and provided that no
Event of Default or Unmatured Default shall then have occurred and be
continuing, demand that such Lender assign in accordance with this Section 8.07
to one or more Eligible Assignees designated by the Borrower all (but not less
than all) of such Lender's Commitment and the Advances owing to it within the
period ending on the latest to occur of (x) the last day in the period described
in clause (A) or (B) above, as applicable, (y) the last day of the longest of
<PAGE>
55
the then-current Interest Periods for such Advances, and (z) the latest maturity
date of any B Advances owing to such Lender. If any such Eligible Assignee
designated by the Borrower shall fail to consummate such assignment on terms
acceptable to such Lender, or if the Borrower shall fail to designate any such
Eligible Assignees for all or part of such Lender's Commitment or Advances, then
such demand by the Borrower shall become ineffective; it being understood for
purposes of this subsection (g) that such assignment shall be conclusively
deemed to be on terms acceptable to such Lender, and such Lender shall be
compelled to consummate such assignment to an Eligible Assignee designated by
the Borrower, if such Eligible Assignee (1) shall agree to such assignment by
entering into a Lender Assignment with such Lender and (2) shall offer
compensation to such Lender in an amount equal to all amounts then owing by the
Borrower to such Lender hereunder, whether for principal, interest, fees, costs
or expenses (other than the demanded payment referred to above and payable by
the Borrower as a condition to the Borrower's right to demand such assignment),
or otherwise.
(h) Anything in this Section 8.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
hereunder.
SECTION 8.08. CONFIDENTIALITY. In connection with the negotiation and
administration of this Agreement and the other Loan Documents, the Borrower has
furnished and will from time to time furnish to the Agent and the Lenders (each,
a "RECIPIENT") written information which is identified to the Recipient in
writing when delivered as confidential (such information, other than any such
information which (i) as publicly available, or otherwise known to the
Recipient, at the time of disclosure, (ii) subsequently becomes publicly
available other than through any act or omission by the Recipient or (iii)
otherwise subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his or its
obligations to the Borrower, being hereinafter referred to as "CONFIDENTIAL
INFORMATION"). The Recipient will maintain the confidentiality of any
Confidential Information in accordance with such procedures as the Recipient
applies generally to information of that nature. It is understood, however, that
the foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with its Affiliates or with current or prospective
participants in or assignees of the Recipient's position herein, but the
Recipient's ability to so exchange Confidential Information shall be conditioned
upon any such Affiliate's or prospective participant's or assignee's entering
into an understanding as to confidentiality similar to this provision. It is
further understood that the foregoing will not prohibit the disclosure of any or
all Confidential Information if and to the extent that such disclosure may be
required (i) by a regulatory agency or otherwise in connection with an
examination of the Recipient's records by appropriate authorities, (ii) pursuant
to court order, subpoena or other legal process or in connection with any
pending or threatened litigation, (iii) otherwise as required by law, or (iv) in
order to protect its interests or its rights or remedies hereunder or under the
other Loan Documents; in the event of any required disclosure under clause (ii)
or (iii) above, the Recipient agrees to use reasonable efforts to inform the
Borrower as promptly as practicable.
<PAGE>
56
SECTION 8.09. WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF THE AGENT, SUCH LENDERS OR THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 8.10. GOVERNING LAW. This Agreement and the other Loan Documents
shall be governed by, and construed in accordance with, the laws of the State of
New York. The Borrower, each Lender and the Agent (i) irrevocably submits to the
non-exclusive jurisdiction of any New York State court or Federal court sitting
in New York City in any action arising out of any Loan Document, (ii) agrees
that all claims in such action may be decided in such court, (iii) waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum and (iv) consents to the service of process by mail, provided that a copy
shall be promptly sent by overnight courier to Foley & Lardner, Firstar Center,
777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-5367, Attention: Emory
Ireland, Esq. A final judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its right
to bring any action in any other court.
SECTION 8.11. RELATION OF THE PARTIES; NO BENEFICIARY. No term, provision
or requirement, whether express or implied, of any Loan Document, or actions
taken or to be taken by any party thereunder, shall be construed to create a
partnership, association, or joint venture between such parties or any of them.
No term or provision of the Loan Documents shall be construed to confer a
benefit upon, or grant a right or privilege to, any Person other than the
parties thereto.
SECTION 8.12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
<PAGE>
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ALLIANT ENERGY CORPORATION
By /s/ Edward M. Gleason
-------------------------------------
Name: Edward M. Gleason
Title: Vice President, Treasurer and
Corporate Secretary
BANK ONE, NA,
as Agent and as Lender
By /s/ Mary Lu D. Cramer
-------------------------------------
Name: Mary Lu D. Cramer
Title: Vice President
By
-------------------------------------
Name:
Title:
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-2
CITIBANK, N.A.
By /s/ Anita Brickell
-------------------------------------
Name: Anita Brickell
Title: Director
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-3
BANK OF AMERICA, N.A.
By /s/ Michelle A. Schoenfeld
-------------------------------------
Name: Michelle A. Schoenfeld
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-4
ABN AMRO BANK N.V.
By /s/ Kris A. Grosshans
-------------------------------------
Name: Kris A. Grosshans
Title: Group Vice President
By /s/Gregory Babaya
-------------------------------------
Name: Gregory Babaya
Title: Assistant Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-5
AMERICAN TRUST & SAVINGS BANK
By /s/Thomas J. Utzig
-------------------------------------
Name: Thomas J. Utzig
Title: Executive Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-6
BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/Hisashi Miyashiro
-------------------------------------
Name: Hisashi Miyashiro
Title: Deputy General Manager
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-7
BARCLAYS BANK PLC
By /s/Sydney G. Dennis
-------------------------------------
Name: Sydney G. Dennis
Title: Director
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-8
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH
By /s/Alexander Kohnert
-------------------------------------
Name: Alexander Kohnert
Title: First Vice President
By /s/Sean O'Sullivan
-------------------------------------
Name: Sean O'Sullivan
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-9
THE CHASE MANHATTAN BANK
By /s/Robert W. Mathews
-------------------------------------
Name: Robert W. Mathews
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-10
FIRST UNION NATIONAL BANK
By /s/Joe K. Dancy
-------------------------------------
Name: Joe K. Dancy
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-11
FIRSTAR BANK, N.A.
By /s/Janell W. Stanosz
-------------------------------------
Name: Janell W. Stanosz
Title: Assistant Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-12
FLEET NATIONAL BANK
By /s/Jill A. Calabrese Bain
-------------------------------------
Name: Jill A. Calabrese Bain
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-13
THE FUJI BANK. LIMITED
By /s/Peter L. Chinnici
-------------------------------------
Name: Peter L. Chinnici
Title: Senior Vice President &
Group Head
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-14
MELLON BANK, N.A.
By /s/Richard A. Matthews
-------------------------------------
Name: Richard A. Matthews
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-15
THE INDUSTRIAL BANK OF JAPAN, LTD
By /s/Masashi Sakai
-------------------------------------
Name: Masashi Sakai
Title: General Manager
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-16
THE NORINCHUKIN BANK, NEW YORK BRANCH
By /s/Yoshiro Niiro
-------------------------------------
Name: Yoshiro Niiro
Title: General Manager
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-17
U.S. BANK NATIONAL ASSOCIATION
By /s/Dennis J. Ciche
-------------------------------------
Name: Dennis J. Ciche
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-18
WACHOVIA BANK, N.A.
By /s/Susan F. Holmes
-------------------------------------
Name: Susan F. Holmes
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
<PAGE>
S-19
WELLS FARGO BANK WISCONSIN, NATIONAL
ASSOCIATION
By /s/Daniel G. Frazier
-------------------------------------
Name: Daniel G. Frazier
Title: Vice President
ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
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SCHEDULE I
ALLIANT ENERGY CORPORATION
364-Day Credit Agreement, dated as of October 16, 2000, among
Alliant Energy Corporation, the Lenders named therein and Bank One NA, as Agent
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Name of Lender Commitment Domestic Lending Office Eurodollar Lending Office
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<S> <C> <C> <C>
Bank One, NA $21,666,668.00 1 Bank One Plaza, Suite 0363 Same as Domestic Lending
Chicago, Illinois 60670-0363 Office
Attention: Robert G. Bussa
Citibank, N.A. $21,666,667.00 Two Pennsway, Ste. 200 Same as Domestic Lending
New Castle, Delaware 19720 Office
Attention: Bank Loan
Syndications
Bank of America, N.A. $21,666,667.00 100 N. Tryon, NC1-007-16-13 Same as Domestic Lending
Charlotte, North Carolina 28255 Office
Attention: Michelle Schoenfeld
The Chase Manhattan Bank $18,833,333.00 270 Park Avenue, 23rd Fl. Same as Domestic Lending
New York, New York 10017 Office
Attention: Robert W. Matthews
First Union National $18,833,333.00 560 Lexington Avenue Same as Domestic Lending
Bank New York, New York 10022 Office
Attention: James Monaghan
Patricia Sanchez
Mellon Bank, N.A. $18,833,333.00 Three Mellon Center, Rm. 1203 Same as Domestic Lending
Pittsburgh, Pennsylvania 15259 Office
Attention: Brenda Leierzapf
Bank of Tokyo-Mitsubishi, $18,833,333.00 227 W. Monroe Street, Suite 2300 Same as Domestic Lending
Ltd. Chicago, Illinois 60606 Office
Attention: Wayne Yamanaka
Wells Fargo Bank $18,833,333.00 432 S. Gammon Road Same as Domestic Lending
Madison, Wisconsin 53719 Office
Attention: Daniel Frazier
ABN AMRO Bank N.V. $15,000,000.00 208 South LaSalle, Suite 1500 Same as Domestic Lending
Chicago, Illinois 60604-1003 Office
Attention: Ken Keck
Barclays Bank PLC $15,000,000.00 222 Broadway Same as Domestic Lending
New York, New York 10038 Office
Attention: Loan Administration
Bayerische Landesbank $15,000,000.00 560 Lexington Avenue Bayerische Landesbank-
Girozentrale New York, New York 10022 Cayman Islands
Attention: James Monaghan Brienner Strasse 20
D-80333 Munich, Germany
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Name of Lender Commitment Domestic Lending Office Eurodollar Lending Office
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<S> <C> <C>
Firstar Bank, N.A. $15,000,000.00 777 E. Wisconsin Avenue Same as Domestic Lending
Milwaukee, Wisconsin 53202 Office
Attention: Janell W. Stanosz
Fleet National Bank $15,000,000.00 100 Federal Street Same as Domestic Lending
MA DE 10008A Office
Boston, Massachusetts 02110
Attention: Rita Cahill
Jack Jamieson
The Fuji Bank, Limited $15,000,000.00 2 World Trade Center, 79th Fl. Same as Domestic Lending
New York, New York 10048 Office
Attention: Tina Catapano, Loans
Administration Dept.
The Norinchukin Bank $15,000,000.00 245 Park Avenue, 29th Fl. Same as Domestic Lending
New York, New York 10167 Office
Attention: Keisuke Ishii
Wachovia Bank, N.A. $15,000,000.00 191 Peachtree St. Same as Domestic Lending
Atlanta, Georgia 30303 Office
Attention: Loan Administration
The Industrial Bank of $10,000,000.00 1251 Avenue of the Americas Same as Domestic Lending
Japan, Ltd. New York, New York 10020 Office
Attention: Loan Administration
U.S. Bank National $8,333,333.00 201 W. Wisconsin Avenue Same as Domestic Lending
Association Milwaukee, Wisconsin 53259 Office
Attention: Dennis Ciche
American Trust & $2,500,000.00 895 Main Street Same as Domestic Lending
Savings Bank Dubuque, Iowa 52001 Office
Attention: Thomas J. Utzig
TOTAL $300,000,000
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ALLIANT ENERGY CORPORATION 364-DAY CREDIT AGREEMENT
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SCHEDULE II
EXISTING LIENS
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SCHEDULE III
EXISTING DEBT
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SCHEDULE IV
LIST OF INDENTURES
Wisconsin Power and Light Company to First Wisconsin Trust Company and George B.
Luhman, as Trustees
Indenture, dated August 1, 1941
Iowa Electric Light and Power Company to The First National Bank of Chicago,
Trustee Indenture of Mortgage and Deed of Trust, dated as of September 1, 1993
Iowa Electric Light and Power Company to The First National Bank of Chicago,
Trustee Indenture of Mortgage and Deed of Trust, dated as of August 1, 1940
Iowa Southern Utilities Company to The Northern Trust Company and Harold H.
Rockwell, Trustees
Deed of Trust, dated February 1, 1923
Interstate Power Company to The Chase National Bank of the City of New York and
Carl E. Buckley, Trustees
Indenture, dated as of January 1, 1948
