SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission Registrant, State of Incorporation, IRS Employer
File Number Address, and Telephone Number Identification No.
1-10568 LG&E Energy Corp. 61-1174555
(A Kentucky Corporation)
220 West Main Street
P.O. Box 32030
Louisville, Ky. 40232
(502) 627-2000
2-26720 Louisville Gas and Electric Company 61-0264150
(A Kentucky Corporation)
220 West Main Street
P.O. Box 32010
Louisville, Ky. 40232
(502) 627-2000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date:
LG&E Energy Corp.
66,527,636 shares, without par value, as of October 31, 1997.
Louisville Gas and Electric Company
21,294,223 shares, without par value, as of October 31, 1997,
all held by LG&E Energy Corp.
This combined Form 10-Q is separately filed by LG&E Energy Corp. and
Louisville Gas and Electric Company. Information contained herein related
to LG&E Energy Corp. or any of its direct or indirect subsidiaries other
than Louisville Gas and Electric Company is provided solely by LG&E Energy
Corp. and not Louisville Gas and Electric Company and shall be deemed not
included in the Form 10-Q of Louisville Gas and Electric Company.
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TABLE OF CONTENTS
PART I
Item 1 Financial Statements
LG&E Energy Corp. and Subsidiaries
Statements of Income 1
Balance Sheets 2
Statements of Cash Flows 4
Statements of Retained Earnings 6
Louisville Gas and Electric Company
Statements of Income 7
Balance Sheets 8
Statements of Cash Flows 10
Statements of Retained Earnings 11
Notes to Financial Statements 12
Item 2 Management's Discussion and Analysis of Results of
Operations and Financial Condition 19
PART II
Item 1 Legal Proceedings 27
Item 4 Submission of Matters to a Vote of Security Holders 28
Item 5 Other Information
Unaudited Pro Forma Financial Information 29
Unaudited Pro Forma Combined Condensed
Balance Sheet as of September 30, 1997 30
Unaudited Pro Forma Combined Condensed
Statements of Income:
Three Months Ended September 30, 1997 32
Three Months Ended September 30, 1996 33
Nine Months Ended September 30, 1997 34
Nine Months Ended September 30, 1996 35
Notes to Unaudited Pro Forma Combined Condensed
Financial Statements 36
Item 6 Exhibits and Reports on Form 8-K 37
Signatures 38
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Part I. Financial Information - Item 1. Financial Statements
LG&E Energy Corp. and Subsidiaries
Statements of Income
(Unaudited - Thousands of $ Except Per Share Data)
Three Months Nine Months
Ended Ended
Sept. 30, Sept. 30,
1997 1996 1997 1996
REVENUES:
Energy marketing and trading $ 855,741 $645,163 $2,436,707 $1,863,877
Electric utility 189,638 183,624 464,689 471,300
Gas utility 18,953 20,306 149,882 140,724
Other (Note 2) 49,189 4,835 113,052 14,369
Total revenues 1,113,521 853,928 3,164,330 2,490,270
COST OF REVENUES:
Energy marketing and trading 857,789 635,375 2,412,118 1,813,641
Fuel and power purchased 46,807 43,377 120,233 124,256
Gas supply expenses 11,541 13,327 100,510 90,211
Other (Note 2) 26,829 3,323 64,422 10,270
Total cost of revenues 942,966 695,402 2,697,283 2,038,378
Gross profit 170,555 158,526 467,047 451,892
OPERATING EXPENSES:
Operation and maintenance:
Utility 55,744 48,928 165,140 159,420
Energy marketing and trading
and other 22,759 15,910 66,458 48,341
Depreciation and amortization 30,852 25,893 87,614 77,385
Nonrecurring charges (Note 5) - - (592) -
Total operating expenses 109,355 90,731 318,620 285,146
Equity in earnings
of joint ventures 5,985 2,512 14,926 11,313
OPERATING INCOME 67,185 70,307 163,353 178,059
Other income and (deductions) 1,368 1,812 7,140 3,353
Interest charges, minority inter-
est and preferred dividends 20,347 12,525 54,805 40,404
Income before income taxes 48,206 59,594 115,688 141,008
Income taxes 19,013 17,858 43,639 48,355
NET INCOME $ 29,193 $ 41,736 $ 72,049 $ 92,653
Average common shares
outstanding 66,491 66,307 66,453 66,278
Earnings per share $ .44 $ .63 $ 1.08 $ 1.40
The accompanying notes are an integral part of these financial statements.
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LG&E Energy Corp. and Subsidiaries
Balance Sheets
(Thousands of $)
ASSETS
(Unaudited)
Sept. 30, Dec. 31,
1997 1996
CURRENT ASSETS:
Cash and temporary cash investments $ 155,703 $ 114,669
Marketable securities 11,317 5,815
Accounts receivable - less reserve 455,276 545,729
Materials and supplies - primarily at average cost:
Fuel (predominantly coal) 16,128 14,576
Gas stored underground 42,346 43,258
Other 32,662 32,426
Price risk management assets (Note 3) 83,105 86,844
Prepayments and other 4,927 14,255
Total current assets 801,464 857,572
UTILITY PLANT:
At original cost 2,745,374 2,685,209
Less: reserve for depreciation 1,057,511 999,987
Net utility plant 1,687,863 1,685,222
OTHER PROPERTY AND INVESTMENTS - less reserve:
Investment in affiliates (Note 2) 172,339 126,099
Non-utility property and plant, net (Note 2) 407,650 171,338
Price risk management assets (Note 3) 42,400 36,623
Other 22,332 21,465
Total other property and investments 644,721 355,525
DEFERRED DEBITS AND OTHER ASSETS 113,869 113,573
Total assets $3,247,917 $3,011,892
The accompanying notes are an integral part of these financial statements.
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LG&E Energy Corp. and Subsidiaries
Balance Sheets (cont.)
(Thousands of $)
CAPITAL AND LIABILITIES
(Unaudited)
Sept. 30, Dec. 31,
1997 1996
CURRENT LIABILITIES:
Long-term debt due within one year $ 20,000 $ -
Notes payable (Note 6) 289,161 158,000
Accounts payable 418,162 528,556
Trimble County settlement 14,032 17,511
Accrued taxes 27,012 -
Price risk management liabilities (Note 3) 108,962 108,402
Other 80,773 63,366
Total current liabilities 958,102 875,835
Long-term debt (Note 2) 664,315 646,835
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income
taxes 310,262 288,107
Investment tax credit, in
process of amortization 76,783 80,040
Regulatory liability 74,756 77,287
Price risk management liabilities (Note 3) 13,018 27,482
Other 121,482 109,760
Total deferred credits and other liabilities 596,301 582,676
Minority interests (Note 2) 104,901 -
Cumulative preferred stock 95,328 95,328
COMMON EQUITY:
Common stock, without par value -
Outstanding 66,525,636 shares
and 66,341,444 shares 470,094 466,329
Other (1,151) (1,105)
Retained earnings 360,027 345,994
Total common equity 828,970 811,218
Total capital and liabilities $3,247,917 $3,011,892
The accompanying notes are an integral part of these financial statements.
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LG&E Energy Corp. and Subsidiaries
Statements of Cash Flows
(Unaudited - Thousands of $)
Nine Months
Ended
Sept. 30,
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 72,049 $ 92,653
Items not requiring cash currently:
Depreciation and amortization 87,614 77,385
Deferred income taxes - net 3,959 24,890
Change in net price risk management assets (15,942) (10,628)
Other 7,997 1,490
Change in net current assets 24,223 (9,535)
Other (5,163) (21,444)
Net cash flows from operating activities 174,737 154,811
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of securities (9,270) (15,536)
Proceeds from sales of securities 3,619 35,771
Construction expenditures (78,823) (71,142)
Investment in affiliates (985) (3)
Acquisition of interests in
Argentine natural gas distribution
companies, net of cash and temporary
cash investments acquired (Note 2) (125,852) -
Net cash flows from investing activities (211,311) (50,910)
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock 3,745 2,295
Retirement of first mortgage bonds - (16,000)
Repayment of short-term borrowings (298,000) (79,800)
Short-term borrowings 429,161 64,800
Payment of common dividends (57,298) (55,162)
Net cash flows from financing activities $ 77,608 $ (83,867)
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LG&E Energy Corp. and Subsidiaries
Statements of Cash Flows (cont.)
(Unaudited - Thousands of $)
Nine Months
Ended
Sept. 30,
1997 1996
CHANGE IN CASH AND TEMPORARY
CASH INVESTMENTS $ 41,034 $ 20,034
CASH AND TEMPORARY CASH INVESTMENTS AT
BEGINNING OF PERIOD 114,669 80,144
CASH AND TEMPORARY CASH INVESTMENTS AT
END OF PERIOD $ 155,703 $ 100,178
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION:
Cash paid during the period for:
Income taxes $ 28,594 $ 15,358
Interest on borrowed money 40,897 33,238
For the purposes of these statements, all temporary cash investments
purchased with a maturity of three months or less are considered cash
equivalents.
The accompanying notes are an integral part of these financial statements.
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LG&E Energy Corp. and Subsidiaries
Statements of Retained Earnings
(Unaudited)
(Thousands of $)
Three Months Nine Months
Ended Ended
Sept. 30, Sept. 30,
1997 1996 1997 1996
Balance at beginning
of period $350,625 $331,054 $345,994 $316,930
Net income 29,193 41,736 72,049 92,653
Cash dividends declared on
common stock ($.2975, $.2875,
$.8725 and $.8425 per share) 19,791 19,073 58,016 55,866
Balance at end of period $360,027 $353,717 $360,027 $353,717
The accompanying notes are an integral part of these financial statements.
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Louisville Gas and Electric Company
Statements of Income
(Unaudited)
(Thousands of $)
Three Months Nine Months
Ended Ended
Sept. 30, Sept. 30,
1997 1996 1997 1996
REVENUES:
Electric (Note 7) $189,482 $183,512 $464,228 $470,945
Gas 18,953 20,306 149,882 140,724
Total operating revenues 208,435 203,818 614,110 611,669
OPERATING EXPENSES:
Fuel for electric generation 40,731 38,007 107,181 110,613
Power purchased 6,076 5,370 13,052 13,643
Gas supply expenses 11,541 13,328 100,510 90,211
Other operation expenses 40,875 33,093 114,837 104,350
Maintenance 11,425 12,145 37,768 42,301
Depreciation and amortization 24,892 22,250 70,795 66,751
Federal and state
income taxes 22,890 24,254 47,553 52,663
Property and other taxes 3,443 3,690 12,535 12,769
Total operating expenses 161,873 152,137 504,231 493,301
NET OPERATING INCOME 46,562 51,681 109,879 118,368
Other income and (deductions) 520 19 2,364 730
Interest charges 9,859 9,234 29,566 30,172
NET INCOME 37,223 42,466 82,677 88,926
Preferred stock dividends 1,146 1,146 3,433 3,438
NET INCOME AVAILABLE
FOR COMMON STOCK $ 36,077 $ 41,320 $ 79,244 $ 85,488
The accompanying notes are an integral part of these financial statements.
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Louisville Gas and Electric Company
Balance Sheets
(Thousands of $)
ASSETS
(Unaudited)
Sept. 30, Dec. 31,
1997 1996
UTILITY PLANT:
At original cost $2,745,374 $2,685,209
Less: reserve for depreciation 1,057,511 999,987
Net utility plant 1,687,863 1,685,222
OTHER PROPERTY AND INVESTMENTS -
less reserve 1,096 1,028
CURRENT ASSETS:
Cash and temporary cash investments 67,488 56,792
Marketable securities 8,516 3,595
Accounts receivable - less reserve 132,289 115,144
Materials and supplies - at average cost:
Fuel (predominantly coal) 16,128 14,576
Gas stored underground 39,449 35,510
Other 32,662 32,426
Prepayments 1,316 2,480
Total current assets 297,848 260,523
DEFERRED DEBITS AND OTHER ASSETS:
Unamortized debt expense 6,816 6,933
Regulatory assets 20,012 27,729
Other 27,470 25,277
Total deferred debits and other assets 54,298 59,939
Total assets $2,041,105 $2,006,712
The accompanying notes are an integral part of these financial statements.
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Louisville Gas and Electric Company
Balance Sheets (cont.)
(Thousands of $)
CAPITAL AND LIABILITIES
(Unaudited)
Sept. 30, Dec. 31,
1997 1996
CAPITALIZATION:
Common stock, without par value -
Outstanding 21,294,223 shares $ 425,170 $ 425,170
Retained earnings 249,466 209,222
Other (764) (635)
Total common equity 673,872 633,757
Cumulative preferred stock 95,328 95,328
Long-term debt 626,800 646,835
Total capitalization 1,396,000 1,375,920
CURRENT LIABILITIES:
Long-term debt due within one year 20,000 -
Accounts payable 74,758 97,478
Trimble County settlement 14,032 17,511
Dividends declared 21,145 20,131
Accrued taxes 25,343 11,982
Accrued interest 8,723 9,994
Other 14,886 13,128
Total current liabilities 178,887 170,224
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income
taxes 239,885 241,681
Investment tax credit, in
process of amortization 76,783 80,040
Accumulated provision for pensions
and related benefits 42,520 42,554
Regulatory liability 74,756 77,287
Other 32,274 19,006
Total deferred credits and other liabilities 466,218 460,568
Total capital and liabilities $2,041,105 $2,006,712
The accompanying notes are an integral part of these financial statements.
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Louisville Gas and Electric Company
Statements of Cash Flows
(Unaudited - Thousands of $)
Nine Months
Ended
Sept. 30,
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 82,677 $ 88,926
Items not requiring cash currently:
Depreciation and amortization 70,795 66,751
Deferred income taxes - net (4,170) 7,040
Investment tax credit - net (3,257) (3,305)
Other 3,639 2,967
Changes in net current assets:
Accounts receivable (17,145) 9,503
Materials and supplies (5,727) (3,227)
Trimble County settlement (3,479) (9,239)
Accounts payable (22,720) (42,259)
Accrued taxes 13,361 31,305
Accrued interest (1,271) (1,224)
Prepayments and other 2,922 2,435
Other 11,550 (7,362)
Net cash flows from operating activities 127,175 142,311
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of securities (6,457) (6,764)
Proceeds from sales of securities 1,247 20,977
Construction expenditures (69,850) (66,400)
Net cash flows from investing activities (75,060) (52,187)
CASH FLOWS FROM FINANCING ACTIVITIES:
Retirement of first mortgage bonds - (16,000)
Payment of dividends (41,419) (58,964)
Net cash flows from financing activities (41,419) (74,964)
CHANGE IN CASH AND TEMPORARY
CASH INVESTMENTS 10,696 15,160
CASH AND TEMPORARY CASH INVESTMENTS AT
BEGINNING OF PERIOD 56,792 58,131
CASH AND TEMPORARY CASH INVESTMENTS AT
END OF PERIOD $ 67,488 $ 73,291
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION:
Cash paid during the period for:
Income taxes $ 33,120 $ 23,971
Interest on borrowed money 29,707 30,415
For the purposes of these statements, all temporary cash investments
purchased with a maturity of three months or less are considered cash
equivalents.
The accompanying notes are an integral part of these financial statements.
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Louisville Gas and Electric Company
Statements of Retained Earnings
(Unaudited)
(Thousands of $)
Three Months Nine Months
Ended Ended
Sept. 30, Sept. 30,
1997 1996 1997 1996
Balance at beginning
of period $233,388 $188,217 $209,222 $181,049
Net income 37,223 42,466 82,677 88,926
Subtotal 270,611 230,683 291,899 269,975
Cash dividends declared on stock:
5% cumulative preferred 269 269 807 807
Auction rate cumulative
preferred 509 510 1,525 1,530
$5.875 cumulative preferred 367 367 1,101 1,101
Common 20,000 19,200 39,000 56,200
Subtotal 21,145 20,346 42,433 59,638
Balance at end of period $249,466 $210,337 $249,466 $210,337
The accompanying notes are an integral part of these financial statements.
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LG&E Energy Corp. and Subsidiaries
Louisville Gas and Electric Company
Notes to Financial Statements
(Unaudited)
1. On September 5, 1997, LG&E Energy Corp. merged two of its direct
subsidiaries, LG&E Energy Systems Inc. (Energy Systems) and LG&E Gas
Systems Inc. (Gas Systems), and renamed the surviving company LG&E
Capital Corp. This report includes consolidated financial statements
for LG&E Energy Corp. and its wholly-owned subsidiaries - Louisville
Gas and Electric Company (LG&E) and LG&E Capital Corp. (Capital Corp.),
collectively referred to as the "Company." This report also includes
financial statements for LG&E.
In the opinion of management, all adjustments have been made to present
fairly the consolidated financial position, results of operations and
cash flows for the periods indicated. The adjustments consist of those
of a normal recurring nature. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
condensed or omitted pursuant to SEC rules and regulations, although
the Company believes that the disclosures are adequate to make the
information presented not misleading.
In the fourth quarter of 1996, the Company adopted the mark-to-market
method of accounting for its energy trading and price risk management
activities. The Company made the change effective January 1, 1996, and
restated its 1996 quarterly results. The change increased net income
for the three months ended September 30, 1996, by $632,000 ($.01 per
share), and it increased net income for the nine months ended September
30, 1996, by $6,218,000 ($.09 per share).
These financial statements should be read with the financial statements
and the notes included in the Company's and LG&E's Annual Reports on
Form 10-K for 1996.
2. On February 13, 1997, the Company acquired interests in two Argentine
natural gas distribution companies for $140 million, plus transaction-
related costs and expenses. The Company acquired a controlling interest
in Distribuidora de Gas del Centro (Centro), and a combined 14.4%
interest in Distribuidora de Gas Cuyana (Cuyana). The Company accounted
for both acquisitions using the purchase method. The Company allocated
substantially all of the excess of the purchase price over the
underlying equity of Centro and Cuyana to property and equipment. The
Company recognized no goodwill on the acquisition.
The fair values of the net assets acquired follow (in thousands of
dollars):
Assets $333,580
Liabilities 89,820
Minority interests 103,916
Cash paid, excluding transaction costs 139,844
Cash and cash equivalents acquired 16,453
Net cash paid, excluding transaction costs 123,391
Transaction costs 2,461
Net cash paid $125,852
The Company has classified Centro's revenues, cost of revenues, and
operating expenses since the date of acquisition as other in its income
statement for the three- and nine-month periods ended September 30,
1997. The Company included its share of the earnings of Cuyana in
equity in earnings of joint ventures. The Company included Centro's
property and equipment in non-utility property and plant, net, in its
bal
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ance sheet as of September 30, 1997, and it included its investment in
Cuyana in investments in affiliates.
The carrying amount of the Company's investment in Cuyana exceeded its
share of the underlying equity of Cuyana by approximately $11 million
at September 30, 1997. This difference reflects fair-value adjustments
recorded at the time of purchase.
Liabilities assumed in the purchase included negotiable obligations
issued by Centro with a face amount of $38 million. The obligations
mature in August 2001 and pay interest at 11.44% of face value. The
Company classified the negotiable obligations as long-term debt in its
balance sheet as of September 30, 1997.
3. Price Risk Management.
The notional amounts and terms of the Company's price risk management
contracts in which the Company pays or receives a fixed price for the
underlying commodity at September 30, 1997, follow:
Fixed Fixed Maximum
Unit of Price Price Term in
Product Measure Payor Receiver Years
Electricity Thousands of Mwh 274,424 112,690 11
Natural gas Thousands of MMBtu 862,742 744,970 9
Canadian dollars C$000s 22,350 - 2
The weighted average terms of the Company's price risk management
contracts at September 30, 1997, follow:
Product Term
Electricity 5 months
Natural gas 14 months
Canadian dollars 6 months
The fair values of the Company's price risk management assets and
liabilities at September 30, 1997, follow (in thousands of dollars):
Liabil-
Counterparty Assets ities
Marketers $ 67,925 $ 62,499
Energy producers 28,204 26,660
Financial institutions 29,072 18,399
Industrial and commercial
users 30 7,519
Other 274 949
Totals 125,505 116,026
Reserves - 5,954
Net values $125,505 $121,980
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The average fair values of the Company's price risk management assets
and liabilities for the three- and nine-month periods ended September
30, 1997, follow (in thousands of dollars):
Three Months Nine Months
Liabil- Liabil-
Counterparty Assets ities Assets ities
Marketers $ 54,869 $ 42,499 $ 47,267 $ 52,284
Energy producers 41,272 30,302 42,251 20,530
Financial institutions 18,864 11,609 13,451 13,054
Industrial and commercial
users 2,004 18,942 2,328 10,653
Gas transmission companies 112 276 198 990
Other 1,987 1,295 8,185 6,069
Totals $119,108 $104,923 $113,680 $103,580
Commitments with 28 customers represented approximately 72% of the
Company's price risk management assets at September 30, 1997.
A 3% change in the market prices of electricity and natural gas at
September 30, 1997, would have changed the Company's net income by
approximately $3.6 million.
Other Financial Instruments.
The Company entered into an interest-rate swap in the second quarter of
1997 to hedge some of its notes payable. The swap has a notional
amount of $50 million, and it matures in June 2002. The swap agreement
calls for the Company to pay a fixed rate of 6.49%, and to receive a
variable rate based on the three-month London Interbank Offered Rate.
The rate received will change every three months. For the three- and
nine-month periods ended September 30, 1997, the rates received equaled
5.792% and 5.796%, respectively.
LG&E was a party to two interest-rate swap agreements at December 31,
1996. The swaps had notional amounts of $15 million each, and LG&E
used them to hedge its exposure to changes in the interest rates on $30
million of Pollution Control Bonds, Variable Rate Series, due September
1, 2017. In September 1997, one of these swaps matured and was not
renewed.
None of the other information concerning other financial instruments
disclosed by the Company in its Annual Report on Form 10-K for the year
ended December 31, 1996, changed materially during the nine months
ended September 30, 1997.
4. On May 20, 1997, the Company and KU Energy Corporation, a Kentucky
corporation ("KU"), entered into an Agreement and Plan of Merger (the
"Merger Agreement") providing for a merger of LG&E Energy and KU.
Pursuant to the Merger Agreement, among other things, KU will be merged
with and into LG&E Energy, with LG&E Energy as the surviving
corporation (the "Merger"). The Merger, which was unanimously approved
by the Boards of Directors of LG&E Energy and KU, is expected to close
shortly after all of the conditions to consummation of the Merger,
including the receipt of all applicable regulatory approvals, are met
or waived.
As a result of the Merger, the Company, which is the parent of LG&E,
will become the parent company of KU's principal operating subsidiary,
Kentucky Utilities Company ("Kentucky Utilities"). The operating
utility subsidiaries (LG&E and Kentucky Utilities) will maintain their
separate corporate identities and will continue to serve
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customers in Kentucky and Virginia under their present names. LG&E
Energy and KU expect more than $760 million in gross non-fuel savings
over a ten-year period following the Merger. Costs to achieve these
synergies are estimated to be $77 million. In regulatory filings
associated with approval of the Merger, LG&E and Kentucky Utilities
committed not to seek increases in base rates and proposed reductions
in their retail customers' bills in amounts based on 50% of the
currently estimated cost savings to be achieved as a result of the
Merger, less 50% of the costs to achieve such savings, in each of the
five years following effectiveness of the Merger. The preferred stock
and debt securities of the operating utility subsidiaries will not be
affected by the Merger. Present nonutility operations of KU will be
unaffected. The nonutility subsidiaries of KU will become subsidiaries
of LG&E Energy.
Under the terms of the Merger Agreement, each outstanding share of the
common stock, without par value, of KU ("KU Common Stock") (other than
shares with respect to which dissenters' rights are perfected under
applicable state law), together with the associated KU stock purchase
rights, will be converted into the right to receive 1.67 shares of
common stock, without par value, of the Company ("LG&E Energy Common
Stock"), together with the associated LG&E Energy stock purchase
rights. A holder of KU Common Stock who would otherwise have been
entitled to a fractional share of LG&E Energy Common Stock will be
entitled to receive a cash payment in lieu of such fractional share.
The outstanding shares of LG&E Energy Common Stock will remain
unchanged and outstanding. As of September 30, 1997, there were
66,525,636 shares of LG&E Energy common stock outstanding, and
37,817,878 shares of KU common stock outstanding. Based on such
capitalization, upon consummation of the Merger 51.3% of the
outstanding LG&E Energy common stock will be owned by the shareholders
of LG&E Energy prior to the Merger and 48.7% will be owned by former KU
shareholders.
On September 12, 1997, the Public Service Commission of Kentucky
(Commission) approved the merger application substantially as filed.
In the application filed with the Commission, the utilities proposed
that 50% of the net non-fuel cost savings estimated to be achieved from
the merger, less 50% of the costs to achieve such savings(but not in
excess of the currently estimated costs to achieve), be applied to
reduce customer rates, and the remaining 50% be retained by the
companies. The Commission approved and allocated the customer savings
53% to Kentucky Utilities and 47% to LG&E. The Order provides for a
surcredit on customers' bills for 50% of the projected net non-fuel
savings in each of the five years following consummation of the merger.
The surcredit will be terminated only with the consent of the
Commission. Any fuel cost savings will be passed to Kentucky customers
through the companies' fuel adjustment clauses. One-half of the costs
to achieve the savings will be charged to expenses as incurred, once
the merger is consummated, and the remaining one-half will be deferred
as a regulatory asset and amortized as an offset to customer savings
equally over five years. The reduced customer rates approved by the
Commission are guaranteed, absent extraordinary circumstances, and it
will be up to Kentucky Utilities and LG&E to actually realize the
estimated level of net non-fuel savings.
On October 9, 1997, LG&E Energy and KU filed for approval of the Merger
with the Federal Energy Regulatory Commission.
On October 14, 1997, in separate meetings, stockholders from each of
the companies met and the holders of over 75% of the outstanding shares
of common stock of LG&E Energy and KU approved the merger.
The Merger remains subject to approval of regulators in Virginia under
state utility law, the approval of the Federal Energy Regulatory
Commission under the Federal Power Act, the approval of the Securities
and Exchange Commission (the "SEC") under the Public Utility Holding
Company Act of 1935, and the filing of requisite notifications
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with the Federal Trade Commission and the Department of Justice under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the expiration of all applicable waiting periods thereunder. The
Merger is also subject to the receipt of opinions of counsel that the
Merger will qualify as a tax-free reorganization and assurances from
the parties' independent accountants that the Merger will qualify as a
pooling of interests for accounting purposes. In addition, the Merger
is conditioned upon the approval for listing of shares of LG&E Energy
Common Stock to be issued in the Merger on the New York Stock Exchange.
It is anticipated that LG&E Energy, as parent of LG&E and Kentucky
Utilities, will continue to be an exempt holding company under the
Public Utility Holding Company Act of 1935.
The foregoing description of the Merger does not purport to be complete
and is qualified in its entirety by reference to the following
documents (including the exhibits thereto) filed with the Securities
and Exchange Commission ("SEC"): (i) the Company's current reports on
Form 8-K dated May 21, 1997, May 30, 1997, and September 19, 1997 (SEC
File No. 1-10568), (ii) the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997, and the Company's Registration
Statement on Form S-4 filed on August 22, 1997.
5. In the fourth quarter of 1996, LG&E Natural Inc. (LG&E Natural)
discovered that a marketer in its Calgary, Alberta, office had engaged
in unauthorized transactions, resulting in significant losses in the
Company's Canadian natural gas marketing business. The Company
recorded an expense of $17.1 million (U.S.) after income taxes to
reflect the losses. In the second quarter of 1997, the Company
received an insurance settlement of $7.6 million (net of expenses)
related to the losses. The Company included the settlement amount as a
credit in non-recurring charges in its income statement for the nine
months ended September 30, 1997. See Item 1, Legal Proceedings, under
Part II.
The Company reported in its Form 8-K dated April 28, 1997, that it
intended to consolidate the trading, risk management and administrative
operations of its power marketing and gas marketing divisions into a
single energy marketing unit, located in its Louisville headquarters.
This represented a step in the Company's plan to integrate its two
marketing companies, LG&E Power Marketing Inc. (LG&E Power Marketing)
and LG&E Natural, into a new division, LG&E Energy Marketing, to
capitalize on the convergence of the electric and gas marketing
industries. The consolidated division will expand the variety of
commodities it will offer to include coal, emission allowances and
other energy-related products.
Under the integration plan, the Company moved LG&E Natural's trading,
risk management, accounting, legal, credit management and other support
operations from Dallas to Louisville, consolidating them with the
Company's power marketing group already located there. The Company
will maintain sales and marketing offices in Dallas as well as in
Fairfax, Virginia; Chicago; Denver; and Costa Mesa, California.
The Company recorded a charge of $7.0 million in the second quarter of
1997 to reflect the costs of the consolidation. The Company included
this amount in non-recurring charges in its income statement for the
nine months ended September 30, 1997. This charge covered employee
severance, facilities, information systems and other related costs.
The Company expects future savings resulting from the integration to
more than offset these costs.
6. On September 5, 1997, Energy Systems and Gas Systems merged to form
Capital Corp. At the same time, Capital Corp. implemented a $600
million commercial paper facility backed by new lines of credit
totaling $700 million. The Company terminated the old lines of credit
for Energy Systems and Gas Systems, which totaled $435 million. The
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old $25 million line of credit for Energy Corp. expired in July 1997,
and the Company did not renew it.
Capital Corp. had outstanding commercial paper of $289 million at
September 30, 1997, at a weighted average interest rate of 5.60%. LG&E
Energy Corp., LG&E, and Capital Corp. had no other notes payable at
September 30, 1997.
At September 30, 1997, the Company had lines of credit in place
totaling $900 million ($200 million for LG&E, and $700 million for
Capital Corp.) for which it pays commitment or facility fees. The LG&E
credit facility provides for short term borrowing. The Capital Corp.
facilities provide for short term borrowing, letter of credit issuance,
and support of commercial paper borrowings. Unused capacity under
these lines totaled $551.9 million after considering the commercial
paper support and approximately $59.1 million in letters of credit
securing on- and off-balance-sheet commitments. The credit lines will
expire at various times from 1998 through 2002. Management expects to
renegotiate the lines when they expire.
Capital Corp. has provided a guarantee of a lease obligation to a third
party. The obligation totaled $10.9 million at September 30, 1997.
7. In April 1995, in response to an application filed by LG&E, the
Commission approved, with modifications, an environmental cost recovery
surcharge that increased electric revenues by $3.2 million in 1995,
$2.4 million in 1996 and is expected to increase 1997 revenues an
additional $.5 million.
An appeal of the Commission's April 1995 order by various intervenors
in the proceeding is currently pending in the Franklin Circuit Court of
Kentucky. LG&E is contesting the legal challenges to the surcharge,
but cannot predict the outcome of the appeal. The amount of refunds
that may be ordered, if any, are not expected to have a material
adverse effect on the Company's financial position or results of
operations.
8. On September 30, 1997 the Commission issued an order approving LG&E's
request to implement a performance-based ratemaking mechanism effective
November 1, 1997. This mechanism is related to gas procurement
activities and gas off-system sales only. It is a means to improve the
quality of service, reduce costs, and improve returns to shareholders.
The mechanism will be implemented on an experimental basis over a three
year period. This revision will not have a material effect on LG&E's
financial position or results of operations.
9. Effective January 1, 1997, the Company adopted Statement of Financial
Accounting Standards No. 125, Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities (SFAS No. 125).
This new standard is effective for all transfers and servicing of
financial assets and extinguishments of liabilities occurring after
December 31, 1996. Adopting SFAS No. 125 had no impact on the
Company's financial position or results of operations.
The Company adopted the provisions of Statement of Position (SOP) 96-1,
Environmental Remediation Liabilities, effective January 1, 1997. This
statement provides authoritative guidance for recognition, measurement,
and disclosure of environmental remediation liabilities in financial
statements. Due to the Company's previous recognition of this type of
liability, adoption did not have a material impact on the Company's
financial position or results of operation.
In February 1997, the Financial Accounting Standards Board issued
Statements of Financial Accounting Standards No. 128, Earnings Per
Share, and No. 129, Disclosure of Information about Capital Structure,
effective for periods ending after December 15,
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1997. The Company does not expect these statements to materially
affect its earnings per share or its disclosures about its capital
structure.
In June 1997, the Financial Accounting Standards Board issued
Statements of Financial Accounting Standards No. 130, Reporting
Comprehensive Income, and No. 131, Disclosures about Segments of an
Enterprise and Related Information, effective for periods beginning
after December 15, 1997. The Company does not expect its comprehensive
income to differ materially from its net income, and it does not expect
its segment disclosures to change significantly as a result of adopting
the provisions of these statements.
10.See Item 1, Legal Proceedings, under Part II for a discussion of the
reversal of a lower court's adverse ruling affecting Westmoreland-LG&E
Partners' (WLP) efforts to recover capacity payments withheld by
Virginia Electric and Power Company. The Company has a 50% interest in
WLP, and WLP owns the Roanoke Valley I and II facilities.
11.See Item 1, Legal Proceedings, under Part II for a discussion of LG&E
Westmoreland - Rensselaer's (LWR) obligation to negotiate towards a
restructuring of its power-purchase agreement with Niagara Mohawk Power
Corporation. The Company has a 50% interest in LWR, and LWR owns the
Rensselaer facility.
12.See Item 1, Legal Proceedings, under Part II for a discussion of
proposed regulations of the United States Environmental Protection
Agency that, if adopted, could require many utilities east of the
Mississippi River, including LG&E and KU, to reduce the emission of
nitrogen oxides by approximately 85% from 1990 levels. LG&E already
has reduced its emissions of nitrogen oxides by approximately 40%.
13.Reference is made to Part II herein - Item 1, Legal Proceedings, and
Note 16 of the Notes to Financial Statements, Commitments and
Contingencies, of the Company's Annual Report on Form 10-K for the year
ended December 31, 1996.
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Item 2. Management's Discussion and Analysis of Results of Operations and
Financial Condition.
On May 20, 1997, the Company entered into an Agreement and Plan of Merger
with KU Energy Corporation ("KU Energy"), which is the parent company of
Kentucky Utilities Company ("Kentucky Utilities"). Further information
concerning this agreement and pro forma financial information relating
thereto is included in Note 4 and Part II of this Form 10-Q. The following
discussion and analysis is based on the financial condition and operations
of the Company and does not reflect the potential effects of the
combination between the Company and KU Energy.
The Company's principal subsidiary is LG&E, an electric and gas utility.
Accordingly, LG&E's results of operations and liquidity and capital
resources are the primary factors affecting the Company's consolidated
results of operations and capital resources and liquidity.
Some of the matters discussed in Part I or Part II of this Form 10-Q may
contain forward looking statements that are subject to certain risks,
uncertainties and assumptions. Actual results may vary materially.
Factors that could cause actual results to differ materially include, but
are not limited to: general economic conditions; business and competitive
conditions in the energy industry; unusual weather; regulatory decisions,
including decisions regarding the proposed combination of the Company and
KU Energy; the factors described in Exhibit 99.02 of the Company's Form 8-K
filed May 22, 1997, the factors described under the caption "Cautionary
Statement Concerning Forward-Looking Statements" in the Company's Proxy
Statement dated August 22, 1997, and other factors described from time to
time in the Company's reports to the Securities and Exchange Commission.
Results of Operations
The Company's results of operations are significantly affected by seasonal
fluctuations in temperature and other weather-related factors. Because of
these and other factors, the results of one interim period are not
necessarily indicative of results or trends to be expected for the full
year.
The Company restated its quarterly results for the three- and nine-month
periods ended September 30, 1996, to reflect adopting the mark-to-market
method of accounting for its energy marketing and trading activities. See
Note 1 of Notes to Financial Statements under Item 1.
Three Months Ended September 30, 1997, Compared to
Three Months Ended September 30, 1996
The Company's earnings per share decreased to $.44 in 1997 from $.63 in
1996 due to energy marketing losses in 1997, lower earnings at LG&E, and to
the favorable resolution of several pending income tax issues in the third
quarter of 1996. Higher non-utility power generation earnings partially
offset these decreases, as did increases resulting from acquiring interests
in Centro and Cuyana in February 1997. The energy marketing losses
resulted from abrupt changes in electric demand, substantially greater
volatility in electricity prices in certain regions of the country during
the summer, and lower gas-marketing margins. The LG&E decrease resulted
from increased operating expenses and a write-off of certain deferred items
(see LG&E Results), partially offset by increased electric sales to
ultimate consumers due to warmer weather. The increase in non-utility
power generation earnings resulted from higher earnings at the Roanoke
Valley I and Tarifa projects.
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<PAGE>
LG&E (Utility) Results:
LG&E's net income decreased $5.2 million (13%) for the quarter ended
September 30, 1997, as compared to the quarter ended September 30, 1996,
primarily because of increased operating expenses and a write-off of
certain expenses deferred in prior periods. These expenses were partially
offset by increased electric sales to ultimate consumers due to the warmer
weather. Cooling degree days were 16% above 1996.
A comparison of LG&E's revenues for the quarter ended September 30, 1997,
with the quarter ended September 30, 1996, reflects increases and decreases
which have been segregated by the following principal causes:
Increase or
(Decrease)
(Thousands of $)
Electric Gas
Cause Revenues Revenues
Sales to ultimate consumers:
Fuel and gas supply adjustments $ (338) $ (972)
Demand side management/revenue
decoupling 899 1,524
Environmental cost recovery surcharge 106 -
Variation in sales volume, etc. 8,249 (1,697)
Total 8,916 (1,145)
Sales for resale (3,673) -
Gas transportation - net - (95)
Other 727 (113)
Total $ 5,970 $(1,353)
Fuel for electric generation and gas supply expenses comprise a large
segment of LG&E's total operating expenses. LG&E's electric and gas rates
contain a fuel adjustment clause and a gas supply clause, respectively,
whereby increases or decreases in the cost of fuel and gas supply may be
reflected in retail rates, subject to the approval of the Public Service
Commission of Kentucky. Fuel for electric generation increased $2.7
million (7%) for the quarter because of an increase in generation ($2.2
million) and a higher cost of coal burned ($.5 million). Gas supply
expenses decreased $1.8 million (13%) due to a decrease in net gas supply
cost.
Other operation expenses increased $7.8 million (24%) over 1996 because of
a write-off of certain previously deferred items ($3.2 million) and
increased costs to operate the electric generating plants ($1.3 million).
In addition, operation costs increased over 1996 because of a credit to
expense recorded in the third quarter of 1996 for a portion of the
settlement proceeds related to a commercial dispute ($1.8 million).
As a result of a recent analysis, LG&E revised its regulatory strategy and
wrote-off certain previously deferred expenses as mentioned above. Items
written off include deferred expenses associated with LG&E's operation of
its hydro-electric plant and a management audit fee. While LG&E believes
it could have reasonably expected to recover these costs in future rate
proceedings before the Commission, it decided not to seek recovery and to
expense these costs currently because of increasing competitive pressures
and future economic conditions. In addition, consistent with the order of
the Commission regarding the merger of the Company with KU, the Company
does not expect to request an increase in base
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<PAGE>
rates for a period of five years following the completion of the merger,
absent extraordinary circumstances.
Depreciation and amortization increased $2.6 million (12%) primarily as a
result of the accelerated write-off of losses on early retirements of
facilities, which were previously deferred as regulatory assets and were in
the process of amortization ($1.9 million) and because of additional
depreciable plant in service.
Variations in income tax expense are largely attributable to changes in pre-
tax income.
Energy Marketing and Trading and Other Results:
Energy marketing and trading revenues and cost of revenues increased $210.6
million (33%) and $222.4 million (35%), respectively, due to higher power-
marketing volumes, partially offset by lower gas-marketing volumes. The
increase in revenues also reflects recognizing revenues of $10.5 million in
the third quarter of 1997 related to a negotiated settlement of an
independent power project. The increase in power-marketing volumes
resulted from many new transactions, including sales pursuant to a
marketing agreement with Oglethorpe Power Corporation completed in 1996 and
the signing of an interim marketing agreement with Big Rivers Electric
Corporation in the third quarter of 1997. The decrease in gas-marketing
volumes resulted from the organizational changes discussed in Note 5 of
Notes to Financial Statements, under Part I, Item 1 of this report.
Energy marketing and trading gross margins decreased $11.8 million due to
abnormal weather (which created abrupt changes in electric demand),
substantially greater volatility in electricity prices in certain regions
of the country during the summer, and lower gas-marketing margins. The
decrease in gas-marketing margins resulted from lower volume, milder
weather and reduced price volatility in the gas markets. The independent
power project settlement mentioned above partially offset these decreases.
Other revenues and cost of revenues increased $44.4 million and $23.5
million, respectively, primarily due to acquiring an interest in Centro in
February 1997. Operation and maintenance expense increased $6.8 million
(43%) and non-utility depreciation and amortization increased $2.3 million
for the same reason. See Note 2 of Notes to Financial Statements under
Item 1.
Equity in earnings of joint ventures increased $3.5 million in 1997 due to
acquiring an interest in Cuyana in February 1997, and to increases at the
Roanoke Valley I and Tarifa projects. Earnings at Roanoke Valley I
increased due to a decrease in forced-outage days, and the Tarifa increase
resulted from higher energy production.
See Note 5 of Notes to Financial Statements under Item 1, Part I of this
report for a discussion of the Company's decision to consolidate the
trading, risk management and administrative operations of its power
marketing and gas marketing divisions into a single energy marketing unit
at its Louisville headquarters.
Non-utility interest charges and minority interest increased $7.2 million
due to an increase in notes payable and to the Centro acquisition.
The consolidated effective tax rate increased to 39.4% in 1997 from 30.0%
in 1996 mainly due to successfully resolving several pending income tax
issues in 1996 and to changes in the provisions for state and foreign
income taxes.
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<PAGE>
Nine Months Ended September 30, 1997, Compared to
Nine Months Ended September 30, 1996
The Company's earnings per share decreased to $1.08 in 1997 from $1.40 in
1996 due to energy marketing losses in 1997, lower earnings at LG&E, and
the favorable resolution of several pending income tax issues in 1996.
Higher non-utility power generation earnings partially offset these
decreases, as did increases resulting from acquiring interests in Centro
and Cuyana in February 1997. The energy marketing losses resulted from
abrupt changes in electric demand, substantially greater volatility in
electricity prices in certain regions of the country during the summer, and
lower gas-marketing margins. The LG&E decrease was primarily due to lower
retail electric and gas sales due to milder weather in 1997. Lower off-
system sales of electricity to wholesale customers also contributed to the
decrease. In addition, a write-off of certain deferred items (see LG&E
Results) and increased operating expenses at the electric generating plants
had a negative impact on LG&E's net income. The increase in non-utility
power generation earnings resulted from higher earnings at the Roanoke
Valley I and Tarifa projects, partially offset by lower earnings at the
Windpower Partners 1993 project.
LG&E (Utility) Results:
LG&E's net income for the nine months ended September 30, 1997, decreased
$6.2 million (7%). This decrease is primarily due to lower retail electric
and gas sales due to milder weather in 1997. Lower off-system sales of
electricity to wholesale customers have also contributed to the decrease.
In addition, a write-off of certain expenses deferred in prior periods and
increased operating expenses at electric generating plants had a negative
impact on net income.
A comparison of LG&E's revenues for the nine months ended September 30,
1997, with the nine months ended September 30, 1996, reflects increases and
decreases which have been segregated by the following principal causes:
Increase or
(Decrease)
(Thousands of $)
Electric Gas
Cause Revenues Revenues
Sales to ultimate consumers:
Fuel and gas supply adjustments $ (2,005) $ 24,925
Demand side management/revenue
decoupling 7,450 5,329
Environmental cost recovery surcharge 371 -
Variation in sales volume, etc. (4,948) (21,555)
Total 868 8,699
Sales for resale (11,064) -
Gas transportation - net - 479
Other 3,479 (20)
Total $ (6,717) $ 9,158
Electric sales for resale decreased due to increased outages at the power
plants which reduced the amount of power available for off-system spot
market sales.
Fuel for electric generation decreased $3.4 million (3%) for the nine
months ended September 30, 1997, primarily because of decreased generation
($4.3 million), partially offset
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<PAGE>
by a higher cost of coal burned ($.9 million). Gas supply expenses
increased $10.3 million (11%) primarily because of increased net gas supply
cost ($26.3 million) partially offset by a decrease in the volume of gas
delivered to the distribution system ($16 million).
Other operation expenses increased $10.5 million (10%) over 1996 partly
because of increased operating expenses at electric generating plants ($3.7
million), a write-off of certain deferred items in the third quarter as
previously mentioned ($3.2 million), and the recognition of a credit to
expense in 1996 for a one-time reduction of certain employee fringe
benefits in connection with a change in the collective bargaining agreement
($3.6 million).
Maintenance expenses decreased $4.5 million (11%) primarily due to a
decrease in repairs at the electric generating plants ($2.3 million) and
fewer expenses related to storm damage ($1.7 million).
Depreciation and amortization increased $4 million (6%) primarily due to
accelerated amortization of a regulatory asset ($1.9 million) and because
of additional depreciable plant in service.
Other income and (deductions) increased $1.6 million primarily because of
interest income recorded as a result of a favorable tax settlement and
higher income from investments.
Energy Marketing and Trading and Other Results:
Energy marketing and trading revenues and cost of revenues increased $572.8
million (31%) and $598.5 million (33%), respectively, due to higher power-
marketing volumes, partially offset by lower gas-marketing volumes. The
increase in revenues also reflects recognizing revenues of $10.5 million in
the third quarter of 1997 related to a negotiated settlement of an
independent power project. The increase in power-marketing volumes
resulted from many new transactions, including sales pursuant to a
marketing agreement with Oglethorpe Power Corporation completed in 1996 and
the signing of an interim marketing agreement with Big Rivers Electric
Corporation in the third quarter of 1997. The decrease in gas-marketing
volumes resulted from the organizational changes discussed in Note 5 of
Notes to Financial Statements, under Part I, Item 1 of this report.
Energy marketing and trading gross margins decreased $25.7 million due to
abnormal weather in the third quarter of 1997 (which created abrupt changes
in electric demand), substantially greater volatility in electricity prices
in certain regions of the country during the summer, and lower gas-
marketing margins. The decrease in gas-marketing margins resulted from
lower volume, milder weather and reduced price volatility in the gas
markets. The independent power project settlement mentioned above
partially offset these decreases.
Other revenues and cost of revenues increased $98.7 million and $54.2
million, respectively, due to acquiring an interest in Centro in February
1997. Operation and maintenance expense increased $18.1 million (37%) and
non-utility depreciation and amortization increased $6.2 million for the
same reason. See Note 2 of Notes to Financial Statements under Item 1.
Non-recurring charges included a net insurance settlement of $7.6 million
($8.5 million gross insurance recovery, less expenses) related to losses
incurred in LG&E Natural Inc.'s (LG&E Natural) Calgary office. Non-
recurring charges also included a charge of $7.0 million to reflect the
costs of consolidating the trading, risk management and administrative
operations of the Company's power marketing and gas marketing divisions
into a single energy marketing unit, located in its Louisville
headquarters. See Note 5 of Notes to Financial Statements under Item 1 for
additional information on this consolidation.
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<PAGE>
Equity in earnings of joint ventures increased $3.6 million in 1997 due to
acquiring an interest in Cuyana in February 1997, and to increases at the
Roanoke Valley I and Tarifa projects. A decrease in earnings at the
Windpower Partners 1993 (WPP93) project partially offset these increases.
Earnings at Roanoke Valley I increased due to a decrease in forced-outage
days, and the Tarifa increase resulted from higher energy production. The
WPP93 decrease resulted from previously-anticipated decreases in prices and
lower production.
Non-utility other income increased $1.7 million due mainly to the
settlement of a legal dispute.
Non-utility interest charges and minority interest increased $15.0 million
due to an increase in notes payable and to the Centro acquisition.
The consolidated effective tax rate increased to 37.7% in 1997 from 34.3%
in 1996 mainly due to successfully resolving several pending income tax
issues in 1996 and to changes in the provisions for state and foreign
income taxes.
Liquidity and Capital Resources
The Company's need for capital funds is primarily related to the
construction of plant and equipment necessary to meet LG&E's electric and
gas customers' needs and protection of the environment. Needs for capital
funds also arise from partnership equity contributions in connection with
independent power production projects, efforts to expand and improve gas
gathering and processing facilities, information system enhancements, and
other business development opportunities. Construction expenditures of $79
million for the nine months ended September 30, 1997, were financed with
internally-generated funds.
The Company recently acquired interests in two Argentine natural gas
distribution companies for $140 million (see Note 2 of Notes to Financial
Statements). On June 9, 1997, certain subsidiaries of the Company entered
into a Participation Agreement with Big Rivers Electric Corporation (Big
Rivers), setting forth the detailed parameters of the proposed 25-year
lease by Company affiliates of the generation assets of Big Rivers. On the
same date, these arrangements were approved by the creditors of Big Rivers
as part of the confirmation of Big Rivers' Plan of Reorganization by the
U.S. Bankruptcy Court. Consummation of this transaction is subject to a
number of conditions, including receipt of federal and state regulatory
approvals. The Company made initial filings seeking regulatory approvals
from the Kentucky Public Service Commission on June 30, 1997. (See Item 1,
Business, and Item 7, Management's Discussion and Analysis of Results of
Operations and Financial Condition, of the Company's Annual Report on Form
10-K for the year ended December 31, 1996, for background and a further
discussion of this proposed transaction.)
The Company had margin balances totaling $6.1 million on deposit with
brokers at September 30, 1997. Brokers require the deposits to address
changes in the market prices of financial instruments used in the Company's
price risk management activities.
The Company's combined cash and marketable securities balance increased
$46.5 million during the nine months ended September 30, 1997. The
increase reflects cash flows from operations and a net increase in notes
payable, partially offset by construction expenditures, the acquisition of
interests in the Argentine natural gas distribution companies, and
dividends paid.
Variations in accounts receivable, accounts payable and materials and
supplies are generally not significant indicators of the Company's
liquidity. Such variations are primarily attributable to fluctuations in
weather, which have a direct effect on sales of electricity and natural
gas. The significant decreases in the Company's accounts receivable and
accounts payable balances resulted mainly from seasonal fluctuations in the
energy market
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<PAGE>
ing division's and LG&E's businesses, partially offset by increases
resulting from acquiring Centro.
The significant increases in the Company's investments in affiliates and
non-utility property and plant, net, resulted from acquiring interests in
the Argentine natural gas companies. The increase in long-term debt
resulted from the Argentine acquisition, partially offset by a decrease
resulting from $20.0 million of LG&E's long-term debt becoming current.
The increase in the Company's notes payable balance resulted from borrowing
additional funds to finance the acquisition of interests in the Argentine
natural gas companies, and to fund working capital needs.
LG&E's cash and temporary cash investments balance increased $11 million
during the nine months ended September 30, 1997. The increase reflects
LG&E's cash flow from operations less construction expenditures, dividends
paid, and the purchase of securities.
Variations in LG&E's accounts receivable, accounts payable and materials
and supplies are not generally significant indicators of LG&E's liquidity,
as such variations are primarily attributable to seasonal fluctuations in
weather, which has a direct effect on sales of electricity and natural gas.
On September 5, 1997, Energy Systems and Gas Systems merged to form Capital
Corp. At the same time, Capital Corp. implemented a $600 million
commercial paper facility backed by new lines of credit totaling $700
million. The Company terminated the old lines of credit for Energy Systems
and Gas Systems, which totaled $435 million. The old $25 million line of
credit for Energy Corp. expired in July 1997, and the Company did not renew
it. See Note 6 of Notes to Financial Statements under Item 1.
At September 30, 1997, loan agreements and lines of credit were in place
totaling $900 million ($200 million for LG&E and $700 million for Capital
Corp.) for which the companies pay commitment or facility fees. The LG&E
credit facility provides for short term borrowing. The Capital Corp.
facilities provide for short term borrowing, letter of credit issuance, and
support of commercial paper borrowings. Unused capacity under these lines
totaled $551.9 million after considering the commercial paper support and
approximately $59.1 million in letters of credit securing on- and off-
balance-sheet commitments. The credit lines will expire at various times
from 1998 through 2002. Management expects to renegotiate the lines when
they expire. The lenders under the credit facilities for Capital Corp. are
entitled to the benefits of Support Agreements with LG&E Energy Corp.
In November 1997, LG&E plans to issue $35 million of Jefferson County
Pollution Control Bonds and $35 million of Trimble County Pollution Control
Bonds. LG&E will use the proceeds to redeem the two outstanding 7.75%
Series due February 1, 2019.
The Company's capitalization ratios at September 30, 1997, and December 31,
1996, follow:
Sept. 30, Dec. 31,
1997 1996
Long-term debt (including current portion) 36.1% 37.8%
Notes payable 15.2 9.2
Preferred stock 5.0 5.6
Common equity 43.7 47.4
Total 100.0% 100.0%
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LG&E's capitalization ratios at September 30, 1997, and December 31, 1996,
follow:
Sept. 30, Dec. 31,
1997 1996
Long-term debt (including current portion) 45.7% 47.0%
Preferred stock 6.7 6.9
Common equity 47.6 46.1
Total 100.0% 100.0%
For a description of significant contingencies that may affect the Company
and LG&E, reference is made to Part II herein - Item 1, Legal Proceedings.
- 26 -
<PAGE>
Part II. Other Information
Item 1. Legal Proceedings.
For a description of the significant legal proceedings involving the
Company, reference is made to the information under the following items and
captions of the Company's Annual Report on Form 10-K for the year ended
December 31, 1996: Item 1, Business; Item 3, Legal Proceedings; Item 7,
Management's Discussion and Analysis of Results of Operations and Financial
Condition; and Notes 3 and 16 of the Notes to Financial Statements under
Item 8. For a description of the significant legal proceedings involving
LG&E, reference is made to the following items and captions of LG&E's
Annual Report on Form 10-K for the year ended December 31, 1996 (SEC File
No. 2-26720): Item 1, Business; Item 3, Legal Proceedings; Item 7,
Management's Discussion and Analysis of Results of Operations and Financial
Condition; and Notes 2 and 13 of the Notes to Financial Statements under
Item 8. Except as noted below, the proceedings reported in the Company's
and LG&E's 1996 Form 10-Ks have not changed materially.
Roanoke Valley I. Westmoreland-LG&E Partners (WLP), the partnership that
owns the Roanoke Valley I and II facilities, is seeking the recovery of
capacity payments withheld by Virginia Electric and Power Company. In June
1997, the Virginia Supreme Court reversed an adverse lower court ruling and
remanded the case for a trial. The new trial date has been set for March
2, 1998. See Item 1 and Note 16 of Notes to Financial Statements under
Item 8 of the Company's Form 10-K for the year ended December 31, 1996.
Rensselaer. LG&E Westmoreland - Rensselaer (LWR), in which the Company has
a 50% interest through an indirect subsidiary, has executed a master
restructuring agreement with Niagara Mohawk Power Corporation (NIMO) and 15
other independent power companies (IPPs) effective July 9, 1997. Under
this agreement, LWR has an obligation to negotiate towards a restructuring
of its Power Purchase Agreement between NIMO and LWR. Upon completion of a
restructuring and satisfaction of conditions precedent, including all IPPs
receiving necessary approvals and NIMO successfully arranging financing,
LWR would receive consideration from NIMO. Due to the early stage of the
project restructuring at this time and the existence of numerous conditions
thereto, the Company is not able to predict the outcome of this event.
Based upon the terms of the agreement and the current status of the
restructuring, the Company does not expect the ultimate resolution of this
matter to have a material adverse effect on its results of operations or
financial condition.
Calgary. On November 22, 1996 LG&E Natural Canada Inc., a subsidiary of
LG&E Natural, initiated action in the Court of the Queens Bench of Alberta,
Calgary against a former employee. That action and an additional action,
filed on the same date in the General Division of the Ontario Court, also
named a natural gas sales and marketing company and the director, president
and secretary of that company (the "Marketing Company Defendants"). The
action against such Marketing Company Defendants was settled on June 6,
1997. An amended statement of claim was filed in the Calgary action on
December 23, 1996, naming additional parties. These lawsuits were filed as
a result of LG&E Natural's discovery in the fourth quarter of 1996 that the
former employee had engaged in unauthorized transactions. Counterclaims
have been filed seeking damages of approximately forty million dollars for,
among other things, defamation and breach of contract. In the second
quarter of 1997, the Company received an insurance settlement of $7.6
million (net of expenses) related to the losses. See Note 5 of Notes to
Financial Statements under Part I, Item 1. The Company does not expect the
ultimate resolution of this matter to have a material adverse effect on its
results of operations or financial condition.
EPA Proposal. On October 10, 1997, the United States Environmental
Protection Agency (the "EPA") proposed regulations that, if adopted, could
require numerous utilities, including LG&E, to reduce the emission of
nitrogen oxides by approximately 85% from 1990 levels. LG&E has already
reduced its nitrogen oxide emissions by approximately 40% and the Com
- 27 -
<PAGE>
pany's independent power projects in New York, Virginia and North Carolina
generally operate with lower emission levels. However, if these
regulations are adopted as proposed, LG&E and the independent power
projects may be required to incur significant capital expenditures and
significantly increased operation and maintenance costs for remedial
measures to meet these requirements for nitrogen oxides. The Company is
continuing to evaluate the potential impact of the proposed regulations and
at the present time anticipates that such capital expenditures could exceed
$100 million in the case of LG&E. KU and Big Rivers are subject to the
same risk and would face substantial remedial measures as well. LG&E
currently anticipates that a significant portion of any such capital costs
could be recoverable through rates; however, there can be no guarantee that
such costs will be recovered.
Environmental. With respect to the state court proceeding involving LG&E's
Mill Creek plant, in October 1997, the Jefferson Circuit Court dismissed
all but one remaining claim by claimants who have not previously settled
with LG&E. With respect to certain proceedings involving EPA, the
following developments have occurred: (a) Smith's Farm site: EPA has
settled with ten other parties for approximately 98% of the estimated $42
million in cleanup costs. LG&E, previously identified by the EPA as a de
minimis party, has reached a settlement, subject to government approval and
entry by the court, calling for no further contribution beyond amounts
already contributed by LG&E in connection with site remediation efforts;
(b) Sonora and Carlie Middleton Burns sites: LG&E has reached a tentative
settlement for $150,000, subject to government approval and entry by the
court; and (c) M.T. Richards site: The $7,500 settlement reached by LG&E,
an identified de minimis party, was approved by the government and entered
by the court. For prior information on these proceedings, see Note 16 to
LG&E's Annual Report on Form 10-K for the year ended December 31, 1996.
While it is not possible to predict specific outcomes or impacts of these
matters, management believes that these matters will not have a material
adverse impact on the financial position or results of operations of LG&E.
Windpower Partners 1994. Windpower Partners 1994 L.P. (WPP 94), in which
the Company has a 25% interest through indirect subsidiaries, did not make
a semi-annual payment, due September 2, 1997, to John Hancock Mutual Life
Insurance Company (Hancock) under certain Notes issued by WPP 94 to
Hancock. The Company has offered WPP 94 financial support with respect to
the appropriate proportion of its debt obligations, but certain of the
three other investor groups are unable to offer funds to WPP 94 in support
of the partnership. The aggregate indirect investment of the Company in
WPP 94 is $4.3 million as of September 30, 1997. WPP 94 and Hancock are
presently engaged in discussions concerning a possible restructuring of WPP
94's debt obligations and Hancock has informed WPP 94 that it may declare
WPP 94 in default of the trust indenture relating to the Notes. WPP 94
operates wind power generation facilities in Texas. Because of the
continuing nature of the negotiations, the Company is not able to predict
the outcome of this event. The Company does not expect the ultimate
resolution of this matter to have a material effect on its results of
operations or financial condition.
Item 4. Submission of Matters to a Vote of Security Holders.
a) A Special Meeting of Shareholders of the Company was held on October
14, 1997.
b) Not applicable.
c) The matters voted upon and the results of the voting at the Special
Meeting are set forth below:
1. The shareholders voted to approve the Agreement and Plan of Merger
between the Company and KU and the transactions contemplated therein,
as follows:
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<PAGE>
51,148,571.327 common shares cast in favor of approval and 718,635.766
shares withheld.
Holders of 630,881.303 common shares abstained from voting on this
matter.
2. The shareholders voted to approve the amendment to and restatement of
the Company's Amended and Restated Articles of Incorporation so as to
increase the amount of authorized common shares from 125,000,000 shares
to 300,000,000 shares, as follows:
49,738,586.696 common shares cast in favor of approval and
1,678,589.993 common shares withheld.
Holders of 1,082,378.707 common shares abstained from voting on this
matter.
d) Not applicable.
Item 5. Other Information.
Unaudited Pro Forma Financial Information.
On May 20, 1997, the Company and KU Energy Corporation, a Kentucky
corporation ("KU"), entered into an Agreement and Plan of Merger (the
"Merger Agreement") providing for a merger of LG&E Energy and KU. Pursuant
to the Merger Agreement, among other things, KU will be merged with and
into LG&E Energy, with LG&E Energy as the surviving corporation (the
"Merger"). The Merger was unanimously approved by the Boards of Directors
of LG&E Energy and KU, and has been approved by the shareholders of LG&E
Energy and KU. The Merger also has been approved by the Kentucky
Commission. The Merger is expected to close shortly after all of the
conditions to consummation of the Merger, including the receipt of all
applicable regulatory approvals, are met or waived. See Note 4 of Notes to
Financial Statements under Part I, Item 1, for more information.
The following unaudited pro forma financial information combines the
historical balance sheets and statements of income of LG&E Energy and KU
Energy, including their respective subsidiaries, after giving effect to the
Merger. The unaudited pro forma combined condensed balance sheet at
September 30, 1997, gives effect to the Merger as if it had occurred at
September 30, 1997. The unaudited pro forma combined condensed statements
of income for all periods give effect to the Merger as if it had occurred
at January 1, 1996. These statements are prepared on the basis of
accounting for the Merger as a pooling of interests and are based on the
assumptions set forth in the notes thereto. In addition, the pro forma
financial information does not give effect to the expected synergies of the
transaction.
The following pro forma financial information has been prepared from, and
should be read in conjunction with, the historical financial statements and
related notes thereto of LG&E Energy and KU Energy, incorporated herein by
reference. The following information is not necessarily indicative of the
financial position or operating results that would have occurred had the
Merger been consummated on the date as of which, or at the beginning of the
periods for which, the Merger is being given effect nor is it necessarily
indicative of future operating results or financial position. In addition,
due to the effect of seasonal fluctuations in temperature and other weather-
related factors on the operations of LG&E Energy and KU Energy, financial
results for the three- and nine-month periods ended September 30, 1997, and
September 30, 1996, are not necessarily indicative of trends for any twelve-
month period.
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<PAGE>
LG&E Energy Corp.
Unaudited Pro Forma Combined Condensed Balance Sheet
As of September 30, 1997
(Thousands of $)
ASSETS
As Reported Pro Pro For-
LG&E KU Forma ma Com-
Energy Energy Adj. bined
CURRENT ASSETS:
Cash and temporary cash
investments $ 155,703 $ 22,269 $ - $ 177,972
Marketable securities 11,317 - - 11,317
Accounts receivable -
less reserve 455,276 66,286 (11) 521,551
Materials and supplies - pri-
marily at average cost:
Fuel (predominantly coal) 16,128 29,003 - 45,131
Gas stored underground 42,346 - - 42,346
Other 32,662 23,793 - 56,455
Price risk management
assets 83,105 - - 83,105
Prepayments and other 4,927 6,121 - 11,048
Total current assets 801,464 147,472 (11) 948,925
UTILITY PLANT:
At original cost 2,745,374 2,592,285 - 5,337,659
Less: reserve for
depreciation 1,057,511 1,112,102 - 2,169,613
Net utility plant 1,687,863 1,480,183 - 3,168,046
OTHER PROPERTY AND INVESTMENTS -
less reserve:
Investment in affiliates 172,339 2,180 - 174,519
Non-utility property and
plant, net 407,650 2,690 - 410,340
Price risk management
assets 42,400 - - 42,400
Other 22,332 41,788 - 64,120
Total other property and
investments 644,721 46,658 - 691,379
DEFERRED DEBITS AND OTHER
ASSETS 113,869 48,729 8,250 170,848
Total assets $3,247,917 $1,723,042 $ 8,239 $4,979,198
See accompanying notes to Unaudited Pro Forma Combined Financial
Statements.
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<PAGE>
LG&E Energy Corp.
Unaudited Pro Forma Combined Condensed Balance Sheet (cont.)
As of September 30, 1997
(Thousands of $)
CAPITAL AND LIABILITIES
As Reported Pro Pro For-
LG&E KU Forma ma Com-
Energy Energy Adj. bined
CURRENT LIABILITIES:
Long-term debt due within
one year $ 20,000 $ 21 $ - $ 20,021
Notes payable 289,161 29,900 - 319,061
Accounts payable 418,162 23,387 16,489 458,038
Trimble County settlement 14,032 - - 14,032
Accrued taxes 27,012 6,947 (3,330) 30,629
Price risk management
liabilities 108,962 - - 108,962
Other 80,773 40,282 - 121,055
Total current liabilities 958,102 100,537 13,159 1,071,798
Long-term debt 664,315 546,351 - 1,210,666
DEFERRED CREDITS AND OTHER
LIABILITIES:
Accumulated deferred income
taxes 310,262 250,074 - 560,336
Investment tax credit, in
process of amortization 76,783 27,127 - 103,910
Regulatory liability 74,756 52,454 - 127,210
Price risk management
liabilities 13,018 - - 13,018
Other 121,482 47,450 - 168,932
Total deferred credits and
other liabilities 596,301 377,105 - 973,406
Minority interests 104,901 - - 104,901
Cumulative preferred stock 95,328 40,000 - 135,328
Common equity 828,970 659,049 (4,920) 1,483,099
Total capital and liabilities $3,247,917 $1,723,042 $ 8,239 $4,979,198
See accompanying notes to Unaudited Pro Forma Combined Financial
Statements.
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<PAGE>
LG&E Energy Corp.
Unaudited Pro Forma Combined Condensed Statements of Income
Three Months Ended September 30, 1997
(Thousands of $ Except Per Share Data)
As Reported Pro Pro For-
LG&E KU Forma ma Com-
Energy Energy Adj. bined
REVENUES:
Energy marketing and trading $ 855,741 $ - $ - $ 855,741
Electric utility 189,638 192,095 (39) 381,694
Gas utility 18,953 - - 18,953
Other 49,189 1,521 - 50,710
Total revenues 1,113,521 193,616 (39) 1,307,098
COST OF REVENUES:
Energy marketing and trading 857,789 - - 857,789
Fuel and power purchased 46,807 70,239 (39) 117,007
Gas supply expenses 11,541 - - 11,541
Other 26,829 - - 26,829
Total cost of revenues 942,966 70,239 (39) 1,013,166
Gross profit 170,555 123,377 - 293,932
OPERATING EXPENSES:
Operation and maintenance:
Utility 55,744 48,734 - 104,478
Energy marketing and trading
and other 22,759 1,350 - 24,109
Depreciation and amortization 30,852 21,131 - 51,983
Total operating expenses 109,355 71,215 - 180,570
Equity in earnings
of joint ventures 5,985 - - 5,985
OPERATING INCOME 67,185 52,162 - 119,347
Other income and (deductions) 1,368 741 - 2,109
Interest charges, minority inter-
est and preferred dividends 20,347 10,613 - 30,960
Income before income taxes 48,206 42,290 - 90,496
Income taxes 19,013 15,737 - 34,750
NET INCOME $ 29,193 $ 26,553 $ - $ 55,746
Average common shares
outstanding 66,491 37,818 25,338 129,647
Earnings per share $ .44 $ .70 $ - $ .43
See accompanying notes to Unaudited Pro Forma Combined Financial
Statements.
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<PAGE>
LG&E Energy Corp.
Unaudited Pro Forma Combined Condensed Statements of Income
Three Months Ended September 30, 1996
(Thousands of $ Except Per Share Data)
As Reported Pro Pro For-
LG&E KU Forma ma Com-
Energy Energy Adj. bined
REVENUES:
Energy marketing and trading $645,163 $ - $ - $ 645,163
Electric utility 183,624 178,269 (67) 361,826
Gas utility 20,306 - - 20,306
Other 4,835 1,115 - 5,950
Total revenues 853,928 179,384 (67) 1,033,245
COST OF REVENUES:
Energy marketing and trading 635,375 - (47) 635,328
Fuel and power purchased 43,377 64,628 (20) 107,985
Gas supply expenses 13,327 - - 13,327
Other 3,323 - - 3,323
Total cost of revenues 695,402 64,628 (67) 759,963
Gross profit 158,526 114,756 - 273,282
OPERATING EXPENSES:
Operation and maintenance:
Utility 48,928 49,416 - 98,344
Energy marketing and trading
and other 15,910 796 - 16,706
Depreciation and amortization 25,893 20,235 - 46,128
Total operating expenses 90,731 70,447 - 161,178
Equity in earnings
of joint ventures 2,512 - - 2,512
OPERATING INCOME 70,307 44,309 - 114,616
Other income and (deductions) 1,812 1,296 - 3,108
Interest charges and
preferred dividends 12,525 10,391 - 22,916
Income before income taxes 59,594 35,214 - 94,808
Income taxes 17,858 12,721 - 30,579
NET INCOME $ 41,736 $ 22,493 $ - $ 64,229
Average common shares
outstanding 66,307 37,818 25,338 129,463
Earnings per share $ .63 $ .60 $ - $ .50
See accompanying notes to Unaudited Pro Forma Combined Financial
Statements.
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<PAGE>
LG&E Energy Corp.
Unaudited Pro Forma Combined Condensed Statements of Income
Nine Months Ended September 30, 1997
(Thousands of $ Except Per Share Data)
As Reported Pro Pro For-
LG&E KU Forma ma Com-
Energy Energy Adj. bined
REVENUES:
Energy marketing and trading $2,436,707 $ - $ (4)$2,436,703
Electric utility 464,689 533,864 (278) 998,275
Gas utility 149,882 - - 149,882
Other 113,052 4,248 - 117,300
Total revenues 3,164,330 538,112 (282) 3,702,160
COST OF REVENUES:
Energy marketing and trading 2,412,118 - (14) 2,412,104
Fuel and power purchased 120,233 193,767 (268) 313,732
Gas supply expenses 100,510 - - 100,510
Other 64,422 - - 64,422
Total cost of revenues 2,697,283 193,767 (282) 2,890,768
Gross profit 467,047 344,345 - 811,392
OPERATING EXPENSES:
Operation and maintenance:
Utility 165,140 150,334 - 315,474
Energy marketing and trading
and other 66,458 2,811 - 69,269
Depreciation and amortization 87,614 62,970 - 150,584
Non-recurring charges (592) - - (592)
Total operating expenses 318,620 216,115 - 534,735
Equity in earnings
of joint ventures 14,926 - - 14,926
OPERATING INCOME 163,353 128,230 - 291,583
Other income and (deductions) 7,140 3,100 - 10,240
Interest charges, minority inter-
est and preferred dividends 54,805 31,517 - 86,322
Income before income taxes 115,688 99,813 - 215,501
Income taxes 43,639 36,347 - 79,986
NET INCOME $ 72,049 $ 63,466 $ - $ 135,515
Average common shares
outstanding 66,453 37,818 25,338 129,609
Earnings per share $ 1.08 $ 1.68 $ - $ 1.05
See accompanying notes to Unaudited Pro Forma Combined Condensed Financial
Statements.
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<PAGE>
LG&E Energy Corp.
Unaudited Pro Forma Combined Condensed Statements of Income
Nine Months Ended September 30, 1996
(Thousands of $ Except Per Share Data)
As Reported Pro Pro For-
LG&E KU Forma ma Com-
Energy Energy Adj. bined
REVENUES:
Energy marketing and trading $1,863,877 $ - $ - $1,863,877
Electric utility 471,300 536,769 (642) 1,007,427
Gas utility 140,724 - - 140,724
Other 14,369 3,325 - 17,694
Total revenues 2,490,270 540,094 (642) 3,029,722
COST OF REVENUES:
Energy marketing and trading 1,813,641 - (234) 1,813,407
Fuel and power purchased 124,256 198,825 (408) 322,673
Gas supply expenses 90,211 - - 90,211
Other 10,270 - - 10,270
Total cost of revenues 2,038,378 198,825 (642) 2,236,561
Gross profit 451,892 341,269 - 793,161
OPERATING EXPENSES:
Operation and maintenance:
Utility 159,420 149,204 - 308,624
Energy marketing and trading
and other 48,341 1,803 - 50,144
Depreciation and amortization 77,385 60,454 - 137,839
Non-recurring charges - 1,480 - 1,480
Total operating expenses 285,146 212,941 - 498,087
Equity in earnings
of joint ventures 11,313 - - 11,313
OPERATING INCOME 178,059 128,328 - 306,387
Other income and (deductions) 3,353 4,798 - 8,151
Interest charges and
preferred dividends 40,404 31,498 - 71,902
Income before income taxes 141,008 101,628 - 242,636
Income taxes 48,355 36,743 - 85,098
NET INCOME $ 92,653 $ 64,885 $ - $ 157,538
Average common shares
outstanding 66,278 37,818 25,338 129,434
Earnings per share $ 1.40 $ 1.72 $ - $ 1.22
See accompanying notes to Unaudited Pro Forma Combined Condensed Financial
Statements.
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<PAGE>
LG&E Energy Corp.
Notes to Unaudited Pro Forma Combined Condensed Financial Statements.
1. Reclassifications have been made to certain "as reported" account
balances reflected in KU Energy's financial statements to conform to
this reporting presentation. All other financial statement
presentation and accounting policy differences are immaterial and have
not been adjusted in the pro forma combined condensed financial
statements.
2. Intercompany transactions (power purchased and power sales
transactions) between LG&E Energy and KU Energy during the periods
presented were eliminated through pro forma adjustments.
3. Merger-related transaction costs are currently estimated to be
approximately $16.5 million (including fees for financial advisors,
attorneys, accountants, consultants, filings and printing). None of
the estimated cost savings resulting from the merger or costs to
achieve such savings has been reflected in the pro forma combined
condensed statements of income. A charge of $4.92 million ($8.25
million, net of income taxes of $3.33 million) to retained earnings and
$8.25 million as deferred debits and other assets in the pro forma
combined condensed balance sheet has been made to recognize such
estimated transaction costs.
4. The pro forma combined condensed financial statements reflect the
conversion of each share of KU Energy Common Stock (no par value)
outstanding into 1.67 shares of LG&E Energy Common Stock (no par value)
as provided in the Merger Agreement. The pro forma combined condensed
financial statements are presented as if the companies were combined
during all periods included therein.
5. LG&E Energy's net income for the nine months ended September 30, 1997,
includes the receipt of an $8.5 million insurance settlement related to
losses resulting from unauthorized transactions entered into in 1996 by
a marketer in the Company's Calgary, Alberta, office. A one-time
restructuring charge of $7.5 million for the consolidation of LG&E
Energy's energy marketing group partially offsets the insurance
recovery.
6. LG&E Energy adopted the mark-to-market method of accounting for its
energy trading and price risk management activities during 1996. This
resulted in increases in energy marketing and trading revenues and
income from operations of $1.1 million for the three months ended
September 30, 1996, and $10.6 million for the nine months ended
September 30, 1996. The impact on prior period financial results was
immaterial.
7. KU Energy's net income for the nine months ended September 30. 1996,
includes a nonrecurring write-off of nonutility investments. This
charge is reflected in nonrecurring charges on the income statement.
- 36 -
<PAGE>
Item 6(a). Exhibits.
Exhibit
Number Description
10.01 Copy of U.S. $500,000,000 Credit Agreement, dated as of
September 5, 1997, among LG&E Capital Corp., as
Borrower, and the Banks named therein, as Lenders, and
Chase Securities Inc., as Syndication Agent, Bank of
Montreal, as Administrative Agent, and Morgan Guaranty
Trust Company of New York, PNC Bank, Kentucky, Inc.,
The Bank of New York, The First National Bank of
Chicago and Wachovia Bank, N.A., as Co-Agents.
10.02 Copy of U.S. $ 200,000,000 Credit Agreement, dated as
of September 5, 1997, among LG&E Capital Corp., as
Borrower, and the Banks named therein, as Lenders, and
Chase Securities Inc., as Syndication Agent, Bank of
Montreal, as Administrative Agent, and Morgan Guaranty
Trust Company of New York, PNC Bank, Kentucky, Inc.,
The Bank of New York, The First National Bank of
Chicago and Wachovia Bank, N.A., as Co-Agents.
10.03 Copy of Support Agreement, dated as of September 5,
1997, between LG&E Energy Corp. and LG&E Capital Corp.
27 Financial Data Schedules for LG&E Energy Corp. and
Louisville Gas and Electric Company.
Item 6(b). Reports on Form 8-K.
On September 9, 1997, the Company filed a report on Form 8-K announcing
that Ronald L. Bittner, a member of the Company's board of directors, died
of cancer on August 31, 1997.
On September 19, 1997, the Company and LG&E filed reports on Form 8-K
announcing that:
1) The Kentucky Public Service Commission entered an Order approving the
proposed merger of KU Energy Corporation with LG&E Energy Corp.
2) The Company's 1997 earnings would be lower than 1996 earnings of $1.57
per share and could be in a range of $1.40 to $1.48 per share.
On October 14, 1997, the Company and LG&E filed reports on Form 8-K
announcing that its board of directors elected Jeffery T. Grade, 53, to the
boards of the Company and LG&E.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
LG&E Energy Corp.
Registrant
Date: November 11, 1997 /s/ Victor A. Staffieri
Victor A. Staffieri
Chief Financial Officer
(On behalf of the registrant in his
capacity as Principal Accounting Officer)
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Louisville Gas and Electric Company
Registrant
Date: November 11, 1997 /s/ Victor A. Staffieri
Victor A. Staffieri
Chief Financial Officer
(On behalf of the registrant in his
capacity as Principal Accounting Officer)
- 38 -
--
Exhibit 10.01
U.S. $500,000,000
Credit Agreement
Dated as of September 5, 1997
Among
LG&E Capital Corp.,
as Borrower,
The Banks Named Herein,
as Lenders,
Chase Securities Inc.,
as Syndication Agent,
Bank of Montreal,
as Administrative Agent,
Morgan Guaranty Trust Company of New York,
PNC Bank, Kentucky, Inc.,
The Bank of New York,
The First National Bank of Chicago
and
Wachovia Bank, N.A.,
as CoAgents
Table of Contents
Section Description Page
Article I Definitions and Accounting Terms 1
Section 1.01.Certain Defined Terms 1
Section 1.02.Computation of Time Periods 13
Section 1.03.Accounting Terms 13
Article II Amounts and Terms of the Advances 13
Section 2.01.The Contract Advances 13
Section 2.02.Making the Contract Advances 14
Section 2.03.Letters of Credit 15
Section 2.04.The Auction Advances 21
Section 2.05.Fees 25
Section 2.06.Reduction of the Commitments 26
Section 2.07.Repayment of Contract Advances 26
Section 2.08.Interest on Contract Advances 26
Section 2.09.Additional Interest on Eurodollar Rate Advances
and Eurodollar Rate Auction Advances 27
Section 2.10.Interest Rate Determination 27
Section 2.11.Conversion of Contract Advances 28
Section 2.12.Prepayments 29
Section 2.13.Increased Costs 30
Section 2.14.Illegality 31
Section 2.15.Payments and Computations 31
Section 2.16.Taxes 33
Section 2.17.Sharing of Payments, Etc. 35
Article III Conditions of Lending 36
Section 3.01.Conditions Precedent to Initial Advances 36
Section 3.02.Condition Precedent to Each Contract Borrowing
and each Letter of Credit 38
Section 3.03.Conditions Precedent to Each Auction Borrowing 39
Section 3.04.Condition Precedent to Certain Conversions 40
Article IV Representations and Warranties 40
Section 4.01.Representations and Warranties of the Borrower 40
Article V Covenants of the Borrower 43
Section 5.01.Affirmative Covenants 43
Section 5.02.Negative Covenants 45
Article VI Events of Default 48
Section 6.01.Events of Default 48
Section 6.02.The Letters of Credit 50
Article VII The AGENTS 51
Section 7.01.Authorization and Action 51
Section 7.02.Administrative Agent's Reliance, Etc 51
Section 7.03.Agents and Affiliates 52
Section 7.04.Lender Credit Decision 52
Section 7.05.Indemnification 52
Section 7.06.Successor Administrative Agent 53
Article VIII Miscellaneous 53
Section 8.01.Amendments, Etc 53
Section 8.02.Notices, Etc 54
Section 8.03.No Waiver, Remedies 54
Section 8.04.Costs and Expenses; Indemnification 54
Section 8.05.Right of Set-off 55
Section 8.06.Binding Effect 56
Section 8.07.Assignments and Participations 56
Section 8.08.Discretion of Lender as to Manner of Funding 59
Section 8.09.Governing Law 59
Section 8.10.Waiver of Jury Trial 59
Section 8.11.Execution in Counterparts 59
Section 8.12.Termination of Existing Credit Agreements 59
Signatures 60
Schedule I- List of Applicable Lending Offices
Exhibit A-1-Form of Contract Note
Exhibit A-2-Form of Auction Note
Exhibit B-1-Form of Notice of Contract Borrowing
Exhibit B-2-Form of Notice of Auction Borrowing
Exhibit C- Form of Assignment and Acceptance
Exhibit D- Form of Opinion of Special Counsel for the Borrower and the
Parent
Exhibit E- Form of Opinion of Corporate Attorney for the Borrower and
the Parent
Exhibit F- Form of Opinion of Special Illinois Counsel to the
Administrative Agent
Exhibit G- Form of Support Agreement
Exhibit H- Existing Letters of Credit
Credit Agreement
Dated as of September 5, 1997
LG&E Capital Corp., a Kentucky corporation, the banks (the "Banks")
listed on the signature pages hereof, Chase Securities, Inc., as
Syndication Agent, and Bank of Montreal, as Administrative Agent for the
Lenders hereunder, 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):
"Adjusted CD Rate" means, for any Interest Period for each Adjusted CD
Rate Advance made as part of the same Contract Borrowing, an interest rate
per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the rate of
interest determined by the Administrative Agent to be the average
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum
if such average is not such a multiple) of the consensus bid rate
determined by each of the Reference Banks for the bid rates per annum,
at 9:00 A.M. (Chicago time) (or as soon thereafter as practicable) on
the first day of such Interest Period, of Chicago or New York
certificate of deposit dealers of recognized standing selected by such
Reference Bank for the purchase at face value of certificates of
deposit of such Reference Bank in an amount substantially equal to
such Reference Bank's Adjusted CD Rate Advance made as part of such
Contract Borrowing and with a maturity equal to such Interest Period,
by (ii) a percentage equal to 100% minus the Adjusted CD Rate Reserve
Percentage for such Interest Period, plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each Adjusted CD Rate
Advance made as part of the same Contract Borrowing shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks on the first
day of such Interest Period, subject, however, to the provisions of Section
2.10.
"Adjusted CD Rate Advance" means a Contract Advance that bears
interest as provided in Section 2.08(b).
"Adjusted CD Rate Reserve Percentage" for the Interest Period for each
Adjusted CD Rate Advance made as part of the same Contract Borrowing means
the reserve percentage applicable on the first day of such Interest Period
under 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, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with deposits exceeding one
billion dollars with respect to liabilities consisting of or including
(among other liabilities) U.S. dollar nonpersonal time deposits in the
United States with a maturity equal to such Interest Period.
"Adjusted Debt" means Debt of the kind described in clauses (i)
through (vi) of the definition of "Debt" of the Parent and its Consolidated
Subsidiaries; provided, however, that for all purposes of this Agreement
"Adjusted Debt" shall not include any Non-Recourse Debt.
"Administrative Agent" means Bank of Montreal and any successor
thereto appointed pursuant to the terms of Section 7.06 hereof.
"Advance" means a Contract Advance or an Auction Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Agents" means the Administrative Agent, the Syndication Agent and
those banks named as Co-Agents on the facing page hereof.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's CD Lending Office in the case of an Adjusted CD Rate Advance, and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of an Auction Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its Applicable
Lending Office with respect to such Auction Advance.
"Applicable Margin" means, for any Contract Advance, the interest rate
per annum set forth below in the column entitled "Base Rate", "CD Rate", or
"Eurodollar Rate," as appropriate:
Eurodollar Rate
Level Base Rate CD Rate
For each day Level I Status 0% 0.285% 0.160%
exists
For each day Level II Status 0% 0.290% 0.170%
exists
For each day Level III Status 0% 0.325% 0.200%
exists
For each day Level IV Status 0% 0.350% 0.225%
exists
For each day Level V Status 0% 0.525% 0.40%
exists
"Applications" has the meaning specified in Section 2.03(b).
"Assessment Rate" for the Interest Period for each Adjusted CD Rate
Advance made as part of the same Contract Borrowing means the annual
assessment rate estimated by the Administrative Agent on the first day of
such Interest Period for determining the then current annual assessment
payable by a member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. Section
327.3(d) (or any successor provision) to the Federal Deposit Insurance
Corporation (or such successor's) insuring time deposits at offices of such
institution in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the
Assessment Rate.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and consented to by the
Administrative Agent and the Borrower, in substantially the form of Exhibit
C hereto.
"Auction Advance" means an advance by a Lender to the Borrower as part
of an Auction Borrowing resulting from the auction bidding procedure
described in Section 2.04.
"Auction Borrowing" means a borrowing consisting of simultaneous
Auction Advances from each of the Lenders whose offer to make one or more
Auction Advances as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section 2.04.
"Auction Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
an Auction Advance made by such Lender.
"Base Rate" means, for any period, 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:
(a) the rate of interest announced by the Administrative Agent
from time to time as its prime commercial rate, or equivalent, for
U.S. Dollar loans to borrowers located in the United States, with any
change in the Base Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant change
in said prime commercial rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate in effect
from time to time.
"Base Rate Advance" means a Contract Advance that bears interest as
provided in Section 2.08(a).
"Borrower" means LG&E Capital Corp., a Kentucky corporation, as
successor by merger to Energy Systems and Gas Systems.
"Borrowing" means a Contract Borrowing or an Auction Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in Chicago, Illinois and, if the applicable Business
Day relates to any Eurodollar Rate Advances or Eurodollar Rate Auction
Advances, on which dealings are carried on in the interbank market for
eurodollars.
"Capitalization Ratio" means the ratio of Adjusted Debt of the Parent
and its Consolidated Subsidiaries to the sum of Adjusted Debt of the Parent
and its Consolidated Subsidiaries plus capital stock (including capital in
excess of par and any other capital surplus), net of treasury shares plus
(or minus in the case of a deficit) retained earnings of the Parent and its
Consolidated Subsidiaries, plus minority interests, all computed in
accordance with GAAP.
"CD Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "CD Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"Closing Date" means the first date on which all conditions set forth
in Section 3.01 hereof have been satisfied or waived.
"Commitment" has the meaning specified in Section 2.01.
"Committed Issuers" means Bank of Montreal and The Chase Manhattan
Bank.
"Consolidated Subsidiary" means for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated
with the financial statements of such Person in accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any time the same is to be
determined, the total assets of the Borrower and its Consolidated
Subsidiaries minus the sum of (i) total liabilities of the Borrower and its
Consolidated Subsidiaries and (ii) the aggregate book value of all
intangible assets, each as determined in accordance with GAAP.
"Constituent Companies" means Gas Systems and Energy Systems.
"Contract Advance" means an advance by a Lender to the Borrower as
part of a Contract Borrowing and refers to an Adjusted CD Rate Advance, a
Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a
"Type" of Contract Advance.
"Contract Borrowing" means a borrowing consisting of simultaneous
Contract Advances of the same Type with the same Interest Period made by
each of the Lenders pursuant to Section 2.01 or Converted pursuant to
Section 2.10 or 2.11.
"Contract Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Contract Advances made by such Lender.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another type or the selection of a
new, or the renewal of the same, Interest Period for Eurodollar Rate
Advances or Adjusted CD Rate Advances, as the case may be, pursuant to
Section 2.10 or 2.11.
"Debt" of any Person means (without duplication), all liabilities,
obligations and indebtedness of such Person (i) for borrowed money, (ii)
evidenced by bonds, indentures, notes, or other similar instruments, (iii)
to pay the deferred purchase price of property or services, (iv) as lessee
under leases that shall have been or should be, in accordance with GAAP,
recorded as capital leases, (v) under reimbursement agreements or similar
agreements with respect to the issuance of letters of credit (other than
obligations in respect of letters of credit (to the extent undrawn) opened
to provide for the payment of goods or services purchased or other
obligations incurred in the ordinary course of business), (vi) under direct
guaranties and indemnities in respect of, and 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,
liabilities, obligations or indebtedness of others of the kinds referred to
in clauses (i) through (v) above, in each case to the extent reasonably
quantifiable, and (vii) liabilities in respect of unfunded vested benefits
under plans covered by Title IV of ERISA; provided, however, that for all
purposes of this Agreement "Debt" shall not include any Nonrecourse Debt or
Trade Obligations.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Eligible Assignee" means (i) a commercial bank 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 has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, 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) a
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership or other entity) engaged generally in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business; (iv) the central bank of any country that
is a member of the OECD; or (v) any Bank; provided, however, that (A) any
such Person described in clause (i), (ii), (iii) or (iv) above shall also
(x) 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
such corporation is in the business of rating unsecured indebtedness of
entities engaged in such businesses) and (y) 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), and (B) any Person described in clause (ii), (iii) or
(iv) above shall, on the date on which it is to become a Lender hereunder,
be entitled to receive payments hereunder without deduction or withholding
of any United States Federal income taxes (as contemplated by Section
2.16(d)).
"Energy Systems" means LG&E Energy Systems Inc., a Kentucky
corporation, a predecessor company of the Borrower.
"Environmental Laws" means any federal, state or local laws,
ordinances or codes, rules, orders, or regulations relating to pollution or
protection of the environment, including, without limitation, laws relating
to hazardous substances, laws relating to reclamation of land and waterways
and laws relating to emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollution,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder, each as in effect and amended and modified from time to
time.
"ERISA Affiliate" of a person or entity means any trade or business
(whether or not incorporated) that is a member of a group of which such
person or entity is a member and that is under common control with such
person or entity within the meaning of Section 414 of the Internal Revenue
Code of 1986, and the regulations promulgated and rulings issued
thereunder, each as in effect and amended or modified from time to time.
"ERISA Plan" means an employee benefit plan maintained for employees
of any Person or any ERISA Affiliate of such Person subject to Title IV of
ERISA.
"ERISA Termination Event" means (i) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to PBGC),
or (ii) the withdrawal of the Borrower or any of its ERISA Affiliates from
an ERISA Plan during a plan year in which the Borrower or any of its ERISA
Affiliates was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to terminate an ERISA Plan
or the treatment of an ERISA Plan amendment as a termination under Section
4041 of ERISA, or (iv) the institution of proceedings to terminate an ERISA
Plan by the PBGC or to appoint a trustee to administer any ERISA Plan, or
(v) any other event or condition that would constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer any ERISA 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 of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance made as part of the same Contract Borrowing or for the term of
each Eurodollar Rate Auction Advance made as part of the same Auction
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
to prime banks in the interbank market at 9:00 A.M. (Chicago time) two
Business Days before the first day of such Interest Period or such Auction
Borrowing, as the case may be, in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance made as part of such Contract
Borrowing or, in the case of an Auction Borrowing, in an amount
substantially equal to such Auction Borrowing and for a period equal to
such Interest Period or such term, as the case may be. The Eurodollar Rate
for the Interest Period for each Eurodollar Rate Advance made as part of
the same Contract Borrowing or for the term of each Eurodollar Rate Auction
Advance comprising part of the same Auction Borrowing shall be determined
by the Administrative Agent as the average of applicable rates furnished to
and received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period or such Auction
Borrowing, subject, however, to the provisions of Section 2.10.
"Eurodollar Rate Advance" means a Contract Advance that bears interest
as provided in Section 2.08(c).
"Eurodollar Rate Auction Advances" means an Auction Advance in
connection with which the Eurodollar Rate shall be the basis used by the
Lenders in determining the rates of interest to be offered by them pursuant
to Section 2.04 and with a term of 1, 2, 3 or 6 months; provided, if the
last day of the term of any Eurodollar Rate Auction Advance would occur on
a day other than a Business Day the last day of such term shall be extended
to occur on the next succeeding Business Day unless such extension would
cause the last day of such term to occur in the next following calendar
month, the last day of such term shall occur on the next preceding Business
Day.
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest
Period for any Eurodollar Rate Advance or Eurodollar Rate Auction Advance
means the reserve percentage applicable during such Interest Period or such
term, as the case may be (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board 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) for such Lender with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period or such term, as
the case may be.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, and the
regulations promulgated thereunder, in each case as amended from time to
time.
"Existing Applications" has the meaning specified in Section 2.03(f).
"Existing Credit Agreements" means the May 12, 1995 Credit Agreement
among Gas Systems, the Banks named therein and Bank of Montreal, as Agent,
as amended, the February 11, 1997 Credit Agreement among Energy Systems and
Bank of Montreal, as Lender and as Agent, as amended and the January 29,
1996 Credit Agreement among Citibank N.A., as Agent, Bank of Montreal, as
letter of credit issuer, the other banks party thereto and Energy Systems,
as amended.
"Existing Letters of Credit" means the letters of credit listed on
Exhibit H hereto issued by Bank of Montreal under the Existing Credit
Agreements and which are outstanding on the Closing Date.
"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
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"First Mortgage Bonds" means the bonds issued from time to time
pursuant to the Trust Indenture, dated November 1, 1949, between the
Utility and Harris Trust and Savings Bank, as Trustee, as amended and
supplemented from time to time.
"Fixed Rate Auction Advance" means an Auction Advance in connection
with which the rates of interest offered by the Lenders pursuant to Section
2.04 shall be fixed rates per annum and with a term of 1 to 180 days.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those used in the preparation of the audit report
referred to in Section 4.01(f) hereof.
"Gas Systems" means LG&E Gas Systems Inc., a Delaware corporation, a
predecessor company to the Borrower.
"Guaranteed Obligations" has the meaning specified in Section 2.03(g).
"Initial Borrowing" means the time at which the Lenders make the
initial Advances to the Borrower hereunder in accordance with the terms
hereof.
"Interest Period" means, for each Contract Advance made as part of the
same Contract Borrowing, the period commencing on the date of such Contract
Advance or the date of the Conversion of any Contract Advance into such a
Contract 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 30, 60, 90 or 180 days in the case of an Adjusted CD Rate
Advance, and 1, 2, 3 or 6 months in the case of a Eurodollar Rate Advance,
in each case as the Borrower may select, upon notice received by the
Administrative Agent not later than 10:00 A.M. (Chicago time) on the third
Business Day prior to the first day of such Interest Period; provided,
however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Contract
Advances made as part of the same Contract 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.
"Issuers" means the Committed Issuers and any other Lender which, at
its discretion, has elected to issue a Letter of Credit hereunder at the
request of the Borrower or a Permitted Subsidiary
"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.
"Letters of Credit" means all letters of credit issued pursuant to
Section 2.03 together with the Existing Letters of Credit.
"Level I Status" means the S&P Rating is A or higher or the Moody's
Rating is A2 or higher.
"Level II Status" means Level I Status does not exist and the S&P
Rating is A- or the Moody's Rating is A3.
"Level III Status" means neither Level I Status nor Level II Status
exists and the S&P Rating is BBB+ or the Moody's Rating is Baa1.
"Level IV Status" means neither Level I Status, Level II Status nor
Level III Status exists and the S&P Rating is BBB or the Moody's Rating is
Baa2.
"Level V Status" means neither Level I Status, Level II Status, Level
III Status nor Level IV Status exists and the S&P Rating is BBB- or lower
and the Moody's Rating is Baa3 or lower or both ratings have been
suspended, withdrawn or otherwise not provided.
"L/C Commitment" means $200,000,000.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the
Applications and this Agreement.
"L/C Obligations" means the aggregate undrawn face amount of all
outstanding Letters of Credit (including the Existing Letters of Credit)
and all outstanding Reimbursement Obligations.
"Majority Lenders" means Lenders having at least 51% of the
Commitments or if the Commitments have terminated in whole, the holders of
51% or more of the Advances and the credit risk incident to the Letters of
Credit, (provided that, for purposes hereof, neither the Borrower, nor any
of its Affiliates, if a Lender, shall be included in (i) the Lenders having
such amount of the Commitments or the Advances or credit risk incident to
the Letters of Credit or (ii) determining the total amount of the
Commitments or the Advances).
"Material Consolidated Subsidiary" means for any Person any
Consolidated Subsidiary of such Person the assets, net income or net worth
of which constituted 10% or more of the consolidated assets, net income or
net worth of such Person and all of its Subsidiaries computed as of the
last day of the fiscal quarter most recently completed prior to the
determination of whether such Consolidated Subsidiary is a Material
Consolidated Subsidiary (in the case of assets and net worth) or for the
twelve months ended as of the close of such calendar quarter (in the case
of net income).
"Moody's" means Moody's Investors Services, Inc. or any successor
thereto.
"Moody's Rating" means at any time the rating assigned by Moody's to
the outstanding unsecured long-term senior indebtedness of the Borrower
which is supported by the Parent pursuant to the Support Agreement, a
guarantee or other credit support, or if such debt is not then rated, the
rating one level below the rating assigned by Moody's to the corporate
credit of the Parent, or if there is no such rating, the rating two levels
below the rating assigned by Moody's to the First Mortgage Bonds.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding three plan years made or accrued an obligation to make
contributions.
"Nonrecourse Debt" means all liabilities, obligations and indebtedness
of the types described in clauses (i) through (vii) of the definition of
"Debt" (such liabilities, obligations and indebtedness being hereinafter
referred to as "Obligations"), of any Person which is a special purpose
entity or which Obligations are nonrecourse to such Person, other than with
respect to the interest of such Person in the collateral, if any, securing
such Obligations.
"Note" means a Contract Note or an Auction Note.
"Notice of Contract Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Auction Borrowing" has the meaning specified in Section
2.04(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"Parent" means LG&E Energy Corp., a Kentucky corporation, and its
successors and assigns.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Subsidiaries" means those subsidiaries of the Borrower
designated in Section 2.03(g) hereof which are permitted to apply for
Letters of Credit pursuant to Section 2.03 hereof.
"Person" means an individual, partnership, limited liability company,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Reference Banks" means The Chase Manhattan Bank, Bank of Montreal,
and Morgan Guaranty Trust Company of New York and any Lender designated as
a successor or replacement Reference Bank pursuant to Section 2.10(a).
"Register" has the meaning specified in Section 8.07(c).
"Reimbursement Obligations" has the meaning specified in Section
2.03(c).
"Reportable Event" has the meaning assigned to that term in Title IV
of ERISA.
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw-
Hill Companies, Inc. or any successor thereto.
"S&P Rating" means at any time the rating assigned by S&P to the
outstanding unsecured long-term senior indebtedness of the Borrower which
is supported by the Parent pursuant to the Support Agreement, a guarantee
or other credit support, or if such debt is not then rated, the rating one
level below the rating assigned by S&P to the corporate credit of the
Parent, or if there is no such rating, the rating two levels below the
rating assigned by S&P to the First Mortgage Bonds.
"SEC Reports" means the reports filed by the Parent with the
Securities and Exchange Commission on Form 10-K, Form 10-Q and/or Form 8-K
(or any successor form(s) to any thereof).
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries of such Person. "Wholly Owned
Subsidiary" shall mean any such corporation, partnership or other entity of
which all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares) are so
owned or controlled.
"Support Agreement" means the Support Agreement, dated as of September
5, 1997, between the Parent and the Borrower in the form annexed hereto as
Exhibit G , as the same may be amended or modified from time to time in
accordance with the terms thereof and of this Agreement together with the
letter dated September 5, 1997 from the Parent to the Administrative Agent
designating the Debt arising hereunder as entitled to the benefit thereof.
"Syndication Agent" means Chase Securities Inc.
"Termination Date" means the fifth anniversary of the date of this
Agreement or the earlier date of termination in whole of the Commitments
pursuant to Section 2.06 or Section 6.01 hereof.
"Trade Obligations" means future obligations for the payment of goods
or services or other obligations (other than obligations for borrowed
money) incurred in the ordinary course of its energy marketing business.
"Transaction" means the merger of Gas Systems with and into Energy
Systems, which then changes its name to LG&E Capital Corp.
"Utility" means Louisville Gas and Electric Company, a Kentucky
corporation, and any successor thereto.
"Yield" means, for any Auction Advance, the effective rate per annum
at which interest on such Auction 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. In this Agreement in the
computation of periods of time from a specified date to 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. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
Article II
Amounts and Terms of the Advances
Section 2.01. The Contract Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Contract Advances
to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date in an aggregate amount not
to exceed at any time outstanding the amount set opposite such Lender's
name on the signature pages hereof or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c), as such
amount may be reduced pursuant to Section 2.06 (such Lender's
"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 Auction Advances then outstanding and the aggregate
amount of the L/C Obligations then outstanding, and such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments. Each Contract Borrowing shall
be in an aggregate amount not less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Contract Advances of
the same Type and having the same Interest Period made or Converted on the
same day by the Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower may from time
to time borrow, prepay pursuant to Section 2.12 and reborrow under this
Section 2.01. Subject to the restriction set forth in Section 2.02(e), more
than one Contract Borrowing may be made on any Business Day.
Section 2.02. Making the Contract Advances. (a) Each Contract Borrowing
shall be made on notice, given not later than (i) 10:00 A.M. (Chicago time)
on the third Business Day prior to the date of any proposed Contract
Borrowing comprising Eurodollar Rate Advances or Adjusted CD Rate Advances,
and (ii) 9:00 A.M. (Chicago time) on the date of any proposed Contract
Borrowing comprising Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt notice
thereof; provided, that the Lenders will, to the extent feasible to
transfer funds and fund in the relevant market, fund the initial Contract
Borrowing on less notice in order to accommodate the needs of the Borrower
in refunding borrowings outstanding under the Existing Credit Agreements.
Each such notice of a Contract Borrowing (a "Notice of Contract Borrowing")
shall be by telecopier, telex or cable, confirmed immediately in writing,
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Contract Borrowing, (ii) Type of Contract
Advances to be made in connection with such Contract Borrowing, (iii)
aggregate amount of such Contract Borrowing, and (iv) in the case of a
Contract Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate
Advances, initial Interest Period for each such Contract Advance. Each
Lender shall, before 11:00 A.M. (Chicago time) on the date of such Contract
Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in Section 8.02, in
same day funds, such Lender's ratable portion (according to the Lenders'
respective Commitments) of such Contract Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower at the Administrative
Agent's aforesaid address.
(b) Each Notice of Contract Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Contract Borrowing that the
related Notice of Contract Borrowing specifies is to comprise Adjusted CD
Rate Advances or 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 Contract Borrowing for such Contract 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 Contract
Advance to be made by such Lender as part of such Contract Borrowing when
such Contract Advance, as a result of such failure, is not made on such
date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Contract Borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable
portion of such Contract Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative
Agent on the date of such Contract Borrowing in accordance with subsection
(a) of this Section 2.02 and the Administrative 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 ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative
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 Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the
time to Contract Advances made in connection with such Contract Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Contract Advance as
part of such Contract Borrowing for purposes of this Agreement. Nothing in
this subsection shall be deemed to relieve any Lender from its obligation
to make any Contract Advance required to be made by such Lender hereunder
or to prejudice any rights the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(d) The failure of any Lender to make the Contract Advance to be made
by it as part of any Contract Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Contract Advance on the
date of such Contract Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Contract Advance to be made by such
other Lender on the date of any Contract Borrowing.
(e) Notwithstanding anything to the contrary contained herein, no
more than eight Contract Borrowings which do not consist of Base Rate
Advances may be outstanding at any time.
Section 2.03. Letters of Credit. (a) General Terms. Subject to the
terms and conditions hereof, either Committed Issuer will, and any other
Lender may at its discretion, issue Letters of Credit at the request of the
Borrower or any Permitted Subsidiary in an aggregate undrawn face amount up
to the amount of the L/C Commitment, provided that (i) the aggregate L/C
Obligations at any time outstanding shall in no event exceed the difference
between the Commitments in effect at such time and the aggregate principal
amount of Advances then outstanding and (ii) neither Committed Issuer shall
be obligated to issue a Letter of Credit for the purpose of supporting
repayment of public or rated debt or other securities if in its sole
discretion it determines not to do so. Each Letter of Credit shall have an
expiry date which is not later than the Termination Date or two years from
the date of issuance, if earlier, shall be a letter of credit the Issuer
may lawfully issue and shall conform to the general requirements of the
Issuer for letters of credit it issues. Each Lender shall be obligated to
reimburse the applicable Issuer for its pro rata share of the amount of
each drawing under each Letter of Credit issued hereunder or constituting
an Existing Letter of Credit and, accordingly, the undrawn face amount of
each Letter of Credit shall constitute usage of the Commitment of each
Lender pro rata in accordance with each Lender's Commitment. Each Issuer
shall notify the Administrative Agent prior to the issuance by it of any
Letter of Credit hereunder or any increase in the amount or any extension
of the expiration date of any such Letter of Credit and obtain confirmation
from the Administrative Agent that such issuance, increase or extension
will not cause the aggregate outstanding amount of Letters of Credit to
exceed the L/C Commitment or the sum of such Letters of Credit and of the
Advances to exceed the Commitments. Each Issuer shall also promptly notify
the Administrative Agent of each drawing under, expiration of or reduction
in the amount of each Letter of Credit issued by it hereunder.
(b) Applications. Subject to the other terms and conditions hereof,
Letters of Credit will be issued upon the receipt of a duly executed
application for the relevant Letter of Credit in the form customarily
prescribed by the applicable Issuer for the type of Letter of Credit
requested or through such Issuer's system for electronically applying for
Letters of Credit (each an "Application" and collectively when taken
together with the Existing Applications, the "Applications"). This
Agreement supersedes any terms of the Applications which are irreconcilably
inconsistent with the terms hereof. Notwithstanding anything contained in
any Application to the contrary (i) the Borrower's obligation to pay fees
in connection with each Letter of Credit shall be as exclusively set forth
in Section 2.05, (ii) except during the continuance of an Event of Default,
the applicable Issuer will not call for the funding by the Borrower or any
Permitted Subsidiary of any amount under a Letter of Credit, or any other
form of collateral security for the Borrower's or a Permitted Subsidiary's
obligations in connection with such Letter of Credit, before being
presented with a drawing thereunder, and (iii) if the applicable Issuer is
not timely reimbursed for the amount of any drawing under a Letter of
Credit on the date such drawing is paid, the obligation to reimburse the
applicable Issuer for the amount of such drawing shall bear interest (which
the Borrower hereby promises to pay) from and after the date such drawing
is paid at a rate per annum equal to the sum of 2% plus the Base Rate from
time to time in effect.
Absent any gross negligence or willful misconduct on the part of the
applicable Issuer, neither such Issuer nor its correspondents shall be
responsible for (i) the validity, sufficiency, truthfulness or genuineness
of any documents even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged or (ii) for
errors, interruptions or delays in transmission or delivery of any message,
by mail, cable, telegraph, wireless or otherwise, whether or not they be in
cipher, or (iii) payment by the applicable Issuer under any Letter of
Credit against presentation of a sight draft or certificate which does not
comply with terms of the Letter of Credit; and absent any gross negligence
or willful misconduct on the part of the applicable Issuer or its
correspondent, none of the above shall affect, impair or prevent the
vesting of any of such Issuer's rights or powers hereunder. In furtherance
and extension and not in limitation of the specific provisions hereinbefore
set forth, the Borrower agrees that any action, inaction or omission by an
Issuer or by any of its correspondents under or in connection with any
Letter of Credit issued by it or the related drafts or documents, if taken
in good faith and without gross negligence or willful misconduct, shall be
binding on the Borrower and the applicable Permitted Subsidiary and shall
not put such Issuer or its correspondent under any resulting liability to
the Borrower or the Permitted Subsidiaries. The foregoing provisions shall
supersede the provisions of the Applications dealing with the same subject
matter.
If an Issuer issues any Letters of Credit with expiration dates that
are automatically extended unless such Issuer gives notice that the
expiration date will not so extend beyond its then scheduled expiration
date, such Issuer will give such notice of non-renewal before the time
necessary to prevent such automatic extension if before such required
notice date (i) the expiration date of such Letter of Credit if so extended
would be after the Termination Date, (ii) the Commitments have been
terminated or (iii) an Event of Default exists and the Majority Lenders
have given such Issuer instructions not to so permit the extension of the
expiration date of such Letter of Credit. The Committed Issuers severally
agree to issue amendments to Letter(s) of Credit issued by them increasing
the amount, or extending the expiration date, thereof at the request of the
Borrower or a Permitted Subsidiary subject to the conditions of Article III
and the other terms of this Section 2.03. Without limiting the generality
of the foregoing, each Committed Issuer's obligation to issue, amend or
extend the expiration date of a Letter of Credit is subject to the
conditions of Article III and the other terms of this Section 2.03 and it
will not issue, amend or extend the expiration date of any Letter of Credit
issued by it if any Lender notifies it of any failure to satisfy or
otherwise comply with such conditions and terms and directs it not to take
such action.
(c) The Reimbursement Obligations. Subject to Section 2.03(b), the
obligation of the Borrower or the applicable Permitted Subsidiary to
reimburse an Issuer for all drawings under a Letter of Credit issued by it
(a "Reimbursement Obligation") shall be governed by the Application related
to such Letter of Credit, except that reimbursement of each drawing shall
be made in immediately available funds at its principal U.S. office by no
later than 11:00 A.M. (Chicago time) on the date when such drawing is paid
or, if drawing was paid after 10:30 A.M. (Chicago time), by the end of such
day. If the Borrower or the applicable Permitted Subsidiary does not make
any such reimbursement payment on the date due and the Participating
Lenders fund their participations therein in the manner set forth in
Section 2.03(d) below, then all payments thereafter received by the
applicable Issuer in discharge of any of the relevant Reimbursement
Obligations shall be distributed in accordance with Section 2.03(d) below.
(d) The Participating Interests. Each Lender, by its acceptance
hereof, severally agrees to purchase from each Issuer, and each Issuer
hereby agrees to sell to each such Lender (a "Participating Lender"), an
undivided percentage participating interest (a "Participating Interest"),
in each Letter of Credit (including, without limitation, the Existing
Letters of Credit) issued by, and each Reimbursement Obligation owed to,
the applicable Issuer. Upon any failure by the Borrower or the applicable
Permitted Subsidiary to pay any Reimbursement Obligation at the time
required on the date the related drawing is paid, as set forth in Section
2.03(c) above, or if the applicable Issuer is required at any time to
return to the Borrower or a Permitted Subsidiary or to a trustee, receiver,
liquidator, custodian or other Person any portion of any payment of any
Reimbursement Obligation, each Participating Lender shall, not later than
the Business Day it receives a demand from the applicable Issuer to such
effect, if such demand is made before 12:00 noon (Chicago time), or not
later than the following Business Day, if such demand is made after such
time, pay to the applicable Issuer an amount equal to its pro rata share of
such unpaid or recaptured Reimbursement Obligation together with interest
on such amount accrued from the date the related payment was made by the
applicable Issuer to the date of such payment by such Participating Lender
at a rate per annum equal to (i) from the date the related payment was made
by the applicable Issuer to the date two (2) Business Days after payment by
such Participating Lender is due hereunder, the Federal Funds Rate for each
such day and (ii) from the date two (2) Business Days after the date such
payment is due from such Participating Lender to the date such payment is
made by such Participating Lender, the Base Rate in effect for each such
day. Each such Participating Lender shall thereafter be entitled to
receive its pro rata share of each payment received in respect of the
relevant Reimbursement Obligation and of interest paid thereon, with the
applicable Issuer retaining its pro rata share as a Lender hereunder.
The several obligations of the Participating Lenders to each Issuer
under this Section 2.03 shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever (except, without limiting the
Borrower's and Permitted Subsidiaries' obligations under each Application,
to the extent the Borrower or the applicable Permitted Subsidiary is
relieved from its obligation to reimburse the applicable Issuer for a
drawing under a Letter of Credit because of the applicable Issuer's gross
negligence or willful misconduct in determining that documents received
under the Letter of Credit comply with the terms thereof) and shall not be
subject to any set-off, counterclaim or defense to payment which any
Participating Lender may have or have had against the Borrower, a Permitted
Subsidiary, the Administrative Agent, the Issuer, any other Lender or any
other Person whatsoever. Without limiting the generality of the foregoing,
such obligations shall not be affected by any Event of Default or event
with which the passage of time or the giving of notice or both, would
constitute an Event of Default or by any reduction or termination of any
Commitment of any Lender, and each payment by a Participating Lender under
this Section 2.03 shall be made without any offset, abatement, withholding
or reduction whatsoever. The Administrative Agent shall be entitled to
offset amounts received for the account of a Lender under this Agreement
against unpaid amounts due from such Lender to an Issuer hereunder (whether
as fundings of participations, indemnities or otherwise).
(e) Indemnification. The Participating Lenders shall indemnify each
Issuer (to the extent not reimbursed by the Borrower or a Permitted
Subsidiary) against any cost, expense (including reasonable counsel fees
and disbursements), claim, demand, action, loss or liability (except such
as result from such Issuer's gross negligence or willful misconduct) that
such Issuer may suffer or incur in connection with any Letter of Credit
issued by it. The obligations of the Participating Lenders under this
Section 2.03(e) and all other parts of this Section 2.03 shall survive
termination of this Agreement and of all other L/C Documents.
(f) The Existing Letters of Credit. Bank of Montreal has heretofore
issued the Existing Letters of Credit for the account of the Constituent
Companies and certain of their Subsidiaries pursuant to the terms of the
Existing Credit Agreements. The Existing Letters of Credit having been
issued pursuant to executed applications and agreements or through Bank of
Montreal's system for electronically applying for letters of credit (the
"Existing Applications"). From and after the Closing Date the Existing
Applications shall constitute "Applications" for all purposes hereof and of
the L/C Documents and the Existing Letters of Credit issued pursuant
thereto shall constitute "Letters of Credit" for all purposes hereof and of
the L/C Documents.
(g) The Permitted Subsidiaries. The Borrower may from time to time
designate Subsidiaries of the Borrower as Permitted Subsidiaries hereunder
upon written notice to the Administrative Agent and upon causing such
Permitted Subsidiaries to deliver to the Administrative Agent such
resolutions and incumbency certificates as the Administrative Agent may
reasonably require in connection with the issuance of Letters of Credit for
the account of such Permitted Subsidiaries. Likewise, the Borrower may
upon written notice to the Administrative Agent (which shall promptly
notify the Issuers) terminate the status of any Subsidiary as a Permitted
Subsidiary hereunder but no such termination shall affect or impair the
liability of the Borrower with respect to Letters of Credit issued for the
account of such Permitted Subsidiary prior to receipt by the Administrative
Agent of such notice of termination and all such Letters of Credit and the
Applications therefor shall continue to constitute "Letters of Credit" and
"Applications" hereunder.
(i) Guarantee;. The Borrower hereby absolutely, irrevocably and
unconditionally guarantees the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the L/C
Obligations in respect of the Existing Letters of Credit and in
respect of all other Letters of Credit issued hereunder at the request
of the Borrower or any of the Permitted Subsidiaries including all
such obligations arising under the Applications therefor (such
obligations being herein collectively called the "Guaranteed
Obligations"). The Borrower hereby further agrees that if any
Permitted Subsidiary shall fail to pay in full when due (whether by
stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Borrower will promptly pay the same, upon demand, and
that in the case of any extension of time of payment or renewal of any
of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
(ii) Obligations Unconditional;. The obligations of the Borrower
under clause (i) hereof are absolute, irrevocable and unconditional
irrespective of the value, genuineness, validity, regularity or
enforceability of the Guaranteed Obligations or any agreement or
instrument evidencing same, or any substitution, release or exchange
of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this clause that the
obligations of the Borrower hereunder shall be absolute and
unconditional under any and all circumstances; provided, however, that
notwithstanding the foregoing the Borrower shall have any defenses to
nonpayment of the Guaranteed Obligations which would have been
available to it had it been the applicant for the Letter of Credit in
question. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall
not alter or impair the liability of the Borrower hereunder which
shall remain absolute, irrevocable and unconditional as described
above:
(aa) at any time or from time to time, without notice to the
Borrower, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ab) the creation and existence of the Guaranteed
Obligations (notice to the Borrower of same being hereby waived);
or
(ac) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect not inconsistent
with the terms of this Agreement, or any right in respect of the
Guaranteed Obligations shall be waived or any other guarantee of
any of the Guaranteed Obligations or any security therefor shall
be released or exchanged in whole or in part or otherwise dealt
with.
Except as provided in subsection (i) above, Borrower hereby expressly
waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Issuer or any Lender
exhaust any right, power or remedy or proceed against a Permitted
Subsidiary, or against any other Person under any other guarantee of,
or security for, any of the Guaranteed Obligations.
(iii) Reinstatement;. The obligations of the Borrower hereunder
shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of a Permitted Subsidiary in
respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or reorganization
or otherwise and the Borrower agrees that it will indemnify each
Issuer and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by such
Issuer or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
(iv) Subrogation;. The Borrower hereby waives all rights of
subrogation or contribution, whether arising by contract or operation
of law (including, without limitation, any such right arising under
the Federal Bankruptcy Code) or otherwise by reason of any payment by
it of the Guaranteed Obligations of any Permitted Subsidiary pursuant
to the provisions hereof until all Guaranteed Obligations of such
Permitted Subsidiary are paid in full.
(v) Remedies;. The Borrower agrees that, as between the
Borrower and the Issuers and the Lenders, the obligations of the
Borrower hereunder may be declared to be forthwith due and payable as
provided in Article VI hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said
Article VI) for purposes hereof notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligation
from becoming automatically due and payable) as against any Permitted
Subsidiary and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and
payable), such obligations (whether or not due and payable by any
Permitted Subsidiary) shall forthwith become due and payable by the
Borrower.
(vi) Continuing Guarantee;. The guarantee herein is a continuing
guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
(vii) No Liability until Closing Date. The Borrower shall have no
liability under this Section 2.03(g) unless and until the Closing Date
occurs.
Section 2.04. The Auction Advances. (a) Each Lender severally agrees that
the Borrower may request Auction Borrowings comprised of either Fixed Rate
Auction Advances or Eurodollar Rate Auction Advances under this Section
2.04 from time to time on any Business Day during the period from the date
hereof until the date occurring one day prior to the Termination Date, in
the case of an Auction Borrowing comprised of Fixed Rate Auction Advances,
or the date occurring one month prior to the Termination Date, in the case
of an Auction Borrowing comprised of Eurodollar Rate Auction Advances in
the manner set forth below; provided that, following the making of each
Auction Borrowing, the aggregate amount of the Advances then outstanding
plus the aggregate amount of the L/C Obligations then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders. Each
Auction Borrowing shall be in an aggregate amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof.
(i) The Borrower may request an Auction Borrowing by delivering
to the Administrative Agent (A) by telecopier, telex or cable,
confirmed immediately in writing, a notice of an Auction Borrowing (a
"Notice of Auction Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying the date and aggregate amount of the proposed
Auction Borrowing, the maturity date for repayment of each Auction
Advance to be made as part of such Auction Borrowing (which maturity
date may be the date occurring one, two, three or six months after the
date of such Auction Borrowing in the case of Eurodollar Rate Auction
Advances, or the date occurring between one and 180 days after the
date of such Auction Borrowing in the case of Fixed Rate Auction
Advances and in any case no later than the Termination Date), the
interest payment date or dates relating thereto (which shall occur at
least every three months, in the case of a Eurodollar Rate Auction
Advance, and every 90 days, in the case of Fixed Rate Auction
Advances), and any other terms to be applicable to such Auction
Borrowing, not later than 9:00 A.M. (Chicago time) (x) at least one
Business Day prior to the date of the proposed Auction Borrowing, in
the case of a Fixed Rate Auction Advance, and (y) at least four
Business Days prior to the date of the proposed Auction Borrowing, in
the case of a Eurodollar Rate Auction Advance and (B) payment in full
to the Administrative Agent of the aggregate auction administration
fee specified in Section 2.05(e) hereof. The Administrative Agent
shall in turn promptly notify each Lender of each request for an
Auction Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of Auction Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Auction Advances to the
Borrower as part of such proposed Auction Borrowing at a rate or rates
of interest specified by such Lender in its sole discretion, by
notifying the Administrative Agent (which shall give prompt notice
thereof to the Borrower), before 9:00 A.M. (Chicago time) (A) on the
date of such proposed Auction Borrowing, in the case of a Fixed Rate
Auction Advance and (B) three Business Days prior to the date of such
proposed Auction Borrowing, in the case of a Eurodollar Rate Auction
Advance, of the minimum amount and maximum amount of each Auction
Advance that such Lender would be willing to make as part of such
proposed Auction Borrowing (which amounts may, subject to the proviso
to the first sentence of this Section 2.04(a), exceed such Lender's
Commitment), the rate or rates of interest therefor and the Yield (if
different from such rate or rates) with respect thereto, the interest
period relating thereto and such Lender's Applicable Lending Office
with respect to such Auction Advance; provided that if the
Administrative 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 8:45 A.M. (Chicago time) on the date on which
notice of such election is to be given to the Administrative Agent by
the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Administrative Agent, before
9:00 A.M. (Chicago time) on the date on which notice of such election
is to be given to the Administrative Agent by the other Lenders, and
such Lender shall not be obligated to, and shall not make any Auction
Advance as part of such Auction Borrowing; provided that the failure
by any Lender to give such notice shall not cause such Lender to be
obligated to make any Auction Advance as part of such proposed Auction
Borrowing.
(iii) The Borrower shall, in turn, before 10:00 A.M. (Chicago
time) (A) on the date of such proposed Auction Borrowing, in the case
of a Fixed Rate Auction Advance and (B) three Business Days before the
date of such proposed Auction Borrowing, in the case of a Eurodollar
Rate Auction Advance, either
(A) cancel such Auction Borrowing by giving the
Administrative Agent notice to that effect, or
(B) irrevocably accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, subject only to the provisions of this paragraph
(iii), by giving notice to the Administrative Agent of the amount
of each Auction 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 Administrative
Agent on behalf of such Lender for such Auction Advance pursuant
to paragraph (ii) above) to be made by each Lender as part of
such Auction Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving the
Administrative Agent notice to that effect; provided, however,
that (x) 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, (y) if the Borrower
declines to accept, or is otherwise restricted by the provisions
of this Agreement from accepting, the maximum aggregate principal
amount of Auction Borrowings 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), and (z) no offer made pursuant to paragraph (ii)
above shall be accepted unless the Auction Borrowing in respect
of such offer is in an integral multiple of $1,000,000 and the
aggregate amount of such offers accepted by the Borrower is equal
to at least $5,000,000.
Any offer or offers made pursuant to paragraph (ii) above not
expressly accepted or rejected by the Borrower in accordance with this
paragraph (iii) shall be deemed to have been rejected by the Borrower.
(iv) If the Borrower notifies the Administrative Agent that such
Auction Borrowing is canceled pursuant to clause (A) of paragraph
(iii) above, the Administrative Agent shall give prompt notice thereof
to the Lenders and such Auction Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to clause (B) of paragraph (iii) above,
the Administrative 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 Auction 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 an Auction Advance as part of such Auction Borrowing of the
amount of each Auction Advance to be made by such Lender as part of
such Auction Borrowing, and (C) each Lender that is to make an Auction
Advance as part of such Auction Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each
Lender that is to make an Auction Advance as part of such Auction
Borrowing shall, before 11:00 A.M. (Chicago time) on the date of such
Auction Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02 such
Lender's portion of such Auction Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's aforesaid address. Promptly after each
Auction Borrowing the Administrative Agent will notify each Lender of
the amount of the Auction Borrowing and the maturities thereof.
(vi) The acceptance by the Borrower of any offer made by any
Lender pursuant to paragraph (iii) (B) above shall be irrevocable and
binding on the Borrower. In the case of any Auction Borrowing
comprised of Eurodollar Rate Auction Advances, the Borrower shall
indemnify 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 related Notice of Auction Borrowing for such
Auction Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding any loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Eurodollar Rate Auction Advance to be made by
such Lender as part of such Auction Borrowing when such Eurodollar
Rate Auction Advance, as a result of such failure, is not made on such
date.
(b) Within the limits and on the conditions set forth in this Section
2.04 (including, without limitation, the condition set forth in the proviso
to the first sentence of subsection (a) above), the Borrower may from time
to time borrow under this Section 2.04, repay or prepay pursuant to
subsection (c) below, and reborrow under this Section 2.04, provided that
no Auction Borrowing may be made within three Business Days of the date of
any other Auction Borrowing.
(c) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made an Auction Advance, or each other
holder of an Auction Note, on the maturity date of each Auction Advance
(such maturity date being that specified by the Borrower for repayment of
such Auction Advance in the related Notice of Auction Borrowing delivered
pursuant to subsection (a)(i) above and provided in the Auction Note
evidencing such Auction Advance), the then unpaid principal amount of such
Auction Advance. The Borrower shall have no right to prepay any principal
amount of any Fixed Rate Auction Advance unless, and then only on the
terms, specified by the Borrower for such Fixed Rate Auction Advance in the
related Notice of Auction Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Auction Note evidencing such Fixed Rate Auction
Advance. The Borrower may, upon at least two Business Days' notice to the
Administrative Agent and the relevant Lender stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding principal amount of a Eurodollar
Rate Auction Advance in whole, together with accrued interest to the date
of such prepayment on the principal amount prepaid; provided, however, that
the Borrower shall be obligated to reimburse the relevant Lender in respect
thereof pursuant to Section 8.04(b) on the date of such prepayment.
(d) The Borrower shall pay interest on the unpaid principal amount of
each Auction Advance from the date of such Auction Advance to the date the
principal amount of such Auction Advance is repaid in full, at the rate of
interest for such Auction Advance specified by the Lender making such
Auction Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable in arrears on the interest payment date
or dates specified by the Borrower for such Auction Advance in the related
Notice of Auction Borrowing delivered pursuant to subsection (a)(i) above,
as provided in the Auction Note evidencing such Auction Advance.
(e) The indebtedness of the Borrower resulting from each Auction
Advance made to the Borrower as part of an Auction Borrowing shall be
evidenced by a separate Auction Note of the Borrower payable to the order
of the Lender making such Auction Advance.
Section 2.05. Fees. (a) Facility Fees. The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a facility fee on
the average daily aggregate amount of such Lender's Commitment (whether or
not used) from the date hereof in the case of each Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Termination
Date, payable in arrears on the 15th day of each August, November, February
and May during such period, and on the Termination Date at a rate of (i)
0.065% per annum for each day Level I Status exists, (ii) 0.075% per annum
for each day Level II Status exists, (iii) 0.100% per annum for each day
Level III Status exists, (iv) 0.125% per annum for each day Level IV Status
exists and (v) 0.225% per annum for each day Level V Status exists.
(b) Facing Fees. The Borrower shall pay to each Issuer for its own
account fees at the rate of 0.05% per annum on the average daily undrawn
amount of the Letters of Credit issued by it for any period during which
any Letters of Credit are outstanding, such fees to be payable in arrears
on the 15th day of each August, November, February and May to and
including, and on, the Termination Date. The Borrower shall also pay to
each Issuer such issuing, processing and transaction fees and charges as
such Issuer may from time to time customarily impose in connection with the
issuance, negotiation and payment of letters of credit and drafts drawn
thereunder.
(c) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the ratable benefit of the Lenders a Letter of
Credit usage fee for each Letter of Credit outstanding hereunder on the
average daily undrawn amount of each Letter of Credit for any period during
which any Letters of Credit are outstanding, such fees to be payable in
arrears on the 15th day of each August, November, February and May to and
including, and on, the Termination Date at a rate of (i) 0.160% per annum
for each day Level I Status exists, (ii) 0.175% per annum for each day
Level II Status exists, (iii) 0.200% per annum for each day Level III
Status exists, (iv) 0.225% per annum for each day Level IV Status exists,
and (v) 0.400% per annum for each day Level V Status exists.
(d) Other Fees. The Borrower shall pay to each of the Syndication
Agent and the Administrative Agent for their own use and benefit such
agency and/or other fees as the Borrower and such Agent may mutually agree.
(e) Auction Fees. The Borrower shall pay to the Administrative Agent
for its own account an auction administration fee in the amounts as the
Borrower and Administrative Agent may mutually agree from time to time in
respect of each Auction Borrowing requested.
Section 2.06. Reduction of the Commitments. The Borrower shall have the
right, upon at least two Business Days' notice to the Administrative 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 that is
less than the aggregate principal amount of the Advances then outstanding
plus the aggregate amount of the L/C Obligations outstanding and provided,
further, that each partial reduction shall be in the aggregate amount of
$5,000,000 or an integral multiple thereof.
Section 2.07. Repayment of Contract Advances. The Borrower shall repay
the principal amount of each Contract Advance made by each Lender on the
Termination Date in accordance with the Contract Note to the order of such
Lender.
Section 2.08. Interest on Contract Advances. The Borrower shall pay
interest on the unpaid principal amount of each Contract Advance made by
each Lender from the date of such Contract Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such Contract Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time plus the Applicable Margin for such
Base Rate in effect from time to time, payable quarterly on the 15th
day of each August, November, February and May during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(b) Adjusted CD Rate Advances. If such Contract Advance is an
Adjusted CD Rate Advance, a rate per annum equal at all times during
the Interest Period for such Contract Advance to the sum of the
Adjusted CD Rate for such Interest Period plus the Applicable Margin
for such Adjusted CD Rate in effect from time to time, payable on the
last day of each Interest Period for such Adjusted CD Rate Advance
(and, in the case of any Interest Period of 180 days, on the 90th day
of such Interest Period) and on the date such Adjusted CD Rate Advance
shall be Converted or paid in full.
(c) Eurodollar Rate Advances. Subject to Section 2.09, if such
Contract Advance is a Eurodollar Rate Advance, a rate per annum equal
at all times during the Interest Period for such Contract Advance to
the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Margin for such Eurodollar Rate Advance in effect from time
to time, payable on the last day of each Interest Period for such
Eurodollar Rate Advance (and, in the case of any Interest Period of
six months, on the last day of the third month of such Interest
Period) and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(d) Split Ratings. Notwithstanding the definitions of Level I
Status, Level II Status, Level III Status, Level IV Status and Level V
Status, (i) if the S&P Rating and the Moody's Rating differ by one
tier, then the Applicable Margins, the facility fee and the Letter of
Credit usage fee shall be based on the status level which would be
applicable to the higher of the two ratings and (ii) if the S&P Rating
and the Moody's Rating differ by two or more tiers, then the
Applicable Margins, the facility fee and the Letter of Credit usage
fee shall be based on the status level which would be applicable to a
rating which is one tier above the lower of the two ratings.
Section 2.09. Additional Interest on Eurodollar Rate Advances and
Eurodollar Rate Auction Advances. The Borrower shall pay to each Lender,
so long as such Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance and each Eurodollar Rate Auction Advance of such
Lender, from the date of such 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 Contract Advance or term for such Auction Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period or term, as applicable, payable on each date on which
interest is payable on such Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through the
Administrative Agent, and such determination shall be conclusive and
binding for all purposes, absent manifest error.
Section 2.10. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Adjusted CD Rate or Eurodollar Rate, as
applicable. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. If any Reference Bank shall no longer be
a Lender hereunder, shall no longer wish to serve as a Reference Bank
hereunder or shall fail to perform hereunder, the Administrative Agent and
the Borrower may appoint another Lender to serve as a successor or
replacement Reference Bank hereunder.
(b) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.08(a), (b), (c) or (d), and
the applicable rate, if any, furnished by each Reference Bank for the
purpose of determining the applicable interest rate under Section 2.08(b),
(c) or (d).
(c) If fewer than two Reference Banks (or such lesser number of
Lenders as shall then be acting as Reference Banks) furnish timely
information to the Administrative Agent for determining the Adjusted CD
Rate for any Adjusted CD Rate Advances, or the Eurodollar Rate for any
Eurodollar Rate Advances or Eurodollar Rate Auction Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
Adjusted CD Rate Advances, Eurodollar Rate Advances or Eurodollar Rate
Auction Advances, as the case may be,
(ii) each such Contract 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
Contract Advances into, Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, shall be suspended until the
Administrative 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 Administrative 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 Administrative 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 (unless, with respect to any Eurodollar Rate Advance, the
Borrower shall have delivered to the Administrative Agent a timely
notice of Conversion specifying that such Eurodollar Rate Advance
shall be Converted to an Adjusted CD Rate Advance on the last day of
the then existing Interest Period therefor), and
(ii) the obligation of the Lenders to make, or to Convert
Contract Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
Section 2.11. Conversion of Contract Advances. (a) Voluntary. The
Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 10:00 A.M. (Chicago time) on the third Business Day
prior to the date of any proposed Conversion into Eurodollar Rate Advances
or Adjusted CD Rate Advances, and on the date of any proposed Conversion
into Base Rate Advances, and subject to the provisions of Sections 2.10 and
2.14, Convert all Contract Advances of one Type made in connection with the
same Contract Borrowing into Advances of another Type or Types or Advances
of the same Type having the same or new Interest Periods; provided,
however, that any Conversion of, or with respect to, any Adjusted CD Rate
Advances or Eurodollar Rate Advances into Advances of another Type or Types
or Advances of the same Type having the same or new Interest Periods shall
be made on, and only on, the last day of an Interest Period for such
Adjusted CD Rate Advances or Eurodollar Rate Advances, unless the Borrower
shall also reimburse the Lenders in respect thereof pursuant to Section
8.04(b) on the date of such Conversion. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of
such Conversion, (ii) the Contract Advances to be Converted, and (iii) if
such Conversion is into, or with respect to, Adjusted CD Rate Advances or
Eurodollar Rate Advances, the duration of the Interest Period for each such
Contract Advance.
(b) Mandatory. If the Borrower shall fail to select the Type of any
Contract Advance or the duration of any Interest Period for any Contract
Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate Advances
in accordance with the provisions contained in the definition of "Interest
Period" in Section 1.01 and Section 2.11(a), or if any proposed Conversion
of a Contract Borrowing that is to comprise Adjusted CD Rate Advances or
Eurodollar Rate Advances upon Conversion shall not occur as a result of the
circumstances described in paragraph (c) below, the Administrative 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.
(c) Failure to Convert. Each notice of Conversion given pursuant to
subsection (a) above shall be irrevocable and binding on the Borrower. In
the case of any Contract Borrowing that is to comprise Adjusted CD Rate
Advances or Eurodollar Rate Advances upon Conversion, 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 the date specified for such
Conversion 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 such Adjusted CD Rate Advances or Eurodollar Rate Advances,
as the case may be, upon such Conversion, when such Conversion, as a result
of such failure, does not occur.
Section 2.12. Prepayments. (a) Optional. The Borrower may, upon at
least two Business Days' notice (or same day notice in the case of any
prepayment of Base Rate Advances) to the Administrative 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 made as part of the same Contract 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
(i) each partial prepayment of any Contract Borrowing shall be in an
aggregate principal amount not less than $5,000,000 and (ii) in the case of
any such prepayment of an Adjusted CD Rate Advance or Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(b) on the date of such prepayment.
(b) Mandatory. If and to the extent that the aggregate principal
amount of Advances outstanding on any date hereunder plus the aggregate
principal amount of L/C Obligations outstanding on such date shall exceed
the aggregate amount of the Commitments hereunder on such date, the
Borrower shall pay to the Administrative Agent on such date an amount at
least equal to such excess, together with accrued interest to the date of
such prepayment on such amount and, in the case of any such payment which
is to be applied to Adjusted CD Rate Advances, Eurodollar Rate Advances or
Auction Advances, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(b) on the date of such
prepayment.
(c) Application. Upon each payment pursuant to Section 2.12(b), the
Administrative Agent shall apply amounts received from the Borrower in the
following order of priority:
First, to the prepayment in whole or ratably in part of the
principal amount of all outstanding Base Rate Advances,
Second, to the prepayment in whole or ratably in part of the
principal amount of outstanding Adjusted CD Rate Advances and
Eurodollar Rate Advances, in such order of maturity as will, in the
reasonable judgment of the Administrative Agent, minimize to the
fullest extent practicable amounts payable by the Borrower in respect
of such prepayment pursuant to Section 8.04(b),
Third, to the prepayment in whole or ratably in part of the
principal amount of outstanding Auction Advances, in such order of
maturity as will, in the reasonable judgment of the Administrative
Agent, minimize to the fullest extent practicable amounts payable by
the Borrower in respect of such prepayment pursuant to Section
8.04(b), and
Fourth, to be held by the Administrative Agent as collateral
security for the L/C Obligations pursuant to the terms of Section
6.02.
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 included in the Adjusted CD Rate
Reserve Percentage or any Assessment Rate, in the case of Adjusted CD Rate
Advances, or, 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) issued, promulgated or made, as the case may be, after the
date hereof, there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Adjusted CD Rate
Advances, Eurodollar Rate Advances or any other Advances or agreeing to
issue any Letter of Credit or obligation to participate therein, then the
Borrower shall from time to time, within 30 days of demand by such Lender
together with the certificate referred to below (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, that no Lender shall be entitled
to demand such compensation more than 90 days following the last day of the
Interest Period in respect of which such demand is made; provided further,
however, that the foregoing proviso shall in no way limit the right of any
Lender to demand or receive such compensation to the extent that such
compensation relates to the retroactive application of any law, regulation,
guideline or request described in clause (i) or (ii) above if such demand
is made within 90 days after the implementation of such retroactive law,
interpretation, guideline or request. A certificate as to the nature and
amount of such increased cost, submitted to the Borrower and the
Administrative Agent by such Lender in good faith, shall be conclusive and
binding for all purposes, absent manifest error.
(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) issued,
promulgated or made, as the case may be, after the date hereof 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 hereunder and other commitments of this type or the
Advances or Letters of Credit, then, within 30 days of demand by such
Lender together with the certificate referred to below (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to the
Administrative 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 determines such increase in capital to be allocable
to the existence of such Lender's Commitment hereunder or the Advances made
by such Lender or Letters of Credit issued hereunder, provided, that no
Lender shall be entitled to demand such compensation more than one year
following the last day of the fiscal year of such Lender during which such
capital requirement was applicable and in respect of which such Lender is
seeking compensation; provided further, however, that the foregoing proviso
shall in no way limit the right of any Lender to demand or receive such
compensation to the extent that such compensation relates to the
retroactive application of any law, regulation, guideline or request
described above if such demand is made within one year after the
implementation of such retroactive law, interpretation, guidelines or
request. A certificate as to such amounts submitted to the Borrower and
the Administrative Agent by such Lender in good faith shall be conclusive
and binding for all purposes, absent manifest error.
Section 2.14. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent 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 any 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, (i) the
obligation of the Lenders to make, or to Convert Contract Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist and (ii) the Borrower shall forthwith
prepay in full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless the Borrower,
within five Business Days of notice from the Administrative Agent, Converts
all Eurodollar Rate Advances of all Lenders then outstanding into Advances
of another Type in accordance with Section 2.11. Any Lender that has
notified the Administrative Agent of any illegality under this Section 2.14
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 change would avoid or eliminate such
illegality and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
Section 2.15. Payments and Computations. (a) Except as otherwise
expressly provided herein, the Borrower shall make each payment hereunder
and under the Notes not later than 11:00 A.M. (Chicago time) on the day
when due in U.S. dollars to the Administrative Agent at its address
referred to in Section 8.02 in same day funds, and any such payment to the
Administrative Agent shall constitute payment by the Borrower hereunder or
under the Notes, as the case may be, for all purposes, and upon such
payment the Lenders shall look solely to the Administrative Agent for their
respective interests in such payment. The Administrative Agent will
promptly after any such payment cause to be distributed like funds relating
to the payment of principal or interest or fees ratably (other than amounts
payable pursuant to Section 2.02(c), 2.04, 2.05(b), 2.05(d), 2.05(e), 2.09,
2.13, 2.16 or 8.04(b)) (according to the Lenders' respective Commitments)
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 an Assignment and Acceptance 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
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby
to the Lender assignee thereunder, and the parties to such Assignment and
Acceptance 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 or under any
Note 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 (a) of the
definition of the term "Base Rate" shall be made by the Administrative
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 Adjusted CD Rate, the Eurodollar
Rate or the Federal Funds Rate and of interest payable on Auction Advances
and of facility fees and Letter of Credit fees shall be made by the
Administrative Agent, and all computations of interest pursuant to Section
2.10 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, facility
fees or Letter of Credit fees are payable. Each determination by the
Administrative 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.
(d) Whenever any payment hereunder or under the Notes 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 facility
fees, as the case may be; provided, however, 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, and such reduction of time shall in such case
be taken into account in the computation of interest or fees, as the case
may be.
(e) Unless the Administrative 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
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative 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 Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained herein, upon
the occurrence and during the continuance of an Event of Default each
Advance shall (automatically, in the case of an Event of Default arising as
a result of a failure of the Borrower to pay any principal on any Advance
when due (whether by acceleration or otherwise) and if but only if the
Borrower is so notified by the Administrative Agent at the request of the
Majority Lenders in the case of any other Event of Default) bear interest
(computed on the same basis as in effect thereon at the time of such
default), payable on demand, at a rate per annum equal to:
(i) with respect to any Base Rate Advance, the sum of two
percent (2%) per annum plus the Base Rate from time to time in effect
plus the Applicable Margin for such Base Rate; and
(ii) with respect to any Eurodollar Rate Advance, Adjusted CD
Rate Advance and Auction Advance, the sum of two percent (2%) per
annum plus the rate of interest in effect thereon at the time of such
default until the end of the Interest Period or term applicable
thereto and, thereafter, at a rate per annum equal to the sum of two
percent (2%) per annum plus the Base Rate from time to time in effect
plus the Applicable Margin for such Base Rate.
Section 2.16. Taxes. (a) Any and all payments by the Borrower hereunder
or under the Notes 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
Administrative Agent, taxes imposed on its income and any withholdings in
connection therewith, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (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 Note to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.16) such Lender or the
Administrative 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 the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
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 2.16) paid by such Lender or the Administrative
Agent (as the case may be) and any liability (including penalties, interest
and expenses, other than those arising from such Lender's gross negligence
or willful misconduct) 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 Administrative Agent (as the case may be) makes written demand
therefor.
(d) Prior to the Closing Date in the case of each Bank, and on the
date of the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender, and from time to time thereafter if
requested by the Borrower or the Administrative Agent, each Lender
organized under the laws of a jurisdiction outside the United States shall
provide the Administrative Agent and the Borrower with the forms prescribed
by the Internal Revenue Service of the United States certifying that such
Lender is exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes. If for
any reason during the term of this Agreement, any Lender becomes unable to
submit the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect, such
Lender shall promptly notify the Administrative Agent and the Borrower in
writing to that effect. Unless the Borrower and the Administrative Agent
have received forms or other documents satisfactory to them indicating that
payments hereunder or under any Note are not subject to United States
withholding tax, the Borrower or the Administrative Agent shall withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a jurisdiction
outside the United States.
(e) Any Lender claiming any additional amounts payable pursuant to
this Section 2.16 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 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.
(f) If the Borrower makes any additional payment to any Lender
pursuant to this Section 2.16 in respect of any Taxes or Other Taxes, and
such Lender determines that it has received (i) a refund of such Taxes or
Other Taxes or (ii) a credit against or relief or remission for, or a
reduction in the amount of, any tax or other governmental charge solely as
a result of any deduction or credit for any Taxes or Other Taxes with
respect to which it has received payments under this Section 2.16, such
Lender shall, to the extent that it can do so without prejudice to the
retention of such refund, credit, relief, remission or reduction, pay to
the Borrower such amount as such Lender shall have determined to be
attributable to the deduction or withholding of such Taxes or Other Taxes.
If such Lender later determines that it was not entitled to such refund,
credit, relief, remission or reduction to the full extent of any payment
made pursuant to the first sentence of this Section 2.16(f), the Borrower
shall upon demand of such Lender promptly repay the amount of such
overpayment. Any determination made by such Lender pursuant to this
Section 2.16(f) shall in the absence of bad faith or manifest error be
conclusive, and nothing in this Section 2.16(f) shall be construed as
requiring any Lender to conduct its business or to arrange or alter in any
respect its tax or financial affairs so that it is entitled to receive such
a refund, credit or reduction or as allowing any person to inspect any
records, including tax returns, of any 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 2.16 shall survive the payment in full of
principal, interest and all other amounts hereunder and under the Notes;
provided, that no Lender shall be entitled to demand any payment under this
Section 2.16 more than one year following the last day of the fiscal year
of such Lender during which the liability in respect of such Taxes or Other
Taxes was incurred; provided further, however, that the foregoing proviso
shall in no way limit the right of any Lender to demand or receive any
payment under this Section 2.16 to the extent that such payment relates to
the retroactive application of any Taxes or Other Taxes if such demand is
made within one year after the implementation of such Taxes or Other Taxes.
Section 2.17. 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 Contract Advances made by it or
Letters of Credit issued by it or participated in by it (other than
pursuant to Section 2.02(c), 2.05(b), 2.05(d), 2.05(e), 2.09, 2.13, 2.16 or
8.04(b)) in excess of its ratable share of payments on account of the
Contract Advances or Letters of Credit obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations
in the Contract Advances made by them or Letters of Credit issued by it or
participated in 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 2.17 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.
Article III
Conditions of Lending
Section 3.01. Conditions Precedent to Initial Advances. The obligations
of each Lender to make its initial Advance and of any Issuer to issue the
initial Letter of Credit is subject to the satisfaction, prior to or
concurrently with, the making of such initial Advance or the issuance of
such initial Letter of Credit, of each of the following conditions
precedent:
(a) Documents and Other Agreements. The Administrative Agent
shall have received on or before the day of the initial Borrowing or,
if earlier, the date of issuance of the initial Letter of Credit the
following, each properly dated and completed, in form and substance
satisfactory to the Administrative Agent and (except for the Notes)
with one copy for each Lender:
(i) The Contract Notes payable to the order of each of the
Lenders, respectively;
(ii) A true and correct copy of the Support Agreement,
together with (A) a schedule of all "Obligations" thereunder and
(B) a letter (the "Designation Letter") from the Parent to the
Administrative Agent and the Lenders confirming that the
obligations of the Borrower hereunder, under the Notes and under
the Applications constitute "Obligations" under the Support
Agreement, that the Lenders constitute "Lenders" under the
Support Agreement and that the Lenders will receive the benefit
of any more favorable support agreement or guaranty issued by the
Parent to a third party for the purpose of guaranteeing or
supporting payment of Adjusted Debt of the Borrower if and so
long as such a more favorable agreement remains outstanding and
subject to any amendments thereto or waivers thereof by such
third party;
(iii) Pro forma consolidated balance sheets of the Borrower
and its Consolidated Subsidiaries prepared as of June 30, 1997
and showing the consolidated financial condition of the Borrower
and its Consolidated Subsidiaries immediately after giving effect
to the consummation of the Transaction;
(iv) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement, the Notes,
the Applications and the Support Agreement and of all documents
evidencing other necessary corporate action with respect to this
Agreement, the Notes, and the Applications and the Support
Agreement;
(v) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (A) the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement, the Notes, the Applications and the Support
Agreement and the other documents to be delivered hereunder; (B)
that attached thereto are true and correct copies of the Articles
of Incorporation and the By-laws of the Borrower, in each case as
in effect on such date; (C) that attached thereto are true and
correct copies of all governmental and regulatory authorizations
and approvals required for the due execution, delivery and
performance by the Borrower of this Agreement, the Notes and the
Support Agreement;
(vi) A certificate of the Secretary or an Assistant
Secretary of the Parent certifying that the execution, delivery
and performance by the Parent of the Support Agreement and the
designation by the Parent of the obligations of the Borrower
hereunder as "Obligations" under the Support Agreement and the
Lenders as "Lenders" under the Support Agreement have been duly
authorized by the Board of Directors of the Parent pursuant to
resolutions duly adopted at a meeting duly called;
(vii) A certificate of the Secretary or an Assistant
Secretary of the Parent certifying (A) the names and true
signatures of the officers of the Parent authorized to sign the
Support Agreement and the other documents to be delivered by the
Parent hereunder; (B) that attached thereto are true and correct
copies of the Articles of Incorporation and By-laws of the
Parent, in each case as in effect on such date; and (C) that
attached thereto are true and correct copies of all governmental
and regulatory authorizations and approvals required for the due
execution, delivery and performance by the Parent of the Support
Agreement and the other documents to be delivered by the Parent
hereunder;
(viii) A certificate of the chief financial officer of the
Borrower, or such other officer of the Borrower acceptable to the
Administrative Agent, stating that (A) the representations and
warranties contained in Section 4.01 of this Agreement are
correct on and as of the date of such certificate as though made
on and as of such date and (B) no Event of Default, and no event
that with the giving of notice or the passage of time, or both,
would constitute an Event of Default, has occurred and is
continuing;
(ix) A favorable opinion of Gardner, Carton & Douglas,
special counsel for the Borrower and the Parent, substantially in
the form of Exhibit D hereto and as to such other matters as any
Lender through the Administrative Agent may reasonably request;
(x) A favorable opinion of John R. McCall, General Counsel
of the Parent, substantially in the form of Exhibit E hereto and
to such other matters as any Lender through the Administrative
Agent may reasonably request; and
(xi) A favorable opinion of Chapman and Cutler, counsel for
the Administrative Agent, substantially in the form of Exhibit F
hereto.
(b) Payment of Fees. The Administrative Agent and the
Syndication Agent shall have received from the Borrower for its own
account, any fees payable to the Administrative Agent and the
Syndication Agent, as set forth in any written agreements between them
and the Borrower.
(c) Termination of Existing Credit Agreement. The
Administrative Agent shall have received evidence satisfactory to it
that (i) the Transaction has been consummated and (ii) promptly upon
funding the initial Advance the Commitments under the Existing Credit
Agreements shall have terminated and the indebtedness for borrowed
money outstanding thereunder shall have been retired.
Upon the Closing Date, the Borrower shall without further action on
its part be deemed to have (i) guaranteed the prompt payment and
performance of all indebtedness, obligations and liabilities of the
Constituent Companies and their Subsidiaries arising under or in respect of
the Existing Letters of Credit, pursuant to and as provided in Section
2.03(g) hereof, each of the Existing Letters of Credit shall constitute
"Letters of Credit" for all purposes of this Agreement and each of the
Existing Applications shall constitute "Applications" for all purposes of
this Agreement and (ii) repeated and reaffirmed all representations and
warranties set forth in Article IV hereof.
Section 3.02. Condition Precedent to Each Contract Borrowing and each
Letter of Credit. The obligation of each Lender to make a Contract Advance
on the occasion of each Contract Borrowing (including the initial Contract
Borrowing) and of the obligation of the Committed Issuers to issue, amend
or extend each Letter of Credit (including the initial Letter of Credit)
shall be subject to the further condition precedent that on the date of
such Contract Borrowing or issuance, amendment or extension of such Letter
of Credit the following statements shall be true (and each of the giving of
the applicable Notice of Contract Borrowing and request for the issuance,
amendment or extension of a Letter of Credit and the acceptance by the
Borrower of the proceeds of such Contract Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Contract Borrowing or issuance, amendment or extension of such Letter of
Credit such statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Contract Borrowing or
issuance, amendment or extension of such Letter of Credit, before and
after giving effect to such Contract Borrowing and issuance, amendment
or extension of such Letter of Credit and to the application of the
proceeds therefrom, as though made on and as of such date except to
the extent any such representation or warranty expressly relates
solely to an earlier date and except that the reference to the
December 31, 1996 financial statements of the Parent and its
Consolidated Subsidiaries in Section 4.01(f) shall be deemed a
reference to the most recent quarterly or annual financial statements
of the Parent and its Consolidated Subsidiaries submitted to the
Lenders pursuant to Section 5.01(a) hereof; and
(ii) No event has occurred and is continuing, or would result
from such Contract Borrowing or issuance of such Letter of Credit or
from the application of the proceeds therefrom, that constitutes an
Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
In addition, in the case of the issuance of each Letter of Credit the
applicable Issuer shall have received a duly completed Application therefor
and, in the case of an amendment to, extension of, or increase in, the
amount of a Letter of Credit, a written request therefor, in a form
acceptable to the applicable Issuer.
Section 3.03. Conditions Precedent to Each Auction Borrowing. The
obligation of each Lender that is to make an Auction Advance on the
occasion of an Auction Borrowing (including the initial Auction Borrowing)
to make such Auction Advance as part of such Auction Borrowing is subject
to the conditions precedent that (i) the Administrative Agent shall have
received the written confirmatory Notice of Auction Borrowing with respect
thereto, (ii) on or before the date of such Auction Borrowing, but prior to
such Auction Borrowing, the Administrative Agent shall have received an
Auction Note payable to the order of such Lender for each of the Auction
Advances to be made by such Lender as part of such Auction Borrowing, in a
principal amount equal to the principal amount of the Auction Advance to be
evidenced thereby and otherwise on such terms as were agreed to for such
Auction Advance in accordance with Section 2.04, and (iii) on the date of
such Auction Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of Auction Borrowing and the acceptance
by the Borrower of the proceeds of such Auction Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such
Auction Borrowing such statements are true):
(A) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Auction Borrowing, before
and after giving effect to such Auction Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date except to the extent any such representation or warranty
expressly relates solely to an earlier date and except that the
reference to the December 31, 1996 financial statements of the Parent
and its Consolidated Subsidiaries in Section 4.01(f) shall be deemed a
reference to the most recent quarterly or annual financial statements
of the Parent and its Consolidated Subsidiaries submitted to the
Lenders pursuant to Section 5.01(a) hereof, and
(B) No event has occurred and is continuing, or would result
from such Auction Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
Section 3.04. Condition Precedent to Certain Conversions. The obligation
of each Lender to Convert any Contract Borrowing that, upon such
Conversion, is to comprise Adjusted CD Rate Advances or Eurodollar Rate
Advances is subject to the condition precedent that on the date of such
Conversion no Event of Default shall have occurred and be continuing, and
the giving by the Borrower of the applicable notice of Conversion described
in Section 2.11(a) shall constitute a representation and warranty by the
Borrower that no Event of Default has occurred and is continuing.
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 Material Consolidated
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 as a foreign corporation in each
jurisdiction in which the nature of the business conducted or the
property owned, operated or leased by it requires such qualification,
except where failure to so qualify would not materially adversely
affect the financial condition, operations, business, properties, or
prospects of the Borrower or the Borrower and its Material
Consolidated Subsidiaries, taken as a whole.
(b) Except as described below, the execution, delivery and
performance by the Borrower of this Agreement, the Applications and
the Notes are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Borrower's Certificate of Incorporation or By-laws, (ii) law
or (iii) any contractual or legal restriction binding on or affecting
the Borrower or its properties, the violation of which could result in
material adverse effect on the financial condition, operations,
business, properties or prospects of the Borrower or the Borrower and
its Material Consolidated Subsidiaries, taken as a whole. The
Agreement and Plan of Merger dated as of May 20, 1997 (the "KU Merger
Agreement") by and between LG&E Energy Corp. and KU Energy Corporation
contains restrictions on the incurrence or guarantee of indebtedness
by the Parent and the Borrower. Pursuant to the terms of the KU
Merger Agreement, the Parent must obtain the written consent of KU
Energy Corporation prior to the incurrence by the Borrower of
indebtedness in excess of the limitations set forth in the KU Merger
Agreement. At or prior to the time that the Borrower makes any
request for an Advance or issuance or increase in a Letter of Credit
hereunder, all necessary consents, if any, of KU Energy Corporation
under the KU Merger Agreement for the incurrence of the indebtedness
by the Borrower represented by such Advance or Reimbursement
Obligation shall have been obtained.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body (each, a "Governmental Approval") is required as of the date of
this Agreement for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes or by the Parent of the
Support Agreement or to consummate the Transaction except for those
Governmental Approvals which have been obtained and are in full force
and effect; and no Governmental Approval will be required after the
date of this Agreement for the due execution and delivery by the
Borrower of the Auction Notes or Applications the performance by the
Borrower of this Agreement, the Applications or the Notes or the
performance of the Support Agreement by the Parent or to consummate
the Transaction except in either instance for such Governmental
Approvals (notice of each of which shall be promptly given to the
Lenders) that shall be in full force and effect as and when required
and not subject to appeal.
(d) This Agreement is, and the Notes and Applications when
delivered hereunder will be, legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms, except as the enforceability thereof may be limited
by equitable principles or bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally.
(e) The Support Agreement is in full force and effect and has
not been amended, modified, waived or terminated, except in accordance
with the terms hereof and thereof, and the Parent is not in default of
any of its obligations thereunder. The indebtedness of the Borrower
supported by the Parent under the Support Agreement and any other
support agreement shall not exceed the amount from time to time
authorized by the Parent's board of directors.
(f) The balance sheets of the Parent and its Consolidated
Subsidiaries as at December 31, 1996, and the related statements of
income and retained earnings of the Parent and its Consolidated
Subsidiaries for the fiscal periods then ended, certified by Arthur
Andersen & Co., copies of which have been furnished to each Lender,
fairly present the financial condition of the Parent and its
Consolidated Subsidiaries as at such date and the results of the
operations of the Parent and its Consolidated Subsidiaries for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied, and since December 31,
1996, and except as otherwise disclosed in the SEC Reports and/or
written materials furnished to the Lenders there has been no material
adverse change in the financial condition, operations, business or
prospects of the Parent and its Consolidated Subsidiaries, taken as a
whole, as reflected in such financial statements.
(g) Except as disclosed in the Parent's Annual Report to
Stockholders for the year ended December 31, 1996 or otherwise
disclosed in the SEC Reports and/or written materials furnished to the
Lenders, there is as of the date hereof and will be as of the Closing
Date no pending or threatened action or proceeding affecting the
Borrower, the Parent or any of its Consolidated Subsidiaries before
any court, governmental agency or arbitrator that could reasonably be
expected to have a material adverse effect on the financial condition,
operations, business or prospects of the Borrower or the Parent and
its Consolidated Subsidiaries, taken as a whole, and there is not and
will not be any such pending or threatened action or proceeding that
purports to affect the legality, validity, binding effect or
enforceability of this Agreement, the Applications, any Note or the
Support Agreement.
(h) No proceeds of any Advance have been or will be used
directly or indirectly in connection with any transaction subject to
the requirements of Section 14 of the Exchange Act with respect to
which proxies, consents or authorizations are being sought by any
person (as defined in the Exchange Act) other than the majority of the
board of directors of the issuer in respect of which such proxies,
consents or authorizations, as the case may be, are being sought.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System). Not more than 25% of the value of the assets
of the Parent or of the Borrower and its Subsidiaries is represented
by margin stock.
(j) The Borrower (i) is not a "public utility holding company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended, and (ii) 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, or an "investment advisor"
within the meaning of the Investment Company Act of 1940, as amended.
(k) No ERISA Termination Event has occurred, or is reasonably
expect to occur, with respect to any ERISA Plan that may materially
and adversely affect the financial condition, operations, business or
prospects of the Borrower or of the Parent and its Subsidiaries, taken
as a whole.
(l) The pro-forma consolidated balance sheets of the Borrower
and its Consolidated Subsidiaries delivered to the Lenders pursuant to
Section 3.01(a)(iii) fairly present in all material respects the
financial condition of the Borrower and its Consolidated Subsidiaries
as of June 30, 1997 but after giving effect to the Transaction.
(m) The information contained in the July, 1997 Confidential
Information Memorandum, the SEC Reports and other information provided
to the Lenders by or on behalf of the Parent and/or the Borrower,
taken as a whole, does not contain any untrue statement of a material
fact or omit a material fact necessary, in the context in which it is
furnished, to make the material statements contained therein or herein
not misleading in the light of the circumstances in which such
statements were made, the Lenders acknowledging that as to any
projections, financial models or estimates contained therein, the
Borrower only represents that the same were prepared in good faith and
on reasonable assumptions and actual results may vary materially
therefrom and that statements contained therein as to the terms hereof
and of the Support Agreement are qualified in their entirety by
reference to the actual terms of such agreements.
Article V
Covenants of the Borrower
Section 5.01. Affirmative Covenants. Unless the Majority Lenders shall
otherwise consent in writing, so long as any Note or any amount payable by
the Borrower hereunder or under any Application shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will, and, in the
case of Section 5.01(b), will cause its Consolidated Subsidiaries to:
(a) Reporting Requirements. Furnish to the Administrative
Agent:
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Parent, consolidated and consolidating (showing each
direct Subsidiary of the Parent) balance sheets of the Parent and
its Consolidated Subsidiaries as of the end of such quarter,
consolidated and consolidating (showing each direct Subsidiary of
the Parent) statements of income, cash flow and retained earnings
of the Parent and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with
the end of such quarter, consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries as of the end of such
quarter and consolidated statements of income and retained
earnings of the Borrower and its Consolidated Subsidiaries for
the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, each certified by the chief
financial officer of the Borrower, or such other officer of the
Borrower acceptable to the Administrative Agent;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Parent, a copy of the
annual report for such year for the Parent and its Consolidated
Subsidiaries, containing consolidated financial statements for
such year, certified by Arthur Andersen & Co. or another
nationally recognized firm of independent public accountants, and
a copy of the unaudited consolidating (showing each direct
Subsidiary of the Parent) financial statements of the Parent and
its Consolidated Subsidiaries and the consolidated financial
statements of the Borrower and its Consolidated Subsidiaries for
such year;
(iii) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Borrower and within 120 days after the end of the
fiscal year of the Borrower, a certificate of the chief financial
officer of the Borrower, or such other officer of the Borrower or
Parent acceptable to the Administrative Agent, (A) demonstrating,
in reasonable detail and with supporting calculations, compliance
with the financial covenants set forth in Section 5.02(a) hereof
and (B) stating that no Event of Default and no event that, with
the giving of notice or lapse of time or both, will constitute an
Event of Default has occurred and is continuing, or if an Event
of Default or such event has occurred and is continuing, a
statement setting forth details of such Event of Default or event
and the action that the Borrower has taken and proposes to take
with respect thereto;
(iv) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Parent and within 120 days after the end of the
fiscal year of the Parent, a certificate of the chief financial
officer of the Parent, or such other officer of the Parent
acceptable to the Administrative Agent, (A) demonstrating, in
reasonable detail, the calculation of the Parent's Capitalization
Ratio as of the last day of such fiscal period and (B) stating
that the Parent is not in default in the performance or
observance of any term, covenant or agreement contained in the
Support Agreement;
(v) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each event
that, with the giving of notice or lapse of time or both, would
constitute an Event of Default, continuing on the date of such
statement, a statement of the chief financial officer of the
Borrower, or such other officer of the Borrower acceptable to the
Administrative Agent, setting forth details of such Event of
Default or event and the actions that the Borrower has taken and
proposes to take with respect thereto;
(vi) as soon as possible and in any event within five days
after the commencement of litigation against the Borrower or any
of its Material Consolidated Subsidiaries, or the receipt of a
notice of default by the Borrower or any of its Material
Consolidated Subsidiaries, that could reasonably be expected to
have a material adverse effect on the Borrower or any of its
Material Consolidated Subsidiaries, notice of such litigation or
notice of default describing in reasonable detail the facts and
circumstances concerning such litigation or default and the
Borrower's or such Material Consolidated Subsidiary's proposed
actions in connection therewith;
(vii) promptly after the sending or filing thereof, copies of
annual, quarterly or current reports on Forms 10-K, 10-Q or 8-K
(or any successor forms thereto) and registration statements
(other than any registration statement on Form S-8 and any
registration statement in connection with a dividend reinvestment
plan) that the Parent or the Borrower or any other Consolidated
Subsidiary of the Parent files with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, or
the Exchange Act, or with any national securities exchange; and
(viii) such other information respecting the condition or
operations, financial or otherwise, of the Parent, the Utility,
the Borrower or any of the Parent's other Material Consolidated
Subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
(b) Keep Books; Corporate Existence; Maintenance of Properties;
Compliance with Laws; Insurance.
(i) keep proper books of record and account, all in
accordance with generally accepted accounting principles;
(ii) preserve and keep in full force and effect its
existence (except in each instance to the extent otherwise
permitted pursuant to Section 5.02(d)) and preserve and keep in
full force and effect its licenses, rights and franchises to the
extent necessary to carry on its business;
(iii) maintain and keep, or cause to be maintained and kept,
its properties in good repair, working order and condition, and
from time to time make or cause to be made all needful and proper
repairs, renewals, replacements and improvements, in each case to
carry on its business;
(iv) comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or
its property, except to the extent being contested in good faith
by appropriate proceedings, and compliance with ERISA and
Environmental Laws, except in each case to the extent that any
noncompliance could not reasonably be expected to have a material
adverse effect on the financial condition, operations, business
or prospects of the Borrower and its Subsidiaries, taken as a
whole; and
(v) maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general
areas in which it operates.
(c) Use of Proceeds. Use the proceeds of each Borrowing
hereunder exclusively for general corporate purposes, including
acquisitions and working capital requirements in connection with
energy related businesses.
Section 5.02. Negative Covenants. Unless the Majority Lenders shall
otherwise consent in writing, so long as any Note or any amount payable by
the Borrower hereunder or under any Application shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not:
(a) Consolidated Tangible Net Worth. At any time permit
Consolidated Tangible Net Worth to be less than $25,000,000.
(b) Disposition of Assets. Sell lease, transfer, convey or
otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets, or permit any of
its Subsidiaries to do so, except that (i) any such Subsidiary may
transfer assets to any other such Subsidiary or to the Borrower, (ii)
any such Subsidiary may sell, lease, transfer, convey or otherwise
dispose of all or substantially all of such assets to a Person other
than the Borrower and its Subsidiaries (each a "Disposition"), (iii)
any such Subsidiary may transfer its assets to any other Person in
connection with a sale and leaseback financing entered into by such
Subsidiary, and (iv) the Borrower may sell, lease, transfer, convey or
otherwise dispose of all or substantially all of its assets in a cash
transaction, provided, in the case of any transaction described in
clause (ii), (iii) or (iv), the consideration (as hereinafter defined)
received for such assets is at least equal to the fair value (as
determined in good faith by the board of directors of the Borrower)
thereof, and (A) such consideration constitutes, is reinvested in, or
is held in cash or cash-equivalents for reinvestment in, other energy-
related assets owned or to be owned by the Borrower or any of its
Subsidiaries or (B) such net consideration is applied immediately to
the payment or prepayment of Debt of the Borrower or any of its
Subsidiaries, provided further in each case, that immediately after
giving effect to any such transaction, no Event of Default or event
that with the giving of notice or the passage of time, or both, would
constitute an Event of Default shall have occurred and be continuing.
As used in this Section 5.02(b), the term "consideration" shall mean
cash consideration or the fair value of non-cash consideration (as
determined in good faith by the board of directors of the Borrower)
and the term "net consideration" shall mean the consideration less (i)
any provision for income or other taxes payable as a result of such
Disposition or other sale, lease, transfer, conveyance or other
disposition and (ii) all brokerage commissions and other fees and
expenses incurred in respect of such Disposition or other sale, lease,
transfer, conveyance or other disposition.
(c) Liens, Etc. Create or suffer to exist, or permit any of its
direct or indirect Subsidiaries to create or suffer to exist, any
lien, security interest or other charge or encumbrance, or any other
type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or
permit any of its direct or indirect Subsidiaries to assign, any right
to receive income, in each case to secure or provide for the payment
of any Debt, other than (i) liens or security interests existing on
such property at the time of its acquisition (other than any such lien
or security interest created in the contemplation of such acquisition
or of such Person becoming a Subsidiary), (ii) liens created by
purchase money mortgages or other security interests upon or in any
property acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or to secure indebtedness incurred solely for the purpose of
financing the acquisition of such property, (iii) liens or security
interests upon or with respect to any of the Borrower's interests in
its Subsidiaries (other than direct Subsidiaries of the Borrower) or
any of the Borrower's Subsidiaries' assets incurred solely to secure
repayment of project financing for, or utility obligations of, such
Subsidiary, (iv) margin deposits securing Debt of up to $10,000,000 at
any one time outstanding relating to obligations incurred in the
ordinary course of its energy marketing business, (v) liens securing
obligations, neither assumed by the Borrower or any Subsidiary nor on
account of which the Borrower or any Subsidiary customarily pays
interest, upon real estate upon or under which the Borrower or any
Subsidiary has a right-of-way, easement, franchise or other servitude
or of which the Borrower or any Subsidiary is the lessee of the whole
thereof or any interest therein for the purpose of locating pipe
lines, substations, measuring stations, tanks or pumping or delivery
equipment, (vi) liens or security interests on assets of a Subsidiary
securing Debt of such Subsidiary, provided that the aggregate
principal amount of Debt of Subsidiaries secured by liens or security
interests incurred pursuant to this subsection (vi) shall not exceed
$10,000,000 at any time, (vii) liens on any assets of any Subsidiary
of the Borrower in favor of the Borrower or any Subsidiary of the
Borrower, and (viii) extensions and renewals of any lien or security
interest described in clauses (i) through (vii) above, provided that
(A) any such extension or renewal shall be limited to the property
theretofore subject to such lien or security interest and additions
and/or improvements thereto and (B) the principal amount of the Debt
secured by such lien or security interest shall not be increased.
(d) Mergers and Consolidations. Merge or consolidate with or
into any Person, or permit any of its Subsidiaries to do so, except
(i) any Subsidiary of the Borrower may merge or consolidate with or
into any Person if after giving effect thereto the survivor is a
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may
merge with the Borrower, (iii) the Borrower may merge with the Parent
and (iv) any Subsidiary may merge into any other corporation if after
giving effect thereto the survivor is no longer a Subsidiary hereunder
and the assets of such Subsidiary could have been sold under Section
5.02(b) hereof for the consideration to be received or retained by the
Borrower and its Subsidiaries on account of such merger (and any such
transaction referred to in this clause (iv) shall be accounted for and
treated as a disposition of assets for purposes of Section 5.02(b)
hereof); provided in each case that, immediately after giving effect
to such proposed transaction, (A) no Event of Default or event that,
with the giving of notice or lapse of time, or both, would constitute
an Event of Default would exist and (B) in the case of any such
transaction to which the Borrower is a party, the Borrower is the
surviving corporation or the survivor shall have expressly assumed the
obligations of the Borrower hereunder and under the Notes and
Applications pursuant to an assumption agreement in form and substance
reasonably satisfactory to the Majority Lenders.
(e) Modification of Support Agreement. Amend, modify, terminate
or waive any provision of the Support Agreement, or consent to any of
the foregoing, except in each case in accordance with the terms of the
Support Agreement.
(f) Certain Restrictions during Defaults Hereunder. If an Event
of Default has occurred and is continuing hereunder or an event has
occurred which will constitute such an Event of Default upon the
passage of a period of grace (and any notice the giving of which is a
condition to the commencement of such period of grace has been given)
then and in any such event and without in any manner limiting the
remedies available to the Lenders upon the occurrence of a Default,
the Borrower will not declare or pay any dividend, either in cash or
property, on any share of its capital stock or any series or class or
purchase, redeem or otherwise acquire or retire any such capital stock
or any warrants, rights or options to purchase or acquire any such
capital stock or make any other payment or distribution either
directly or indirectly in respect of its capital stock, make or permit
any Subsidiary to make any investment in or loan or advance to the
Parent or any Subsidiaries thereof (other than the Borrower or any
Subsidiaries of the Borrower) or otherwise directly or indirectly in
any manner make or permit any Subsidiary to make any payment to, or
transfer any cash or any other asset to, the Parent or any such
Subsidiary; provided, however, that the foregoing shall not preclude
the Borrower and its Subsidiaries during the pendency of any such
Default, from making payments to the Parent under any equitable tax
sharing arrangements or in respect of goods or services then being
provided by or to the Parent or any Subsidiary thereof to or by, as
the case may be, the Borrower or its Subsidiaries at fair and
reasonable terms.
Article VI
Events of Default
Section 6.01. Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
or any Reimbursement Obligation, or interest thereon or any other
amount payable under this Agreement or any Application within two days
after the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower (or any of its officers) in
connection with this Agreement or by the Parent (or any of its
officers) in connection with this Agreement or the Support Agreement
shall prove to have been incorrect in any material respect when made;
or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.02, (ii) the Parent shall
fail to perform or observe any term, covenant or agreement contained
in the Support Agreement, (iii) the Capitalization Ratio shall at any
time exceed 65% or (iv) the Borrower shall fail to perform or observe
any other term, covenant or agreement contained in this Agreement on
its part to be performed or observed if the failure to perform or
observe such other term, covenant or agreement shall remain unremedied
for 20 days after written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender, or
(d) The Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, shall fail to pay any
principal of or premium or interest on any Debt which is outstanding
in a principal amount in excess of $15,000,000 in the aggregate (but
excluding Debt evidenced by the Notes and the Reimbursement
Obligations) of the Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, as the case may be, when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit
the acceleration of, the 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; or
(e) The Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, shall generally not pay its
debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower, the Parent, the Utility or any
Material Consolidated Subsidiary of the Borrower, seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of
90 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, shall take any corporate
action to authorize or to consent to any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$15,000,000 shall be rendered against the Borrower, the Parent, the
Utility or any Material Consolidated Subsidiary of the Borrower, and
shall remain unpaid 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
(g) (i) An ERISA Plan of the Borrower or any ERISA Affiliate of
the Borrower shall fail to maintain the minimum funding standards
required by Section 412 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), for any plan year or a waiver
of such standard is sought or granted under Section 412(d) of the
Code, or (ii) an ERISA Plan of the Borrower or any ERISA Affiliate of
the Borrower shall have been terminated or the subject of termination
proceedings under ERISA, or (iii) the Borrower or any ERISA Affiliate
of the Borrower shall have incurred a liability to or on account of an
ERISA Plan under Section 4062, 4063 or 4064 of ERISA and there shall
result from such event either a liability or a material risk of
incurring a liability to the PBGC or an ERISA Plan, or (iv) any ERISA
Termination Event with respect to an ERISA Plan of the Borrower or any
ERISA Affiliate of the Borrower shall have occurred, and in the case
of any event described in clauses (i) through (iv) of this subsection
(g), (A) such event (if correctable) shall not have been corrected and
(B) the then-present value of such ERISA Plan's vested benefits
exceeds the then-current value of assets accumulated in such ERISA
Plan by more than the amount of $15,000,000 (or in the case of an
ERISA Termination Event involving the withdrawal of a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), the withdrawing
employer's proportionate share of such excess shall exceed such
amount); or
(h) (I) Any provision of the Support Agreement shall for any
reason cease to be valid and binding on any party thereto or any party
thereto shall so state in writing or (II) any provision of Section
2.03(g) shall for any reason cease to be valid and binding on the
Borrower or the Borrower shall so state in writing; or
(i) Any authorization or approval or other action by any
governmental authority or regulatory body required for the execution,
delivery or performance of (i) this Agreement, the Applications, the
Notes or the Support Agreement by the Borrower or (ii) the Support
Agreement by the Parent shall be terminated, revoked or rescinded or
shall otherwise no longer be in full force and effect;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Majority Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances and of the
Committed Issuer to issue, amend or extend Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request or may with the consent, of the Majority Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, 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 obligation of each Lender to make Advances and of the
Committed Issuers to issue, amend or extend Letters of Credit shall
automatically be terminated and (B) the Notes, or 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.
Section 6.02. The Letters of Credit. When any Event of Default has
occurred and is continuing, the Borrower shall, upon demand of the
Administrative Agent or the Majority Lenders, and in the event of an actual
or deemed entry of an order for relief with respect to the Borrower under
the Federal Bankruptcy Code, the Borrower shall, without notice or demand
from the Administrative Agent or the Majority Lenders, immediately deposit
with the Administrative Agent the full amount of each Letter of Credit,
each deposit to be invested in such interest bearing deposit accounts of
the Administrative Agent or high-grade debt securities as the Borrower and
the Administrative Agent shall agree (all such deposits to be and
constitute collateral security for the Borrower's obligations in respect of
the Letters of Credit) the Borrower agreeing to immediately make each such
deposit and acknowledging and agreeing that the Administrative Agent would
not have an adequate remedy at law for failure of the Borrower to honor any
such demand and that the Administrative Agent shall have the right to
require the Borrower to specifically perform such undertaking whether or
not any draws had been made under the Letters of Credit; provided that the
Administrative Agent is irrevocably authorized to sell any such investments
when and as required for application to amounts due and owing from the
Borrower to the Administrative Agent, Issuer or any Lender; provided,
however, that the Administrative Agent shall, upon request of the Borrower
from time to time, release to the Borrower an amount equal to the excess,
if any, of the amount held by the Administrative Agent hereunder over the
aggregate amount of the L/C Obligations then outstanding.
Article VII
The AGENTS
Section 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as Administrative
Agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative 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 (including, without limitation,
enforcement or collection of the Notes), the Administrative 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; provided, however, that the Administrative Agent shall
not be required to take any action which exposes the Administrative Agent
to personal liability or which is contrary to this Agreement or applicable
law. The Administrative 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.
Section 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, administrative
agents or employees shall be liable to any Lender or the Borrower for any
action taken or omitted to be taken by it or them under or in connection
with this Agreement or the Applications, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent (i) may treat the payee of any Note
as the holder thereof until the Administrative Agent receives and accepts
an Assignment and Acceptance 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 and (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. The Agents make 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; (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 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, the Applications, the Notes or any other instrument or document
furnished pursuant hereto or thereto; and (vi) shall incur no liability
under or in respect of this Agreement 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. The Lenders and the Borrower acknowledge
that no Agent other than the Administrative Agent has any duties or
responsibilities hereunder.
Section 7.03. Agents and Affiliates. With respect to its Commitment, the
Advances made by it and the Notes issued to it, each Agent shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include the Agents
in their individual capacities. Each Agent 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 it were not an 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 Agents 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
Agents 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
Administrative Agent (to the extent not reimbursed by the Borrower),
ratably according to (i) at any time on or prior to the Termination Date,
the respective principal amounts of the Contract Notes and credit risk
incident to the Letters of Credit then held by each of them (or if no
Contract Notes or Letters of Credit are at the time outstanding or if any
Contract Notes are held by Persons which are not Lenders, ratably according
to the respective amounts of their Commitments) and (ii) at any time after
the Termination Date, the respective principal amounts of the Notes and
credit risk incident to the Letters of Credit then held by each of them (or
if any Notes are held by Persons that are not Lenders, ratably according to
the respective unpaid principal amounts of the Advances and credit risk
incident to the Letters of Credit made by each Lender), 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
Administrative Agent in any way relating to or arising out of this
Agreement or the Applications or any action taken or omitted by the
Administrative Agent under this Agreement or the Applications, 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 Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Administrative 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 or the Applications, to the extent that such expenses
are reimbursable by the Borrower but for which the Administrative Agent is
not reimbursed by the Borrower.
Section 7.06. Successor Administrative Agent. The Administrative 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. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Administrative Agent.
If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation
or the Majority Lenders' removal of the retiring Administrative Agent, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank described
in clause (i) or (ii) of the definition of "Eligible Assignee" and having a
combined capital and surplus of at least $150,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative 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 Administrative Agent under this
Agreement. Notwithstanding the foregoing if no Event of Default, and no
event that with the giving of notice or the passage of time, or both, would
constitute an Event of Default, shall have occurred and be continuing, then
no successor Administrative Agent shall be appointed under this Section
7.06 without the prior written consent of the Borrower, which consent shall
not be unreasonably withheld or delayed.
Article VIII
Miscellaneous
Section 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Contract Notes, 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 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
(other than any Lender that is the Borrower or an Affiliate of the
Borrower), do any of the following: (a) waive any of the conditions
specified in Section 3.01, 3.02 or 3.03, (b) increase the Commitments of a
Lender or subject a Lender to any additional obligations, (c) reduce the
principal of, or interest on, the Contract Notes or Reimbursement
Obligations or any fees or other amounts payable to the Lenders hereunder,
(d) postpone any date fixed for any payment of principal of, or interest
on, the Contract Notes or any fees or other amounts payable to the Lenders
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Contract Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
hereunder, (f) amend or waive compliance with Sections 5.02(e) or 6.01(h)
(except that Sections 2, 3 and 4 of the Support Agreement may be amended or
compliance therewith waived by the Majority Lenders) or (g) amend this
Section 8.01; and provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition
to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement, the Applications
or any Note.
Section 8.02. Notices, Etc. All notices and other communications
provided for hereunder 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 220 W. Main Street, Louisville, Kentucky 40202, Attention:
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 Assignment and Acceptance pursuant
to which it became a Lender; and if to the Administrative Agent, at its
address at 115 South LaSalle Street, Chicago, Illinois 60603, Attention:
Natural Resources; 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 when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, except that
notices and communications to the Administrative Agent pursuant to Article
II or VII shall not be effective until received by the Administrative
Agent.
Section 8.03. No Waiver, Remedies. No failure on the part of any Lender
or the Administrative 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.
. (a) The Borrower agrees to pay on demand all costs and expenses incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, syndication administration, modification and amendment of this
Agreement, the Applications, the Notes, the Support Agreement and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and
expenses, if any (including, without limitation, counsel fees and expenses
of outside counsel and of internal counsel), incurred by the Administrative
Agent and the Lenders in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the
Applications, the Notes, the Support Agreement and the other documents to
be delivered hereunder, including, without limitation, reasonable counsel
fees and expenses in connection with the enforcement of rights under this
Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Adjusted CD
Rate Advance, Eurodollar Rate Advance or Eurodollar Rate Auction Advance is
made other than on the last day of the Interest Period or term, as
applicable for such Advance, as a result of a payment or Conversion
pursuant to Section 2.11 or 2.14 or a prepayment pursuant to Section 2.12
or acceleration of the maturity of the Notes 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 Administrative Agent), pay to the Administrative
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,
each Agent and their respective Affiliates and their respective officers,
directors, employees and professional advisors (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) that any of them may incur or which may be
claimed against any of them by any person or entity by reason of or in
connection with the execution, delivery or performance of this Agreement,
the Applications, the Notes, the Support Agreement or any transaction
contemplated thereby, or the use by the Borrower or any of its subsidiaries
of the proceeds of any Advance, except to the extent such claim, damage,
loss, liability, cost or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Person's gross negligence or willful misconduct. The
Borrower's obligations under this Section 8.04(c) shall survive the
repayment of all amounts owing to the Lenders and the Agents under this
Agreement, the Applications and the Notes and the termination of the
Commitments. If and to the extent that the obligations of the Borrower
under this Section 8.04(c) are unenforceable for any reason, the Borrower
agrees to make the maximum contribution to the payment and satisfaction
thereof which is permissible under applicable law.
Section 8.05. Right of Set-off. 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 specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes 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 this Agreement, any Application and any Note held by such
Lender, whether or not such Lender shall have made any demand under this
Agreement, such Application or such Note 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 8.05 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
Section 8.06. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, the Administrative Agent and
Syndication Agent and when the Administrative Agent shall have been
notified by each Bank that such Bank has executed it and thereafter shall
be binding upon and inure to the benefit of the Borrower, the Agents, the
Issuers and each Lender and their respective successors and permitted
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, with
the prior written consent of the Borrower and the Administrative Agent
(which consent shall not be unreasonably withheld or delayed), assign to
one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, its rights and obligations in respect of the
Letters of Credit, the Contract Advances owing to it and the Contract Note
or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all such rights
and obligations, (ii) unless both parties to the assignment are Lenders
immediately prior to giving effect to the assignment, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall not be less than $5,000,000 (or if less,
the entire amount of such Lender's Commitment) and shall be an integral
multiple of $1,000,000 (or such Lender's entire Commitment), (iii) each
such assignment shall be to an Eligible Assignee, and (iv) the parties to
each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Contract Note or Notes subject to such
assignment and a processing and recordation fee of $3,500; provided further
that the prior written consent of the Borrower shall not be required during
the continuance of an Event of Default. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in
each Assignment and Acceptance, (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 Assignment and Acceptance, 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 Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance 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).
(b) By executing and delivering an Assignment and Acceptance, 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 Assignment and Acceptance, 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
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto; (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 this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee
acknowledges that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01(f) and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Agents, upon such assigning Lender or upon 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; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, 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 this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance 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
Contract Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative 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 an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Contract Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent in exchange for the surrendered Contract Note or
Notes a new Contract Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Contract Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Contract
Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Contract Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or other entities any
Auction Note or Notes held by it.
(f) Each Lender may sell participations to one or more banks or other
entities in or to 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 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 for all purposes of
this Agreement, and (iv) the Borrower, the Administrative 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.
(g) 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 to preserve the confidentiality of any confidential information
relating to the Borrower received by it from such Lender.
(h) Notwithstanding anything to the contrary set forth herein, any
Lender may assign, as collateral or otherwise, any of its rights hereunder
and under the Notes (including, without limitation, its rights to receive
payments of principal and interest hereunder and under the Notes) to any
Federal Reserve Bank without notice to or consent of the Borrower or the
Administrative Agent.
(i) If any Lender shall make demand for payment under Section
2.13(a), 2.13(b) or 2.16, or shall deliver any notice to the Administrative
Agent pursuant to Section 2.14 resulting in the suspension of certain
obligations of the Lenders with respect to Eurodollar Rate Advances or
shall refuse to consent to any amendment, modification or waiver which has
been approved by the Majority Lenders but can only become effective upon
the consent of all Lenders then within 60 days of such demand, notice or
refusal, the Borrower may demand that such Lender assign in accordance with
this Section 8.07 to one or more Eligible Assignees designated by the
Borrower and approved by the Administrative Agent (which approval will not
be unreasonably withheld or delayed) all (but not less than all) of such
Lender's Commitment, its rights and obligations in respect of Letters of
Credit and the Contract Advances owing to it within the next 30 days but
such Lender shall be entitled to any amount which would have been due to it
under Section 8.04(b) hereof if such Contract Advances had been prepaid
rather than assigned. 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
Assignee for all of such Lender's Commitment or Advances, then such Lender
may assign such Commitment and Advances to any other Eligible Assignee in
accordance with this Section 8.07 during such 30-day period.
Section 8.08. Discretion of Lender as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Lender shall be
entitled to fund and maintain its funding of all or any part of its
Advances in any manner it sees fit, it being understood, however, that for
the purposes of this Agreement all determinations hereunder shall be made
as if each Lender had actually funded and maintained each Eurocurrency Rate
Advance and each Eurodollar Rate Auction Advance through the purchase of
deposits in the eurocurrency interbank market having a maturity
corresponding to such Advance's Interest Period or term, as applicable, and
bearing an interest rate equal to the Eurodollar Rate for such Interest
Period or term, as applicable.
Section 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
Illinois.
Section 8.10. Waiver of Jury Trial. The Borrower, the Agents and the
Lenders hereby irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or
any note, or any other instrument or document hereunder or thereunder.
Section 8.11. 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.
Section 8.12. Termination of Existing Credit Agreements. The Borrower
and each of the Lenders hereunder that is a party to any of the Existing
Credit Agreements, consents to the termination of the "Commitments"
thereunder effective and the repayment of any "Advances" outstanding
thereunder on the date the conditions set forth in Section 3.01 hereof are
fulfilled, notwithstanding any applicable notice requirements for such
termination or prepayment set forth in any Existing Credit Agreement.
Because such Lenders hereunder constitute the "Majority Lenders" under each
of the Existing Credit Agreements, the Existing Credit Agreements shall
terminate and all amounts payable thereunder, including accrued and unpaid
facility fees, shall be payable, and the fees payable under Section 2.05
hereof shall begin to accrue, on the date this Agreement has been executed
by all the parties hereto and the conditions set forth in Section 3.01
hereof have been fulfilled.
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.
LG&E Capital Corp.
By
Name:
Title:
Chase Securities Inc., as Syndication
Agent
By
Name:
Title:
Bank of Montreal, as Administrative
Agent
By
Name:
Title:
Commitment Bank of Montreal
$42,857,142.85
By
Name:
Title:
Commitment The Chase Manhattan Bank
$42,857,142.84
By
Name:
Title:
Commitment Morgan Guaranty Trust Company of
$32,857,142.86 New York
By
Name:
Title:
Commitment PNC Bank, Kentucky, Inc.
$32,857,142.86
By
Name:
Title:
Commitment The Bank of New York
$32,857,142.86
By
Name:
Title:
Commitment The First National Bank of Chicago
$32,857,142.86
By
Name:
Title:
Commitment Wachovia Bank, N.A.
$32,857.142.86
By
Name:
Title:
Commitment Fleet National Bank
$28,571,428.57
By
Name:
Title:
Commitment Bank of America National Trust and
$21,428,571.43 Savings Association
By
Name:
Title:
Commitment Bank One, Kentucky, N.A.
$21,428,571.43
By
Name:
Title:
Commitment BankBoston N.A.
$21,428,571.43
By
Name:
Title:
Commitment Banque Paribas
$21,428,571.43
By
Name:
Title:
Commitment Citibank, N.A.
$21,428,571.43
By
Name:
Title:
Commitment First Union National Bank
$21,428,571.43
By
Name:
Title:
Commitment Kredietbank N.V., Grand Cayman
$21,428,571.43 Branch
By
Name:
Title:
By
Name:
Title:
Commitment Mellon Bank, N.A.
$21,428,571.43
By
Name:
Title:
Commitment NationsBank, N.A.
$21,428,571.43
By
Name:
Title:
Commitment The Bank of Tokyo-Mitsubishi, Ltd.,
$21,428,571.43 Chicago Branch
By
Name:
Title:
Commitment Fifth Third Bank of Kentucky, Inc.
$7,142,857.14
By
Name:
Title:
Schedule I
LG&E Capital Corp.
$500,000,000 Credit Agreement
Eurodollar Domestic CD Lending
Name of Bank Lending Office Lending Office
Office
Bank of Montreal 115 S. LaSalle Street Same as Same as
Chicago, IL 60603 Eurodollar Eurodollar
Notices other than Contact: Patrick Lending Lending
for Borrowings and Escalante Office Office
Repayments: Tel: (312) 750-4356
Fax: (312) 750-3808
115 S. LaSalle Street
Chicago, IL 60603
Contact: Greg Watland
Tel: (312) 750-4356
Fax: (312) 750-3808
The Chase Manhattan 1 Chase Manhattan Same as Same as
Bank Plaza Eurodollar Eurodollar
8th Floor Lending Lending
Notices other than New York, NY 10081 Office Office
for Borrowings and Contact: Lynette
Repayments: Lang
Tel: (212) 552-__92
1 Chase Manhattan Fax: (212) 552-5777
Plaza
3rd Floor
New York, NY 10081
Contact: Thomas Casey
Vice President
Tel: (212) 552-7518
Fax: (212) 968-7485
Morgan Guaranty Trust Nassau Bahamas Office 60 Wall Same as
Company of New York c/o J.P. Morgan Street Domestic
Services, Inc. New York, NY Lending
Notices other than 500 Stanton 10260-0060 Office
for Borrowings and Christiana Road
Repayments: Newark, DE 19713
Contact: Euro-Loan
60 Wall Street, 22nd Servicing
Floor Unit
New York, NY 10260- Tel: (302)
0060 Fax: (302) 634-1094
Contact: Jim Finch
Tel: (212) 648-7141
Fax: (212) 648-5014
PNC Bank, Kentucky, 500 W. Jefferson Same as Same as
Inc. Street Eurodollar Eurodollar
8th Floor Lending Lending
Notices other than Louisville, KY 40202 Office Office
for Borrowings and Contact: Jamie
Repayments: Argenbright
Tel: (502) 581-2086
500 W. Jefferson Fax: (502) 581-2302
Street
8th Floor
Louisville, KY 40202
Contact: Brennan T.
Danile
Corporate
Banking
Officer
Tel: (502) 581-3022
Fax: (502) 581-2302
The Bank of New York 101 Barclay Street Same as Same as
New York, New York Eurodollar Eurodollar
Notices other than Contact: Jo-Ann Lending Lending
for Borrowings and Evans Office Office
Repayments: Tel: (212) 635-7535
Fax: (212) 635-7923
One Wall Street, 19th
Floor
New York, New York
10286
Contact: Timothy M.
Lynch
Tel: (212) 635-7863
Fax: (212) 635-7923
The First National BankOne First National Same as Same as
of Chicago Plaza Eurodollar Eurodollar
Suite 0634 Lending Lending
Notices other than Chicago, IL 60670 Office Office
for Borrowings and Contact: Lynn
Repayments: Pozsgay
Tel: (312) 732-8705
One First National Fax: (312) 732-4840
Plaza
Suite 0363
Chicago, IL 60670
Contact: Cristiana
Freeman
Tel: (312) 732-6321
Fax: (312) 732-3055
Wachovia Bank, N.A. 191 Peachtree Street Same as Same as
29th Floor Eurodollar Eurodollar
Notices other than Atlanta, GA 30303 Lending Lending
for Borrowings and Contact: Karen Office Office
Repayments: Mathews
Tel: (404) 332-5149
191 Peachtree Street Fax: (404) 332-5016
29th Floor
Atlanta, GA 30303
Contact: John B. Tibe
Assistant Vice
President
Tel: (404) 332-1040
Fax: (404) 332-5016
Fleet National Bank One Federal Street Same as Same as
Boston, MA 02211 Eurodollar Eurodollar
Notices other than Contact: Anahid Lending Lending
for Borrowings and Vaeiabedian Office Office
Repayments: Tel: (617) 346-0626
Fax: (617) 346-0595
One Federal Street
Boston, MA 02211
Contact: Thomas L.
Rose
Tel: (617) 346-0572
Fax: (617) 346-0580
Bank of America 350 Gatewat Blvd., Same as Same as
National Trust and 4th Floor Eurodollar Eurodollar
Savings Association Concord, CA 94520 Lending Lending
Contact: Bonnie Office Office
Notices other than Carden
for Borrowings and Account
Repayments: Administration
Tel: (510) 675-7766
Bank of America NT&SA Fax: (510) 675-
555 So. Flower Street, 7531/7632
10th Floor
Los Angeles, CA 90071
Contact: Vanessa Sheh
Meyer
Vice President
Tel: (213) 228-9737
Fax: (213) 228-4062
Bank One, Kentucky, NA P.O. Box 32500 Same as Same as
Louisville, KY 40232- Eurodollar Eurodollar
Notices other than 2500 Lending Lending
for Borrowings and Contact: Sari Lea Office Office
Repayments: Pelkey-Offutt
Tel: (502) 566-8855
416 West Jefferson Fax: (502) 566-8621
Street
Louisville, KY 40202
Contact: Todd D.
Munson
Senior Vice
President
Tel: (502) 566-2650
Fax: (502) 566-8339
BankBoston N.A. 100 Federal St. Same as Same as
Boston, MA 02110 Eurodollar Eurodollar
Notices other than Contact: Debora Lending Lending
for Borrowings and Williams Office Office
Repayments: Tel: (617) 434-9623
Fax: (617) 434-9820
100 Federal St.
Boston, MA 02110
Contact: Rita M.
Cahill
Vice President
Tel: (617) 434-2613
Fax: (617) 434-3652
Banque Paribas 787 Seventh Avenue Same as Same as
New York, New York Eurodollar Eurodollar
Notices other than 10019 Lending Lending
for Borrowings and Contact: Robyn Office Office
Repayments: Gewanter
Tel: (212) 841-2950
787 Seventh Avenue Fax: (12) 841-2217
New York, New York
10019
Contact: Olivier
Serra
Tel: (212) 841-2573
Fax: (12) 841-2555
Citibank, N.A. 2 Penn's Way, Suite Same as Same as
200 Eurodollar Eurodollar
Notices other than New Castle, DE 19720 Lending Lending
for Borrowings and Contact: Kate Bohen Office Office
Repayments: Tel: (302) 894-6077
Fax: (302) 894-6120
399 Park Avenue
4th Floor, Zone 20
New York, NY 10043
Contact: Philip C.
Kron
Attorney-in-fact
Tel: (212) 559-1500
Fax: (212) 793-6130
First Union National 301 South Collete St. Same as Same as
Bank Charlotte, NC 28288- Eurodollar Eurodollar
0735 Lending Lending
Notices other than Contact: Dana Office Office
for Borrowings and Maloney
Repayments: Tel: (704) 383-0296
Fax: (704) 383-6670
301 South Collete St.
Charlotte, NC 28288-
0735
Contact: Tom Bohrer
Director
Tel: (704) 374-6272
Fax: (704) 383-6670
Kredietbank NV, Grand Kredietbank NV, GrandSame as Same as
Cayman Branch Cayman Branch Eurodollar Eurodollar
125 West 55th Street Lending Lending
Notices other than New York, NY 10019 Office Office
for Borrowings and Contact: Lynda
Repayments: Resuma
Loan
1349 West Peachtree Administration
Street Tel: (212) 541-0667
Suite 1750 Fax: (212) 956-5580
Atlanta, GA 30308
Contact: Jackie K.
Brunetto
Vice President
Tel: (404) 876-2558
Fax: (404) 876-3212
Mellon Bank, N.A. Three Mellon Bank Same as Same as
Center Eurodollar Eurodollar
Notices other than Room 2332 Lending Lending
for Borrowings and Pittsburg, PA 15259- Office Office
Repayments: 0003
Contact: Jacqueline
One Mellon Bank Center Terry
Room 4425 Tel: (412) 234-8285
Pittsburg, PA 15258- Fax: (412) 236-2037-
0001 2028
Contact: Richard A.
Matthews
Vice President
Tel: (412) 234-9759
Fax: (412) 236-1840
NationsBank, N.A. 100 North Tryon Same as Same as
Charlotte, NC 28255 Eurodollar Eurodollar
Notices other than Contact: Judy Dudley Lending Lending
for Borrowings and Tel: (704) 386-8201 Office Office
Repayments: Fax: (704) 386-8694
100 North Tryon
Charlotte, NC 28255
Contact: Gretchen P.
Burud
Vice President
Tel: (704) 386-8394
Fax: (704) 386-1260
The Bank of Tokyo- 227 West Monroe Same as Same as
Mitsubishi, Ltd., Street Eurodollar Eurodollar
Chicago Branch Suite 2300 Lending Lending
Chicago, IL 60606 Office Office
Notices other than Contact: Jean Chaney
for Borrowings and Julie Galligan
Repayments: Tel: (312) 696-
4712/4711
227 West Monroe Street Fax: (312) 696-4532
Suite 2300
Chicago, IL 60606
Contact: Christopher
D. Jones
Assistant Vice
President
Tel: (312) 696-4656
Fax: (312) 696-4535
Fifth Third Bank of 401 S. Fourth Avenue Same as Same as
Kentucky, Inc. Louisville, KY 40202 Eurodollar Eurodollar
Contact: Judy R. Lending Lending
Notices other than Semarie Office Office
for Borrowings and Tel: (502) 562-5531
Repayments: Fax: (502) 562-5540
401 S. Fourth Avenue
Louisville, KY 40202
Contact: Robert M.
Eversole
Senior Vice
President
Tel: (502) 562-5533
Fax: (502) 562-5540
Exhibit A-1
Form of Contract Note
U.S. $_______________ Dated: ____________, ____
For Value Received, the undersigned, LG&E Capital Corp., a Kentucky
corporation (the "Borrower"), hereby promises to pay to the order of
_______________ (the "Lender") for the account of its Applicable Lending
Office (such term and other capitalized terms herein being used as defined
in the Credit Agreement referred to below) the principal sum of U.S.
$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Contract Advances made by the Lender to the
Borrower pursuant to the Credit Agreement outstanding on the Termination
Date, payable on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Contract Advance from the date of such Contract Advance until such
principal amount is paid in full, at such interest rates, and payable at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Bank of Montreal, as Administrative Agent, at 115
South LaSalle Street, Chicago, Illinois 60603, in same day funds. Each
Contract Advance made by the Lender to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any offer hereof endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Contract Notes referred to in, and
is entitled to the benefits of, the Credit Agreement, dated as of September
5, 1997 (the "Credit Agreement"), among the Borrower (as successor by
merger to LG&E Energy Systems Inc., a Kentucky corporation, and LG&E Gas
Systems Inc., a Delaware corporation), the Lender and certain other banks
parties thereto, Chase Securities Inc., as Syndication Agent, and Bank of
Montreal, as Administrative Agent for the Lender and such other banks. The
Credit Agreement, among other things, (i) provides for the making of
Contract Advances by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting
from each such Contract Advance being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account
of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
LG&E Capital Corp.
By
Name:
Title:
Advances, Interest Periods and Payments of Principal
___________________________________________________________________________
Interest Amount of
Period (if Principal Unpaid
Amount of any) of Paid or Principal Notation
Date Advance Advance Prepaid Balance Made By
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Exhibit A-2
Form of Auction Note
U.S. $_______________ Dated: ___________, _____
For Value Received, the undersigned, LG&E Capital Corp., a Kentucky
corporation (the "Borrower"), hereby promises to pay to the order of
_______________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on
_______________________, _____, the principal amount of
_________________________________________ Dollars ($___________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at
the interest rate and payable on the interest payment date or dates
provided below:
Interest Rate: ______% per annum (calculated on the
basis of a year of _____ days for the actual number of
days elapsed).
Interest Payment Date or Dates: ______________________
Both principal and interest are payable in lawful money of the United
States of America to ________________________________ for the account of
the Lender at the office of Bank of Montreal, as Administrative Agent, at
115 South LaSalle Street, Chicago, Illinois 60603, in same day funds, free
and clear of and without any deduction, with respect to the payee named
above, for any and all present and future taxes, deductions, charges or
withholdings, and all liabilities with respect thereto to the extent and in
the manner provided in the Credit Agreement.
This Promissory Note is one of the Auction Notes referred to in, and
is entitled to the benefits of, the Credit Agreement, dated as of September
5, 1997 (the "Credit Agreement"), among the Borrower (as successor by
merger to LG&E Energy Systems Inc., a Kentucky corporation, and LG&E Gas
Systems Inc., a Delaware corporation), the Lender and certain other banks
parties thereto, Chase Securities Inc., as Syndication Agent and Bank of
Montreal, as Administrative Agent for the Lender and such other banks. The
Credit Agreement, among other things, contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois
LG&E Capital Corp.
By
Name:
Title:
Exhibit B-1
Form of Notice of Contract Borrowing
Bank of Montreal, as
Administrative Agent
for the Lenders
parties to the
Credit Agreement
referred to below
115 South LaSalle Street
Chicago, Illinois 60603
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, LG&E Capital Corp., refers to the Credit Agreement,
dated as of September 5, 1997 (the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto, Chase Securities Inc., as Syndication
Agent, and Bank of Montreal, as Administrative Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby requests a Contract Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Contract Borrowing (the "Proposed Contract
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Contract Borrowing is
_________, ____.
(ii) The Type of Contract Advances to be made in connection with
the Proposed Contract Borrowing is [Adjusted CD Rate Advances] [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Contract Borrowing is
$_______________________.
(iv) The Interest Period for each Contract Advance made as part
of the Proposed Contract Borrowing is [__________ days] [___________
month[s]].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Contract Borrowing:
(A) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Contract
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date except to the extent any such
representation or warranty expressly relates solely to an earlier date
and except that the reference to the December 31, 1996 financial
statements of the Parent and its Consolidated Subsidiaries in Section
4.01(f) shall be deemed a reference to the most recent quarterly or
annual financial statements of the Parent and its Consolidated
Subsidiaries submitted to the Lenders pursuant to Section 5.01(a)
hereof; and
(B) no event has occurred and is continuing, or would result
from such Proposed Contract Borrowing or from the application of the
proceeds therefrom, that constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
Very truly yours,
LG&E Capital Corp.
By
Name:
Title:
Exhibit B-2
Form of Notice of Auction Borrowing
Bank of Montreal, as
Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
115 South LaSalle Street
Chicago, Illinois 60603
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, LG&E Capital Corp., refers to the Credit Agreement,
dated as of September 5, 1997 (the "Credit Agreement," the terms defined
therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto, Chase Securities Inc., as Syndication
Agent and Bank of Montreal, as Administrative Agent for said Lenders, and
hereby gives you notice pursuant to Section 2.04 of the Credit Agreement
that the undersigned hereby requests an Auction Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such
Auction Borrowing (the "Proposed Auction Borrowing") is requested to be
made:
(A) Date of Auction Borrowing _________________
(B) Amount of Auction Borrowing _________________
(C) Maturity Date _________________
(D) Interest Payment Date(s) _________________
(E) Type of Auction Borrowing* _________________
* Either Fixed Rate Auction Borrowing or Eurodollar rate Auction
Borrowing.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Auction Borrowing:
(a) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Auction
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date except to the extent any such
representation or warranty expressly relates solely to an earlier date
and except that the reference to the December 31, 1996 financial
statements of the Parent and its Consolidated Subsidiaries in Section
4.01(f) shall be deemed a reference to the most recent quarterly or
annual financial statements of the Parent and its Consolidated
Subsidiaries submitted to the Lenders pursuant to Section 5.01(a)
hereof;
(b) no event has occurred and is continuing, or would result
from the Proposed Auction Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both; and
(c) the aggregate amount of the Proposed Auction Borrowing and
all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Commitments of
the Lenders.
The undersigned hereby confirms that the Proposed Auction Borrowing is
to be made available to it in accordance with Section 2.04(a)(v) of the
Credit Agreement.
Very truly yours,
LG&E Capital Corp.
By
Name:
Title:
Exhibit C
Form of Assignment and Acceptance
Dated ________________, _____
Reference is made to the Credit Agreement, dated as of September 5,
1997 (the "Credit Agreement"), among LG&E Capital Corp., a Kentucky
corporation, as successor by merger to LG&E Energy Systems Inc., a Kentucky
corporation, and LG&E Gas Systems Inc., a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement), Chase
Securities Inc., as Syndication Agent, and Bank of Montreal, as
Administrative Agent for the Lenders (the "Administrative Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
__________________________ (the "Assignor") and
_______________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
that interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the date hereof (other than in respect of
Auction Advances and Auction Notes) which represents the percentage
interest specified on Schedule 1 of all outstanding rights and obligations
under the Credit Agreement (other than in respect of Auction Advances and
Auction Notes), including, without limitation, such interest in the
Assignor's Commitment, the Contract Advances owing to the Assignor, the
outstanding Letters of Credit, the Contract Note[s] held by the Assignor
and the rights and obligations of the Assignor with respect to the Letters
of Credit. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Contract Advances owing to the Assignee
will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) 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 the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iv) attaches
the Contract Note[s] referred to in paragraph 1 above and requests that the
Administrative Agent exchange such Contract Note[s] for a new Contract Note
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Contract Notes payable to
the order of the Assignee in an amount equal to the Commitment assumed by
the Assignee pursuant hereto and the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a
Lender [and] (vi) specifies as its CD Lending Office, Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the offices
set forth beneath its name on the signature pages hereof [and (vi) attaches
the forms prescribed by the Internal Revenue Service of the United States
certifying that it is exempt from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes]. 1
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be the date of acceptance
thereof by the Administrative Agent, unless otherwise specified on Schedule
1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Contract Notes in respect of
the interest assigned hereby (including, without limitation, all payments
of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Contract Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
1 If the Assignee is organized under the laws of a jurisdiction outside
the United States.
In Witness Whereof, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date entered above written, such execution being made
on Schedule 1 hereto.
[Name of Assignor]
By
Name:
Title:
[Name of Assignee]
By
Name:
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and address
for notices):
[Address]
Eurodollar Lending Office:
[Address]
Consented to this day
of ____________, ______ Contact for notices other than
Borrowings and Repayments:
Bank of Montreal, as Administrative
Agent
By_______________________________
Name:
Title:
LG&E Capital Corp.
By_______________________________
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated _____________, _____
Section 1.
Percentage Interest: _______%
Section 2.
Assignee's Commitment: $___________
Aggregate Outstanding Principal
Amount of Contract Advances owing to the Assignee: $___________
A Contract Note payable to the order of the Assignee
Dated: _____________, _____
Principal amount:$___________
A Contract Note payable to the order of the Assignor
Dated: _____________, _____
Principal amount: $_________
Section 3.
Effective Date 1 ______________, ___
1 This date should be no earlier than the date of acceptance by the
Administrative Agent.
Exhibit D
Form of Opinion of Special Counsel
for the Borrower and the Parent
September 5, 1997
To each of the Banks which
is a party to the Credit
Agreement (as herein
defined)
Re: LG&E Capital Corp.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01 of the
Credit Agreement, dated as of September 5, 1997 (the "Credit Agreement"),
among LG&E Capital Corp., a Kentucky corporation (the "Borrower"), the
Banks named therein, Chase Securities Inc., as Syndication Agent and Bank
of Montreal, as Administrative Agent, relating to a $500,000,000 revolving
credit facility. Capitalized terms used herein and not defined herein
shall have the meanings assigned thereto in the Credit Agreement.
We have served as counsel to LG&E Energy Corp., a Kentucky corporation
(the "Parent"), and the Borrower in connection with the preparation,
execution and delivery of the Credit Agreement, the Contract Notes and the
Support Agreement.
In that connection, we have examined:
(1) the Credit Agreement;
(2) the Contract Notes executed and delivered on the date hereof
(the "Issued Notes");
(3) the form of the Auction Notes to be delivered by the
Borrower in connection with any Auction Borrowing;
(4) the Support Agreement;
(5) the documents furnished by the Borrower and the Parent
pursuant to Section 3.01 of the Credit Agreement;
(6) the Articles of Incorporation of the Borrower and all
amendments thereto (the "Borrower Charter");
(7) the by-laws of the Borrower and all amendments thereto (the
"Borrower By-laws");
(8) a certificate of the Secretary of the State of Kentucky,
dated __________, 1997, attesting to the continued corporate existence
and good standing of the Borrower in that State;
(9) the Articles of Incorporation of the Parent and all
amendments thereto (the "Parent Charter"); and
(10) the by-laws of the Parent and all amendments thereto (the
"Parent By-laws").
Collectively, the documents identified in clauses (1), (2) and (4) above
are referred to herein as the "Documents".
We have also examined the originals, or copies certified to our
satisfaction, of such other corporate records of the Borrower and the
Parent, certificates of public officials and of officers of the Borrower
and the Parent, and agreements, instruments and other documents, as we have
deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, we have, when relevant facts
were not independently established by us, relied upon certificates of the
Borrower or the Parent, or their respective officers, or of public
officials.
We have assumed the genuineness of all signatures, the legal capacity
of all individuals who have executed the Documents and all other documents
we have reviewed, the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents
submitted to us as certified, photostatic, reproduced or conformed copies.
We have also assumed that the Credit Agreement has been duly authorized,
executed and delivered by each of the Agents and each of the Banks and is
enforceable in accordance with its terms against such parties and that the
execution, delivery and performance of the Credit Agreement by each of the
Agents and each of the Banks does not and will not result in a breach of,
or constitute a default under, any agreement, instrument or other document
to which such party is a party or any order, judgment, writ or decree
applicable to such party to which such party's property is subject.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of Illinois. With your permission,
we have relied without independent investigation upon the opinion being
delivered to you of John R. McCall, Esq., a member of the Kentucky Bar, as
to all matters of Kentucky law involved in opinions set forth below. In
our opinion, you and we are justified in so relying upon the opinion of
John R. McCall, Esq.
Based upon the foregoing and subject to the qualifications and
exceptions set forth herein, we are of the following opinion:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
2. The Parent is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
3. The execution, delivery and performance by the Borrower of
the Credit Agreement, the Notes and the Support Agreement are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Borrower
Charter or the Borrower By-Laws or (ii) any Federal law, rule or
regulation applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System).
4. No authorization, approval or other action by, and no notice
to or filing with, any agency or instrumentality of the government of
the United States is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement, the Notes and the
Support Agreement or by the Parent of the Support Agreement.
5. The Credit Agreement and the Issued Notes have been duly
executed and delivered on behalf of the Borrower. The Credit
Agreement and the Issued Notes are the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
6. The execution, delivery and performance by the Parent of the
Support Agreement are within the Parent's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene (i) the Parent Charter or the Parent By-laws or (ii) any
Federal law, rule or regulation applicable to the Parent (including,
without limitation, Regulation X of the Board of Governors of the
Federal Reserve System).
7. The Support Agreement has been duly executed and delivered
by the Parent and the Borrower. The Support Agreement is the legal,
valid and binding obligation of the Parent and the Borrower
enforceable against the Parent and the Borrower, respectively, in
accordance with its terms.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinions in paragraphs 5 and 7 above are subject to the
effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of the rights of
creditors.
(b) Our opinions in paragraphs 5 and 7 above are subject to the
effect of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(c) Except as set forth below, we express no opinion herein as
to the validity or enforceability of any provision regarding choice of
law to govern the Documents or of any provision of the Documents for
indemnification. However, we understand that this transaction was
principally negotiated in Illinois and the Documents were delivered by
the Borrower in Illinois and the monetary obligations of the Borrower
are payable in Illinois. Accordingly, we believe that an Illinois
court would have a reasonable basis to and should recognize and give
effect to the provisions of Section 8.08 of the Credit Agreement
wherein the parties thereto agree that the Credit Agreement and the
Notes shall be governed by, and construed in accordance with, the laws
of the State of Illinois.
(d) The authorization of the Board of Directors of the Parent
limits the indebtedness of the Borrower to be covered by the Support
Agreement and any other support agreements of the Parent to
$700,000,000. Thus, additional authorization of the Board of
Directors of the Parent is required if the aggregate indebtedness of
the Borrower covered by the Support Agreement and any other support
agreements of the Parent exceeds $700,000,000. Officers of the Parent
have certified that as of the date hereof no indebtedness of the
Borrower is covered by any other support agreements of the Parent.
(e) The Agreement and Plan of Merger dated as of May 20, 1997
(the "KU Merger Agreement") by and between LG&E Energy Corp. and KU
Energy Corporation contains restrictions on the incurrence or
guarantee of indebtedness by the Parent and the Borrower. Pursuant to
the terms of the KU Merger Agreement, the Parent must obtain the
written consent of KU Energy Corporation prior to the incurrence by
the Borrower of indebtedness in excess of the limitations set forth in
the KU Merger Agreement.
This opinion is rendered only with respect to the laws and the
regulations which are in effect as of the date hereof. We assume no
responsibility for updating this opinion to take into account any event,
action, interpretation or change of law occurring subsequent to the date
hereof that may affect the validity of any of the opinions expressed
herein.
The foregoing opinion is furnished solely for the benefit of the
addressees hereof in connection with the Documents and the transactions
contemplated thereby, and, except as set forth in the immediately
succeeding sentence, may not be relied upon by any other Person (other than
any Person that may become a Lender under the Credit Agreement after the
date hereof who may rely hereon to the extent that the addressees may so
rely) or for any other purpose without our prior written consent. We are
aware that Chapman and Cutler will rely upon the opinions set forth herein
in rendering their opinion furnished pursuant to Section 3.01 of the Credit
Agreement.
Very truly yours,
Exhibit E
Form of Opinion of Corporate Attorney
for the Borrower and the Parent
September 5, 1997
To each of the Banks which
is a party to the Credit
Agreement
(as herein defined)
Re: LG&E Capital Corp.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01 of the
Credit Agreement, dated as of September 5, 1997 (the "Credit Agreement"),
among LG&E Capital Corp., a Kentucky corporation (the "Borrower"), the
Banks named therein, Chase Securities, Inc., as Syndication Agent and Bank
of Montreal, as Administrative Agent, relating to a $500,000,000 revolving
credit facility. Capitalized terms used herein and not defined herein
shall have the meanings assigned thereto in the Credit Agreement.
I am General Counsel for LG&E Energy Corp., a Kentucky corporation
(the "Parent"), and have served as counsel to the Parent and the Borrower
in connection with the preparation, execution and delivery of the Credit
Agreement, the Contract Notes and the Support Agreement.
In that connection, I have examined:
(1) the Credit Agreement;
(2) the Contract Notes executed and delivered on the date hereof
(the "Issued Notes");
(3) the form of the Auction Notes to be delivered by the
Borrower in connection with any Auction Borrowing;
(4) the Support Agreement;
(5) the documents furnished by the Borrower and the Parent
pursuant to Section 3.01 of the Credit Agreement;
(6) the Articles of Incorporation of the Borrower and all
amendments thereto (the "Borrower Charter");
(7) the by-laws of the Borrower and all amendments thereto (the
"Borrower By-laws");
(8) the Articles of Incorporation of the Parent and all
amendments thereto (the "Parent Charter");
(9) the by-laws of the Parent and all amendments thereto (the
"Parent By-Laws");
(10) the Agreement and Plan of Merger dated as of __________,
1997 between Energy Systems and Gas Systems;
(11) the Articles of Merger of LG&E Energy Systems Inc. and LG&E
Gas Systems Inc. dated _________, 1997, filed with the Secretary of
State of the Commonwealth of Kentucky; and
(12) the Certificate of Merger of LG&E Energy Systems Inc. and
LG&E Gas Systems dated ___________, 1997, filed with the Secretary of
State of the State of Delaware.
Collectively, the documents identified in clauses (1), (2) and (4)
above are referred to herein as the "Documents".
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower and the
Parent, certificates of public officials and of officers of the Borrower
and the Parent, and agreements, instruments and other documents, as I have
deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, I have, when relevant facts
were not independently established by me, relied upon certificates of the
Borrower or the Parent, or their respective officers, or of public
officials.
I have assumed the genuineness of all signatures (other than those of
officers of the Parent and the Borrower), the legal capacity of all
individuals (other than the officers of the Parent and the Borrower) who
have executed the Documents and all other documents I have reviewed, the
authenticity of all documents submitted to me as originals and the
conformity to original documents of all documents submitted to me as
certified, photostatic, reproduced or conformed copies. I have also
assumed that the Credit Agreement has been duly authorized, executed and
delivered by the Agents and each of the Banks and is enforceable in
accordance with its terms against such parties and that the execution,
delivery and performance of the Credit Agreement by the Agents and each of
the Banks does not and will not result in a breach of, or constitute a
default under, any agreement, instrument or other document to which such
party is a party or any order, judgment, writ or decree applicable to such
party or to which such party's property is subject.
I am qualified to practice law in the Commonwealth of Kentucky and do
not purport to be expert on any laws other than the laws of the
Commonwealth of Kentucky.
Based upon the foregoing and subject to the qualifications and
exceptions set forth herein, I am of the following opinion:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
2. The Parent is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
3. The execution, delivery and performance of the Borrower of
the Credit Agreement, the Notes and the Support Agreement are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Borrower
Charter or the Borrower By-Laws or (ii) any law, rule or regulation of
the Commonwealth of Kentucky or (iii) any order, writ, injunction or
decree of any court or government instrumentality, to which the
Borrower is subject or by which it or its property is bound or (iv)
any contractual or legal restriction contained in any indenture, loan
or credit agreement, mortgage or note of the Borrower or, to my
knowledge, contained in any other similar agreement or instrument to
which the Borrower is a party.
4. The execution, delivery and performance by the Parent of the
Support Agreement are within the Parent's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene (i) the Parent Charter or the Parent By-Laws, (ii) any law,
rule or regulation of the Commonwealth of Kentucky, (iii) any order,
writ, injunction or decree of any court or government instrumentality,
to which the Parent is subject or by which it or its property is bound
or (iv) any contractual or legal restriction contained in any
indenture, loan or credit agreement, mortgage or note of the Parent
or, to my knowledge, contained in any other similar agreement or
instrument to which the Parent is a party.
5. No authorization, approval or other action by, and no notice
to or filing with, any agency or instrumentality of the government of
the Commonwealth of Kentucky is required for the due execution,
delivery and performance by the Borrower of the Credit Agreement, the
Notes and the Support Agreement or by the Parent of the Support
Agreement.
6. The Credit Agreement and the Issued Notes have been duly
executed and delivered on behalf of the Borrower. I believe that in
any action or proceeding arising out of or relating to the Credit
Agreement or the Notes in any court of the Commonwealth of Kentucky or
in any federal court sitting in the Commonwealth of Kentucky, such
court would have a reasonable basis to and should recognize and give
effect to the provisions of Section 8.08 of the Credit Agreement
wherein the parties thereto agree that the Credit Agreement and the
Notes shall be governed by, and construed in accordance with, the laws
of the State of Illinois, including the usury law of the State of
Illinois. However, if a court were to hold that the Credit Agreement
and the Notes are governed by, and to be construed in accordance with,
the laws of the Commonwealth of Kentucky, the Credit Agreement, the
Contract Notes and the Auction Notes, when duly executed and delivered
by the Borrower in accordance with the terms of the Credit Agreement,
would be, under the laws of the Commonwealth of Kentucky, legal, valid
and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
7. The Support Agreement has been duly executed and delivered
by the Parent and the Borrower. The Support Agreement is the legal,
valid and binding obligation of the Parent and the Borrower
enforceable against the Parent and the Borrower, respectively, in
accordance with its terms.
8. There are no pending or, to my knowledge, overtly threatened
actions or proceedings against the Borrower, the Parent or any of
their respective subsidiaries before any court, governmental agency or
arbitrator that purport to effect the legality, validity, binding
effect or enforceability of the Credit Agreement, any Note or the
Support Agreement or, except as disclosed in the SEC Reports or to the
Banks in writing, that could reasonably be expected to have a material
adverse effect upon the financial condition, operations, business or
prospects of the Parent and its subsidiaries, taken as a whole.
9. The Transaction has become effective and all property of
each of the Constituent Companies is vested in the Borrower and the
Borrower shall have all liabilities of each of the Constituent
Companies.
The opinions set forth above are subject to the following
qualifications:
(a) My opinions in paragraphs 6 and 7 above are subject to the
effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of the rights of
creditors.
(b) My opinions in paragraphs 6 and 7 above are subject to the
effect of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(c) Except as expressly set forth herein, I express no opinion
herein as to the validity or enforceability of any provision regarding
choice of law to govern the Documents or of any provision of the
Documents for indemnification.
(d) I express no opinion as to whether the execution, delivery
and performance of the Documents will constitute a breach of, or
constitute a default under, any covenant or provision with respect to
financial ratios or tests or any aspect of the financial condition or
results of operations of the Parent or the Borrower contained in an
agreement to which the Parent or the Borrower is a party.
(e) The authorization of the Board of Directors of the Parent
limits the indebtedness of the Borrower to be covered by the Support
Agreement and any other support agreements of the Parent to
$700,000,000. Thus, additional authorization of the Board of
Directors of the Parent is required if the aggregate indebtedness of
the Borrower covered by the Support Agreement and any other support
agreements of the Parent exceeds $700,000,000. Officers of the Parent
have certified that as of the date hereof no indebtedness of the
Borrower is covered by any other support agreements of the Parent.
(f) The Agreement and Plan of Merger dated as of May 20, 1997
(the "KU Merger Agreement") by and between LG&E Energy Corp. and KU
Energy Corporation contains restrictions on the incurrence or
guarantee of indebtedness by the Parent and the Borrower. Pursuant to
the terms of the KU Merger Agreement, the Parent must obtain the
written consent of KU Energy Corporation prior to the incurrence by
the Borrower of indebtedness in excess of the limitations set forth in
the KU Merger Agreement.
This opinion is rendered only with respect to the laws and the
regulations which are in effect as of the date hereof. I assume no
responsibility for updating this opinion to take into account any
event, action, interpretation or change of law occurring subsequent to
the date hereof that may affect the validity of any of the opinions
expressed herein.
The foregoing opinion is furnished solely for the benefit of the
addressees hereof in connection with the Documents and the transactions
contemplated thereby, and, except as set forth in the immediately
succeeding sentence, may not be relied upon by any other Person (other than
any Person that may become a Lender under the Credit Agreement after the
date hereof who may rely hereon to the extent that the addressees may so
rely) or for any other purpose without my prior written consent. I am
aware that Chapman and Cutler will rely upon the opinions set forth herein
in rendering their opinion furnished pursuant to Section 3.01 of the Credit
Agreement.
Very truly yours,
Exhibit F
Form of Opinion of Special
Illinois Counsel to the ADMINISTRATIVE AGENT
September 5, 1997
To each of the Banks which
is a party to the Credit
Agreement (as herein
defined)
Re: LG&E Capital Corp.
Ladies and Gentlemen:
We have acted as special Illinois counsel to Bank of Montreal,
individually and as Administrative Agent, in connection with the
preparation, execution and delivery of the Credit Agreement, dated as of
September 5, 1997 (the "Credit Agreement"), among LG&E Capital Corp. (the
"Borrower"), the banks parties thereto (the "Banks"), Chase Securities
Inc., as Syndication Agent and Bank of Montreal, as Administrative Agent,
relating to a $500,000,000 revolving credit facility. Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as
therein defined.
In that connection, we have examined (i) counterparts of the Credit
Agreement, executed by the Borrower, the Banks, the Syndication Agent and
the Administrative Agent (ii) the Contract Notes, executed by the Borrower
and (iii) the form of the Auction Notes to be delivered by the Borrower in
connection with any Auction Borrowing (the "Credit Documents") as well as
the opinion of John R. McCall, Esq., General Counsel for LG&E Energy Corp.,
a Kentucky corporation and counsel for the Borrower (the "Borrower's
Counsel Opinion"), and the opinion of Gardner, Carton & Douglas, special
counsel for the Borrower and the Parent (the "Special Counsel Opinion"),
each furnished to the Administrative Agent pursuant to Section 3.01(a) of
the Credit Agreement.
In our examination of the documents referred to above, we have assumed
the authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing
such documents and the conformity to the originals of all such documents
submitted to us as copies. We have also assumed that each of the Banks,
the Syndication Agent and the Administrative Agent have duly executed and
delivered, with all necessary power and authority (corporate and
otherwise), the Credit Agreement.
To the extent that our opinions expressed below involve conclusions as
to matters governed by law other than the law of the State of Illinois or
as to consummation of the Transaction, we have relied upon the Borrower's
Counsel Opinion and the Special Counsel Opinion and have assumed without
independent investigation the correctness of the matters set forth therein,
our opinions expressed below being subject to the assumptions,
qualifications and limitations set forth in the Borrower's Counsel Opinion
and the Special Counsel Opinion. As to matters of fact, we have relied
solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications and
assumptions set forth below, we are of the opinion that:
(i) The Credit Agreement and each of the Contract Notes are, and
the Auction Notes, when duly executed and delivered by the Borrower in
accordance with the terms of the Credit Agreement, will be, the legal,
valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(ii) While we have not independently considered the matters
covered by the Borrower's Counsel Opinion and the Special Counsel
Opinion to the extent necessary to enable us to express the
conclusions stated therein, each of the Borrower's Counsel Opinion,
the Special Counsel Opinion are substantially responsive to the
corresponding requirements set forth in Section 3.01 of the Credit
Agreement pursuant to which the same have been delivered.
Our opinions are subject to the following qualifications and
assumptions:
(a) We have assumed the due authorization, execution and
delivery of the Credit Documents in accord with all relevant legal
requirements applicable to the Borrower.
(b) The enforceability of the Credit Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, preference or similar laws affecting creditors' rights.
(c) The enforceability of the Credit Documents may be limited by
general principles of materiality, reasonableness, good faith and fair
dealing, the availability of the remedies of specific performance or
injunction relief may be subject to the discretion of the court and
certain remedial provisions may be limited by applicable law; however
such limitations do not in our opinion make the remedies afforded by
the Credit Documents taken as a whole inadequate.
(d) The Credit Documents provide that they are to be governed by
the laws of the State of Illinois. We understand that this
transaction was principally negotiated in Illinois and the Credit
Documents were delivered by the Borrower in Illinois and the monetary
obligations of the Borrower are payable in Illinois. Accordingly, we
believe that an Illinois court would respect the choice of law of the
parties.
(e) We express no opinion herein as to (i) the enforceability of
provisions purporting to grant to a party conclusive rights of
determination, (ii) the availability of specific performance or other
equitable remedies, (iii) the enforceability of rights to indemnity
under Federal or state securities laws and (iv) the enforceability of
waivers by parties of their respective rights and remedies under law.
(f) Our opinions expressed above are limited to the law of the
State of Illinois and the Federal law of the United States, and we do
not express any opinion herein concerning any other law. Without
limiting the generality of the foregoing, we express no opinion as to
the effect of the law of any jurisdiction other than the State of
Illinois wherein any Lender may be located or wherein enforcement of
the Credit Agreement or the Notes may be sought that limits the rates
of interest legally chargeable or collectible.
The foregoing opinion is solely for your benefit and may not be relied
upon by any other Person other than any Person that may become a Lender
under the Credit Agreement after the date hereof.
Very truly yours,
TAMcIlroy/rm
Exhibit G
Support Agreement
Exhibit H
Existing Letters of Credit
Letter of Credit
Number Amount Beneficiary Expiration Date
SLCDC3896/900259 11,000.00 Firemen's September 5, 1997
Insurance Co. of
Newark
SLCDC3896/900260 172,000.00 Kansas City Fire September 5, 1997
& Marine
Insurance
SLCDC3896/900264 1,000,000.00 National Union May 1, 1998
Fire Insurance
SLCDC3896/910622 330,000.00 Exxon Corporation September 30,
1997
SLCDC3896/911221 624,774.00 Stemmons Place July 15, 1998
Joint Venture
SLCDC3896/911239 3,250,000.00 AIG Trading December 31, 1997
Corporation
SLCDC3896/911783 2,500,000.00 Quicktrade L.L.C. December 31, 1997
SLCDC3896/911818 500,000.00 Nationsbank, N.A. December 31, 1997
SLCDC3896/911871 1,000,000.00 Altra Streamline, October 31, 1997
L.L.C.
SLCDC3896/911876 1,000,000.00 Banque Paribas July 31, 1998
SLCDC3896/911933 825,000.00 Transcanada November 15, 1997
Energy Marketing
SLCDC3896/912179 2,000,000.00 Credit Suisse June 3, 1998
First Boston
SLCDC3896/912104 1,000,000.00 Exxon Compay December 31, 1997
U.S.A.
SLCDC3896/912106 700,000.00 J. Aron and December 31, 1997
Company
SLCDC3896/912108 800,000.00 Phibro Inc. October 15, 1997
SLCDC3896/912109 2,000,000.00 Koch Energy December 31, 1997
Trading, Inc.
SLCDC3896/911499 5,000,000.00 Credit Suisse, As January 30, 1998
Agent
SLCDC3896/911541 5,000,000.00 Credit Suisse, As March 21, 1998
Agent
SLCDC3896/911865 1,000,000.00 Portland General October 31, 1997
Electric Company
SLCDC3896/911914 2,998,888.00 Transportadora de March 31, 1998
Gas Del Norte
SLCDC3896/911932 3,300,000.00 Koch Energy December 31, 1997
Trading, Inc.
Letter of Credit
Number Amount Beneficiary Expiration Date
SLCDC3896/912012 412,500.00 Southern November 8, 1997
California Edison
Company
SLCDC3896/912126 250,000.00 Merrill Lynch April 2, 1999
Capital Services
SLCDC3896/912252 15,000,000.00 Enron Power December 31, 1997
Marketing Inc.
--
Exhibit 10.02
U.S. $200,000,000
Credit Agreement
Dated as of September 5, 1997
Among
LG&E Capital Corp.,
as Borrower,
The Banks Named Herein,
as Lenders,
Chase Securities Inc.,
as Syndication Agent,
Bank of Montreal,
as Administrative Agent,
Morgan Guaranty Trust Company of New York,
PNC Bank, Kentucky, Inc.,
The Bank of New York,
The First National Bank of Chicago
and
Wachovia Bank, N.A.,
as CoAgents
Table of Contents
Section Description Page
Article I Definitions and Accounting Terms 1
Section 1.01.Certain Defined Terms 1
Section 1.02.Computation of Time Periods 12
Section 1.03.Accounting Terms 12
Article II Amounts and Terms of the Advances 12
Section 2.01.The Contract Advances 12
Section 2.02.Making the Contract Advances 13
Section 2.03.The Auction Advances 14
Section 2.04.Fees 18
Section 2.05.Reduction of the Commitments 19
Section 2.06.Repayment of Contract Advances 19
Section 2.07.Interest on Contract Advances 19
Section 2.08.Additional Interest on Eurodollar Rate Advances
and Eurodollar Rate Auction Advances 20
Section 2.09.Interest Rate Determination 20
Section 2.10.Conversion of Contract Advances 21
Section 2.11.Prepayments 22
Section 2.12.Increased Costs 23
Section 2.13.Illegality 24
Section 2.14.Payments and Computations 25
Section 2.15.Taxes 26
Section 2.16.Sharing of Payments, Etc. 28
Section 2.17.Extension of Termination Date. 29
Article III Conditions of Lending 29
Section 3.01.Conditions Precedent to Initial Advances 29
Section 3.02.Condition Precedent to Each Contract Borrowing 32
Section 3.03.Conditions Precedent to Each Auction Borrowing 32
Section 3.04.Condition Precedent to Certain Conversions 33
Article IV Representations and Warranties 33
Section 4.01.Representations and Warranties of the Borrower 33
Article V Covenants of the Borrower 36
Section 5.01.Affirmative Covenants 36
Section 5.02.Negative Covenants 39
Article VI Events of Default 41
Section 6.01.Events of Default 41
Article VII The AGENTS 44
Section 7.01.Authorization and Action 44
Section 7.02.Administrative Agent's Reliance, Etc 44
Section 7.03.Agents and Affiliates 45
Section 7.04.Lender Credit Decision 45
Section 7.05.Indemnification 45
Section 7.06.Successor Administrative Agent 46
Article VIII Miscellaneous 46
Section 8.01.Amendments, Etc 46
Section 8.02.Notices, Etc 47
Section 8.03.No Waiver, Remedies 47
Section 8.04.Costs and Expenses; Indemnification 47
Section 8.05.Right of Set-off 48
Section 8.06.Binding Effect 48
Section 8.07.Assignments and Participations 49
Section 8.08.Discretion of Lender as to Manner of Funding 51
Section 8.09.Governing Law 52
Section 8.10.Waiver of Jury Trial 52
Section 8.11.Execution in Counterparts 52
Section 8.12.Termination of Existing Credit Agreements 52
Signatures 53
Schedule I- List of Applicable Lending Offices
Exhibit A-1-Form of Contract Note
Exhibit A-2-Form of Auction Note
Exhibit B-1-Form of Notice of Contract Borrowing
Exhibit B-2-Form of Notice of Auction Borrowing
Exhibit C- Form of Assignment and Acceptance
Exhibit D- Form of Opinion of Special Counsel for the Borrower and the
Parent
Exhibit E- Form of Opinion of Corporate Attorney for the Borrower and
the Parent
Exhibit F- Form of Opinion of Special Illinois Counsel to the
Administrative Agent
Exhibit G- Form of Support Agreement
Credit Agreement
Dated as of September 5, 1997
LG&E Capital Corp., a Kentucky corporation, the banks (the "Banks")
listed on the signature pages hereof, Chase Securities, Inc., as
Syndication Agent, and Bank of Montreal, as Administrative Agent for the
Lenders hereunder, 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):
"Adjusted CD Rate" means, for any Interest Period for each Adjusted CD
Rate Advance made as part of the same Contract Borrowing, an interest rate
per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the rate of
interest determined by the Administrative Agent to be the average
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum
if such average is not such a multiple) of the consensus bid rate
determined by each of the Reference Banks for the bid rates per annum,
at 9:00 A.M. (Chicago time) (or as soon thereafter as practicable) on
the first day of such Interest Period, of Chicago or New York
certificate of deposit dealers of recognized standing selected by such
Reference Bank for the purchase at face value of certificates of
deposit of such Reference Bank in an amount substantially equal to
such Reference Bank's Adjusted CD Rate Advance made as part of such
Contract Borrowing and with a maturity equal to such Interest Period,
by (ii) a percentage equal to 100% minus the Adjusted CD Rate Reserve
Percentage for such Interest Period, plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each Adjusted CD Rate
Advance made as part of the same Contract Borrowing shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks on the first
day of such Interest Period, subject, however, to the provisions of Section
2.09.
"Adjusted CD Rate Advance" means a Contract Advance that bears
interest as provided in Section 2.07(b).
"Adjusted CD Rate Reserve Percentage" for the Interest Period for each
Adjusted CD Rate Advance made as part of the same Contract Borrowing means
the reserve percentage applicable on the first day of such Interest Period
under 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, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with deposits exceeding one
billion dollars with respect to liabilities consisting of or including
(among other liabilities) U.S. dollar nonpersonal time deposits in the
United States with a maturity equal to such Interest Period.
"Adjusted Debt" means Debt of the kind described in clauses (i)
through (vi) of the definition of "Debt" of the Parent and its Consolidated
Subsidiaries; provided, however, that for all purposes of this Agreement
"Adjusted Debt" shall not include Non-Recourse Debt.
"Administrative Agent" means Bank of Montreal and any successor
thereto appointed pursuant to the terms of Section 7.06 hereof.
"Advance" means a Contract Advance or an Auction Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Agents" means the Administrative Agent, the Syndication Agent and
those banks named as Co-Agents on the facing page hereof.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's CD Lending Office in the case of an Adjusted CD Rate Advance, and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of an Auction Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its Applicable
Lending Office with respect to such Auction Advance.
"Applicable Margin" means, for any Contract Advance, the interest rate
per annum set forth below in the column entitled "Base Rate", "CD Rate", or
"Eurodollar Rate," as appropriate:
Eurodollar Rate
Level Base Rate CD Rate
For each day Level I Status 0% 0.300% 0.175%
exists
For each day Level II Status 0% 0.310% 0.185%
exists
For each day Level III Status 0% 0.325% 0.200%
exists
For each day Level IV Status 0% 0.375% 0.250%
exists
For each day Level V Status 0% 0.565% 0.440%
exists
"Assessment Rate" for the Interest Period for each Adjusted CD Rate
Advance made as part of the same Contract Borrowing means the annual
assessment rate estimated by the Administrative Agent on the first day of
such Interest Period for determining the then current annual assessment
payable by a member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. Section
327.3(d) (or any successor provision) to the Federal Deposit Insurance
Corporation (or such successor's) insuring time deposits at offices of such
institution in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the
Assessment Rate.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and consented to by the
Administrative Agent and the Borrower, in substantially the form of Exhibit
C hereto.
"Auction Advance" means an advance by a Lender to the Borrower as part
of an Auction Borrowing resulting from the auction bidding procedure
described in Section 2.03.
"Auction Borrowing" means a borrowing consisting of simultaneous
Auction Advances from each of the Lenders whose offer to make one or more
Auction Advances as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section 2.03.
"Auction Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
an Auction Advance made by such Lender.
"Base Rate" means, for any period, 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:
(a) the rate of interest announced by the Administrative Agent
from time to time as its prime commercial rate, or equivalent, for
U.S. Dollar loans to borrowers located in the United States, with any
change in the Base Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant change
in said prime commercial rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate in effect
from time to time.
"Base Rate Advance" means a Contract Advance that bears interest as
provided in Section 2.07(a).
"Borrower" means LG&E Capital Corp., a Kentucky corporation, as
successor by merger to Energy Systems and Gas Systems.
"Borrowing" means a Contract Borrowing or an Auction Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in Chicago, Illinois and, if the applicable Business
Day relates to any Eurodollar Rate Advances or Eurodollar Rate Auction
Advances, on which dealings are carried on in the interbank market for
eurodollars.
"Capitalization Ratio" means the ratio of Adjusted Debt of the Parent
and its Consolidated Subsidiaries to the sum of Adjusted Debt of the Parent
and its Consolidated Subsidiaries plus capital stock (including capital in
excess of par and any other capital surplus), net of treasury shares plus
(or minus in the case of a deficit) retained earnings of the Parent and its
Consolidated Subsidiaries, plus minority interests, all computed in
accordance with GAAP.
"CD Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "CD Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"Closing Date" means the first date on which all conditions set forth
in Section 3.01 hereof have been satisfied or waived.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated Subsidiary" means for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated
with the financial statements of such Person in accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any time the same is to be
determined, the total assets of the Borrower and its Consolidated
Subsidiaries minus the sum of (i) total liabilities of the Borrower and its
Consolidated Subsidiaries and (ii) the aggregate book value of all
intangible assets, each as determined in accordance with GAAP.
"Constituent Companies" means Gas Systems and Energy Systems.
"Contract Advance" means an advance by a Lender to the Borrower as
part of a Contract Borrowing and refers to an Adjusted CD Rate Advance, a
Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a
"Type" of Contract Advance.
"Contract Borrowing" means a borrowing consisting of simultaneous
Contract Advances of the same Type with the same Interest Period made by
each of the Lenders pursuant to Section 2.01 or Converted pursuant to
Section 2.09 or 2.10.
"Contract Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Contract Advances made by such Lender.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another type or the selection of a
new, or the renewal of the same, Interest Period for Eurodollar Rate
Advances or Adjusted CD Rate Advances, as the case may be, pursuant to
Section 2.09 or 2.10.
"Debt" of any Person means (without duplication), all liabilities,
obligations and indebtedness of such Person (i) for borrowed money, (ii)
evidenced by bonds, indentures, notes, or other similar instruments, (iii)
to pay the deferred purchase price of property or services, (iv) as lessee
under leases that shall have been or should be, in accordance with GAAP,
recorded as capital leases, (v) under reimbursement agreements or similar
agreements with respect to the issuance of letters of credit (other than
obligations in respect of letters of credit (to the extent undrawn) opened
to provide for the payment of goods or services purchased or other
obligations incurred in the ordinary course of business), (vi) under direct
guaranties and indemnities in respect of, and 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,
liabilities, obligations or indebtedness of others of the kinds referred to
in clauses (i) through (v) above, in each case to the extent reasonably
quantifiable, and (vii) liabilities in respect of unfunded vested benefits
under plans covered by Title IV of ERISA; provided, however, that for all
purposes of this Agreement "Debt" shall not include any Nonrecourse Debt or
Trade Obligations.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Eligible Assignee" means (i) a commercial bank 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 has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, 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) a
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership or other entity) engaged generally in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business; (iv) the central bank of any country that
is a member of the OECD; or (v) any Bank; provided, however, that (A) any
such Person described in clause (i), (ii), (iii) or (iv) above shall also
(x) 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
such corporation is in the business of rating unsecured indebtedness of
entities engaged in such businesses) and (y) 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), and (B) any Person described in clause (ii), (iii) or
(iv) above shall, on the date on which it is to become a Lender hereunder,
be entitled to receive payments hereunder without deduction or withholding
of any United States Federal income taxes (as contemplated by Section
2.15(d)).
"Energy Systems" means LG&E Energy Systems Inc., a Kentucky
corporation, a predecessor company of the Borrower.
"Environmental Laws" means any federal, state or local laws,
ordinances or codes, rules, orders, or regulations relating to pollution or
protection of the environment, including, without limitation, laws relating
to hazardous substances, laws relating to reclamation of land and waterways
and laws relating to emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollution,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder, each as in effect and amended and modified from time to
time.
"ERISA Affiliate" of a person or entity means any trade or business
(whether or not incorporated) that is a member of a group of which such
person or entity is a member and that is under common control with such
person or entity within the meaning of Section 414 of the Internal Revenue
Code of 1986, and the regulations promulgated and rulings issued
thereunder, each as in effect and amended or modified from time to time.
"ERISA Plan" means an employee benefit plan maintained for employees
of any Person or any ERISA Affiliate of such Person subject to Title IV of
ERISA.
"ERISA Termination Event" means (i) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to PBGC),
or (ii) the withdrawal of the Borrower or any of its ERISA Affiliates from
an ERISA Plan during a plan year in which the Borrower or any of its ERISA
Affiliates was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to terminate an ERISA Plan
or the treatment of an ERISA Plan amendment as a termination under Section
4041 of ERISA, or (iv) the institution of proceedings to terminate an ERISA
Plan by the PBGC or to appoint a trustee to administer any ERISA Plan, or
(v) any other event or condition that would constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer any ERISA 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 of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance made as part of the same Contract Borrowing or for the term of
each Eurodollar Rate Auction Advance made as part of the same Auction
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
to prime banks in the interbank market at 9:00 A.M. (Chicago time) two
Business Days before the first day of such Interest Period or such Auction
Borrowing, as the case may be, in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance made as part of such Contract
Borrowing or, in the case of an Auction Borrowing, in an amount
substantially equal to such Auction Borrowing and for a period equal to
such Interest Period or such term, as the case may be. The Eurodollar Rate
for the Interest Period for each Eurodollar Rate Advance made as part of
the same Contract Borrowing or for the term of each Eurodollar Rate Auction
Advance comprising part of the same Auction Borrowing shall be determined
by the Administrative Agent as the average of applicable rates furnished to
and received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period or such Auction
Borrowing, subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means a Contract Advance that bears interest
as provided in Section 2.07(c).
"Eurodollar Rate Auction Advances" means an Auction Advance in
connection with which the Eurodollar Rate shall be the basis used by the
Lenders in determining the rates of interest to be offered by them pursuant
to Section 2.03 and with a term of 1, 2, 3 or 6 months; provided, if the
last day of the term of any Eurodollar Rate Auction Advance would occur on
a day other than a Business Day the last day of such term shall be extended
to occur on the next succeeding Business Day unless such extension would
cause the last day of such term to occur in the next following calendar
month, the last day of such term shall occur on the next preceding Business
Day.
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest
Period for any Eurodollar Rate Advance or Eurodollar Rate Auction Advance
means the reserve percentage applicable during such Interest Period or such
term, as the case may be (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board 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) for such Lender with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period or such term, as
the case may be.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, and the
regulations promulgated thereunder, in each case as amended from time to
time.
"Existing Credit Agreements" means the May 12, 1995 Credit Agreement
among Gas Systems, the Banks named therein and Bank of Montreal, as Agent,
as amended, the February 11, 1997 Credit Agreement among Energy Systems and
Bank of Montreal, as Lender and as Agent, as amended and the January 29,
1996 Credit Agreement among Citibank N.A., as Agent, Bank of Montreal, as
letter of credit issuer, the other banks party thereto and Energy Systems,
as amended.
"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
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"First Mortgage Bonds" means the bonds issued from time to time
pursuant to the Trust Indenture, dated November 1, 1949, between the
Utility and Harris Trust and Savings Bank, as Trustee, as amended and
supplemented from time to time.
"Fixed Rate Auction Advance" means an Auction Advance in connection
with which the rates of interest offered by the Lenders pursuant to Section
2.03 shall be fixed rates per annum and with a term of 1 to 180 days.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those used in the preparation of the audit report
referred to in Section 4.01(f) hereof.
"Gas Systems" means LG&E Gas Systems Inc., a Delaware corporation, a
predecessor company to the Borrower.
"Initial Borrowing" means the time at which the Lenders make the
initial Advances to the Borrower hereunder in accordance with the terms
hereof.
"Interest Period" means, for each Contract Advance made as part of the
same Contract Borrowing, the period commencing on the date of such Contract
Advance or the date of the Conversion of any Contract Advance into such a
Contract 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 30, 60, 90 or 180 days in the case of an Adjusted CD Rate
Advance, and 1, 2, 3 or 6 months in the case of a Eurodollar Rate Advance,
in each case as the Borrower may select, upon notice received by the
Administrative Agent not later than 10:00 A.M. (Chicago time) on the third
Business Day prior to the first day of such Interest Period; provided,
however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Contract
Advances made as part of the same Contract 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.
"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.
"Level I Status" means the S&P Rating is A or higher or the Moody's
Rating is A2 or higher.
"Level II Status" means Level I Status does not exist and the S&P
Rating is A- or the Moody's Rating is A3.
"Level III Status" means neither Level I Status nor Level II Status
exists and the S&P Rating is BBB+ or the Moody's Rating is Baa1.
"Level IV Status" means neither Level I Status, Level II Status nor
Level III Status exists and the S&P Rating is BBB or the Moody's Rating is
Baa2.
"Level V Status" means neither Level I Status, Level II Status, Level
III Status nor Level IV Status exists and the S&P Rating is BBB- or lower
and the Moody's Rating is Baa3 or lower or both ratings have been
suspended, withdrawn or otherwise not provided.
"Majority Lenders" means Lenders having at least 51% of the
Commitments or if the Commitments have terminated in whole, the holders of
51% or more of the Advances, (provided that, for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall be included in
(i) the Lenders having such amount of the Commitments or the Advances or
(ii) determining the total amount of the Commitments or the Advances).
"Material Consolidated Subsidiary" means for any Person any
Consolidated Subsidiary of such Person the assets, net income or net worth
of which constituted 10% or more of the consolidated assets, net income or
net worth of such Person and all of its Subsidiaries computed as of the
last day of the fiscal quarter most recently completed prior to the
determination of whether such Consolidated Subsidiary is a Material
Consolidated Subsidiary (in the case of assets and net worth) or for the
twelve months ended as of the close of such calendar quarter (in the case
of net income).
"Moody's" means Moody's Investors Services, Inc. or any successor
thereto.
"Moody's Rating" means at any time the rating assigned by Moody's to
the outstanding unsecured long-term senior indebtedness of the Borrower
which is supported by the Parent pursuant to the Support Agreement, a
guarantee or other credit support, or if such debt is not then rated, the
rating one level below the rating assigned by Moody's to the corporate
credit of the Parent, or if there is no such rating, the rating two levels
below the rating assigned by Moody's to the First Mortgage Bonds.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding three plan years made or accrued an obligation to make
contributions.
"Nonrecourse Debt" means all liabilities, obligations and indebtedness
of the types described in clauses (i) through (vii) of the definition of
"Debt" (such liabilities, obligations and indebtedness being hereinafter
referred to as "Obligations"), of any Person which is a special purpose
entity or which Obligations are nonrecourse to such Person, other than with
respect to the interest of such Person in the collateral, if any, securing
such Obligations.
"Note" means a Contract Note or an Auction Note.
"Notice of Contract Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Auction Borrowing" has the meaning specified in Section
2.03(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"Parent" means LG&E Energy Corp., a Kentucky corporation, and its
successors and assigns.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, limited liability company,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Reference Banks" means The Chase Manhattan Bank, Bank of Montreal,
and Morgan Guaranty Trust Company of New York and any Lender designated as
a successor or replacement Reference Bank pursuant to Section 2.09(a).
"Register" has the meaning specified in Section 8.07(c).
"Reportable Event" has the meaning assigned to that term in Title IV
of ERISA.
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw-
Hill Companies, Inc. or any successor thereto.
"S&P Rating" means at any time the rating assigned by S&P to the
outstanding unsecured long-term senior indebtedness of the Borrower which
is supported by the Parent pursuant to the Support Agreement, a guarantee
or other credit support, or if such debt is not then rated, the rating one
level below the rating assigned by S&P to the corporate credit of the
Parent, or if there is no such rating, the rating two levels below the
rating assigned by S&P to the First Mortgage Bonds.
"SEC Reports" means the reports filed by the Parent with the
Securities and Exchange Commission on Form 10-K, Form 10-Q and/or Form 8-K
(or any successor form(s) to any thereof).
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries of such Person. "Wholly Owned
Subsidiary" shall mean any such corporation, partnership or other entity of
which all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares) are so
owned or controlled.
"Support Agreement" means the Support Agreement, dated as of September
5, 1997, between the Parent and the Borrower in the form annexed hereto as
Exhibit G , as the same may be amended or modified from time to time in
accordance with the terms thereof and of this Agreement together with the
letter dated September 5, 1997 from the Parent to the Administrative Agent
designating the Debt arising hereunder as entitled to the benefit thereof.
"Syndication Agent" means Chase Securities Inc.
"Termination Date" means September 4, 1998 or such later date as may
be established pursuant to Section 2.17 or the earlier date of termination
in whole of the Commitments pursuant to Section 2.05 or Section 6.01
hereof.
"Trade Obligations" means future obligations for the payment of goods
or services or other obligations (other than obligations for borrowed
money) incurred in the ordinary course of its energy marketing business.
"Transaction" means the merger of Gas Systems with and into Energy
Systems, which then changes its name to LG&E Capital Corp.
"Utility" means Louisville Gas and Electric Company, a Kentucky
corporation, and any successor thereto.
"Yield" means, for any Auction Advance, the effective rate per annum
at which interest on such Auction 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. In this Agreement in the
computation of periods of time from a specified date to 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. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
Article II
Amounts and Terms of the Advances
Section 2.01. The Contract Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Contract Advances
to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date in an aggregate amount not
to exceed at any time outstanding the amount set opposite such Lender's
name on the signature pages hereof or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c), as such
amount may be reduced pursuant to Section 2.05 (such Lender's
"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 Auction 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 Commitments. Each Contract
Borrowing shall be in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall consist of
Contract Advances of the same Type and having the same Interest Period made
or Converted on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may from time to time borrow, prepay pursuant to Section 2.11 and
reborrow under this Section 2.01. Subject to the restriction set forth in
Section 2.02(e), more than one Contract Borrowing may be made on any
Business Day.
Section 2.02. Making the Contract Advances. (a) Each Contract Borrowing
shall be made on notice, given not later than (i) 10:00 A.M. (Chicago time)
on the third Business Day prior to the date of any proposed Contract
Borrowing comprising Eurodollar Rate Advances or Adjusted CD Rate Advances,
and (ii) 9:00 A.M. (Chicago time) on the date of any proposed Contract
Borrowing comprising Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt notice
thereof; provided, that the Lenders will, to the extent feasible to
transfer funds and fund in the relevant market, fund the initial Contract
Borrowing on less notice in order to accommodate the needs of the Borrower
in refunding borrowings outstanding under the Existing Credit Agreements.
Each such notice of a Contract Borrowing (a "Notice of Contract Borrowing")
shall be by telecopier, telex or cable, confirmed immediately in writing,
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Contract Borrowing, (ii) Type of Contract
Advances to be made in connection with such Contract Borrowing, (iii)
aggregate amount of such Contract Borrowing, and (iv) in the case of a
Contract Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate
Advances, initial Interest Period for each such Contract Advance. Each
Lender shall, before 11:00 A.M. (Chicago time) on the date of such Contract
Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in Section 8.02, in
same day funds, such Lender's ratable portion (according to the Lenders'
respective Commitments) of such Contract Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower at the Administrative
Agent's aforesaid address.
(b) Each Notice of Contract Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Contract Borrowing that the
related Notice of Contract Borrowing specifies is to comprise Adjusted CD
Rate Advances or 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 Contract Borrowing for such Contract 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 Contract
Advance to be made by such Lender as part of such Contract Borrowing when
such Contract Advance, as a result of such failure, is not made on such
date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Contract Borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable
portion of such Contract Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative
Agent on the date of such Contract Borrowing in accordance with subsection
(a) of this Section 2.02 and the Administrative 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 ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative
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 Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the
time to Contract Advances made in connection with such Contract Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Contract Advance as
part of such Contract Borrowing for purposes of this Agreement. Nothing in
this subsection shall be deemed to relieve any Lender from its obligation
to make any Contract Advance required to be made by such Lender hereunder
or to prejudice any rights the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(d) The failure of any Lender to make the Contract Advance to be made
by it as part of any Contract Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Contract Advance on the
date of such Contract Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Contract Advance to be made by such
other Lender on the date of any Contract Borrowing.
(e) Notwithstanding anything to the contrary contained herein, no
more than eight Contract Borrowings which do not consist of Base Rate
Advances may be outstanding at any time.
Section 2.03. The Auction Advances. (a) Each Lender severally agrees that
the Borrower may request Auction Borrowings comprised of either Fixed Rate
Auction Advances or Eurodollar Rate Auction Advances under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring one day prior to the Termination Date, in
the case of an Auction Borrowing comprised of Fixed Rate Auction Advances,
or the date occurring one month prior to the Termination Date, in the case
of an Auction Borrowing comprised of Eurodollar Rate Auction Advances in
the manner set forth below; provided that, following the making of each
Auction Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders.
Each Auction Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(i) The Borrower may request an Auction Borrowing by delivering
to the Administrative Agent (A) by telecopier, telex or cable,
confirmed immediately in writing, a notice of an Auction Borrowing (a
"Notice of Auction Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying the date and aggregate amount of the proposed
Auction Borrowing, the maturity date for repayment of each Auction
Advance to be made as part of such Auction Borrowing (which maturity
date may be the date occurring one, two, three or six months after the
date of such Auction Borrowing in the case of Eurodollar Rate Auction
Advances, or the date occurring between one and 180 days after the
date of such Auction Borrowing in the case of Fixed Rate Auction
Advances and in any case no later than the Termination Date), the
interest payment date or dates relating thereto (which shall occur at
least every three months, in the case of a Eurodollar Rate Auction
Advance, and every 90 days, in the case of Fixed Rate Auction
Advances), and any other terms to be applicable to such Auction
Borrowing, not later than 9:00 A.M. (Chicago time) (x) at least one
Business Day prior to the date of the proposed Auction Borrowing, in
the case of a Fixed Rate Auction Advance, and (y) at least four
Business Days prior to the date of the proposed Auction Borrowing, in
the case of a Eurodollar Rate Auction Advance and (B) payment in full
to the Administrative Agent of the aggregate auction administration
fee specified in Section 2.04(c) hereof. The Administrative Agent
shall in turn promptly notify each Lender of each request for an
Auction Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of Auction Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Auction Advances to the
Borrower as part of such proposed Auction Borrowing at a rate or rates
of interest specified by such Lender in its sole discretion, by
notifying the Administrative Agent (which shall give prompt notice
thereof to the Borrower), before 9:00 A.M. (Chicago time) (A) on the
date of such proposed Auction Borrowing, in the case of a Fixed Rate
Auction Advance and (B) three Business Days prior to the date of such
proposed Auction Borrowing, in the case of a Eurodollar Rate Auction
Advance, of the minimum amount and maximum amount of each Auction
Advance that such Lender would be willing to make as part of such
proposed Auction Borrowing (which amounts may, subject to the proviso
to the first sentence of this Section 2.03(a), exceed such Lender's
Commitment), the rate or rates of interest therefor and the Yield (if
different from such rate or rates) with respect thereto, the interest
period relating thereto and such Lender's Applicable Lending Office
with respect to such Auction Advance; provided that if the
Administrative 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 8:45 A.M. (Chicago time) on the date on which
notice of such election is to be given to the Administrative Agent by
the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Administrative Agent, before
9:00 A.M. (Chicago time) on the date on which notice of such election
is to be given to the Administrative Agent by the other Lenders, and
such Lender shall not be obligated to, and shall not make any Auction
Advance as part of such Auction Borrowing; provided that the failure
by any Lender to give such notice shall not cause such Lender to be
obligated to make any Auction Advance as part of such proposed Auction
Borrowing.
(iii) The Borrower shall, in turn, before 10:00 A.M. (Chicago
time) (A) on the date of such proposed Auction Borrowing, in the case
of a Fixed Rate Auction Advance and (B) three Business Days before the
date of such proposed Auction Borrowing, in the case of a Eurodollar
Rate Auction Advance, either
(A) cancel such Auction Borrowing by giving the
Administrative Agent notice to that effect, or
(B) irrevocably accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, subject only to the provisions of this paragraph
(iii), by giving notice to the Administrative Agent of the amount
of each Auction 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 Administrative
Agent on behalf of such Lender for such Auction Advance pursuant
to paragraph (ii) above) to be made by each Lender as part of
such Auction Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving the
Administrative Agent notice to that effect; provided, however,
that (x) 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, (y) if the Borrower
declines to accept, or is otherwise restricted by the provisions
of this Agreement from accepting, the maximum aggregate principal
amount of Auction Borrowings 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), and (z) no offer made pursuant to paragraph (ii)
above shall be accepted unless the Auction Borrowing in respect
of such offer is in an integral multiple of $1,000,000 and the
aggregate amount of such offers accepted by the Borrower is equal
to at least $5,000,000.
Any offer or offers made pursuant to paragraph (ii) above not
expressly accepted or rejected by the Borrower in accordance with this
paragraph (iii) shall be deemed to have been rejected by the Borrower.
(iv) If the Borrower notifies the Administrative Agent that such
Auction Borrowing is canceled pursuant to clause (A) of paragraph
(iii) above, the Administrative Agent shall give prompt notice thereof
to the Lenders and such Auction Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to clause (B) of paragraph (iii) above,
the Administrative 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 Auction 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 an Auction Advance as part of such Auction Borrowing of the
amount of each Auction Advance to be made by such Lender as part of
such Auction Borrowing, and (C) each Lender that is to make an Auction
Advance as part of such Auction Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each
Lender that is to make an Auction Advance as part of such Auction
Borrowing shall, before 11:00 A.M. (Chicago time) on the date of such
Auction Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02 such
Lender's portion of such Auction Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's aforesaid address. Promptly after each
Auction Borrowing the Administrative Agent will notify each Lender of
the amount of the Auction Borrowing and the maturities thereof.
(vi) The acceptance by the Borrower of any offer made by any
Lender pursuant to paragraph (iii) (B) above shall be irrevocable and
binding on the Borrower. In the case of any Auction Borrowing
comprised of Eurodollar Rate Auction Advances, the Borrower shall
indemnify 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 related Notice of Auction Borrowing for such
Auction Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding any loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Eurodollar Rate Auction Advance to be made by
such Lender as part of such Auction Borrowing when such Eurodollar
Rate Auction Advance, as a result of such failure, is not made on such
date.
(b) Within the limits and on the conditions set forth in this Section
2.03 (including, without limitation, the condition set forth in the proviso
to the first sentence of subsection (a) above), the Borrower may from time
to time borrow under this Section 2.03, repay or prepay pursuant to
subsection (c) below, and reborrow under this Section 2.03, provided that
no Auction Borrowing may be made within three Business Days of the date of
any other Auction Borrowing.
(c) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made an Auction Advance, or each other
holder of an Auction Note, on the maturity date of each Auction Advance
(such maturity date being that specified by the Borrower for repayment of
such Auction Advance in the related Notice of Auction Borrowing delivered
pursuant to subsection (a)(i) above and provided in the Auction Note
evidencing such Auction Advance), the then unpaid principal amount of such
Auction Advance. The Borrower shall have no right to prepay any principal
amount of any Fixed Rate Auction Advance unless, and then only on the
terms, specified by the Borrower for such Fixed Rate Auction Advance in the
related Notice of Auction Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Auction Note evidencing such Fixed Rate Auction
Advance. The Borrower may, upon at least two Business Days' notice to the
Administrative Agent and the relevant Lender stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding principal amount of a Eurodollar
Rate Auction Advance in whole, together with accrued interest to the date
of such prepayment on the principal amount prepaid; provided, however, that
the Borrower shall be obligated to reimburse the relevant Lender in respect
thereof pursuant to Section 8.04(b) on the date of such prepayment.
(d) The Borrower shall pay interest on the unpaid principal amount of
each Auction Advance from the date of such Auction Advance to the date the
principal amount of such Auction Advance is repaid in full, at the rate of
interest for such Auction Advance specified by the Lender making such
Auction Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable in arrears on the interest payment date
or dates specified by the Borrower for such Auction Advance in the related
Notice of Auction Borrowing delivered pursuant to subsection (a)(i) above,
as provided in the Auction Note evidencing such Auction Advance.
(e) The indebtedness of the Borrower resulting from each Auction
Advance made to the Borrower as part of an Auction Borrowing shall be
evidenced by a separate Auction Note of the Borrower payable to the order
of the Lender making such Auction Advance.
Section 2.04. Fees. (a) Facility Fees. The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a facility fee on
the average daily aggregate amount of such Lender's Commitment (whether or
not used) from the date hereof in the case of each Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Termination
Date, payable in arrears on the 15th day of each August, November, February
and May during such period, and on the Termination Date at a rate of (i)
0.050% per annum for each day Level I Status exists, (ii) 0.060% per annum
for each day Level II Status exists, (iii) 0.080% per annum for each day
Level III Status exists, (iv) 0.100% per annum for each day Level IV Status
exists and (v) 0.185% per annum for each day Level V Status exists.
(b) Other Fees. The Borrower shall pay to each of the Syndication
Agent and the Administrative Agent for their own use and benefit such
agency and/or other fees as the Borrower and such Agent may mutually agree.
(c) Auction Fees. The Borrower shall pay to the Administrative Agent
for its own account an auction administration fee in the amounts as the
Borrower and Administrative Agent may mutually agree from time to time in
respect of each Auction Borrowing requested.
Section 2.05. Reduction of the Commitments. The Borrower shall have the
right, upon at least two Business Days' notice to the Administrative 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 that is
less than the aggregate principal amount of the Advances then outstanding
and provided, further, that each partial reduction shall be in the
aggregate amount of $5,000,000 or an integral multiple thereof.
Section 2.06. Repayment of Contract Advances. The Borrower shall repay
the principal amount of each Contract Advance made by each Lender on the
Termination Date in accordance with the Contract Note to the order of such
Lender.
Section 2.07. Interest on Contract Advances. The Borrower shall pay
interest on the unpaid principal amount of each Contract Advance made by
each Lender from the date of such Contract Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such Contract Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time plus the Applicable Margin for such
Base Rate in effect from time to time, payable quarterly on the 15th
day of each August, November, February and May during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(b) Adjusted CD Rate Advances. If such Contract Advance is an
Adjusted CD Rate Advance, a rate per annum equal at all times during
the Interest Period for such Contract Advance to the sum of the
Adjusted CD Rate for such Interest Period plus the Applicable Margin
for such Adjusted CD Rate in effect from time to time, payable on the
last day of each Interest Period for such Adjusted CD Rate Advance
(and, in the case of any Interest Period of 180 days, on the 90th day
of such Interest Period) and on the date such Adjusted CD Rate Advance
shall be Converted or paid in full.
(c) Eurodollar Rate Advances. Subject to Section 2.08, if such
Contract Advance is a Eurodollar Rate Advance, a rate per annum equal
at all times during the Interest Period for such Contract Advance to
the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Margin for such Eurodollar Rate Advance in effect from time
to time, payable on the last day of each Interest Period for such
Eurodollar Rate Advance (and, in the case of any Interest Period of
six months, on the last day of the third month of such Interest
Period) and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(d) Split Ratings. Notwithstanding the definitions of Level I
Status, Level II Status, Level III Status, Level IV Status and Level V
Status, (i) if the S&P Rating and the Moody's Rating differ by one
tier, then the Applicable Margins and the facility fee shall be based
on the status level which would be applicable to the higher of the two
ratings and (ii) if the S&P Rating and the Moody's Rating differ by
two or more tiers, then the Applicable Margins and the facility fee
shall be based on the status level which would be applicable to a
rating which is one tier above the lower of the two ratings.
Section 2.08. Additional Interest on Eurodollar Rate Advances and
Eurodollar Rate Auction Advances. The Borrower shall pay to each Lender,
so long as such Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance and each Eurodollar Rate Auction Advance of such
Lender, from the date of such 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 Contract Advance or term for such Auction Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period or term, as applicable, payable on each date on which
interest is payable on such Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through the
Administrative Agent, and such determination shall be conclusive and
binding for all purposes, absent manifest error.
Section 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Adjusted CD Rate or Eurodollar Rate, as
applicable. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. If any Reference Bank shall no longer be
a Lender hereunder, shall no longer wish to serve as a Reference Bank
hereunder or shall fail to perform hereunder, the Administrative Agent and
the Borrower may appoint another Lender to serve as a successor or
replacement Reference Bank hereunder.
(b) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a), (b), (c) or (d) 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) or (d).
(c) If fewer than two Reference Banks (or such lesser number of
Lenders as shall then be acting as Reference Banks) furnish timely
information to the Administrative Agent for determining the Adjusted CD
Rate for any Adjusted CD Rate Advances, or the Eurodollar Rate for any
Eurodollar Rate Advances or Eurodollar Rate Auction Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
Adjusted CD Rate Advances, Eurodollar Rate Advances or Eurodollar Rate
Auction Advances, as the case may be,
(ii) each such Contract 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
Contract Advances into, Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, shall be suspended until the
Administrative 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 Administrative 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 Administrative 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 (unless, with respect to any Eurodollar Rate Advance, the
Borrower shall have delivered to the Administrative Agent a timely
notice of Conversion specifying that such Eurodollar Rate Advance
shall be Converted to an Adjusted CD Rate Advance on the last day of
the then existing Interest Period therefor), and
(ii) the obligation of the Lenders to make, or to Convert
Contract Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
Section 2.10. Conversion of Contract Advances. (a) Voluntary. The
Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 10:00 A.M. (Chicago time) on the third Business Day
prior to the date of any proposed Conversion into Eurodollar Rate Advances
or Adjusted CD Rate Advances, and on the date of any proposed Conversion
into Base Rate Advances, and subject to the provisions of Sections 2.09 and
2.13, Convert all Contract Advances of one Type made in connection with the
same Contract Borrowing into Advances of another Type or Types or Advances
of the same Type having the same or new Interest Periods; provided,
however, that any Conversion of, or with respect to, any Adjusted CD Rate
Advances or Eurodollar Rate Advances into Advances of another Type or Types
or Advances of the same Type having the same or new Interest Periods shall
be made on, and only on, the last day of an Interest Period for such
Adjusted CD Rate Advances or Eurodollar Rate Advances, unless the Borrower
shall also reimburse the Lenders in respect thereof pursuant to Section
8.04(b) on the date of such Conversion. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of
such Conversion, (ii) the Contract Advances to be Converted, and (iii) if
such Conversion is into, or with respect to, Adjusted CD Rate Advances or
Eurodollar Rate Advances, the duration of the Interest Period for each such
Contract Advance.
(b) Mandatory. If the Borrower shall fail to select the Type of any
Contract Advance or the duration of any Interest Period for any Contract
Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate Advances
in accordance with the provisions contained in the definition of "Interest
Period" in Section 1.01 and Section 2.10(a), or if any proposed Conversion
of a Contract Borrowing that is to comprise Adjusted CD Rate Advances or
Eurodollar Rate Advances upon Conversion shall not occur as a result of the
circumstances described in paragraph (c) below, the Administrative 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.
(c) Failure to Convert. Each notice of Conversion given pursuant to
subsection (a) above shall be irrevocable and binding on the Borrower. In
the case of any Contract Borrowing that is to comprise Adjusted CD Rate
Advances or Eurodollar Rate Advances upon Conversion, 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 the date specified for such
Conversion 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 such Adjusted CD Rate Advances or Eurodollar Rate Advances,
as the case may be, upon such Conversion, when such Conversion, as a result
of such failure, does not occur.
Section 2.11. Prepayments. (a) Optional. The Borrower may, upon at
least two Business Days' notice (or same day notice in the case of any
prepayment of Base Rate Advances) to the Administrative 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 made as part of the same Contract 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
(i) each partial prepayment of any Contract Borrowing shall be in an
aggregate principal amount not less than $5,000,000 and (ii) in the case of
any such prepayment of an Adjusted CD Rate Advance or Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(b) on the date of such prepayment.
(b) Mandatory. If and to the extent that the aggregate principal
amount of Advances outstanding on any date hereunder shall exceed the
aggregate amount of the Commitments hereunder on such date, the Borrower
shall pay to the Administrative Agent on such date an amount at least equal
to such excess, together with accrued interest to the date of such
prepayment on such amount and, in the case of any such payment which is to
be applied to Adjusted CD Rate Advances, Eurodollar Rate Advances or
Auction Advances, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(b) on the date of such
prepayment.
(c) Application. Upon each payment pursuant to Section 2.11(b), the
Administrative Agent shall apply amounts received from the Borrower in the
following order of priority:
First, to the prepayment in whole or ratably in part of the
principal amount of all outstanding Base Rate Advances,
Second, to the prepayment in whole or ratably in part of the
principal amount of outstanding Adjusted CD Rate Advances and
Eurodollar Rate Advances, in such order of maturity as will, in the
reasonable judgment of the Administrative Agent, minimize to the
fullest extent practicable amounts payable by the Borrower in respect
of such prepayment pursuant to Section 8.04(b), and
Third, to the prepayment in whole or ratably in part of the
principal amount of outstanding Auction Advances, in such order of
maturity as will, in the reasonable judgment of the Administrative
Agent, minimize to the fullest extent practicable amounts payable by
the Borrower in respect of such prepayment pursuant to Section
8.04(b).
Section 2.12. 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 included in the Adjusted CD Rate
Reserve Percentage or any Assessment Rate, in the case of Adjusted CD Rate
Advances, or, 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) issued, promulgated or made, as the case may be, after the
date hereof, there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Adjusted CD Rate
Advances, Eurodollar Rate Advances or any other Advances, then the Borrower
shall from time to time, within 30 days of demand by such Lender together
with the certificate referred to below (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for
such increased cost; provided, that no Lender shall be entitled to demand
such compensation more than 90 days following the last day of the Interest
Period in respect of which such demand is made; provided further, however,
that the foregoing proviso shall in no way limit the right of any Lender to
demand or receive such compensation to the extent that such compensation
relates to the retroactive application of any law, regulation, guideline or
request described in clause (i) or (ii) above if such demand is made within
90 days after the implementation of such retroactive law, interpretation,
guideline or request. A certificate as to the nature and amount of such
increased cost, submitted to the Borrower and the Administrative Agent by
such Lender in good faith, shall be conclusive and binding for all
purposes, absent manifest error.
(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) issued,
promulgated or made, as the case may be, after the date hereof 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 hereunder and other commitments of this type or the
Advances, then, within 30 days of demand by such Lender together with the
certificate referred to below (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative 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 determines such increase in capital to be allocable to the existence
of such Lender's Commitment hereunder or the Advances made by such Lender
hereunder, provided, that no Lender shall be entitled to demand such
compensation more than one year following the last day of the fiscal year
of such Lender during which such capital requirement was applicable and in
respect of which such Lender is seeking compensation; provided further,
however, that the foregoing proviso shall in no way limit the right of any
Lender to demand or receive such compensation to the extent that such
compensation relates to the retroactive application of any law, regulation,
guideline or request described above if such demand is made within one year
after the implementation of such retroactive law, interpretation,
guidelines or request. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender in good faith shall be
conclusive and binding for all purposes, absent manifest error.
Section 2.13. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent 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 any 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, (i) the
obligation of the Lenders to make, or to Convert Contract Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist and (ii) the Borrower shall forthwith
prepay in full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless the Borrower,
within five Business Days of notice from the Administrative Agent, Converts
all Eurodollar Rate Advances of all Lenders then outstanding into Advances
of another Type in accordance with Section 2.10. Any Lender that has
notified the Administrative Agent of any illegality under this Section 2.13
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 change would avoid or eliminate such
illegality and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
Section 2.14. Payments and Computations. (a) Except as otherwise
expressly provided herein, the Borrower shall make each payment hereunder
and under the Notes not later than 11:00 A.M. (Chicago time) on the day
when due in U.S. dollars to the Administrative Agent at its address
referred to in Section 8.02 in same day funds, and any such payment to the
Administrative Agent shall constitute payment by the Borrower hereunder or
under the Notes, as the case may be, for all purposes, and upon such
payment the Lenders shall look solely to the Administrative Agent for their
respective interests in such payment. The Administrative Agent will
promptly after any such payment cause to be distributed like funds relating
to the payment of principal or interest or fees ratably (other than amounts
payable pursuant to Section 2.02(c), 2.03, 2.04(b), 2.04(c), 2.08, 2.12,
2.15 or 8.04(b)) (according to the Lenders' respective Commitments) 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 an Assignment and Acceptance 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 Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance
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 or under any
Note 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 (a) of the
definition of the term "Base Rate" shall be made by the Administrative
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 Adjusted CD Rate, the Eurodollar
Rate or the Federal Funds Rate and of interest payable on Auction Advances
and of facility fees shall be made by the Administrative 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, facility fees are payable.
Each determination by the Administrative Agent (or, in the case of Section
2.08, by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes 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 facility
fees, as the case may be; provided, however, 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, and such reduction of time shall in such case
be taken into account in the computation of interest or fees, as the case
may be.
(e) Unless the Administrative 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
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative 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 Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained herein, upon
the occurrence and during the continuance of an Event of Default each
Advance shall (automatically, in the case of an Event of Default arising as
a result of a failure of the Borrower to pay any principal on any Advance
when due (whether by acceleration or otherwise) and if but only if the
Borrower is so notified by the Administrative Agent at the request of the
Majority Lenders in the case of any other Event of Default) bear interest
(computed on the same basis as in effect thereon at the time of such
default), payable on demand, at a rate per annum equal to:
(i) with respect to any Base Rate Advance, the sum of two
percent (2%) per annum plus the Base Rate from time to time in effect
plus the Applicable Margin for such Base Rate; and
(ii) with respect to any Eurodollar Rate Advance, Adjusted CD
Rate Advance and Auction Advance, the sum of two percent (2%) per
annum plus the rate of interest in effect thereon at the time of such
default until the end of the Interest Period or term applicable
thereto and, thereafter, at a rate per annum equal to the sum of two
percent (2%) per annum plus the Base Rate from time to time in effect
plus the Applicable Margin for such Base Rate.
Section 2.15. Taxes. (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with Section 2.14, 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
Administrative Agent, taxes imposed on its income and any withholdings in
connection therewith, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (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 Note to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.15) such Lender or the
Administrative 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 the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
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 2.15) paid by such Lender or the Administrative
Agent (as the case may be) and any liability (including penalties, interest
and expenses, other than those arising from such Lender's gross negligence
or willful misconduct) 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 Administrative Agent (as the case may be) makes written demand
therefor.
(d) Prior to the Closing Date in the case of each Bank, and on the
date of the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender, and from time to time thereafter if
requested by the Borrower or the Administrative Agent, each Lender
organized under the laws of a jurisdiction outside the United States shall
provide the Administrative Agent and the Borrower with the forms prescribed
by the Internal Revenue Service of the United States certifying that such
Lender is exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes. If for
any reason during the term of this Agreement, any Lender becomes unable to
submit the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect, such
Lender shall promptly notify the Administrative Agent and the Borrower in
writing to that effect. Unless the Borrower and the Administrative Agent
have received forms or other documents satisfactory to them indicating that
payments hereunder or under any Note are not subject to United States
withholding tax, the Borrower or the Administrative Agent shall withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a jurisdiction
outside the United States.
(e) Any Lender claiming any additional amounts payable pursuant to
this Section 2.15 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 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.
(f) If the Borrower makes any additional payment to any Lender
pursuant to this Section 2.15 in respect of any Taxes or Other Taxes, and
such Lender determines that it has received (i) a refund of such Taxes or
Other Taxes or (ii) a credit against or relief or remission for, or a
reduction in the amount of, any tax or other governmental charge solely as
a result of any deduction or credit for any Taxes or Other Taxes with
respect to which it has received payments under this Section 2.15, such
Lender shall, to the extent that it can do so without prejudice to the
retention of such refund, credit, relief, remission or reduction, pay to
the Borrower such amount as such Lender shall have determined to be
attributable to the deduction or withholding of such Taxes or Other Taxes.
If such Lender later determines that it was not entitled to such refund,
credit, relief, remission or reduction to the full extent of any payment
made pursuant to the first sentence of this Section 2.15(f), the Borrower
shall upon demand of such Lender promptly repay the amount of such
overpayment. Any determination made by such Lender pursuant to this
Section 2.15(f) shall in the absence of bad faith or manifest error be
conclusive, and nothing in this Section 2.15(f) shall be construed as
requiring any Lender to conduct its business or to arrange or alter in any
respect its tax or financial affairs so that it is entitled to receive such
a refund, credit or reduction or as allowing any person to inspect any
records, including tax returns, of any 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 2.15 shall survive the payment in full of
principal, interest and all other amounts hereunder and under the Notes;
provided, that no Lender shall be entitled to demand any payment under this
Section 2.15 more than one year following the last day of the fiscal year
of such Lender during which the liability in respect of such Taxes or Other
Taxes was incurred; provided further, however, that the foregoing proviso
shall in no way limit the right of any Lender to demand or receive any
payment under this Section 2.15 to the extent that such payment relates to
the retroactive application of any Taxes or Other Taxes if such demand is
made within one year after the implementation of such Taxes or Other Taxes.
Section 2.16. 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 Contract Advances made by it
(other than pursuant to Section 2.02(c), 2.04(b), 2.04(c), 2.08, 2.12, 2.15
or 8.04(b)) in excess of its ratable share of payments on account of the
Contract Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Contract
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 2.16 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 2.17. Extension of Termination Date. Not later than 60 days
prior to the Termination Date the Borrower may request in a written notice
to the Administrative Agent that the Termination Date then in effect be
extended by three hundred sixty-four (364) days. The Administrative Agent
will promptly inform the Lenders of any such request and each Lender shall
notify the Administrative Agent in writing no later than 30 days after its
receipt of such notice whether it agrees to such extension (each such
Lender agreeing to such extension being a "Consenting Lender"). In the
event that a Lender shall fail timely to so notify the Administrative Agent
whether it agrees to such extension, such Lender shall be deemed to have
refused to grant the requested extension. Upon receipt by the
Administrative Agent of the consent to such extension of all the Lenders no
later than 30 days after its receipt of such notice, the Termination Date
shall be automatically extended an additional three hundred sixty-four
(364) days. If the Majority Lenders consent to such extension but fewer
than all the Lenders so consent, and if the Borrower still desires to
extend the Termination Date, it may seek to assign to an Eligible Assignee
(including any Lender) subject (in the case of any Eligible Assignee which
is not a Lender) to the approval of the Administrative Agent, (which
approval shall not be unreasonably withheld or delayed) all of the
Commitments and Contract Advances of a non-Consenting Lender pursuant to
Section 8.07(i).
If the Borrower and all the Lenders do not agree to the extension and an
assignment of each non-Consenting Lender's Commitment is not consummated,
the Termination Date shall take place as scheduled. If the Termination
Date is extended, any non-Consenting Lender shall have its Commitment fully
assumed on the effective date of the assignment as set forth above and all
amounts owing to such Lender hereunder shall, on such effective date, be
paid in full pursuant to the terms of Section 8.07 hereof.
Article III
Conditions of Lending
Section 3.01. Conditions Precedent to Initial Advances. The obligations
of each Lender to make its initial Advance is subject to the satisfaction,
prior to or concurrently with, the making of such initial Advance, of each
of the following conditions precedent:
(a) Documents and Other Agreements. The Administrative Agent
shall have received on or before the day of the initial Borrowing the
following, each properly dated and completed, in form and substance
satisfactory to the Administrative Agent and (except for the Notes)
with one copy for each Lender:
(i) The Contract Notes payable to the order of each of the
Lenders, respectively;
(ii) A true and correct copy of the Support Agreement,
together with (A) a schedule of all "Obligations" thereunder and
(B) a letter (the "Designation Letter") from the Parent to the
Administrative Agent and the Lenders confirming that the
obligations of the Borrower hereunder and under the Notes
constitute "Obligations" under the Support Agreement, that the
Lenders constitute "Lenders" under the Support Agreement and that
the Lenders will receive the benefit of any more favorable
support agreement or guaranty issued by the Parent to a third
party for the purpose of guaranteeing or supporting payment of
Adjusted Debt of the Borrower if and so long as such a more
favorable agreement remains outstanding and subject to any
amendments thereto or waivers thereof by such third party;
(iii) Pro forma consolidated balance sheets of the Borrower
and its Consolidated Subsidiaries prepared as of June 30, 1997
and showing the consolidated financial condition of the Borrower
and its Consolidated Subsidiaries immediately after giving effect
to the consummation of the Transaction;
(iv) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement, the Notes and
the Support Agreement and of all documents evidencing other
necessary corporate action with respect to this Agreement, the
Notes and the Support Agreement;
(v) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (A) the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement, the Notes and the Support Agreement and the other
documents to be delivered hereunder; (B) that attached thereto
are true and correct copies of the Articles of Incorporation and
the By-laws of the Borrower, in each case as in effect on such
date; (C) that attached thereto are true and correct copies of
all governmental and regulatory authorizations and approvals
required for the due execution, delivery and performance by the
Borrower of this Agreement, the Notes and the Support Agreement;
(vi) A certificate of the Secretary or an Assistant
Secretary of the Parent certifying that the execution, delivery
and performance by the Parent of the Support Agreement and the
designation by the Parent of the obligations of the Borrower
hereunder as "Obligations" under the Support Agreement and the
Lenders as "Lenders" under the Support Agreement have been duly
authorized by the Board of Directors of the Parent pursuant to
resolutions duly adopted at a meeting duly called;
(vii) A certificate of the Secretary or an Assistant
Secretary of the Parent certifying (A) the names and true
signatures of the officers of the Parent authorized to sign the
Support Agreement and the other documents to be delivered by the
Parent hereunder; (B) that attached thereto are true and correct
copies of the Articles of Incorporation and By-laws of the
Parent, in each case as in effect on such date; and (C) that
attached thereto are true and correct copies of all governmental
and regulatory authorizations and approvals required for the due
execution, delivery and performance by the Parent of the Support
Agreement and the other documents to be delivered by the Parent
hereunder;
(viii) A certificate of the chief financial officer of the
Borrower, or such other officer of the Borrower acceptable to the
Administrative Agent, stating that (A) the representations and
warranties contained in Section 4.01 of this Agreement are
correct on and as of the date of such certificate as though made
on and as of such date and (B) no Event of Default, and no event
that with the giving of notice or the passage of time, or both,
would constitute an Event of Default, has occurred and is
continuing;
(ix) A favorable opinion of Gardner, Carton & Douglas,
special counsel for the Borrower and the Parent, substantially in
the form of Exhibit D hereto and as to such other matters as any
Lender through the Administrative Agent may reasonably request;
(x) A favorable opinion of John R. McCall, General Counsel
of the Parent, substantially in the form of Exhibit E hereto and
to such other matters as any Lender through the Administrative
Agent may reasonably request; and
(xi) A favorable opinion of Chapman and Cutler, counsel for
the Administrative Agent, substantially in the form of Exhibit F
hereto.
(b) Payment of Fees. The Administrative Agent and the
Syndication Agent shall have received from the Borrower for its own
account, any fees payable to the Administrative Agent and the
Syndication Agent, as set forth in any written agreements between them
and the Borrower.
(c) Termination of Existing Credit Agreement. The
Administrative Agent shall have received evidence satisfactory to it
that (i) the Transaction has been consummated and (ii) promptly upon
funding the initial Advance the Commitments under the Existing Credit
Agreements shall have terminated and the indebtedness for borrowed
money outstanding thereunder shall have been retired.
Section 3.02. Condition Precedent to Each Contract Borrowing. The
obligation of each Lender to make a Contract Advance on the occasion of
each Contract Borrowing (including the initial Contract Borrowing) shall be
subject to the further condition precedent that on the date of such
Contract Borrowing the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing and the acceptance by
the Borrower of the proceeds of such Contract Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Contract Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Contract Borrowing, before
and after giving effect to such Contract Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date except to the extent any such representation or warranty
expressly relates solely to an earlier date and except that the
reference to the December 31, 1996 financial statements of the Parent
and its Consolidated Subsidiaries in Section 4.01(f) shall be deemed a
reference to the most recent quarterly or annual financial statements
of the Parent and its Consolidated Subsidiaries submitted to the
Lenders pursuant to Section 5.01(a) hereof; and
(ii) No event has occurred and is continuing, or would result
from such Contract Borrowing or from the application of the proceeds
therefrom, that constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both.
Section 3.03. Conditions Precedent to Each Auction Borrowing. The
obligation of each Lender that is to make an Auction Advance on the
occasion of an Auction Borrowing (including the initial Auction Borrowing)
to make such Auction Advance as part of such Auction Borrowing is subject
to the conditions precedent that (i) the Administrative Agent shall have
received the written confirmatory Notice of Auction Borrowing with respect
thereto, (ii) on or before the date of such Auction Borrowing, but prior to
such Auction Borrowing, the Administrative Agent shall have received an
Auction Note payable to the order of such Lender for each of the Auction
Advances to be made by such Lender as part of such Auction Borrowing, in a
principal amount equal to the principal amount of the Auction Advance to be
evidenced thereby and otherwise on such terms as were agreed to for such
Auction Advance in accordance with Section 2.03, and (iii) on the date of
such Auction Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of Auction Borrowing and the acceptance
by the Borrower of the proceeds of such Auction Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such
Auction Borrowing such statements are true):
(A) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Auction Borrowing, before
and after giving effect to such Auction Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date except to the extent any such representation or warranty
expressly relates solely to an earlier date and except that the
reference to the December 31, 1996 financial statements of the Parent
and its Consolidated Subsidiaries in Section 4.01(f) shall be deemed a
reference to the most recent quarterly or annual financial statements
of the Parent and its Consolidated Subsidiaries submitted to the
Lenders pursuant to Section 5.01(a) hereof, and
(B) No event has occurred and is continuing, or would result
from such Auction Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
Section 3.04. Condition Precedent to Certain Conversions. The obligation
of each Lender to Convert any Contract Borrowing that, upon such
Conversion, is to comprise Adjusted CD Rate Advances or Eurodollar Rate
Advances is subject to the condition precedent that on the date of such
Conversion no Event of Default shall have occurred and be continuing, and
the giving by the Borrower of the applicable notice of Conversion described
in Section 2.10(a) shall constitute a representation and warranty by the
Borrower that no Event of Default has occurred and is continuing.
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 Material Consolidated
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 as a foreign corporation in each
jurisdiction in which the nature of the business conducted or the
property owned, operated or leased by it requires such qualification,
except where failure to so qualify would not materially adversely
affect the financial condition, operations, business, properties, or
prospects of the Borrower or the Borrower and its Material
Consolidated Subsidiaries, taken as a whole.
(b) Except as described below, the execution, delivery and
performance by the Borrower of this Agreement and the Notes are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Borrower's
Certificate of Incorporation or By-laws, (ii) law or (iii) any
contractual or legal restriction binding on or affecting the Borrower
or its properties, the violation of which could result in material
adverse effect on the financial condition, operations, business,
properties or prospects of the Borrower or the Borrower and its
Material Consolidated Subsidiaries, taken as a whole. The Agreement
and Plan of Merger dated as of May 20, 1997 (the "KU Merger
Agreement") by and between LG&E Energy Corp. and KU Energy Corporation
contains restrictions on the incurrence or guarantee of indebtedness
by the Parent and the Borrower. Pursuant to the terms of the KU
Merger Agreement, the Parent must obtain the written consent of KU
Energy Corporation prior to the incurrence by the Borrower of
indebtedness in excess of the limitations set forth in the KU Merger
Agreement. At or prior to the time that the Borrower makes any
request for an Advance hereunder, all necessary consents, if any, of
KU Energy Corporation under the KU Merger Agreement for the incurrence
of the indebtedness by the Borrower represented by such Advance shall
have been obtained.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body (each, a "Governmental Approval") is required as of the date of
this Agreement for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes or by the Parent of the
Support Agreement or to consummate the Transaction except for those
Governmental Approvals which have been obtained and are in full force
and effect; and no Governmental Approval will be required after the
date of this Agreement for the due execution and delivery by the
Borrower of the Auction Notes, the performance by the Borrower of this
Agreement or the Notes or the performance of the Support Agreement by
the Parent or to consummate the Transaction except in either instance
for such Governmental Approvals (notice of each of which shall be
promptly given to the Lenders) that shall be in full force and effect
as and when required and not subject to appeal.
(d) This Agreement is, and the Notes when delivered hereunder
will be, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective
terms, except as the enforceability thereof may be limited by
equitable principles or bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally.
(e) The Support Agreement is in full force and effect and has
not been amended, modified, waived or terminated, except in accordance
with the terms hereof and thereof, and the Parent is not in default of
any of its obligations thereunder. The indebtedness of the Borrower
supported by the Parent under the Support Agreement and any other
support agreement shall not exceed the amount from time to time
authorized by the Parent's board of directors.
(f) The balance sheets of the Parent and its Consolidated
Subsidiaries as at December 31, 1996, and the related statements of
income and retained earnings of the Parent and its Consolidated
Subsidiaries for the fiscal periods then ended, certified by Arthur
Andersen & Co., copies of which have been furnished to each Lender,
fairly present the financial condition of the Parent and its
Consolidated Subsidiaries as at such date and the results of the
operations of the Parent and its Consolidated Subsidiaries for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied, and since December 31,
1996, and except as otherwise disclosed in the SEC Reports and/or
written materials furnished to the Lenders there has been no material
adverse change in the financial condition, operations, business or
prospects of the Parent and its Consolidated Subsidiaries, taken as a
whole, as reflected in such financial statements.
(g) Except as disclosed in the Parent's Annual Report to
Stockholders for the year ended December 31, 1996 or otherwise
disclosed in the SEC Reports and/or written materials furnished to the
Lenders, there is as of the date hereof and will be as of the Closing
Date no pending or threatened action or proceeding affecting the
Borrower, the Parent or any of its Consolidated Subsidiaries before
any court, governmental agency or arbitrator that could reasonably be
expected to have a material adverse effect on the financial condition,
operations, business or prospects of the Borrower or the Parent and
its Consolidated Subsidiaries, taken as a whole, and there is not and
will not be any such pending or threatened action or proceeding that
purports to affect the legality, validity, binding effect or
enforceability of this Agreement, any Note or the Support Agreement.
(h) No proceeds of any Advance have been or will be used
directly or indirectly in connection with any transaction subject to
the requirements of Section 14 of the Exchange Act with respect to
which proxies, consents or authorizations are being sought by any
person (as defined in the Exchange Act) other than the majority of the
board of directors of the issuer in respect of which such proxies,
consents or authorizations, as the case may be, are being sought.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System). Not more than 25% of the value of the assets
of the Parent or of the Borrower and its Subsidiaries is represented
by margin stock.
(j) The Borrower (i) is not a "public utility holding company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended, and (ii) 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, or an "investment advisor"
within the meaning of the Investment Company Act of 1940, as amended.
(k) No ERISA Termination Event has occurred, or is reasonably
expect to occur, with respect to any ERISA Plan that may materially
and adversely affect the financial condition, operations, business or
prospects of the Borrower or of the Parent and its Subsidiaries, taken
as a whole.
(l) The pro-forma consolidated balance sheets of the Borrower
and its Consolidated Subsidiaries delivered to the Lenders pursuant to
Section 3.01(a)(iii) fairly present in all material respects the
financial condition of the Borrower and its Consolidated Subsidiaries
as of June 30, 1997 but after giving effect to the Transaction.
(m) The information contained in the July, 1997 Confidential
Information Memorandum, the SEC Reports and other information provided
to the Lenders by or on behalf of the Parent and/or the Borrower,
taken as a whole, does not contain any untrue statement of a material
fact or omit a material fact necessary, in the context in which it is
furnished, to make the material statements contained therein or herein
not misleading in the light of the circumstances in which such
statements were made, the Lenders acknowledging that as to any
projections, financial models or estimates contained therein, the
Borrower only represents that the same were prepared in good faith and
on reasonable assumptions and actual results may vary materially
therefrom and that statements contained therein as to the terms hereof
and of the Support Agreement are qualified in their entirety by
reference to the actual terms of such agreements.
Article V
Covenants of the Borrower
Section 5.01. Affirmative Covenants. Unless the Majority Lenders shall
otherwise consent in writing, so long as any Note or any amount payable by
the Borrower hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, and, in the case of Section
5.01(b), will cause its Consolidated Subsidiaries to:
(a) Reporting Requirements. Furnish to the Administrative
Agent:
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Parent, consolidated and consolidating (showing each
direct Subsidiary of the Parent) balance sheets of the Parent and
its Consolidated Subsidiaries as of the end of such quarter,
consolidated and consolidating (showing each direct Subsidiary of
the Parent) statements of income, cash flow and retained earnings
of the Parent and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with
the end of such quarter, consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries as of the end of such
quarter and consolidated statements of income and retained
earnings of the Borrower and its Consolidated Subsidiaries for
the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, each certified by the chief
financial officer of the Borrower, or such other officer of the
Borrower acceptable to the Administrative Agent;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Parent, a copy of the
annual report for such year for the Parent and its Consolidated
Subsidiaries, containing consolidated financial statements for
such year, certified by Arthur Andersen & Co. or another
nationally recognized firm of independent public accountants, and
a copy of the unaudited consolidating (showing each direct
Subsidiary of the Parent) financial statements of the Parent and
its Consolidated Subsidiaries and the consolidated financial
statements of the Borrower and its Consolidated Subsidiaries for
such year;
(iii) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Borrower and within 120 days after the end of the
fiscal year of the Borrower, a certificate of the chief financial
officer of the Borrower, or such other officer of the Borrower or
Parent acceptable to the Administrative Agent, (A) demonstrating,
in reasonable detail and with supporting calculations, compliance
with the financial covenants set forth in Section 5.02(a) hereof
and (B) stating that no Event of Default and no event that, with
the giving of notice or lapse of time or both, will constitute an
Event of Default has occurred and is continuing, or if an Event
of Default or such event has occurred and is continuing, a
statement setting forth details of such Event of Default or event
and the action that the Borrower has taken and proposes to take
with respect thereto;
(iv) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Parent and within 120 days after the end of the
fiscal year of the Parent, a certificate of the chief financial
officer of the Parent, or such other officer of the Parent
acceptable to the Administrative Agent, (A) demonstrating, in
reasonable detail, the calculation of the Parent's Capitalization
Ratio as of the last day of such fiscal period and (B) stating
that the Parent is not in default in the performance or
observance of any term, covenant or agreement contained in the
Support Agreement;
(v) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each event
that, with the giving of notice or lapse of time or both, would
constitute an Event of Default, continuing on the date of such
statement, a statement of the chief financial officer of the
Borrower, or such other officer of the Borrower acceptable to the
Administrative Agent, setting forth details of such Event of
Default or event and the actions that the Borrower has taken and
proposes to take with respect thereto;
(vi) as soon as possible and in any event within five days
after the commencement of litigation against the Borrower or any
of its Material Consolidated Subsidiaries, or the receipt of a
notice of default by the Borrower or any of its Material
Consolidated Subsidiaries, that could reasonably be expected to
have a material adverse effect on the Borrower or any of its
Material Consolidated Subsidiaries, notice of such litigation or
notice of default describing in reasonable detail the facts and
circumstances concerning such litigation or default and the
Borrower's or such Material Consolidated Subsidiary's proposed
actions in connection therewith;
(vii) promptly after the sending or filing thereof, copies of
annual, quarterly or current reports on Forms 10-K, 10-Q or 8-K
(or any successor forms thereto) and registration statements
(other than any registration statement on Form S-8 and any
registration statement in connection with a dividend reinvestment
plan) that the Parent or the Borrower or any other Consolidated
Subsidiary of the Parent files with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, or
the Exchange Act, or with any national securities exchange; and
(viii) such other information respecting the condition or
operations, financial or otherwise, of the Parent, the Utility,
the Borrower or any of the Parent's other Material Consolidated
Subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
(b) Keep Books; Corporate Existence; Maintenance of Properties;
Compliance with Laws; Insurance.
(i) keep proper books of record and account, all in
accordance with generally accepted accounting principles;
(ii) preserve and keep in full force and effect its
existence (except in each instance to the extent otherwise
permitted pursuant to Section 5.02(d)) and preserve and keep in
full force and effect its licenses, rights and franchises to the
extent necessary to carry on its business;
(iii) maintain and keep, or cause to be maintained and kept,
its properties in good repair, working order and condition, and
from time to time make or cause to be made all needful and proper
repairs, renewals, replacements and improvements, in each case to
carry on its business;
(iv) comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or
its property, except to the extent being contested in good faith
by appropriate proceedings, and compliance with ERISA and
Environmental Laws, except in each case to the extent that any
noncompliance could not reasonably be expected to have a material
adverse effect on the financial condition, operations, business
or prospects of the Borrower and its Subsidiaries, taken as a
whole; and
(v) maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general
areas in which it operates.
(c) Use of Proceeds. Use the proceeds of each Borrowing
hereunder exclusively for general corporate purposes, including
acquisitions and working capital requirements in connection with
energy related businesses.
Section 5.02. Negative Covenants. Unless the Majority Lenders shall
otherwise consent in writing, so long as any Note or any amount payable by
the Borrower hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not:
(a) Consolidated Tangible Net Worth. At any time permit
Consolidated Tangible Net Worth to be less than $25,000,000.
(b) Disposition of Assets. Sell lease, transfer, convey or
otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets, or permit any of
its Subsidiaries to do so, except that (i) any such Subsidiary may
transfer assets to any other such Subsidiary or to the Borrower, (ii)
any such Subsidiary may sell, lease, transfer, convey or otherwise
dispose of all or substantially all of such assets to a Person other
than the Borrower and its Subsidiaries (each a "Disposition"), (iii)
any such Subsidiary may transfer its assets to any other Person in
connection with a sale and leaseback financing entered into by such
Subsidiary, and (iv) the Borrower may sell, lease, transfer, convey or
otherwise dispose of all or substantially all of its assets in a cash
transaction, provided, in the case of any transaction described in
clause (ii), (iii) or (iv), the consideration (as hereinafter defined)
received for such assets is at least equal to the fair value (as
determined in good faith by the board of directors of the Borrower)
thereof, and (A) such consideration constitutes, is reinvested in, or
is held in cash or cash-equivalents for reinvestment in, other energy-
related assets owned or to be owned by the Borrower or any of its
Subsidiaries or (B) such net consideration is applied immediately to
the payment or prepayment of Debt of the Borrower or any of its
Subsidiaries, provided further in each case, that immediately after
giving effect to any such transaction, no Event of Default or event
that with the giving of notice or the passage of time, or both, would
constitute an Event of Default shall have occurred and be continuing.
As used in this Section 5.02(b), the term "consideration" shall mean
cash consideration or the fair value of non-cash consideration (as
determined in good faith by the board of directors of the Borrower)
and the term "net consideration" shall mean the consideration less (i)
any provision for income or other taxes payable as a result of such
Disposition or other sale, lease, transfer, conveyance or other
disposition and (ii) all brokerage commissions and other fees and
expenses incurred in respect of such Disposition or other sale, lease,
transfer, conveyance or other disposition.
(c) Liens, Etc. Create or suffer to exist, or permit any of its
direct or indirect Subsidiaries to create or suffer to exist, any
lien, security interest or other charge or encumbrance, or any other
type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or
permit any of its direct or indirect Subsidiaries to assign, any right
to receive income, in each case to secure or provide for the payment
of any Debt, other than (i) liens or security interests existing on
such property at the time of its acquisition (other than any such lien
or security interest created in the contemplation of such acquisition
or of such Person becoming a Subsidiary), (ii) liens created by
purchase money mortgages or other security interests upon or in any
property acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or to secure indebtedness incurred solely for the purpose of
financing the acquisition of such property, (iii) liens or security
interests upon or with respect to any of the Borrower's interests in
its Subsidiaries (other than direct Subsidiaries of the Borrower) or
any of the Borrower's Subsidiaries' assets incurred solely to secure
repayment of project financing for, or utility obligations of, such
Subsidiary, (iv) margin deposits securing Debt of up to $10,000,000 at
any one time outstanding relating to obligations incurred in the
ordinary course of its energy marketing business, (v) liens securing
obligations, neither assumed by the Borrower or any Subsidiary nor on
account of which the Borrower or any Subsidiary customarily pays
interest, upon real estate upon or under which the Borrower or any
Subsidiary has a right-of-way, easement, franchise or other servitude
or of which the Borrower or any Subsidiary is the lessee of the whole
thereof or any interest therein for the purpose of locating pipe
lines, substations, measuring stations, tanks or pumping or delivery
equipment, (vi) liens or security interests on assets of a Subsidiary
securing Debt of such Subsidiary, provided that the aggregate
principal amount of Debt of Subsidiaries secured by liens or security
interests incurred pursuant to this subsection (vi) shall not exceed
$10,000,000 at any time, (vii) liens on any assets of any Subsidiary
of the Borrower in favor of the Borrower or any Subsidiary of the
Borrower, and (viii) extensions and renewals of any lien or security
interest described in clauses (i) through (vii) above, provided that
(A) any such extension or renewal shall be limited to the property
theretofore subject to such lien or security interest and additions
and/or improvements thereto and (B) the principal amount of the Debt
secured by such lien or security interest shall not be increased.
(d) Mergers and Consolidations. Merge or consolidate with or
into any Person, or permit any of its Subsidiaries to do so, except
(i) any Subsidiary of the Borrower may merge or consolidate with or
into any Person if after giving effect thereto the survivor is a
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may
merge with the Borrower, (iii) the Borrower may merge with the Parent
and (iv) any Subsidiary may merge into any other corporation if after
giving effect thereto the survivor is no longer a Subsidiary hereunder
and the assets of such Subsidiary could have been sold under Section
5.02(b) hereof for the consideration to be received or retained by the
Borrower and its Subsidiaries on account of such merger (and any such
transaction referred to in this clause (iv) shall be accounted for and
treated as a disposition of assets for purposes of Section 5.02(b)
hereof); provided in each case that, immediately after giving effect
to such proposed transaction, (A) no Event of Default or event that,
with the giving of notice or lapse of time, or both, would constitute
an Event of Default would exist and (B) in the case of any such
transaction to which the Borrower is a party, the Borrower is the
surviving corporation or the survivor shall have expressly assumed the
obligations of the Borrower hereunder and under the Notes pursuant to
an assumption agreement in form and substance reasonably satisfactory
to the Majority Lenders.
(e) Modification of Support Agreement. Amend, modify, terminate
or waive any provision of the Support Agreement, or consent to any of
the foregoing, except in each case in accordance with the terms of the
Support Agreement.
(f) Certain Restrictions during Defaults Hereunder. If an Event
of Default has occurred and is continuing hereunder or an event has
occurred which will constitute such an Event of Default upon the
passage of a period of grace (and any notice the giving of which is a
condition to the commencement of such period of grace has been given)
then and in any such event and without in any manner limiting the
remedies available to the Lenders upon the occurrence of a Default,
the Borrower will not declare or pay any dividend, either in cash or
property, on any share of its capital stock or any series or class or
purchase, redeem or otherwise acquire or retire any such capital stock
or any warrants, rights or options to purchase or acquire any such
capital stock or make any other payment or distribution either
directly or indirectly in respect of its capital stock, make or permit
any Subsidiary to make any investment in or loan or advance to the
Parent or any Subsidiaries thereof (other than the Borrower or any
Subsidiaries of the Borrower) or otherwise directly or indirectly in
any manner make or permit any Subsidiary to make any payment to, or
transfer any cash or any other asset to, the Parent or any such
Subsidiary; provided, however, that the foregoing shall not preclude
the Borrower and its Subsidiaries during the pendency of any such
Default, from making payments to the Parent under any equitable tax
sharing arrangements or in respect of goods or services then being
provided by or to the Parent or any Subsidiary thereof to or by, as
the case may be, the Borrower or its Subsidiaries at fair and
reasonable terms.
Article VI
Events of Default
Section 6.01. Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance,
or interest thereon or any other amount payable under this Agreement
within two days after the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower (or any of its officers) in
connection with this Agreement or by the Parent (or any of its
officers) in connection with this Agreement or the Support Agreement
shall prove to have been incorrect in any material respect when made;
or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.02, (ii) the Parent shall
fail to perform or observe any term, covenant or agreement contained
in the Support Agreement, (iii) the Capitalization Ratio shall at any
time exceed 65% or (iv) the Borrower shall fail to perform or observe
any other term, covenant or agreement contained in this Agreement on
its part to be performed or observed if the failure to perform or
observe such other term, covenant or agreement shall remain unremedied
for 20 days after written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender, or
(d) The Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, shall fail to pay any
principal of or premium or interest on any Debt which is outstanding
in a principal amount in excess of $15,000,000 in the aggregate (but
excluding Debt evidenced by the Notes) of the Borrower, the Parent,
the Utility or any Material Consolidated Subsidiary of the Borrower,
as the case may be, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the 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; or
(e) The Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, shall generally not pay its
debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower, the Parent, the Utility or any
Material Consolidated Subsidiary of the Borrower, seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of
90 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Borrower, the Parent, the Utility or any Material
Consolidated Subsidiary of the Borrower, shall take any corporate
action to authorize or to consent to any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$15,000,000 shall be rendered against the Borrower, the Parent, the
Utility or any Material Consolidated Subsidiary of the Borrower, and
shall remain unpaid 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
(g) (i) An ERISA Plan of the Borrower or any ERISA Affiliate of
the Borrower shall fail to maintain the minimum funding standards
required by Section 412 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), for any plan year or a waiver
of such standard is sought or granted under Section 412(d) of the
Code, or (ii) an ERISA Plan of the Borrower or any ERISA Affiliate of
the Borrower shall have been terminated or the subject of termination
proceedings under ERISA, or (iii) the Borrower or any ERISA Affiliate
of the Borrower shall have incurred a liability to or on account of an
ERISA Plan under Section 4062, 4063 or 4064 of ERISA and there shall
result from such event either a liability or a material risk of
incurring a liability to the PBGC or an ERISA Plan, or (iv) any ERISA
Termination Event with respect to an ERISA Plan of the Borrower or any
ERISA Affiliate of the Borrower shall have occurred, and in the case
of any event described in clauses (i) through (iv) of this subsection
(g), (A) such event (if correctable) shall not have been corrected and
(B) the then-present value of such ERISA Plan's vested benefits
exceeds the then-current value of assets accumulated in such ERISA
Plan by more than the amount of $15,000,000 (or in the case of an
ERISA Termination Event involving the withdrawal of a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), the withdrawing
employer's proportionate share of such excess shall exceed such
amount); or
(h) Any provision of the Support Agreement shall for any reason
cease to be valid and binding on any party thereto or any party
thereto shall so state in writing; or
(i) Any authorization or approval or other action by any
governmental authority or regulatory body required for the execution,
delivery or performance of (i) this Agreement, the Notes or the
Support Agreement by the Borrower or (ii) the Support Agreement by the
Parent shall be terminated, revoked or rescinded or shall otherwise no
longer be in full force and effect;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Majority Lenders, 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 Majority Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, 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 obligation of each Lender to make Advances shall
automatically be terminated and (B) the Notes, or 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 AGENTS
Section 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as Administrative
Agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative 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 (including, without limitation,
enforcement or collection of the Notes), the Administrative 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; provided, however, that the Administrative Agent shall
not be required to take any action which exposes the Administrative Agent
to personal liability or which is contrary to this Agreement or applicable
law. The Administrative 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.
Section 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, administrative
agents or employees shall be liable to any Lender or the Borrower for any
action taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing,
the Administrative Agent (i) may treat the payee of any Note as the holder
thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance 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 and (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. The Agents make 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; (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 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, the
Notes or any other instrument or document furnished pursuant hereto or
thereto; and (vi) shall incur no liability under or in respect of this
Agreement 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. The Lenders and the Borrower acknowledge that no Agent other
than the Administrative Agent has any duties or responsibilities hereunder.
Section 7.03. Agents and Affiliates. With respect to its Commitment, the
Advances made by it and the Notes issued to it, each Agent shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include the Agents
in their individual capacities. Each Agent 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 it were not an 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 Agents 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
Agents 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
Administrative Agent (to the extent not reimbursed by the Borrower),
ratably according to (i) at any time on or prior to the Termination Date,
the respective principal amounts of the Contract Notes then held by each of
them (or if no Contract Notes are at the time outstanding or if any
Contract Notes are held by Persons which are not Lenders, ratably according
to the respective amounts of their Commitments) and (ii) at any time after
the Termination Date, the respective principal amounts of the Notes then
held by each of them (or if any Notes are held by Persons that are not
Lenders, ratably according to the respective unpaid principal amounts of
the Advances made by each Lender), 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
Administrative Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Administrative Agent under
this Agreement, 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
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any out-
of-pocket expenses (including reasonable counsel fees) incurred by the
Administrative 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 such expenses are reimbursable by the Borrower but for which
the Administrative Agent is not reimbursed by the Borrower.
Section 7.06. Successor Administrative Agent. The Administrative 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. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Administrative Agent.
If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation
or the Majority Lenders' removal of the retiring Administrative Agent, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank described
in clause (i) or (ii) of the definition of "Eligible Assignee" and having a
combined capital and surplus of at least $150,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative 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 Administrative Agent under this
Agreement. Notwithstanding the foregoing if no Event of Default, and no
event that with the giving of notice or the passage of time, or both, would
constitute an Event of Default, shall have occurred and be continuing, then
no successor Administrative Agent shall be appointed under this Section
7.06 without the prior written consent of the Borrower, which consent shall
not be unreasonably withheld or delayed.
Article VIII
Miscellaneous
Section 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Contract Notes, 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 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
(other than any Lender that is the Borrower or an Affiliate of the
Borrower), do any of the following: (a) waive any of the conditions
specified in Section 3.01, 3.02 or 3.03, (b) increase the Commitments of a
Lender or subject a Lender to any additional obligations, (c) reduce the
principal of, or interest on, the Contract Notes or any fees or other
amounts payable to the Lenders hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the Contract Notes or any fees
or other amounts payable to the Lenders hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount
of the Contract Notes, or the number of Lenders, which shall be required
for the Lenders or any of them to take any action hereunder, (f) amend or
waive compliance with Sections 5.02(e) or 6.01(h) (except that Sections 2,
3 and 4 of the Support Agreement may be amended or compliance therewith
waived by the Majority Lenders) or (g) amend this Section 8.01; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
Section 8.02. Notices, Etc. All notices and other communications
provided for hereunder 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 220 W. Main Street, Louisville, Kentucky 40202, Attention:
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 Assignment and Acceptance pursuant
to which it became a Lender; and if to the Administrative Agent, at its
address at 115 South LaSalle Street, Chicago, Illinois 60603, Attention:
Natural Resources; 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 when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, except that
notices and communications to the Administrative Agent pursuant to Article
II or VII shall not be effective until received by the Administrative
Agent.
Section 8.03. No Waiver, Remedies. No failure on the part of any Lender
or the Administrative 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.
. (a) The Borrower agrees to pay on demand all costs and expenses incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, syndication administration, modification and amendment of this
Agreement, the Notes, the Support Agreement and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses, if any (including, without
limitation, counsel fees and expenses of outside counsel and of internal
counsel), incurred by the Administrative Agent and the Lenders in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes, the Support
Agreement and the other documents to be delivered hereunder, including,
without limitation, reasonable counsel fees and expenses in connection with
the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Adjusted CD
Rate Advance, Eurodollar Rate Advance or Eurodollar Rate Auction Advance is
made other than on the last day of the Interest Period or term, as
applicable for such Advance, as a result of a payment or Conversion
pursuant to Section 2.10 or 2.13 or a prepayment pursuant to Section 2.11
or acceleration of the maturity of the Notes 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 Administrative Agent), pay to the Administrative
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,
each Agent and their respective Affiliates and their respective officers,
directors, employees and professional advisors (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) that any of them may incur or which may be
claimed against any of them by any person or entity by reason of or in
connection with the execution, delivery or performance of this Agreement,
the Notes, the Support Agreement or any transaction contemplated thereby,
or the use by the Borrower or any of its subsidiaries of the proceeds of
any Advance, except to the extent such claim, damage, loss, liability, cost
or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Person's
gross negligence or willful misconduct. The Borrower's obligations under
this Section 8.04(c) shall survive the repayment of all amounts owing to
the Lenders and the Agents under this Agreement and the Notes and the
termination of the Commitments. If and to the extent that the obligations
of the Borrower under this Section 8.04(c) are unenforceable for any
reason, the Borrower agrees to make the maximum contribution to the payment
and satisfaction thereof which is permissible under applicable law.
Section 8.05. Right of Set-off. 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 specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes 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 this Agreement and any Note held by such Lender, whether or
not such Lender shall have made any demand under this Agreement or such
Note 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 8.05 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender
may have.
Section 8.06. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, the Administrative Agent and
Syndication Agent and when the Administrative Agent shall have been
notified by each Bank that such Bank has executed it and thereafter shall
be binding upon and inure to the benefit of the Borrower, the Agents and
each Lender and their respective successors and permitted 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, with
the prior written consent of the Borrower and the Administrative Agent
(which consent shall not be unreasonably withheld or delayed), assign to
one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, its rights and obligations in respect of the
Contract Advances owing to it and the Contract Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all such rights and obligations, (ii)
unless both parties to the assignment are Lenders immediately prior to
giving effect to the assignment, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall not be less than $5,000,000 (or if less, the entire
amount of such Lender's Commitment) and shall be an integral multiple of
$1,000,000 (or such Lender's entire Commitment), (iii) each such assignment
shall be to an Eligible Assignee, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Contract Note or Notes subject to such assignment and a
processing and recordation fee of $3,500; provided further that the prior
written consent of the Borrower shall not be required during the
continuance of an Event of Default. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in
each Assignment and Acceptance, (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 Assignment and Acceptance, 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 Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance 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).
(b) By executing and delivering an Assignment and Acceptance, 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 Assignment and Acceptance, 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
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto; (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 this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee
acknowledges that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01(f) and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Agents, upon such assigning Lender or upon 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; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, 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 this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance 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
Contract Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative 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 an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Contract Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent in exchange for the surrendered Contract Note or
Notes a new Contract Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Contract Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Contract
Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Contract Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or other entities any
Auction Note or Notes held by it.
(f) Each Lender may sell participations to one or more banks or other
entities in or to 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 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 for all purposes of
this Agreement, and (iv) the Borrower, the Administrative 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.
(g) 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 to preserve the confidentiality of any confidential information
relating to the Borrower received by it from such Lender.
(h) Notwithstanding anything to the contrary set forth herein, any
Lender may assign, as collateral or otherwise, any of its rights hereunder
and under the Notes (including, without limitation, its rights to receive
payments of principal and interest hereunder and under the Notes) to any
Federal Reserve Bank without notice to or consent of the Borrower or the
Administrative Agent.
(i) If any Lender shall make demand for payment under Section
2.12(a), 2.12(b) or 2.15, or shall deliver any notice to the Administrative
Agent pursuant to Section 2.13 resulting in the suspension of certain
obligations of the Lenders with respect to Eurodollar Rate Advances or
shall refuse to consent to any amendment, modification or waiver which has
been approved by the Majority Lenders but can only become effective upon
the consent of all Lenders then within 60 days of such demand, notice or
refusal, the Borrower may demand that such Lender assign in accordance with
this Section 8.07 to one or more Eligible Assignees designated by the
Borrower and approved by the Administrative Agent (which approval will not
be unreasonably withheld or delayed) all (but not less than all) of such
Lender's Commitment, its rights and obligations in respect of the Contract
Advances owing to it within the next 30 days but such Lender shall be
entitled to any amount which would have been due to it under Section
8.04(b) hereof if such Contract Advances had been prepaid rather than
assigned. 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 Assignee for all
of such Lender's Commitment or Advances, then such Lender may assign such
Commitment and Advances to any other Eligible Assignee in accordance with
this Section 8.07 during such 30-day period.
Section 8.08. Discretion of Lender as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Lender shall be
entitled to fund and maintain its funding of all or any part of its
Advances in any manner it sees fit, it being understood, however, that for
the purposes of this Agreement all determinations hereunder shall be made
as if each Lender had actually funded and maintained each Eurocurrency Rate
Advance and each Eurodollar Rate Auction Advance through the purchase of
deposits in the eurocurrency interbank market having a maturity
corresponding to such Advance's Interest Period or term, as applicable, and
bearing an interest rate equal to the Eurodollar Rate for such Interest
Period or term, as applicable.
Section 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
Illinois.
Section 8.10. Waiver of Jury Trial. The Borrower, the Agents and the
Lenders hereby irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or
any note, or any other instrument or document hereunder or thereunder.
Section 8.11. 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.
Section 8.12. Termination of Existing Credit Agreements. The Borrower
and each of the Lenders hereunder that is a party to any of the Existing
Credit Agreements, consents to the termination of the "Commitments"
thereunder effective and the repayment of any "Advances" outstanding
thereunder on the date the conditions set forth in Section 3.01 hereof are
fulfilled, notwithstanding any applicable notice requirements for such
termination or prepayment set forth in any Existing Credit Agreement.
Because such Lenders hereunder constitute the "Majority Lenders" under each
of the Existing Credit Agreements, the Existing Credit Agreements shall
terminate and all amounts payable thereunder, including accrued and unpaid
facility fees, shall be payable, and the fees payable under Section 2.04
hereof shall begin to accrue, on the date this Agreement has been executed
by all the parties hereto and the conditions set forth in Section 3.01
hereof have been fulfilled.
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.
LG&E Capital Corp.
By
Name:
Title:
Chase Securities Inc., as Syndication
Agent
By
Name:
Title:
Bank of Montreal, as Administrative
Agent
By
Name:
Title:
Commitment Bank of Montreal
$17,142,857.15
By
Name:
Title:
Commitment The Chase Manhattan Bank
$17,142,857.16
By
Name:
Title:
Commitment Morgan Guaranty Trust Company of
$13,142,857.14 New York
By
Name:
Title:
Commitment PNC Bank, Kentucky, Inc.
$13,142,857.14
By
Name:
Title:
Commitment The Bank of New York
$13,142,857.14
By
Name:
Title:
Commitment The First National Bank of Chicago
$13,142,857.14
By
Name:
Title:
Commitment Wachovia Bank, N.A.
$13,142,857.14
By
Name:
Title:
Commitment Fleet National Bank
$11,428,571.43
By
Name:
Title:
Commitment Bank of America National Trust and
$8,571,428.57 Savings Association
By
Name:
Title:
Commitment Bank One, Kentucky, N.A.
$8,571,428.57
By
Name:
Title:
Commitment BankBoston N.A.
$8,571,428.57
By
Name:
Title:
Commitment Banque Paribas
$8,571,428.57
By
Name:
Title:
Commitment Citibank, N.A.
$8,571,428.57
By
Name:
Title:
Commitment First Union National Bank
$8,571,428.57
By
Name:
Title:
Commitment Kredietbank N.V., Grand Cayman
$8,571,428.57 Branch
By
Name:
Title:
By
Name:
Title:
Commitment Mellon Bank, N.A.
$8,571,428.57
By
Name:
Title:
Commitment NationsBank, N.A.
$8,571,428.57
By
Name:
Title:
Commitment The Bank of Tokyo-Mitsubishi, Ltd.,
$8,571,428.57 Chicago Branch
By
Name:
Title:
Commitment Fifth Third Bank of Kentucky, Inc.
$2,857,142.86
By
Name:
Title:
Schedule I
LG&E Capital Corp.
$200,000,000 Credit Agreement
Eurodollar Domestic CD Lending
Name of Bank Lending Office Lending Office
Office
Bank of Montreal 115 S. LaSalle Street Same as Same as
Chicago, IL 60603 Eurodollar Eurodollar
Notices other than Contact: Patrick Lending Lending
for Borrowings and Escalante Office Office
Repayments: Tel: (312) 750-4356
Fax: (312) 750-3808
115 S. LaSalle Street
Chicago, IL 60603
Contact: Greg Watland
Tel: (312) 750-4356
Fax: (312) 750-3808
The Chase Manhattan 1 Chase Manhattan Same as Same as
Bank Plaza Eurodollar Eurodollar
8th Floor Lending Lending
Notices other than New York, NY 10081 Office Office
for Borrowings and Contact: Lynette
Repayments: Lang
Tel: (212) 552-__92
1 Chase Manhattan Fax: (212) 552-5777
Plaza
3rd Floor
New York, NY 10081
Contact: Thomas Casey
Vice President
Tel: (212) 552-7518
Fax: (212) 968-7485
Morgan Guaranty Trust Nassau Bahamas Office 60 Wall Same as
Company of New York c/o J.P. Morgan Street Domestic
Services, Inc. New York, NY Lending
Notices other than 500 Stanton 10260-0060 Office
for Borrowings and Christiana Road
Repayments: Newark, DE 19713
Contact: Euro-Loan
60 Wall Street, 22nd Servicing
Floor Unit
New York, NY 10260- Tel: (302)
0060 Fax: (302) 634-1094
Contact: Jim Finch
Tel: (212) 648-7141
Fax: (212) 648-5014
PNC Bank, Kentucky, 500 W. Jefferson Same as Same as
Inc. Street Eurodollar Eurodollar
8th Floor Lending Lending
Notices other than Louisville, KY 40202 Office Office
for Borrowings and Contact: Jamie
Repayments: Argenbright
Tel: (502) 581-2086
500 W. Jefferson Fax: (502) 581-2302
Street
8th Floor
Louisville, KY 40202
Contact: Brennan T.
Danile
Corporate
Banking
Officer
Tel: (502) 581-3022
Fax: (502) 581-2302
The Bank of New York 101 Barclay Street Same as Same as
New York, New York Eurodollar Eurodollar
Notices other than Contact: Jo-Ann Lending Lending
for Borrowings and Evans Office Office
Repayments: Tel: (212) 635-7535
Fax: (212) 635-7923
One Wall Street, 19th
Floor
New York, New York
10286
Contact: Timothy M.
Lynch
Tel: (212) 635-7863
Fax: (212) 635-7923
The First National BankOne First National Same as Same as
of Chicago Plaza Eurodollar Eurodollar
Suite 0634 Lending Lending
Notices other than Chicago, IL 60670 Office Office
for Borrowings and Contact: Lynn
Repayments: Pozsgay
Tel: (312) 732-8705
One First National Fax: (312) 732-4840
Plaza
Suite 0363
Chicago, IL 60670
Contact: Cristiana
Freeman
Tel: (312) 732-6321
Fax: (312) 732-3055
Wachovia Bank, N.A. 191 Peachtree Street Same as Same as
29th Floor Eurodollar Eurodollar
Notices other than Atlanta, GA 30303 Lending Lending
for Borrowings and Contact: Karen Office Office
Repayments: Mathews
Tel: (404) 332-5149
191 Peachtree Street Fax: (404) 332-5016
29th Floor
Atlanta, GA 30303
Contact: John B. Tibe
Assistant Vice
President
Tel: (404) 332-1040
Fax: (404) 332-5016
Fleet National Bank One Federal Street Same as Same as
Boston, MA 02211 Eurodollar Eurodollar
Notices other than Contact: Anahid Lending Lending
for Borrowings and Vaeiabedian Office Office
Repayments: Tel: (617) 346-0626
Fax: (617) 346-0595
One Federal Street
Boston, MA 02211
Contact: Thomas L.
Rose
Tel: (617) 346-0572
Fax: (617) 346-0580
Bank of America 350 Gatewat Blvd., Same as Same as
National Trust and 4th Floor Eurodollar Eurodollar
Savings Association Concord, CA 94520 Lending Lending
Contact: Bonnie Office Office
Notices other than Carden
for Borrowings and Account
Repayments: Administration
Tel: (510) 675-7766
Bank of America NT&SA Fax: (510) 675-
555 So. Flower Street, 7531/7632
10th Floor
Los Angeles, CA 90071
Contact: Vanessa Sheh
Meyer
Vice President
Tel: (213) 228-9737
Fax: (213) 228-4062
Bank One, Kentucky, NA P.O. Box 32500 Same as Same as
Louisville, KY 40232- Eurodollar Eurodollar
Notices other than 2500 Lending Lending
for Borrowings and Contact: Sari Lea Office Office
Repayments: Pelkey-Offutt
Tel: (502) 566-8855
416 West Jefferson Fax: (502) 566-8621
Street
Louisville, KY 40202
Contact: Todd D.
Munson
Senior Vice
President
Tel: (502) 566-2650
Fax: (502) 566-8339
BankBoston N.A. 100 Federal St. Same as Same as
Boston, MA 02110 Eurodollar Eurodollar
Notices other than Contact: Debora Lending Lending
for Borrowings and Williams Office Office
Repayments: Tel: (617) 434-9623
Fax: (617) 434-9820
100 Federal St.
Boston, MA 02110
Contact: Rita M.
Cahill
Vice President
Tel: (617) 434-2613
Fax: (617) 434-3652
Banque Paribas 787 Seventh Avenue Same as Same as
New York, New York Eurodollar Eurodollar
Notices other than 10019 Lending Lending
for Borrowings and Contact: Robyn Office Office
Repayments: Gewanter
Tel: (212) 841-2950
787 Seventh Avenue Fax: (12) 841-2217
New York, New York
10019
Contact: Olivier
Serra
Tel: (212) 841-2573
Fax: (12) 841-2555
Citibank, N.A. 2 Penn's Way, Suite Same as Same as
200 Eurodollar Eurodollar
Notices other than New Castle, DE 19720 Lending Lending
for Borrowings and Contact: Kate Bohen Office Office
Repayments: Tel: (302) 894-6077
Fax: (302) 894-6120
399 Park Avenue
4th Floor, Zone 20
New York, NY 10043
Contact: Philip C.
Kron
Attorney-in-fact
Tel: (212) 559-1500
Fax: (212) 793-6130
First Union National 301 South Collete St. Same as Same as
Bank Charlotte, NC 28288- Eurodollar Eurodollar
0735 Lending Lending
Notices other than Contact: Dana Office Office
for Borrowings and Maloney
Repayments: Tel: (704) 383-0296
Fax: (704) 383-6670
301 South Collete St.
Charlotte, NC 28288-
0735
Contact: Tom Bohrer
Director
Tel: (704) 374-6272
Fax: (704) 383-6670
Kredietbank NV, Grand Kredietbank NV, GrandSame as Same as
Cayman Branch Cayman Branch Eurodollar Eurodollar
125 West 55th Street Lending Lending
Notices other than New York, NY 10019 Office Office
for Borrowings and Contact: Lynda
Repayments: Resuma
Loan
1349 West Peachtree Administration
Street Tel: (212) 541-0667
Suite 1750 Fax: (212) 956-5580
Atlanta, GA 30308
Contact: Jackie K.
Brunetto
Vice President
Tel: (404) 876-2558
Fax: (404) 876-3212
Mellon Bank, N.A. Three Mellon Bank Same as Same as
Center Eurodollar Eurodollar
Notices other than Room 2332 Lending Lending
for Borrowings and Pittsburg, PA 15259- Office Office
Repayments: 0003
Contact: Jacqueline
One Mellon Bank Center Terry
Room 4425 Tel: (412) 234-8285
Pittsburg, PA 15258- Fax: (412) 236-2037-
0001 2028
Contact: Richard A.
Matthews
Vice President
Tel: (412) 234-9759
Fax: (412) 236-1840
NationsBank, N.A. 100 North Tryon Same as Same as
Charlotte, NC 28255 Eurodollar Eurodollar
Notices other than Contact: Judy Dudley Lending Lending
for Borrowings and Tel: (704) 386-8201 Office Office
Repayments: Fax: (704) 386-8694
100 North Tryon
Charlotte, NC 28255
Contact: Gretchen P.
Burud
Vice President
Tel: (704) 386-8394
Fax: (704) 386-1260
The Bank of Tokyo- 227 West Monroe Same as Same as
Mitsubishi, Ltd., Street Eurodollar Eurodollar
Chicago Branch Suite 2300 Lending Lending
Chicago, IL 60606 Office Office
Notices other than Contact: Jean Chaney
for Borrowings and Julie Galligan
Repayments: Tel: (312) 696-
4712/4711
227 West Monroe Street Fax: (312) 696-4532
Suite 2300
Chicago, IL 60606
Contact: Christopher
D. Jones
Assistant Vice
President
Tel: (312) 696-4656
Fax: (312) 696-4535
Fifth Third Bank of 401 S. Fourth Avenue Same as Same as
Kentucky, Inc. Louisville, KY 40202 Eurodollar Eurodollar
Contact: Judy R. Lending Lending
Notices other than Semarie Office Office
for Borrowings and Tel: (502) 562-5531
Repayments: Fax: (502) 562-5540
401 S. Fourth Avenue
Louisville, KY 40202
Contact: Robert M.
Eversole
Senior Vice
President
Tel: (502) 562-5533
Fax: (502) 562-5540
Exhibit A-1
Form of Contract Note
U.S. $_______________ Dated: ____________, ____
For Value Received, the undersigned, LG&E Capital Corp., a Kentucky
corporation (the "Borrower"), hereby promises to pay to the order of
_______________ (the "Lender") for the account of its Applicable Lending
Office (such term and other capitalized terms herein being used as defined
in the Credit Agreement referred to below) the principal sum of U.S.
$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Contract Advances made by the Lender to the
Borrower pursuant to the Credit Agreement outstanding on the Termination
Date, payable on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Contract Advance from the date of such Contract Advance until such
principal amount is paid in full, at such interest rates, and payable at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Bank of Montreal, as Administrative Agent, at 115
South LaSalle Street, Chicago, Illinois 60603, in same day funds. Each
Contract Advance made by the Lender to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any offer hereof endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Contract Notes referred to in, and
is entitled to the benefits of, the Credit Agreement, dated as of September
5, 1997 (the "Credit Agreement"), among the Borrower (as successor by
merger to LG&E Energy Systems Inc., a Kentucky corporation, and LG&E Gas
Systems Inc., a Delaware corporation), the Lender and certain other banks
parties thereto, Chase Securities Inc., as Syndication Agent, and Bank of
Montreal, as Administrative Agent for the Lender and such other banks. The
Credit Agreement, among other things, (i) provides for the making of
Contract Advances by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting
from each such Contract Advance being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account
of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
LG&E Capital Corp.
By
Name:
Title:
Advances, Interest Periods and Payments of Principal
___________________________________________________________________________
Interest Amount of
Period (if Principal Unpaid
Amount of any) of Paid or Principal Notation
Date Advance Advance Prepaid Balance Made By
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Exhibit A-2
Form of Auction Note
U.S. $_______________ Dated: ___________, _____
For Value Received, the undersigned, LG&E Capital Corp., a Kentucky
corporation (the "Borrower"), hereby promises to pay to the order of
_______________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on
_______________________, _____, the principal amount of
_________________________________________ Dollars ($___________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at
the interest rate and payable on the interest payment date or dates
provided below:
Interest Rate: ______% per annum (calculated on the
basis of a year of _____ days for the actual number of
days elapsed).
Interest Payment Date or Dates: ______________________
Both principal and interest are payable in lawful money of the United
States of America to ________________________________ for the account of
the Lender at the office of Bank of Montreal, as Administrative Agent, at
115 South LaSalle Street, Chicago, Illinois 60603, in same day funds, free
and clear of and without any deduction, with respect to the payee named
above, for any and all present and future taxes, deductions, charges or
withholdings, and all liabilities with respect thereto to the extent and in
the manner provided in the Credit Agreement.
This Promissory Note is one of the Auction Notes referred to in, and
is entitled to the benefits of, the Credit Agreement, dated as of September
5, 1997 (the "Credit Agreement"), among the Borrower (as successor by
merger to LG&E Energy Systems Inc., a Kentucky corporation, and LG&E Gas
Systems Inc., a Delaware corporation), the Lender and certain other banks
parties thereto, Chase Securities Inc., as Syndication Agent and Bank of
Montreal, as Administrative Agent for the Lender and such other banks. The
Credit Agreement, among other things, contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois
LG&E Capital Corp.
By
Name:
Title:
Exhibit B-1
Form of Notice of Contract Borrowing
Bank of Montreal, as
Administrative Agent
for the Lenders
parties to the
Credit Agreement
referred to below
115 South LaSalle Street
Chicago, Illinois 60603
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, LG&E Capital Corp., refers to the Credit Agreement,
dated as of September 5, 1997 (the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto, Chase Securities Inc., as Syndication
Agent, and Bank of Montreal, as Administrative Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby requests a Contract Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Contract Borrowing (the "Proposed Contract
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Contract Borrowing is
_________, ____.
(ii) The Type of Contract Advances to be made in connection with
the Proposed Contract Borrowing is [Adjusted CD Rate Advances] [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Contract Borrowing is
$_______________________.
(iv) The Interest Period for each Contract Advance made as part
of the Proposed Contract Borrowing is [__________ days] [___________
month[s]].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Contract Borrowing:
(A) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Contract
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date except to the extent any such
representation or warranty expressly relates solely to an earlier date
and except that the reference to the December 31, 1996 financial
statements of the Parent and its Consolidated Subsidiaries in Section
4.01(f) shall be deemed a reference to the most recent quarterly or
annual financial statements of the Parent and its Consolidated
Subsidiaries submitted to the Lenders pursuant to Section 5.01(a)
hereof; and
(B) no event has occurred and is continuing, or would result
from such Proposed Contract Borrowing or from the application of the
proceeds therefrom, that constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
Very truly yours,
LG&E Capital Corp.
By
Name:
Title:
Exhibit B-2
Form of Notice of Auction Borrowing
Bank of Montreal, as
Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
115 South LaSalle Street
Chicago, Illinois 60603
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, LG&E Capital Corp., refers to the Credit Agreement,
dated as of September 5, 1997 (the "Credit Agreement," the terms defined
therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto, Chase Securities Inc., as Syndication
Agent and Bank of Montreal, as Administrative Agent for said Lenders, and
hereby gives you notice pursuant to Section 2.03 of the Credit Agreement
that the undersigned hereby requests an Auction Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such
Auction Borrowing (the "Proposed Auction Borrowing") is requested to be
made:
(A) Date of Auction Borrowing _________________
(B) Amount of Auction Borrowing _________________
(C) Maturity Date _________________
(D) Interest Payment Date(s) _________________
(E) Type of Auction Borrowing * _________________
* Either Fixed Rate Auction Borrowing or Eurodollar Rate Auction
Borrowing.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Auction Borrowing:
(a) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Auction
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date except to the extent any such
representation or warranty expressly relates solely to an earlier date
and except that the reference to the December 31, 1996 financial
statements of the Parent and its Consolidated Subsidiaries in Section
4.01(f) shall be deemed a reference to the most recent quarterly or
annual financial statements of the Parent and its Consolidated
Subsidiaries submitted to the Lenders pursuant to Section 5.01(a)
hereof;
(b) no event has occurred and is continuing, or would result
from the Proposed Auction Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both; and
(c) the aggregate amount of the Proposed Auction Borrowing and
all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Commitments of
the Lenders.
The undersigned hereby confirms that the Proposed Auction Borrowing is
to be made available to it in accordance with Section 2.03(a)(v) of the
Credit Agreement.
Very truly yours,
LG&E Capital Corp.
By
Name:
Title:
Exhibit C
Form of Assignment and Acceptance
Dated ________________, _____
Reference is made to the Credit Agreement, dated as of September 5,
1997 (the "Credit Agreement"), among LG&E Capital Corp., a Kentucky
corporation, as successor by merger to LG&E Energy Systems Inc., a Kentucky
corporation, and LG&E Gas Systems Inc., a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement), Chase
Securities Inc., as Syndication Agent, and Bank of Montreal, as
Administrative Agent for the Lenders (the "Administrative Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
__________________________ (the "Assignor") and
_______________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
that interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the date hereof (other than in respect of
Auction Advances and Auction Notes) which represents the percentage
interest specified on Schedule 1 of all outstanding rights and obligations
under the Credit Agreement (other than in respect of Auction Advances and
Auction Notes), including, without limitation, such interest in the
Assignor's Commitment, the Contract Advances owing to the Assignor, the
Contract Note[s] held by the Assignor. After giving effect to such sale and
assignment, the Assignee's Commitment and the amount of the Contract
Advances owing to the Assignee will be as set forth in Section 2 of
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) 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 the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iv) attaches
the Contract Note[s] referred to in paragraph 1 above and requests that the
Administrative Agent exchange such Contract Note[s] for a new Contract Note
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Contract Notes payable to
the order of the Assignee in an amount equal to the Commitment assumed by
the Assignee pursuant hereto and the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a
Lender [and] (vi) specifies as its CD Lending Office, Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the offices
set forth beneath its name on the signature pages hereof [and (vi) attaches
the forms prescribed by the Internal Revenue Service of the United States
certifying that it is exempt from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes]. 1
1 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be the date of acceptance
thereof by the Administrative Agent, unless otherwise specified on Schedule
1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Contract Notes in respect of
the interest assigned hereby (including, without limitation, all payments
of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Contract Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
In Witness Whereof, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date entered above written, such execution being made
on Schedule 1 hereto.
[Name of Assignor]
By
Name:
Title:
[Name of Assignee]
By
Name:
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and address
for notices):
[Address]
Eurodollar Lending Office:
[Address]
Consented to this day
of ____________, ______ Contact for notices other than
Borrowings and Repayments:
Bank of Montreal, as Administrative
Agent
By_______________________________
Name:
Title:
LG&E Capital Corp.
By_______________________________
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated _____________, _____
Section 1.
Percentage Interest: _______%
Section 2.
Assignee's Commitment: $___________
Aggregate Outstanding Principal
Amount of Contract Advances owing to the Assignee: $___________
A Contract Note payable to the order of the Assignee
Dated: _____________, _____
Principal amount:$___________
A Contract Note payable to the order of the Assignor
Dated: _____________, _____
Principal amount: $_________
Section 3.
Effective Date 1 ______________, ___
1 This date should be no earlier than the date of acceptance by the
Administrative Agent.
Exhibit D
Form of Opinion of Special Counsel
for the Borrower and the Parent
September 5, 1997
To each of the Banks which
is a party to the Credit
Agreement (as herein
defined)
Re: LG&E Capital Corp.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01 of the
Credit Agreement, dated as of September 5, 1997 (the "Credit Agreement"),
among LG&E Capital Corp., a Kentucky corporation (the "Borrower"), the
Banks named therein, Chase Securities Inc., as Syndication Agent and Bank
of Montreal, as Administrative Agent, relating to a $200,000,000 revolving
credit facility. Capitalized terms used herein and not defined herein
shall have the meaning assigned thereto in the Credit Agreement.
We have served as counsel to LG&E Energy Corp., a Kentucky corporation
(the "Parent"), and the Borrower in connection with the preparation,
execution and delivery of the Credit Agreement, the Contract Notes and the
Support Agreement.
In that connection, we have examined:
(1) the Credit Agreement;
(2) the Contract Notes executed and delivered on the date hereof
(the "Issued Notes");
(3) the form of the Auction Notes to be delivered by the
Borrower in connection with any Auction Borrowing;
(4) the Support Agreement;
(5) the documents furnished by the Borrower and the Parent
pursuant to Section 3.01 of the Credit Agreement;
(6) the Articles of Incorporation of the Borrower and all
amendments thereto (the "Borrower Charter");
(7) the by-laws of the Borrower and all amendments thereto (the
"Borrower By-laws");
(8) a certificate of the Secretary of the State of Kentucky,
dated __________, 1997, attesting to the continued corporate existence
and good standing of the Borrower in that State;
(9) the Articles of Incorporation of the Parent and all
amendments thereto (the "Parent Charter"); and
(10) the by-laws of the Parent and all amendments thereto (the
"Parent By-laws").
Collectively, the documents identified in clauses (1), (2) and (4) above
are referred to herein as the "Documents".
We have also examined the originals, or copies certified to our
satisfaction, of such other corporate records of the Borrower and the
Parent, certificates of public officials and of officers of the Borrower
and the Parent, and agreements, instruments and other documents, as we have
deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, we have, when relevant facts
were not independently established by us, relied upon certificates of the
Borrower or the Parent, or their respective officers, or of public
officials.
We have assumed the genuineness of all signatures, the legal capacity
of all individuals who have executed the Documents and all other documents
we have reviewed, the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents
submitted to us as certified, photostatic, reproduced or conformed copies.
We have also assumed that the Credit Agreement has been duly authorized,
executed and delivered by each of the Agents and each of the Banks and is
enforceable in accordance with its terms against such parties and that the
execution, delivery and performance of the Credit Agreement by each of the
Agents and each of the Banks does not and will not result in a breach of,
or constitute a default under, any agreement, instrument or other document
to which such party is a party or any order, judgment, writ or decree
applicable to such party to which such party's property is subject.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of Illinois. With your permission,
we have relied without independent investigation upon the opinion being
delivered to you of John R. McCall, Esq., a member of the Kentucky Bar, as
to all matters of Kentucky law involved in opinions set forth below. In
our opinion, you and we are justified in so relying upon the opinion of
John R. McCall, Esq.
Based upon the foregoing and subject to the qualifications and
exceptions set forth herein, we are of the following opinion:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
2. The Parent is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
3. The execution, delivery and performance by the Borrower of
the Credit Agreement, the Notes and the Support Agreement are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Borrower
Charter or the Borrower By-Laws or (ii) any Federal law, rule or
regulation applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System).
4. No authorization, approval or other action by, and no notice
to or filing with, any agency or instrumentality of the government of
the United States is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement, the Notes and the
Support Agreement or by the Parent of the Support Agreement.
5. The Credit Agreement and the Issued Notes have been duly
executed and delivered on behalf of the Borrower. The Credit
Agreement and the Issued Notes are the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
6. The execution, delivery and performance by the Parent of the
Support Agreement are within the Parent's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene (i) the Parent Charter or the Parent By-laws or (ii) any
Federal law, rule or regulation applicable to the Parent (including,
without limitation, Regulation X of the Board of Governors of the
Federal Reserve System).
7. The Support Agreement has been duly executed and delivered
by the Parent and the Borrower. The Support Agreement is the legal,
valid and binding obligation of the Parent and the Borrower
enforceable against the Parent and the Borrower, respectively, in
accordance with its terms.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinions in paragraphs 5 and 7 above are subject to the
effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of the rights of
creditors.
(b) Our opinions in paragraphs 5 and 7 above are subject to the
effect of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(c) Except as set forth below, we express no opinion herein as
to the validity or enforceability of any provision regarding choice of
law to govern the Documents or of any provision of the Documents for
indemnification. However, we understand that this transaction was
principally negotiated in Illinois and the Documents were delivered by
the Borrower in Illinois and the monetary obligations of the Borrower
are payable in Illinois. Accordingly, we believe that an Illinois
court would have a reasonable basis to and should recognize and give
effect to the provisions of Section 8.08 of the Credit Agreement
wherein the parties thereto agree that the Credit Agreement and the
Notes shall be governed by, and construed in accordance with, the laws
of the State of Illinois.
(d) The authorization of the Board of Directors of the Parent
limits the indebtedness of the Borrower to be covered by the Support
Agreement and any other support agreements of the Parent to
$700,000,000. Thus, additional authorization of the Board of
Directors of the Parent is required if the aggregate indebtedness of
the Borrower covered by the Support Agreement and any other support
agreements of the Parent exceeds $700,000,000. Officers of the Parent
have certified that as of the date hereof no indebtedness of the
Borrower is covered by any other support agreements of the Parent.
(e) The Agreement and Plan of Merger dated as of May 20, 1997
(the "KU Merger Agreement") by and between LG&E Energy Corp. and KU
Energy Corporation contains restrictions on the incurrence or
guarantee of indebtedness by the Parent and the Borrower. Pursuant to
the terms of the KU Merger Agreement, the Parent must obtain the
written consent of KU Energy Corporation prior to the incurrence by
the Borrower of indebtedness in excess of the limitations set forth in
the KU Merger Agreement.
This opinion is rendered only with respect to the laws and the
regulations which are in effect as of the date hereof. We assume no
responsibility for updating this opinion to take into account any event,
action, interpretation or change of law occurring subsequent to the date
hereof that may affect the validity of any of the opinions expressed
herein.
The foregoing opinion is furnished solely for the benefit of the
addressees hereof in connection with the Documents and the transactions
contemplated thereby, and, except as set forth in the immediately
succeeding sentence, may not be relied upon by any other Person (other than
any Person that may become a Lender under the Credit Agreement after the
date hereof who may rely hereon to the extent that the addressees may so
rely) or for any other purpose without our prior written consent. We are
aware that Chapman and Cutler will rely upon the opinions set forth herein
in rendering their opinion furnished pursuant to Section 3.01 of the Credit
Agreement.
Very truly yours,
Exhibit E
Form of Opinion of Corporate Attorney
for the Borrower and the Parent
September 5, 1997
To each of the Banks which
is a party to the Credit
Agreement
(as herein defined)
Re: LG&E Capital Corp.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01 of the
Credit Agreement, dated as of September 5, 1997 (the "Credit Agreement"),
among LG&E Capital Corp., a Kentucky corporation (the "Borrower"), the
Banks named therein, Chase Securities, Inc., as Syndication Agent and Bank
of Montreal, as Administrative Agent, relating to a $200,000,000 revolving
credit facility. Capitalized terms used herein and not defined herein
shall have the meaning assigned thereto in the Credit Agreement.
I am General Counsel for LG&E Energy Corp., a Kentucky corporation
(the "Parent"), and have served as counsel to the Parent and the Borrower
in connection with the preparation, execution and delivery of the Credit
Agreement, the Contract Notes and the Support Agreement.
In that connection, I have examined:
(1) the Credit Agreement;
(2) the Contract Notes executed and delivered on the date hereof
(the "Issued Notes");
(3) the form of the Auction Notes to be delivered by the
Borrower in connection with any Auction Borrowing;
(4) the Support Agreement;
(5) the documents furnished by the Borrower and the Parent
pursuant to Section 3.01 of the Credit Agreement;
(6) the Articles of Incorporation of the Borrower and all
amendments thereto (the "Borrower Charter");
(7) the by-laws of the Borrower and all amendments thereto (the
"Borrower By-laws");
(8) the Articles of Incorporation of the Parent and all
amendments thereto (the "Parent Charter");
(9) the by-laws of the Parent and all amendments thereto (the
"Parent By-Laws");
(10) the Agreement and Plan of Merger dated as of __________,
1997 between Energy Systems and Gas Systems;
(11) the Articles of Merger of LG&E Energy Systems Inc. and LG&E
Gas Systems Inc. dated _________, 1997, filed with the Secretary of
State of the Commonwealth of Kentucky; and
(12) the Certificate of Merger of LG&E Energy Systems Inc. and
LG&E Gas Systems dated ___________, 1997, filed with the Secretary of
State of the State of Delaware.
Collectively, the documents identified in clauses (1), (2) and (4)
above are referred to herein as the "Documents".
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower and the
Parent, certificates of public officials and of officers of the Borrower
and the Parent, and agreements, instruments and other documents, as I have
deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, I have, when relevant facts
were not independently established by me, relied upon certificates of the
Borrower or the Parent, or their respective officers, or of public
officials.
I have assumed the genuineness of all signatures (other than those of
officers of the Parent and the Borrower), the legal capacity of all
individuals (other than the officers of the Parent and the Borrower) who
have executed the Documents and all other documents I have reviewed, the
authenticity of all documents submitted to me as originals and the
conformity to original documents of all documents submitted to me as
certified, photostatic, reproduced or conformed copies. I have also
assumed that the Credit Agreement has been duly authorized, executed and
delivered by the Agents and each of the Banks and is enforceable in
accordance with its terms against such parties and that the execution,
delivery and performance of the Credit Agreement by the Agents and each of
the Banks does not and will not result in a breach of, or constitute a
default under, any agreement, instrument or other document to which such
party is a party or any order, judgment, writ or decree applicable to such
party or to which such party's property is subject.
I am qualified to practice law in the Commonwealth of Kentucky and do
not purport to be expert on any laws other than the laws of the
Commonwealth of Kentucky.
Based upon the foregoing and subject to the qualifications and
exceptions set forth herein, I am of the following opinion:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
2. The Parent is a corporation validly existing and in good
standing under the laws of the Commonwealth of Kentucky.
3. The execution, delivery and performance of the Borrower of
the Credit Agreement, the Notes and the Support Agreement are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Borrower
Charter or the Borrower By-Laws or (ii) any law, rule or regulation of
the Commonwealth of Kentucky or (iii) any order, writ, injunction or
decree of any court or government instrumentality, to which the
Borrower is subject or by which it or its property is bound or (iv)
any contractual or legal restriction contained in any indenture, loan
or credit agreement, mortgage or note of the Borrower or, to my
knowledge, contained in any other similar agreement or instrument to
which the Borrower is a party.
4. The execution, delivery and performance by the Parent of the
Support Agreement are within the Parent's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene (i) the Parent Charter or the Parent By-Laws, (ii) any law,
rule or regulation of the Commonwealth of Kentucky, (iii) any order,
writ, injunction or decree of any court or government instrumentality,
to which the Parent is subject or by which it or its property is bound
or (iv) any contractual or legal restriction contained in any
indenture, loan or credit agreement, mortgage or note of the Parent
or, to my knowledge, contained in any other similar agreement or
instrument to which the Parent is a party.
5. No authorization, approval or other action by, and no notice
to or filing with, any agency or instrumentality of the government of
the Commonwealth of Kentucky is required for the due execution,
delivery and performance by the Borrower of the Credit Agreement, the
Notes and the Support Agreement or by the Parent of the Support
Agreement.
6. The Credit Agreement and the Issued Notes have been duly
executed and delivered on behalf of the Borrower. I believe that in
any action or proceeding arising out of or relating to the Credit
Agreement or the Notes in any court of the Commonwealth of Kentucky or
in any federal court sitting in the Commonwealth of Kentucky, such
court would have a reasonable basis to and should recognize and give
effect to the provisions of Section 8.08 of the Credit Agreement
wherein the parties thereto agree that the Credit Agreement and the
Notes shall be governed by, and construed in accordance with, the laws
of the State of Illinois, including the usury law of the State of
Illinois. However, if a court were to hold that the Credit Agreement
and the Notes are governed by, and to be construed in accordance with,
the laws of the Commonwealth of Kentucky, the Credit Agreement, the
Contract Notes and the Auction Notes, when duly executed and delivered
by the Borrower in accordance with the terms of the Credit Agreement,
would be, under the laws of the Commonwealth of Kentucky, legal, valid
and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
7. The Support Agreement has been duly executed and delivered
by the Parent and the Borrower. The Support Agreement is the legal,
valid and binding obligation of the Parent and the Borrower
enforceable against the Parent and the Borrower, respectively, in
accordance with its terms.
8. There are no pending or, to my knowledge, overtly threatened
actions or proceedings against the Borrower, the Parent or any of
their respective subsidiaries before any court, governmental agency or
arbitrator that purport to effect the legality, validity, binding
effect or enforceability of the Credit Agreement, any Note or the
Support Agreement or, except as disclosed in the SEC Reports or to the
Banks in writing, that could reasonably be expected to have a material
adverse effect upon the financial condition, operations, business or
prospects of the Parent and its subsidiaries, taken as a whole.
9. The Transaction has become effective and all property of
each of the Constituent Companies is vested in the Borrower and the
Borrower shall have all liabilities of each of the Constituent
Companies.
The opinions set forth above are subject to the following
qualifications:
(a) My opinions in paragraphs 6 and 7 above are subject to the
effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of the rights of
creditors.
(b) My opinions in paragraphs 6 and 7 above are subject to the
effect of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(c) Except as expressly set forth herein, I express no opinion
herein as to the validity or enforceability of any provision regarding
choice of law to govern the Documents or of any provision of the
Documents for indemnification.
(d) I express no opinion as to whether the execution, delivery
and performance of the Documents will constitute a breach of, or
constitute a default under, any covenant or provision with respect to
financial ratios or tests or any aspect of the financial condition or
results of operations of the Parent or the Borrower contained in an
agreement to which the Parent or the Borrower is a party.
(e) The authorization of the Board of Directors of the Parent
limits the indebtedness of the Borrower to be covered by the Support
Agreement and any other support agreements of the Parent to
$700,000,000. Thus, additional authorization of the Board of
Directors of the Parent is required if the aggregate indebtedness of
the Borrower covered by the Support Agreement and any other support
agreements of the Parent exceeds $700,000,000. Officers of the Parent
have certified that as of the date hereof no indebtedness of the
Borrower is covered by any other support agreements of the Parent.
(f) The Agreement and Plan of Merger dated as of May 20, 1997
(the "KU Merger Agreement") by and between LG&E Energy Corp. and KU
Energy Corporation contains restrictions on the incurrence or
guarantee of indebtedness by the Parent and the Borrower. Pursuant to
the terms of the KU Merger Agreement, the Parent must obtain the
written consent of KU Energy Corporation prior to the incurrence by
the Borrower of indebtedness in excess of the limitations set forth in
the KU Merger Agreement.
This opinion is rendered only with respect to the laws and the
regulations which are in effect as of the date hereof. I assume no
responsibility for updating this opinion to take into account any
event, action, interpretation or change of law occurring subsequent to
the date hereof that may affect the validity of any of the opinions
expressed herein.
The foregoing opinion is furnished solely for the benefit of the
addressees hereof in connection with the Documents and the transactions
contemplated thereby, and, except as set forth in the immediately
succeeding sentence, may not be relied upon by any other Person (other than
any Person that may become a Lender under the Credit Agreement after the
date hereof who may rely hereon to the extent that the addressees may so
rely) or for any other purpose without my prior written consent. I am
aware that Chapman and Cutler will rely upon the opinions set forth herein
in rendering their opinion furnished pursuant to Section 3.01 of the Credit
Agreement.
Very truly yours,
Exhibit F
Form of Opinion of Special
Illinois Counsel to the ADMINISTRATIVE AGENT
September 5, 1997
To each of the Banks which
is a party to the Credit
Agreement (as herein
defined)
Re: LG&E Capital Corp.
Ladies and Gentlemen:
We have acted as special Illinois counsel to Bank of Montreal,
individually and as Administrative Agent, in connection with the
preparation, execution and delivery of the Credit Agreement, dated as of
September 5, 1997 (the "Credit Agreement"), among LG&E Capital Corp. (the
"Borrower"), the banks parties thereto (the "Banks"), Chase Securities
Inc., as Syndication Agent and Bank of Montreal, as Administrative Agent,
relating to a $200,000,000 revolving credit facility. Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as
therein defined.
In that connection, we have examined (i) counterparts of the Credit
Agreement, executed by the Borrower, the Banks, the Syndication Agent and
the Administrative Agent (ii) the Contract Notes, executed by the Borrower
and (iii) the form of the Auction Notes to be delivered by the Borrower in
connection with any Auction Borrowing (the "Credit Documents") as well as
the opinion of John R. McCall, Esq., General Counsel for LG&E Energy Corp.,
a Kentucky corporation and counsel for the Borrower (the "Borrower's
Counsel Opinion"), and the opinion of Gardner, Carton & Douglas, special
counsel for the Borrower and the Parent (the "Special Counsel Opinion"),
each furnished to the Administrative Agent pursuant to Section 3.01(a) of
the Credit Agreement.
In our examination of the documents referred to above, we have assumed
the authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing
such documents and the conformity to the originals of all such documents
submitted to us as copies. We have also assumed that each of the Banks,
the Syndication Agent and the Administrative Agent have duly executed and
delivered, with all necessary power and authority (corporate and
otherwise), the Credit Agreement.
To the extent that our opinions expressed below involve conclusions as
to matters governed by law other than the law of the State of Illinois or
as to consummation of the Transaction, we have relied upon the Borrower's
Counsel Opinion and the Special Counsel Opinion and have assumed without
independent investigation the correctness of the matters set forth therein,
our opinions expressed below being subject to the assumptions,
qualifications and limitations set forth in the Borrower's Counsel Opinion
and the Special Counsel Opinion. As to matters of fact, we have relied
solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications and
assumptions set forth below, we are of the opinion that:
(i) The Credit Agreement and each of the Contract Notes are, and
the Auction Notes, when duly executed and delivered by the Borrower in
accordance with the terms of the Credit Agreement, will be, the legal,
valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(ii) While we have not independently considered the matters
covered by the Borrower's Counsel Opinion and the Special Counsel
Opinion to the extent necessary to enable us to express the
conclusions stated therein, each of the Borrower's Counsel Opinion,
the Special Counsel Opinion are substantially responsive to the
corresponding requirements set forth in Section 3.01 of the Credit
Agreement pursuant to which the same have been delivered.
Our opinions are subject to the following qualifications and
assumptions:
(a) We have assumed the due authorization, execution and
delivery of the Credit Documents in accord with all relevant legal
requirements applicable to the Borrower.
(b) The enforceability of the Credit Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, preference or similar laws affecting creditors' rights.
(c) The enforceability of the Credit Documents may be limited by
general principles of materiality, reasonableness, good faith and fair
dealing, the availability of the remedies of specific performance or
injunction relief may be subject to the discretion of the court and
certain remedial provisions may be limited by applicable law; however
such limitations do not in our opinion make the remedies afforded by
the Credit Documents taken as a whole inadequate.
(d) The Credit Documents provide that they are to be governed by
the laws of the State of Illinois. We understand that this
transaction was principally negotiated in Illinois and the Credit
Documents were delivered by the Borrower in Illinois and the monetary
obligations of the Borrower are payable in Illinois. Accordingly, we
believe that an Illinois court would respect the choice of law of the
parties.
(e) We express no opinion herein as to (i) the enforceability of
provisions purporting to grant to a party conclusive rights of
determination, (ii) the availability of specific performance or other
equitable remedies, (iii) the enforceability of rights to indemnity
under Federal or state securities laws and (iv) the enforceability of
waivers by parties of their respective rights and remedies under law.
(f) Our opinions expressed above are limited to the law of the
State of Illinois and the Federal law of the United States, and we do
not express any opinion herein concerning any other law. Without
limiting the generality of the foregoing, we express no opinion as to
the effect of the law of any jurisdiction other than the State of
Illinois wherein any Lender may be located or wherein enforcement of
the Credit Agreement or the Notes may be sought that limits the rates
of interest legally chargeable or collectible.
The foregoing opinion is solely for your benefit and may not be relied
upon by any other Person other than any Person that may become a Lender
under the Credit Agreement after the date hereof.
Very truly yours,
TAMcIlroy/rm
Exhibit G
Support Agreement
Exhibit 10.03
SUPPORT AGREEMENT BETWEEN
LG&E ENERGY CORP.
AND
LG&E CAPITAL CORP.
This Support Agreement, dated as of September __, 1997, is
between LG&E Energy Corp., a Kentucky corporation (together with
its successors and assigns and any resulting or surviving
corporation, "Energy Corp."), and LG&E Capital Corp., a Kentucky
corporation (together with its successors and assigns and any
resulting or surviving corporation, "LCC").
WHEREAS, Energy Corp. is the owner of 100% of the
outstanding capital stock of LCC;
WHEREAS, LCC intends from time to time to make borrowings
from Lenders (as hereinafter defined), issue debt securities to
Lenders, incur other obligations or liabilities to Lenders,
guarantee loans to its subsidiaries from Lenders and guarantee
other obligations of its subsidiaries to Lenders (such
borrowings, debt securities, guarantees and other obligations or
liabilities being hereinafter referred to as "Obligations");
WHEREAS, Energy Corp. and LCC desire to take certain actions
to enhance and maintain the financial condition of LCC as
hereinafter set forth in order to enable LCC and its subsidiaries
to incur indebtedness and other obligations on more advantageous
and reasonable terms; and
WHEREAS, the Lenders will rely upon this Support Agreement
("Agreement") in making loans or extending credit to, or
purchasing securities of, LCC and/or its subsidiaries.
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. 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):
"Required Lenders" means each Lender; provided that in
respect of any consent required under Section 2 of this
Agreement, in the event that any Lender is bound with one or more
other Lenders by an instrument, indenture, agreement or other
document pursuant to which the Obligation was issued, "Required
Lenders" in respect thereof means the requisite percentage of
such Lenders the consent of which is required therefor as set
forth in such instrument, indenture, agreement or other document
or, if not so specified, the requisite percentage of such Lenders
the consent of which is required pursuant to such instrument,
indenture, agreement or other document to authorize a similar
amendment in respect of such Obligation.
"Subsidiary" means for Energy Corp., any corporation,
partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of said
corporation, partnership or other entity (irrespective of whether
or not at the time securities or other ownership interests of any
other class or classes of such corporation, partnership or other
entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or
indirectly owned or controlled by Energy Corp. or one or more
Subsidiaries of Energy Corp. or by Energy Corp. and one or more
Subsidiaries of Energy Corp.
"Utility" means Louisville Gas and Electric Company, a
Kentucky corporation, together with its successors and assigns
and any resulting or surviving corporation.
2. Stock Ownership. While this Agreement remains in
effect, (i) Energy Corp. will own, directly or indirectly, not
less than 80% of the capital stock of LCC and (ii) Energy Corp.
will not, without the prior written consent of Required Lenders,
own less than 100% of the common stock of the Utility. Each
person, firm, corporation or other entity designated as a Lender
pursuant to Section 8 of this Agreement acknowledges and agrees
that, in consideration for it being designated as a Lender, it
will not (after consideration of those factors that it deems
relevant, including the manner in which the proceeds from any
such sale or transfer by Energy Corp. of the Utility's common
stock are to be used to satisfy Obligations, whether contingent
or otherwise, owed to the Lenders) unreasonably withhold its
consent to such sale or transfer.
3. Negative Pledge. During the term of this Agreement,
Energy Corp. will not create or suffer to exist any lien,
security interest or other charge or encumbrance, upon or with
respect to any common stock of the Utility from time to time
owned by Energy Corp. or any capital stock of LCC from time to
time owned by Energy Corp.
4. Net Worth. Energy Corp. agrees that it shall cause LCC
to have at all times a net worth (total assets less liabilities
less intangible assets, if any) of $25 million, as determined in
accordance with generally accepted accounting principles.
5. Liquidity Provision. If, during the term of this
Agreement, LCC is unable to make timely payment, when due, of
interest, principal or premium, if any, or other obligation on
any Obligation owing to any Lender by LCC, Energy Corp. promptly
shall provide LCC, at its request such funds (in the form of cash
or liquid assets in an amount sufficient to permit LCC to make
timely payment, when due, in respect of each such Obligation) as
equity. Any request for payment pursuant to this Section 5 shall
specifically identify the Obligation in respect of which LCC is
unable to make timely payment and with respect to which LCC seeks
funds. LCC, Energy Corp. and each Lender hereby acknowledge that
any funds provided by Energy Corp. pursuant hereto shall be used
solely to make payment with respect to such identified Obligation
and not for any other purposes. Without limiting any obligations
hereunder, in the event that a request is made with respect to
two or more identified Obligations and the funds provided by
Energy Corp. are not sufficient to pay the amounts owing on each
such identified Obligations, the funds provided by Energy Corp.
shall be applied pro rata (in proportion to the amounts then due
and owing on such Obligations) to such identified Obligations.
Each of the parties hereto acknowledges that Energy Corp.'s
obligations hereunder do not constitute a guarantee by Energy
Corp. of the Obligations of LCC. This Agreement shall continue
to be effective or be reinstated with respect to any payment of
an Obligation which is rescinded or must otherwise be returned
upon the insolvency, bankruptcy, reorganization, dissolution or
liquidation of LCC, all as though such payment had not been made.
6. Waivers. Energy Corp. hereby waives any failure or
delay on the part of LCC or any Lender in asserting or enforcing
any of its rights or in making any claims or demands hereunder.
LCC or any Lender may at any time, without Energy Corp.'s
consent, without notice to Energy Corp. and without affecting or
impairing LCC's or such Lender's rights, or impairing Energy
Corp.'s obligations hereunder, do any of the following with
respect to any Obligation: (a) make changes, modifications,
amendments or alterations, by operation of law or otherwise,
including without limitation, any increase in the principal
amount of such Obligation or the rate of interest payable thereon
or any change in the method of calculating the rate of interest
payable thereon, (b) grant renewals and extensions and extensions
of time, for payment or otherwise, (c) accept new or additional
documents, instruments or agreements relating to or in
substitution of said Obligation, or (d) otherwise handle the
enforcement of their respective rights and remedies in accordance
with their business judgment.
7. Amendment. The Agreement may be amended or terminated
at any time by written amendment or agreement signed by both
parties; provided, however, that (i) no amendment to this
Agreement which adversely affects the rights of LCC or any Lender
shall be effective as to any Lender until the earliest to occur
of (x) all Obligations owing to any Lender by LCC on the date of
such amendment shall be discharged and all irrevocable
commitments of any Lender in respect of Obligations shall have
terminated, or (y) such Lender shall consent in writing to such
amendment, provided that in the event that such Lender is bound
with one or more other Lenders by an instrument, indenture,
agreement or other document pursuant to which the Obligation was
issued, the requisite consent of the Lenders to an amendment to
this Agreement set forth in such instrument, indenture, agreement
or other document is obtained or, if not so specified, such
amendment shall have been consented to by the requisite Lenders
in respect of such Obligation as shall be authorized pursuant to
which instrument, indenture, agreement or other document to
authorize a similar amendment in respect of such Obligation and
(ii) no termination of this Agreement shall be effective as to
LCC or any Lender until such time as all Obligations owing to
such Lender by LCC on the date of such termination shall have
been discharged in full and all irrevocable commitments of such
Lender in respect of Obligations shall have terminated, unless
such Lender shall consent in writing to the contrary.
8. Rights of Lenders. LCC hereby assigns and pledges to
Lenders for the ratable benefit of each Lender, LCC's rights
under Sections 2, 3, 4, 5 and 6 of this Agreement, and, if LCC
fails or refuses to take timely action to enforce its rights
under Sections 2, 3, 4, 5 and 6 of this Agreement, any Lender may
enforce such rights on behalf of LCC directly against Energy
Corp. Energy Corp. hereby consents to such assignment and pledge
and enforcement by the Lenders. The term "Lender" as used in
this Agreement shall mean any person, firm, corporation or other
entity (i) to which LCC is indebted for money borrowed or to
which LCC otherwise owes any Obligations or which is acting as
trustee or authorized representative on behalf of such person,
firm, corporation or other entity and (ii) which Energy Corp. has
expressly designated in writing to LCC and to such Lender as
being a Lender for purposes of this Agreement and entitled to the
rights and privileges hereof. Any designation of any person,
firm, corporation or other entity as a Lender for purposes of
this Agreement may provide that such person, firm, corporation or
other entity shall be a Lender only as to a specific, identified
Obligation owing to such person, firm, corporation or other
entity by LCC or that such person, firm, corporation or other
entity shall be a Lender as to all Obligations at any time owing
to such Lender by LCC. LCC and Energy Corp. agree, for the
benefit of Lenders, to execute and deliver all further
instruments and documents, and take all further action that
Lenders may reasonably request in order to perfect and protect
any security interest purported to be granted hereby.
9. Notices. Any notice, instruction, request, consent,
demand or other communication required or contemplated by this
Agreement shall be in writing, shall be given or made by United
States first class mail, telex, facsimile transmission or hand
delivery addressed as follows:
If to Energy Corp.: LG&E Energy Corp.
220 W. Main Street (P.O. Box 32030)
Louisville, Kentucky 40232
Attention: Treasurer
If to LCC: LG&E Capital Corp.
220 W. Main Street (P.O. Box 32030)
Louisville, Kentucky 40232
Attention: Treasurer
10. Successors. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and is
also intended for the benefit of the Lenders, and,
notwithstanding that such Lenders are not parties hereto, each
Lender shall be entitled to the full benefits of this Agreement
and to enforce the covenants and agreements contained herein as
set forth in Section 8. This Agreement is not intended for the
benefit of any person other than Lenders, and shall not confer or
be deemed to confer upon any such person any benefits, rights or
remedies hereunder.
11. Governing Law. This Agreement shall be governed by the
laws of the Commonwealth of Kentucky.
LG&E ENERGY CORP.
By:
Charles A. Markel III
Title: Treasurer
LG&E CAPITAL CORP.
By:
Charles A. Markel III
Title: Treasurer
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000861388
<NAME> LG&E ENERGY CORP.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,687,863
<OTHER-PROPERTY-AND-INVEST> 644,721
<TOTAL-CURRENT-ASSETS> 801,464
<TOTAL-DEFERRED-CHARGES> 113,869
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 3,247,917
<COMMON> 468,815 <F1>
<CAPITAL-SURPLUS-PAID-IN> 128 <F2>
<RETAINED-EARNINGS> 360,027
<TOTAL-COMMON-STOCKHOLDERS-EQ> 828,970
0
95,328
<LONG-TERM-DEBT-NET> 664,315
<SHORT-TERM-NOTES> 289,161
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 20,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,350,143
<TOT-CAPITALIZATION-AND-LIAB> 3,247,917
<GROSS-OPERATING-REVENUE> 3,164,330
<INCOME-TAX-EXPENSE> 43,639
<OTHER-OPERATING-EXPENSES> 3,008,500 <F3>
<TOTAL-OPERATING-EXPENSES> 3,052,139
<OPERATING-INCOME-LOSS> 112,191
<OTHER-INCOME-NET> 7,140
<INCOME-BEFORE-INTEREST-EXPEN> 119,331
<TOTAL-INTEREST-EXPENSE> 43,849
<NET-INCOME> 75,482
3,433
<EARNINGS-AVAILABLE-FOR-COMM> 72,049
<COMMON-STOCK-DIVIDENDS> 58,016
<TOTAL-INTEREST-ON-BONDS> 28,436
<CASH-FLOW-OPERATIONS> 174,737
<EPS-PRIMARY> 1.08
<EPS-DILUTED> 1.08
<FN>
<F1>Includes common stock expense of $1,279.
<F2>Represents unrealized loss on marketable securities,
net of taxes.
<F3>Includes equity in earnings of affiliates of
$14,926.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000060549
<NAME> LOUISVILLE GAS AND ELECTRIC COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,687,863
<OTHER-PROPERTY-AND-INVEST> 1,096
<TOTAL-CURRENT-ASSETS> 297,848
<TOTAL-DEFERRED-CHARGES> 54,298
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,041,105
<COMMON> 424,334
<CAPITAL-SURPLUS-PAID-IN> 72
<RETAINED-EARNINGS> 249,466
<TOTAL-COMMON-STOCKHOLDERS-EQ> 673,872
0
95,328
<LONG-TERM-DEBT-NET> 626,800
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 20,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 625,105
<TOT-CAPITALIZATION-AND-LIAB> 2,041,105
<GROSS-OPERATING-REVENUE> 614,110
<INCOME-TAX-EXPENSE> 47,553
<OTHER-OPERATING-EXPENSES> 456,678
<TOTAL-OPERATING-EXPENSES> 504,231
<OPERATING-INCOME-LOSS> 109,879
<OTHER-INCOME-NET> 2,364
<INCOME-BEFORE-INTEREST-EXPEN> 112,243
<TOTAL-INTEREST-EXPENSE> 29,566
<NET-INCOME> 82,677
3,433
<EARNINGS-AVAILABLE-FOR-COMM> 79,244
<COMMON-STOCK-DIVIDENDS> 20,000
<TOTAL-INTEREST-ON-BONDS> 28,436
<CASH-FLOW-OPERATIONS> 127,175
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
