EXHIBIT B-2
364-DAY REVOLVING CREDIT AGREEMENT
among
NISOURCE FINANCE CORP.,
as Borrower,
NISOURCE INC.
and
NEW NISOURCE INC.,
as Guarantors,
CREDIT SUISSE FIRST BOSTON
and
BARCLAYS BANK PLC,
as Co-Syndication Agents,
THE LENDERS PARTY HERETO,
as Lenders,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
BARCLAYS BANK PLC,
as Documentation Agent
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CREDIT SUISSE FIRST BOSTON
and
BARCLAYS CAPITAL
Co-Lead Arrangers and Joint Book Runners
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Dated as of November 1, 2000
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................1
SECTION 1.01. Defined Terms................................................1
SECTION 1.02. Classification of Loans and Borrowings......................19
SECTION 1.03. Terms Generally.............................................20
SECTION 1.04. Accounting Terms; GAAP......................................20
ARTICLE II THE CREDITS........................................................21
SECTION 2.01. Commitments.................................................21
SECTION 2.02. Loans and Borrowings........................................21
SECTION 2.03. Requests for Revolving Borrowings; Conversion of Revolving
Loans to Term Loans.........................................22
SECTION 2.04. Competitive Bid Procedure...................................23
SECTION 2.05. Funding of Borrowings.......................................25
SECTION 2.06. Interest Elections..........................................26
SECTION 2.07. Mandatory Termination or Reduction of Commitments...........27
SECTION 2.08. Mandatory Prepayments.......................................28
SECTION 2.09. Optional Reduction of Commitments...........................29
SECTION 2.10. Repayment of Loans; Evidence of Debt........................29
SECTION 2.11. Optional Prepayment of Loans................................30
SECTION 2.12. Fees........................................................31
SECTION 2.13. Interest....................................................32
SECTION 2.14. Alternate Rate of Interest..................................33
SECTION 2.15. Increased Costs.............................................33
SECTION 2.16. Break Funding Payments......................................35
SECTION 2.17. Taxes.......................................................35
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs........................................................36
SECTION 2.19. Mitigation Obligations; Replacement of Lenders..............38
ARTICLE III CONDITIONS........................................................39
SECTION 3.01. Conditions Precedent to the Initial Loan....................39
SECTION 3.02. Conditions Precedent to Each Loan...........................41
ARTICLE IV REPRESENTATIONS AND WARRANTIES.....................................42
SECTION 4.01. Representations and Warranties of the Credit Parties........42
ARTICLE V AFFIRMATIVE COVENANTS...............................................45
SECTION 5.01. Affirmative Covenants.......................................45
ARTICLE VI NEGATIVE COVENANTS.................................................49
SECTION 6.01. Negative Covenants..........................................49
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ARTICLE VII FINANCIAL COVENANTS...............................................53
SECTION 7.01. Interest Coverage Ratio.....................................53
SECTION 7.02. Debt to Capitalization Ratio................................53
ARTICLE VIII EVENTS OF DEFAULT................................................54
SECTION 8.01. Events of Default...........................................54
ARTICLE IX THE ADMINISTRATIVE AGENT...........................................57
SECTION 9.01. The Administrative Agent....................................57
ARTICLE X GUARANTY............................................................59
SECTION 10.01. The Guaranty............................................59
SECTION 10.02. Waivers.................................................61
ARTICLE XI MISCELLANEOUS......................................................62
SECTION 11.01. Notices.................................................62
SECTION 11.02. Waivers; Amendments.....................................63
SECTION 11.03. Expenses; Indemnity; Damage Waiver......................63
SECTION 11.04. Successors and Assigns..................................64
SECTION 11.05. Survival................................................68
SECTION 11.06. Counterparts; Integration; Effectiveness................68
SECTION 11.07. Severability............................................68
SECTION 11.08. Right of Setoff.........................................69
SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of
Process.................................................69
SECTION 11.10. WAIVER OF JURY TRIAL....................................70
SECTION 11.11. Headings................................................70
SECTION 11.12. Confidentiality.........................................70
ANNEX A Pricing Grid
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Opinion of Schiff Hardin & Waite
SCHEDULE 2.01 Commitments
SCHEDULE 4.01(d) Merger Agreement - Waived or Amended Provisions
SCHEDULE 6.01(e) Certain Restrictions
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364-DAY REVOLVING CREDIT AGREEMENT, dated as of , 2000, among
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NISOURCE FINANCE CORP., an Indiana corporation, as Borrower (the "Borrower"),
NISOURCE INC., an Indiana corporation ("Old NiSource"), and NEW NISOURCE INC., a
Delaware corporation ("New NiSource"), as Guarantors (the "Guarantors"), CREDIT
SUISSE FIRST BOSTON and BARCLAYS BANK PLC, as Co-Syndication Agents, the Lenders
party hereto, CREDIT SUISSE FIRST BOSTON, as Administrative Agent (in such
capacity, the "Administrative Agent"), and BARCLAYS BANK PLC, as Documentation
Agent.
WITNESSETH:
WHEREAS, the parties are willing to enter into this 364-Day Revolving
Credit Agreement on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Defined Terms. As used in this Agreement, the following
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terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means Credit Suisse First Boston, in its
--------------------
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
----------------------------
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
---------
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the aggregate amount of the Commitments
---------------------
of all Lenders, as in effect from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
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"Applicable Percentage" means, with respect to any Lender, the
---------------------
percentage of the Aggregate Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
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Eurodollar Revolving Loan, or with respect to the Facility Fees and the
Utilization Fee payable hereunder, as the case may be, the applicable rate per
annum determined pursuant to the Pricing Grid.
"Arrangers" shall mean each of Credit Suisse First Boston and Barclays
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Capital.
"Asset Sale" means any sale, lease or other disposition (including (x)
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any such transaction effected by way of merger or consolidation and (y) any
sale-leaseback transaction, whether or not involving a Capital Lease) (any such
transaction, a "disposition"), by the Parent Guarantor or any of its
Subsidiaries, or by the Company or any of its Subsidiaries, of any asset, but
excluding (a) any disposition of inventory, cash, Cash Equivalents or other cash
management investments or obsolete and unused or unnecessary equipment, in each
case in the ordinary course of business, (b) any disposition to the Parent
Guarantor or any of its Subsidiaries, (c) any disposition proceeds of which will
be used to purchase assets similar to the assets disposed of within 180 days
after the date of such disposition, but only to the extent such proceeds are
actually so used, (d) any sale-leaseback transaction entered into in respect of
property acquired by the Parent Guarantor or any of its Subsidiaries, or by the
Company or any of its Subsidiaries, if such sale-leaseback transaction is
entered into within 180 days after the date of such acquisition, (e) any sale of
receivables (including in connection with securitizations thereof) effected to
finance working capital requirements of the Parent Guarantor and its
Subsidiaries, and (f) any disposition of the assets of a Project Financing
Subsidiary, to the extent that the Net Cash Proceeds thereof are retained by
such Project Financing Subsidiary to finance (i) the development or operation of
the Project it was formed to develop, or (ii) activities incidental thereto.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
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Effective Date to but excluding the Termination Date.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means NiSource Finance Corp., Inc. an Indiana corporation.
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"Borrowing" means (a) Revolving Loans or Term Loans of the same Type,
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made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect, (b) a Competitive Loan
or group of Competitive Loans of the same Type made by the same Lender on the
same date and as to which a single Interest Period is in effect or (c) the
conversion of Revolving Loans to Term Loans on the Termination Date.
"Borrowing Request" means a request by the Borrower for a Revolving
-----------------
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAC" means Company Acquisition Corp., a Delaware corporation.
---
"Capital Expenditure" means any expenditure (including any expenditure
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for the acquisition of Capital Stock of a Person and the principal portion of
payments under Capital Leases) in respect of the acquisition or improvement of
fixed assets, real property, plant and equipment, determined in accordance with
GAAP.
"Capital Lease" means, as to any Person, any lease of real or personal
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property in respect of which the obligations of the lessee are required, in
accordance with GAAP, to be capitalized on the balance sheet of such Person.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person other than a corporation
(including, but not limited to, all common stock and preferred stock and
partnership, membership and joint venture interests in a Person), and any and
all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents" shall mean (a) securities with maturities of one
----------------
year or less from the date of acquisition issued or fully guaranteed or insured
by the United States Government or any agency thereof, (b) certificates of
deposit and eurodollar time deposits with maturities of one year or less from
the date of acquisition and overnight bank deposits of any Lender and
certificates of deposit with maturities of one year or less from the date of
acquisition and overnight bank deposits of any other commercial bank having
capital and surplus in excess of $500,000,000, (c) commercial paper of any
issuer rated at least A-2 by S&P or P-2 by Moody's, (d) additional money market
investments with maturities of one year or less from the date of acquisition
rated at least A1 or AA by S&P or P-1 or Aa by Moody's and (e) tax-exempt debt
obligations of any State of the United States or of any county or other
municipal government subdivision of any State of the United States with
maturities of one year or less from the date of acquisition rated at the highest
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investment grade rating by S&P or by Moody's, or publicly traded or open-end
bond funds that invest exclusively in such tax-exempt debt obligations.
"CERCLA" means the Comprehensive Environmental Response, Compensation
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and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act, 42, U.S.C. Section 9601 et seq., as amended.
"Change of Control" means (a) except as a result of the Guarantor
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Merger, any "person" or "group" within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended, shall become the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended) of more than 50% of the then outstanding voting Capital
Stock of the Parent Guarantor, (b) Continuing Directors shall cease to
constitute at least a majority of the directors constituting the Board of
Directors of the Parent Guarantor, (c) except as a result of the Guarantor
Merger, a consolidation or merger of the Parent Guarantor shall occur after
which the holders of the outstanding voting Capital Stock of the Parent
Guarantor immediately prior thereto hold less than 50% of the outstanding voting
Capital Stock of the surviving entity; (d) except as a result of the Guarantor
Merger, more than 50% of the outstanding voting Capital Stock of the Parent
Guarantor shall be transferred to an entity of which the Parent Guarantor owns
less than 50% of the outstanding voting Capital Stock; (e) there shall occur a
sale of all or substantially all of the assets of the Parent Guarantor; or (f)
the Borrower, NIPSCO or (after the Effective Time) the Company shall cease to be
a Wholly-Owned Subsidiary of the Parent Guarantor.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan is, or the Loans comprising such Borrowing are, Revolving
Loans, Competitive Loans or Term Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Commercial Paper" means commercial paper issued by the Borrower
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solely to finance the consummation of the Merger, including the payment of fees
and expenses related to the Merger, and in respect of which the Aggregate
Commitments are providing liquidity support required by a rating agency.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, or to convert Revolving Loans to Term Loans as provided
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herein, in each case, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 or Section 2.09 and (b) reduced or increased from time
to time pursuant to assignments by or to such Lender pursuant to Section 11.04.
The initial amount of each Lender's Commitment is (x) the amount set forth on
Schedule 2.01 opposite such Lender's name, minus that portion of the aggregate
Net Cash Proceeds, exclusive of Retained Proceeds, received by the Parent
Guarantor and its Subsidiaries in respect of Reduction Events on or after
February 27, 2000, and on or before the Effective Date, equal to such Lender's
ratable share thereof (based on the ratio of such Lender's Commitment to the
Aggregate Commitments), such that the aggregate Net Cash Proceeds so received
(exclusive of Retained Proceeds) are applied to reduction of the Aggregate
Commitments; or (y) the amount set forth in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
"Company" means Columbia Energy Group, a Delaware corporation.
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"Company Merger" means the merger of CAC with and into the Company
--------------
pursuant to the Merger Agreement.
"Competitive Bid" means an offer by a Lender to make a Competitive
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Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
--------------------
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
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Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
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"Consolidated Capitalization" means the sum of (a) Consolidated Debt,
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(b) consolidated common equity of the Parent Guarantor and its Consolidated
Subsidiaries determined in accordance with GAAP, and (c) the aggregate
liquidation preference of preferred stocks (other than preferred stocks subject
to mandatory redemption or repurchase) of the Parent Guarantor and its
Consolidated Subsidiaries upon involuntary liquidation.
"Consolidated Debt" means, at any time, the indebtedness of the Parent
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Guarantor and its Consolidated Subsidiaries that would be classified as debt on
a balance sheet of the Parent Guarantor determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the interest
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expense of the Parent Guarantor and its Consolidated Subsidiaries, determined on
a consolidated basis in accordance with GAAP.
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"Consolidated Net Income" means, for any period, the net income of the
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Parent Guarantor and its Consolidated Subsidiaries, determined on a consolidated
basis in accordance with GAAP, adjusted to exclude the effect of (a) any
extraordinary gain or loss and (b) any gain or loss on dispositions of capital
assets.
"Consolidated Net Tangible Assets" means, at any time, the total
--------------------------------
amount of assets appearing on a consolidated balance sheet of the Parent
Guarantor and its Subsidiaries (other than Utility Subsidiaries), determined in
accordance with GAAP and prepared as of the end of the fiscal quarter then most
recently ended, less, without duplication, the following:
(a) all current liabilities (excluding any thereof that are by their
terms extendable or renewable at the sole option of the obligor thereon, without
requiring the consent of the obligee, to a date more than 12 months after the
date of determination);
(b) all reserves for depreciation and other asset valuation reserves
(but excluding any reserves for deferred Federal income taxes, arising from
accelerated amortization or otherwise);
(c) all intangible assets, such as goodwill, trademarks, trade names,
patents and unamortized debt discount and expense, carried as an asset on such
balance sheet; and
(d) all appropriate adjustments on account of minority interests of
other Persons holding common stock of any Subsidiary of the Parent Guarantor.
"Consolidated Subsidiary" means, on any date, each Subsidiary of the
-----------------------
Parent Guarantor the accounts of which, in accordance with GAAP, would be
consolidated with those of the Parent Guarantor in its consolidated financial
statements if such statements were prepared as of such date.
"Contingent Guaranty" means a direct or contingent liability in
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respect of a Project Financing (whether incurred by assumption, guaranty,
endorsement or otherwise) that either (a) is limited to guarantying performance
of the completion of the Project that is financed by such Project Financing or
(b) is contingent upon, or the obligation to pay or perform under which is
contingent upon, the occurrence of any event other than failure of the primary
obligor to pay upon final maturity (whether by acceleration or otherwise).
"Continuing Directors" means (a) all members of the board of directors
--------------------
of the Parent Guarantor who have held office continually since the Effective
Date, and (b) all members of the board of directors of the Parent Guarantor who
were elected as directors after the Effective Date (and who, if they were
elected prior to the Effective Time, were directors of Old NiSource) and whose
nomination for election was approved by a vote of at least 50% of the Continuing
Directors.
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"Contractual Obligation" means, as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Co-Syndication Agents" means Credit Suisse First Boston and Barclays
---------------------
Bank PLC, in their respective capacities as co-syndication agents for the
Lenders hereunder.
"Credit Documents" means (a) this Agreement, the Notes and any
----------------
Assignment and Acceptances, (b) any certificates, opinions and other documents
required to be delivered pursuant to Section 3.01, and (c) any other documents
delivered by a Credit Party pursuant to or in connection with any one or more of
the foregoing.
"Credit Party" means each of the Borrower, Old NiSource and New
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NiSource.
"Debt for Borrowed Money" means, as to any Person, without
-----------------------
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all Capital Lease obligations of such Person, and (d) all
obligations of such Person under synthetic leases, tax retention operating
leases, off-balance sheet loans or other off-balance sheet financing products
that, for tax purposes, are considered indebtedness of borrowed money of the
lessee but are classified as operating leases under GAAP.
"Debt Incurrence" means the incurrence by the Parent Guarantor or any
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of its Subsidiaries of Debt for Borrowed Money, other than Excluded Debt.
"Debt to Capitalization Ratio" means, at any time, the ratio of
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Consolidated Debt to Consolidated Capitalization.
"Default" means any event or condition that constitutes an Event of
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Default or that, upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of
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America.
"Effective Date" means the date on which this Agreement has been
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executed and delivered by each of the Borrower, the Guarantors, the
Co-Syndication Agents, the initial Lenders, the Administrative Agent and the
Documentation Agent.
"Effective Time" means the time and date that is the later of (a) the
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date and time of the filing of the Articles of Merger relating to the Parent
Merger with the Secretary of State of Indiana, and (b) the date and time of the
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filing of the Certificate of Merger relating to the Company Merger with the
Secretary of State of the State of Delaware.
"Environmental Laws" means any and all foreign, federal, state, local
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or municipal laws (including, without limitation, common laws), rules, orders,
regulations, statutes, ordinances, codes, decrees, judgments, awards, writs,
injunctions, requirements of any Governmental Authority or other requirements of
law regulating, relating to or imposing liability or standards of conduct
concerning, pollution, waste, industrial hygiene, occupational safety or health,
the presence, transport, manufacture, generation, use, handling, treatment,
distribution, storage, disposal or release of Hazardous Substances, or
protection of human health, plant life or animal life, natural resources or the
environment, as now or at any time hereafter in effect.
"Environmental Liability" means any liability, contingent or otherwise
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(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Parent Guarantor or any of its Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Issuance" means (a) the issuance of any Capital Stock by the
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Parent Guarantor or any of its Subsidiaries (other than a Project Financing
Subsidiary, to the extent that the Net Cash Proceeds thereof are retained by
such Project Financing Subsidiary to finance (x) the development or operation of
the Project it was formed to develop, or (y) activities incidental thereto),
other than (i) Capital Stock issued (A) to the Company or to shareholders of the
Company in connection with the Merger, (B) to Old NiSource or to shareholders of
Old NiSource in connection with the Parent Merger, or (C) to the Parent
Guarantor or any of its Wholly-Owned Subsidiaries, (ii) directors' qualifying
shares, (iii) Capital Stock issued in the ordinary course of business in
connection with director or employee stock purchase plans and arrangements and
other director or employee compensation arrangements, and (iv) Capital Stock
issued in the ordinary course of business under any dividend reinvestment and
stock purchase plan maintained by the Parent Guarantor; or (b) any contribution
to the capital of the Parent Guarantor or any of its Subsidiaries, other than a
contribution by the Parent Guarantor or any of its Subsidiaries to one of its
Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person who, for purposes of Title IV of
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ERISA, is a member of the Parent Guarantor's controlled group, or under common
control with the Parent Guarantor, within the meaning of Section 414 of the Code
and the regulations promulgated and rulings issued thereunder.
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"ERISA Event" means (a) a reportable event, within the meaning of
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Section 4043 of ERISA, unless the 30-day notice requirement with respect thereto
has been waived by the PBGC, (b) the provision by the administrator of any Plan
of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) and
4041(c) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA), (c) the withdrawal by the Parent
Guarantor or an ERISA Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA, (d) the failure by the Parent Guarantor or any ERISA Affiliate to make a
payment to a Plan required under Section 302(f)(1) of ERISA, which Section
imposes a lien for failure to make required payments, (e) the adoption of an
amendment to a Plan requiring the provision of security to such Plan, pursuant
to Section 307 of ERISA, or (f) the institution by the PBGC of proceedings to
terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition which may reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board, as in effect from time to time.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
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to whether such Loan is, or the Loans comprising such Borrowing are, bearing
interest at a rate determined by reference to the LIBO Rate.
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest
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Period for any Eurodollar Loan means the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning assigned to such term in Article
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VIII.
"Excess Commitment Amount" means, at any time, the excess of (a) the
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Aggregate Commitments over (b) the sum of (i) the Total Outstanding Principal
plus (b) the principal amount of outstanding Commercial Paper.
"Excluded Debt" means (a) Debt for Borrowed Money incurred hereunder;
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(b) the Commercial Paper, to the extent the proceeds thereof are used to fund
the Merger (including to pay fees and expenses related to the Merger); (c) Debt
for Borrowed Money owed by the Parent Guarantor or any of its Subsidiaries to
the Parent Guarantor or any of its Subsidiaries; (d) Project Financings, to the
extent that the Net Cash Proceeds thereof are retained by the Project Financing
Subsidiary that incurs such Debt for Borrowed Money to finance (i) the
development or operation of the Project it was formed to develop, or (ii)
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activities incidental thereto; (e) Debt for Borrowed Money of any Person at the
time such Person becomes a Subsidiary of the Parent Guarantor, provided that
such Debt for Borrowed Money was not incurred in contemplation of such
occurrence; (f) Debt for Borrowed Money, other than Project Financings, incurred
to finance Capital Expenditures (including fees and expenses incidental to the
acquisition of the assets so acquired); (g) Debt for Borrowed Money incurred by
a Utility Subsidiary, to the extent that the Net Cash Proceeds thereof are used
by such Utility Subsidiary to finance its business and operations; (h) (i) Debt
for Borrowed Money of NiSource Capital Markets, Inc. under the $200,000,000
364-Day Credit Agreement dated as of September 22, 2000, among NiSource Capital
Markets, Inc., Credit Suisse First Boston, as Administrative Agent, the lenders
party thereto and Barclays Bank PLC, as Documentation Agent; (ii) Debt for
Borrowed Money of the Company under the $850,000,000 Third Amended and Restated
364-Day Credit Agreement and the $50,000,000 Amended and Restated Credit
Agreement, each dated as of October 11, 2000, among the Company, as Borrower,
Citibank, N.A., as agent, and the lenders and other Persons party thereto, in
the capacities provided therein; (iii) other Debt for Borrowed Money, not in
excess of $150,000,000 in aggregate principal amount outstanding at any time,
incurred to finance the working capital needs of the Parent Guarantor or any of
its Subsidiaries (other than Utility Subsidiaries); and (iv) Debt for Borrowed
Money incurred under any commercial paper program in respect of which any Debt
for Borrowed Money described in the preceding clauses (i) through (iii) provides
liquidity; and (i) refinancings, replacements and extensions of any of the
foregoing, or of any Debt for Borrowed Money outstanding on June 30, 2000, to
the extent that the principal of the Debt for Borrowed Money so refinanced,
replaced or extended is not increased as a result thereof.
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income or net earnings by the United States of America,
or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located and (b) in case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section
2.19(d)), any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, except to the extent that such Foreign Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.17(a) or
(ii) is attributable to such Foreign Lender's failure to comply with Section
2.17 (e) when legally able to do so.
"Facility Fee" has the meaning set forth in Section 2.12.
------------
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
10
<PAGE>
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
----------
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
---------------
Rate.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
----
States of America consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e).
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation, or any political subdivision of the United States of
America or any other nation, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government and includes, in any event, an
"Independent System Operator" or any entity performing a similar function.
"Guarantor Merger" means the merger of Old NiSource into New NiSource.
----------------
"Guarantors" means each of Old NiSource and New NiSource.
----------
"Guaranty" means the Guaranty of the Guarantors pursuant to Article X
--------
of this Agreement.
"Hazardous Materials" means any asbestos; flammables; volatile
-------------------
hydrocarbons; industrial solvents; explosive or radioactive materials; hazardous
wastes; toxic substances; liquefied natural gas; natural gas liquids; synthetic
gas; oil, petroleum, or related materials and any constituents, derivatives, or
byproducts thereof or additives thereto; or any other material, substance,
waste, element or compound (including any product) regulated pursuant to any
Environmental Law, including, without limitation, substances defined as
"hazardous substances," "hazardous materials," "contaminants," "pollutants,"
"hazardous wastes," "toxic substances," "solid waste," or "extremely hazardous
substances" in (i) CERCLA, (ii) the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801 et seq., (iii) the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq., (iv) the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 et seq., (v) the Clean Air Act, 42 U.S.C.
Section 7401 et seq., (vi) the Toxic Substances Control Act, 15 U.S.C. Section
11
<PAGE>
2601 et seq., (vii) the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.,
or (viii) foreign, state, local or municipal law, in each case, as may be
amended from time to time.
"Indebtedness" of any Person means (without duplication) (a) Debt for
------------
Borrowed Money, (b) obligations to pay the deferred purchase price of property
or services, except trade accounts payable arising in the ordinary course of
business which are not overdue, (c) all obligations, contingent or otherwise, in
respect of any letters of credit, bankers' acceptances or interest rate,
currency or commodity swap, cap or floor arrangements, (d) all indebtedness of
others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the indebtedness secured thereby has
been assumed, (e) all amounts payable in connection with mandatory redemptions
or repurchases of preferred stock, and (f) obligations under direct or indirect
guarantees in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clauses
(a) through (e) above.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Index Debt" means the senior unsecured long-term debt securities of
----------
the Borrower, without third-party credit enhancement provided by a Person other
than the Parent Guarantor.
"Initial Credit Event Date" means (a) the Initial Loan Date or (b) the
-------------------------
date on which Commercial Paper is first issued, whichever first occurs.
"Initial Loan" means, collectively, the first Loans made pursuant to
------------
this Agreement.
"Initial Loan Date" means the date on which the Initial Loan is
-----------------
funded.
"Insufficiency" means, with respect to any Plan, the amount, if any,
-------------
by which the present value of all vested and unvested accrued benefits under
such Plan exceeds the fair market value of assets allocable to such benefits,
all determined as of the then most recent valuation date for such Plan using
actuarial assumptions used in determining such Plan's normal cost for purposes
of Section 4l2(b)(2)(A) of the Code.
"Interest Coverage Ratio" means, for any period, the ratio of (i) the
------------------------
sum of (a) Consolidated Net Income for such period plus (b) income taxes
deducted in determining such Consolidated Net Income plus (c) Consolidated
Interest Expense for such period to (ii) Consolidated Interest Expense for such
period.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving or a Term Borrowing in accordance with Section 2.06.
12
<PAGE>
"Interest Payment Date" means (a) with respect to any ABR Loan, the
---------------------
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, the day that is three
months after the first day of such Interest Period and (c) with respect to any
Fixed Rate Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
---------------
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 5 days or more
than 360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided that (x) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day; and (y) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and,
in the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Telerate Page 3750 (or on any successor
or substitute page of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on
such page of such service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which Dollar deposits of $5,000,000
13
<PAGE>
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" has the meaning set forth in Section 6.01(a).
----
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest
------
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" means margin stock within the meaning of Regulations U
------------
and X issued by the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations, condition (financial or otherwise) or prospects of
(i) until the Effective Time, the Company and its Subsidiaries taken as a whole,
or (ii) at any time, the Parent Guarantor and its Subsidiaries taken as a whole;
(b) the validity or enforceability of any of Credit Documents or the rights,
remedies and benefits available to the Administrative Agent and the Lenders
thereunder; or (c) the ability of New NiSource, Old NiSource, the Borrower, the
Company, PAC or CAC to consummate the Transactions.
"Material Subsidiary" means at any time (a) the Borrower, (b) NIPSCO,
-------------------
(c) after the Effective Time, the Company, and (c) each Subsidiary of the Parent
Guarantor, other than the Borrower, NIPSCO and the Company, in respect of which:
(a) the Parent Guarantor's and its other Subsidiaries'
investments in and advances to such Subsidiary and its Subsidiaries
exceed 10% of the consolidated total assets of the Parent Guarantor
and its Subsidiaries taken as a whole, as of the end of the most
recent fiscal year; or
(b) the Parent Guarantor's and its other Subsidiaries'
proportionate interest in the total assets (after intercompany
eliminations) of such Subsidiary and its Subsidiaries exceeds 10% of
the consolidated total assets of the Parent Guarantor and its
Subsidiaries as of the end of the most recent fiscal year; or
(c) the Parent Guarantor's and its other Subsidiaries'
equity in the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting
principles of such Subsidiary and its Subsidiaries exceeds 10% of the
consolidated income of the Parent Guarantor and its Subsidiaries for
the most recent fiscal year;
14
<PAGE>
provided that, until the end of the first fiscal year of New NiSource to end
after the Effective Time, such determination shall be based (x) until the
Effective Time, on the consolidated total assets or consolidated income, as the
case may be, of Old NiSource and its Subsidiaries as of the end of, or for, as
the case may be, the most recent fiscal year of Old NiSource; and (y) after the
Effective Time, on the combined consolidated total assets or consolidated
income, as the case may be, of Old NiSource and its Subsidiaries and of the
Company and its Subsidiaries, as reflected in the Pro Forma Financial Statements
as of the end of Old NiSource's most recent fiscal year.
"Merger" means, collectively, the Parent Merger, the Company Merger
------
and the Guarantor Merger, but not including any refinancing of Indebtedness of
the Company in connection therewith.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
----------------
February 27, 2000, as amended and restated as of March 31, 2000, among the
Company, Old NiSource, New NiSource, PAC, CAC, and the Borrower.
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, which (a) is maintained for employees of the
Borrower or an ERISA Affiliate and at least one Person other than the Borrower
and its ERISA Affiliates, or (b) was so maintained and in respect of which the
Borrower or an ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event that such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any Reduction Event, an
-----------------
amount equal to the cash proceeds received by the Parent Guarantor or any of its
Subsidiaries (or, if applicable, by the Company or any of its Subsidiaries) from
or in respect of such Reduction Event (including, when received, any cash
proceeds received as income or other proceeds of any noncash proceeds of any
such transaction), less (a) any investment banking and underwriting fees and any
other fees and expenses reasonably incurred by such Person in respect of such
Reduction Event, and (b) if such Reduction Event is a disposition of assets, (i)
the amount of any Debt for Borrowed Money secured by a Lien on any asset
disposed of in such Reduction Event and discharged from the proceeds thereof and
(ii) any taxes actually paid or to be payable by such Person (as estimated by a
senior financial or accounting officer of the Parent Guarantor, giving effect to
the overall tax position of the Parent Guarantor) in respect of such Reduction
Event; provided that if the cash proceeds of such Reduction Event are received
by a Subsidiary that is not a Wholly-Owned Subsidiary, Net Cash Proceeds shall
include only the portion thereof proportionately equivalent to the Parent
Guarantor's direct and indirect interest in such Subsidiary. The Net Cash
Proceeds of Debt Incurrences in respect of a revolving facility shall be deemed
to be the aggregate amount of the commitments thereunder, used or unused.
15
<PAGE>
"NIPSCO" means Northern Indiana Public Service Company, an Indiana
------
corporation.
"Non-Recourse Debt" means Indebtedness of the Parent Guarantor or any
-----------------
of its Subsidiaries (a) in the case of any Credit Party, which is incurred in
connection with the acquisition, construction, sale, transfer or other
disposition of assets, to the extent recourse, whether contractual or as a
matter of law, for non-payment of such Indebtedness is limited to such assets,
or (b) in the case of a Subsidiary of any Credit Party (other than the Borrower
or a Guarantor), to the extent recourse, whether contractual or as a matter of
law, for non-payment of such Indebtedness is limited to such Subsidiary.
"Obligations" means all amounts, direct or indirect, contingent or
-----------
absolute, of every type or description, and at any time existing and whenever
incurred (including, without limitation, after the commencement of any
bankruptcy proceeding), owing to the Administrative Agent or any Lender pursuant
to the terms of this Agreement or any other Credit Document.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Outstanding Loans" means, as to any Lender at any time, the aggregate
-----------------
principal amount of all Loans made by such Lender then outstanding.
"PAC" means Parent Acquisition Corp., an Indiana corporation.
---
"Parent Guarantor" means (a) until the Effective Time, Old NiSource,
----------------
and (b) at and after the Effective Time, New NiSource.
"Parent Merger" means the merger of PAC with and into Old NiSource
-------------
pursuant to the Merger Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pricing Grid" means the pricing grid attached hereto as Annex A.
------------
16
<PAGE>
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by Credit Suisse First Boston as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Forma Financial Statements" means the financial statements
------------------------------
delivered pursuant to Section 3.1(i).
"Project" means an energy or power generation, transmission or
-------
distribution facility (including, without limitation, a thermal energy
generation, transmission or distribution facility and an electric power
generation, transmission or distribution facility (including, without
limitation, a cogeneration facility)), a gas production, transportation or
distribution facility, or a minerals extraction, processing or distribution
facility, together with (a) all related electric power transmission, fuel supply
and fuel transportation facilities and power supply, thermal energy supply, gas
supply, minerals supply and fuel contracts, (b) other facilities, services or
goods that are ancillary, incidental, necessary or reasonably related to the
marketing, development, construction, management, servicing, ownership or
operation of such facility, (c) contractual arrangements with customers,
suppliers and contractors in respect of such facility, and (d) any
infrastructure facility related to such facility, including, without limitation,
for the treatment or management of waste water or the treatment or remediation
of waste, pollution or potential pollutants.
"Project Financing" means Indebtedness incurred by a Project Financing
-----------------
Subsidiary to finance (a) the development and operation of the Project such
Project Financing Subsidiary was formed to develop or (b) activities incidental
thereto; provided that such Indebtedness does not include recourse to the Parent
Guarantor or any of its other Subsidiaries other than (x) recourse to the
Capital Stock in any such Project Financing Subsidiary, and (y) recourse
pursuant to a Contingent Guaranty.
"Project Financing Subsidiary" means any Subsidiary (a) that (i) is
----------------------------
not a Material Subsidiary, and (ii) whose principal purpose is to develop a
Project and activities incidental thereto (including, without limitation, the
financing and operation of such Project), or to become a partner, member or
other equity participant in a partnership, limited liability company or other
entity having such a principal purpose, and (b) substantially all the assets of
which are limited to the assets relating to the Project being developed or
Capital Stock in such partnership, limited liability company or other entity
(and substantially all of the assets of any such partnership, limited liability
company or other entity are limited to the assets relating to such Project);
provided that such Subsidiary incurs no Indebtedness other than in respect of a
Project Financing.
"Reduction Event" means any (a) Asset Sale, (b) Debt Incurrence or (c)
---------------
Equity Issuance, except to the extent that, at the time the Parent Guarantor or
any of its Subsidiaries receives Net Cash Proceeds in respect thereof, (x) the
Aggregate Commitments do not exceed $2,500,000,000, and (y) the Index Debt is
rated at or above BBB- by S&P and at or above Baa3 by Moody's.
17
<PAGE>
"Register" has the meaning set forth in Section 11.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means Lenders having at least 51% in aggregate
----------------
amount of (a) at any time prior to the Termination Date, the sum of the total
Revolving Credit Exposures and unused Commitments; and (b) at any time on or
after the Termination Date, the Total Outstanding Principal; provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article VIII,
and for all purposes after the Loans become due and payable pursuant to Article
VIII or the Commitments expire or terminate, the outstanding Competitive Loans
of the Lenders shall be included in the calculation of the total Revolving
Credit Exposures.
"Responsible Officer" of a Credit Party means any of (a) the
-------------------
President, the chief financial officer, the chief accounting officer and the
Treasurer of such Credit Party and (b) any other officer of such Credit Party
whose responsibilities include monitoring compliance with this Agreement.
"Retained Proceeds" means the first $475,000,000 in Net Cash Proceeds
-----------------
received by the Parent Guarantor, the Company and their respective Subsidiaries
in respect of Asset Sales, Debt Incurrences and Equity Issuances on or after
February 27, 2000 less the amount, if any, of Net Cash Proceeds that the Company
is deemed to have received under Section 2.08(d).
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the outstanding principal amount of such Lender's Revolving Loans.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
--------------
"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw Hill Companies, Inc.
"Subsidiary" means, with respect to any Person, any corporation or
----------
other entity of which at least a majority of the outstanding shares of stock or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other managers of such corporation
or other entity (irrespective of whether or not at the time stock or other
equity interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more of the Subsidiaries of such Person.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority, including any interest, penalties and additions to tax imposed
thereon or in connection therewith.
"Term Loan" means a loan made by a Lender pursuant to Section 2.01(b).
---------
18
<PAGE>
"Term-Out Maturity Date" means the earlier of (a) the date that is one
----------------------
year after the Termination Date or, if such day is not a Business Day, then the
next preceding Business Day, and (b) the date upon which the Term Loans become
due and payable in full, pursuant to Section 8.1 or otherwise.
"Termination Date" means the earliest of (a) July 5, 2001, (b) the
----------------
date the Merger Agreement is terminated by any party thereto and (c) the date
upon which the Commitments are terminated pursuant to Section 8.1 or otherwise.
"Total Outstanding Principal" means the aggregate amount of the
---------------------------
Outstanding Loans of all Lenders.
"Transactions" means the execution, delivery and performance by the
------------
Borrower of this Agreement, the Borrowing of Loans and the Merger.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Unapplied Reduction Amount" means, at any time, an amount equal to
--------------------------
(a) the aggregate Net Cash Proceeds of Reduction Events as of such time
(exclusive of Retained Proceeds), less (b) the sum, without duplication, of all
prepayments of Loans and reductions of the Aggregate Commitments made in respect
thereof pursuant to Section 2.07 or 2.08, and less (c) the amount of such Net
Cash Proceeds whose application to prepayment of the Loans has been deferred to
the end of a pending Interest Period pursuant to Section 2.08(c).
"Utility Subsidiary" means a Subsidiary of the Parent Guarantor that
------------------
is subject to regulation by a Governmental Authority (federal, state or
otherwise) having authority to regulate utilities.
"Utilization Fee" has the meaning set forth in Section 2.12.
---------------
"Wholly-Owned Subsidiary" shall mean, with respect to any Person, any
-----------------------
corporation or other entity of which all of the outstanding shares of stock or
other ownership interests in which, other than directors' qualifying shares (or
the equivalent thereof), are at the time directly or indirectly owned or
controlled by such Person or one or more of the Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Sections 4201, 4203 and 4205 of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
--------------------------------------
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan" or a "Eurodollar Term Loan"). Borrowings
also may be classified and referred to by Class (e.g., a "Revolving Borrowing")
19
<PAGE>
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
"Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "or" shall
not be exclusive. The word "will" shall be construed to have the same meaning
and effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. The terms "knowledge of", "awareness of" and "receipt of notice
of" in relation to a Credit Party, and other similar expressions, mean knowledge
of, awareness of, or receipt of notice by, a Responsible Officer of such Credit
Party.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
-----------
SECTION 2.01. Commitments.
-----------
(a) Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i)
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such Lender's Revolving Credit Exposure exceeding such Lender's Commitment or
(ii) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans exceeding the Aggregate
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
(b) If the Borrower so elects pursuant to Section 2.03, each Lender
severally agrees, on the terms and conditions set forth in this Agreement, to
convert its outstanding Revolving Loans into Term Loans on the Termination Date;
provided that (i) the Borrower shall not be entitled to convert outstanding
Revolving Loans to Term Loans in an amount that exceeds the aggregate principal
amount of the outstanding Revolving Loans on the third Business Day before the
Termination Date and (ii) the Borrower pays or repays, as the case may be, on or
before the Termination Date, all amounts required to be paid or repaid under
Section 2.08, including, without limitation, amounts due and owing as provided
in Section 2.09(b).
SECTION 2.02. Loans and Borrowings
--------------------
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.04. If Revolving Loans are converted
to Term Loans pursuant to Section 2.03, then each Lender shall be deemed to have
made a Term Loan in the amount of its Applicable Percentage of the Revolving
Loans outstanding on the Termination Date (after giving effect to any repayment
of Loans required to be made on the Termination Date pursuant to Section 2.08).
The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $25,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $5,000,000 and not less than $25,000,000;
provided that an ABR Revolving Borrowing may be to an aggregate amount that is
equal to the entire unused balance of the Aggregate Commitments. Each
Competitive Borrowing shall be in an aggregate amount that is an integral
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multiple of $5,000,000 and not less than $25,000,000. Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of twelve Eurodollar Revolving
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after (i) the Termination Date, with respect to any Revolving Borrowing or
Competitive Borrowing, or (ii) the Term-Out Maturity Date, with respect to any
Term Borrowing.
SECTION 2.03. Requests for Revolving Borrowings; Conversion of
------------------------------------------------
Revolving Loans to Term Loans. To request a Revolving Borrowing or to convert
-----------------------------
Revolving Loans to Term Loans, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before the
date of the proposed Borrowing, (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, on the date of the proposed Borrowing, and
(c) in the case of the Borrower's election to convert Revolving Loans into Term
Loans, the third Business Day preceding the Termination Date. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing, which in the case
of Term Loans, shall not exceed the aggregate principal amount of the
outstanding Revolving Loans on the third Business Day before the
Termination Date;
(ii) the date of such Borrowing, which shall be (A) a Business Day in
the case of a Revolving Borrowing, and (B) the Termination Date in the case
of the Borrower's election to convert Revolving Loans to Term Loans;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
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Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
-------------------------
(a) Subject to the terms and conditions set forth herein, from time to
time during the Availability Period the Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
at any time shall not exceed the Aggregate Commitments. To request Competitive
Bids, the Borrower shall notify the Administrative Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 1 l :00 a.m.,
New York City time, four Business Days before the date of the proposed Borrowing
and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York
City time, one Business Day before the date of the proposed Borrowing; provided
that the Borrower may submit up to (but not more than) three Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made within
five Business Days after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each
such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period" that does not end after the Termination Date; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
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telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $25,000,000 and an integral multiple of
$5,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m. New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided, further, that if
a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
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rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings.
---------------------
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account designated by
the Borrower in the applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections.
------------------
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
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elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section 2.06
shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing.
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Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.07. Mandatory Termination or Reduction of Commitments.
-------------------------------------------------
(a) Unless previously terminated, the Commitments shall terminate on
the Termination Date; provided that, (i) if the Borrower elects to convert
--------
Revolving Loans to Term Loans on the Termination Date pursuant to Section 2.03,
then the Commitments shall terminate on the Term-Out Maturity Date; and (ii) no
additional Loans (other than Revolving Loans converted to Term Loans on the
Termination Date) shall be made on or after the Termination Date, and no portion
of the Term Loans, once repaid, may be reborrowed.
(b) If the Parent Guarantor or any of its Subsidiaries shall at any
time, or from time to time, receive after the Effective Date but before the
Initial Credit Event Date any Net Cash Proceeds in respect of any Reduction
Event (exclusive of Retained Proceeds), then, on the day immediately preceding
the Initial Credit Event Date, the Aggregate Commitments shall be permanently
reduced by an amount equal to the aggregate amount of such Net Cash Proceeds.
(c) On the Initial Credit Event Date, the Aggregate Commitments shall
be permanently reduced to an amount equal to the sum of (i) the amount of the
Initial Loan, if any, made thereon, plus (ii) the principal amount of
outstanding Commercial Paper, plus (iii) $5,000,000.
(d) On each day on which any prepayment of the Loans is required to be
made under Section 2.08(b) or 2.08(c), the Aggregate Commitments shall be
permanently reduced by an amount equal to the amount of such prepayment.
(e) If, on any date, both an Unapplied Reduction Amount and an Excess
Commitment Amount exist, the Aggregate Commitments shall be permanently reduced
on such date by an amount equal to the lesser of (i) such Unapplied Reduction
Amount and (ii) such Excess Commitment Amount.
(f) If an Unapplied Reduction Amount exists on any maturity date of
Commercial Paper (determined, if applicable, after giving effect to any
reduction of the Aggregate Commitments effected in accordance with Section
2.07(e)), the Aggregate Commitments shall be permanently reduced on such date by
an amount equal to the lesser of (i) such Unapplied Reduction Amount and (ii)
the principal amount of the Commercial Paper maturing on such date.
(g) If the Borrower elects to convert any Revolving Loans to Term
Loans on the Termination Date pursuant to Section 2.03, the Aggregate
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Commitments shall be permanently reduced to an amount that is equal to the
principal amount of the resulting Term Borrowing.
(h) The Borrower shall give the Administrative Agent at least three
Business Days' notice of each reduction of the Commitments required pursuant to
this Section 2.07. Promptly after receiving a notice pursuant to this Section
2.07(h), the Administrative Agent shall notify each affected Lender of the
contents thereof.
(i) Each reduction of the Commitments pursuant to this Section 2.07
shall be made ratably among the Lenders in accordance with their respective
Commitments immediately preceding such reduction.
SECTION 2.08. Mandatory Prepayments.
---------------------
(a) If at any time the Total Outstanding Principal exceeds the
Aggregate Commitments then in effect for any reason whatsoever (including,
without limitation, as a result of any reduction in the Aggregate Commitments
pursuant to Section 2.07 or Section 2.09), the Borrower shall prepay Loans in
such aggregate amount (together with accrued interest thereon to the extent
required by Section 2.13) as shall be necessary so that, after giving effect to
such prepayment, the Total Outstanding Principal does not exceed the Aggregate
Commitments.
(b) On the fifth Business Day after the Initial Credit Event Date, the
Borrower shall prepay the principal of the Loans in an amount equal to the
lesser of (i) the aggregate Net Cash Proceeds, other than Retained Proceeds,
received by the Company and its Subsidiaries in respect of Asset Sales on or
after February 27, 2000, and on or before the Initial Credit Event Date, and
(ii) the Total Outstanding Principal.
(c) If the Parent Guarantor or any of its Subsidiaries shall at any
time, or from time to time, receive on or after the Initial Credit Event Date
any Net Cash Proceeds, other than Retained Proceeds, in respect of any Reduction
Event then, on and as of the date of receipt of such Net Cash Proceeds (or, in
the case of Net Cash Proceeds received on the Initial Credit Event Date, on the
next Business Day thereafter), the Borrower shall prepay the principal of the
Loans in an amount equal to the lesser of (i) such Net Cash Proceeds, and (ii)
the Total Outstanding Principal; provided that (1) if the Net Cash Proceeds in
respect of any Reduction Event are less than $5,000,000, such prepayment shall
be effected upon receipt of Net Cash Proceeds in an amount that, together with
all other such amounts not previously applied, are equal to at least
$25,000,000; and (2) if any such prepayment would otherwise require that the
Borrower prepay Eurodollar Loans or Competitive Loans prior to the last day of
the Interest Period applicable thereto, the prepayment in respect of the portion
of such Net Cash Proceeds that would otherwise be applied to the prepayment of
Eurodollar Loans or Competitive Loans shall, unless a Default or Event of
Default exists and the Administrative Agent otherwise notifies the Borrower upon
the instructions of the Required Lenders, be deferred to such last day.
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(d) If all or any portion of the principal of the Company's 6.39%
Debentures due November 28, 2000, is extended, renewed, or replaced, then the
Company shall be deemed to have received, on the date on which such extension,
renewal, or replacement becomes effective, Net Cash Proceeds in respect of a
Reduction Event in an amount equal to the amount of such principal that is so
extended, renewed or replaced.
(e) Each prepayment of Loans pursuant to this Section 2.08 shall be
accompanied by the Borrower's payment of any amounts payable under Section 2.16
in connection with such prepayment. Prepayments of Revolving Loans and Term
Loans shall be applied ratably to the Loans so prepaid.
SECTION 2.09. Optional Reduction of Commitments.
---------------------------------
(a) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $25,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, either (A) the sum of the Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
or (B) the aggregate principal amount of Term Loans, would exceed the Aggregate
Commitments.
(b) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under Section 2.09(a) at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent.
(c) Each reduction of the Commitments pursuant to this Section 2.09
shall be made ratably among the Lenders in accordance with their respective
Commitments immediately preceding such reduction.
SECTION 2.10. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan (except to the extent that such Revolving Loan is
converted into a Term Loan as provided herein) on the Termination Date, (ii) to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan, and (iii) to the Administrative Agent for the account
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of each Lender the then unpaid principal amount of each Term Loan on the
Term-Out Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 11.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11. Optional Prepayment of Loans.
----------------------------
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that the Borrower shall
not have the right to prepay any Competitive Loan without the prior consent of
the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
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the Commitments as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing of the
same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees.
----
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee (each a "Facility Fee"), which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Outstanding Loans after its
Commitment terminates, then such Facility Fee shall continue to accrue on the
daily amount of such Lender's Outstanding Loans from and including the date on
which its Commitment terminates to but excluding the date on which such Lender
ceases to have any Outstanding Loans. Accrued Facility Fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Commitments terminate, commencing on the first such
date to occur after the Effective Date; provided that any Facility Fees accruing
after the date on which the Commitments terminate shall be payable on demand.
All Facility Fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account and for the account of the other Persons entitled thereto, the fees
provided for in that certain fee letter dated July 6, 2000, and that certain
amended and restated supplemental fee letter dated July 14, 2000, executed and
delivered with respect to the credit facility provided for herein, in each case,
in the amounts and at the times set forth therein and in immediately available
funds.
(c) If at any time (including at any time while any portion of the
Term Loans remains outstanding), the Total Outstanding Principal exceeds 33 1/3%
of the Aggregate Commitments, the Borrower shall pay to the Administrative
Agent, for the account of the Lenders ratably in proportion to their respective
Commitments, a utilization fee (the "Utilization Fee") calculated for each day
with respect to the Total Outstanding Principal on such day at the rate for such
day determined in accordance with the Pricing Grid. The accrued Utilization Fee
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Effective Date; provided
that any Utilization Fee accruing after the date on which the Commitments
terminate shall be payable on demand. The Utilization Fee shall be computed on
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the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (for distribution, in
the case of Facility Fees and any Utilization Fee, to the Lenders). Fees due and
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
--------
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to (i) in the case of a Eurodollar Revolving Loan or
Eurodollar Term Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate, or (ii) in the case of a Eurodollar
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal
to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Revolving Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion
and (iv) all accrued interest shall be payable upon termination of the
Commitments.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
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LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement
--------------------------
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent reasonably determines (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) that the LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (1) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(2) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
---------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
described in paragraph (f) of this Section); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender, such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
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(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender,
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than ninety days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided, further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the ninety day period referred to above shall
be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
(f) The Borrower shall pay (without duplication as to amounts paid
under this Section 2.15) to each Lender, so long as such Lender shall be
required under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Lender, from the date of such Loan until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the LIBO Rate for the Interest Period for such Loan from (ii)
the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Loan. Such additional
interest determined by such Lender and notified to the Borrower and the
Administrative Agent, accompanied by the calculation of the amount thereof,
shall be conclusive and binding for all purposes absent manifest error.
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SECTION 2.16. Break Funding Payments. In the event of (a) the payment
----------------------
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice is permitted to be revocable under Section 2.11(b) and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount reasonably determined by such Lender to be equal to
the excess, if any, of (x) the amount of interest that such Lender would pay for
a deposit equal to the principal amount of such Loan for the period from the
date of such payment, conversion, failure or assignment to the last day of the
then current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the LIBO Rate for such Interest Period,
over (y) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount for
such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for dollar deposit from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes.
-----
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (and for any Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the laws of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with an
additional original or a photocopy, as required under applicable rules and
procedures, to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as shall be necessary to
permit such payments to be made without withholding or at a reduced rate.
Further, in those circumstances as shall be necessary to allow payments
hereunder to be made free of (or at a reduced rate of) withholding tax, each
other Lender and the Administrative Agent, as applicable, shall deliver to
Borrower such documentation as the Borrower may reasonably request in writing.
(f) Except with the prior written consent of the Administrative Agent,
all amounts payable by the Borrower hereunder shall be made by the Borrower in
its own name and for its own account from within the United States by a payor
that is a United States person (within the meaning of Section 7701 of the Code).
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Set-offs.
--------
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.15, 2.16,
2.17 or 11.03, or otherwise) prior to 12:00 noon, New York City time, on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at Eleven Madison
Avenue, New York, New York, except that payments pursuant to Sections 2.15,
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2.16, 2.17 and 11.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Term Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans or Term Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans or Term
Loans (as the case may be); provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Parent Guarantor, the Borrower or any other
Subsidiary or Affiliate of the Parent Guarantor (as to which the provisions of
this paragraph shall apply). The Borrower and the Guarantors consent to the
foregoing and agree, to the extent they may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower and the Guarantors rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower or the affected Guarantor in the
amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
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agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(b) or 2.18(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a)
----------------------------------------------
Any Lender claiming reimbursement or compensation from the Borrower under either
of Sections 2.15 and 2.17 for any losses, costs or other liabilities shall use
reasonable efforts (including, without limitation, reasonable efforts to
designate a different lending office of such Lender for funding or booking its
Loans or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates) to mitigate the amount of such losses, costs
and other liabilities, if such efforts can be made and such mitigation can be
accomplished without such Lender suffering (i) any economic disadvantage for
which such Lender does not receive full indemnity from the Borrower under this
Agreement or (ii) otherwise be disadvantageous to such Lender.
(b) In determining the amount of any claim for reimbursement or
compensation under Sections 2.15 and 2.15, each Lender will use reasonable
methods of calculation consistent with such methods customarily employed by such
Lender in similar situations.
(c) Each Lender will notify the Borrower either directly or through
the Administrative Agent of any event giving rise to a claim under Section 2.15
or Section 2.17 promptly after the occurrence thereof which notice shall be
accompanied by a certificate of such Lender setting forth in reasonable detail
the circumstances of such claim.
(d) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 11.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
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Loans), accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
CONDITIONS
----------
SECTION 3.01. Conditions Precedent to the Initial Loan. The obligation
----------------------------------------
of each Lender to make the Initial Loan shall not become effective until the
date on which each of the following conditions, and each of the conditions set
forth in Section 3.02, is satisfied (or waived in accordance with Section
11.02); provided that each of the conditions set forth in this Section 3.01
shall be satisfied or waived no later than the Initial Credit Event Date.
(a) The Administrative Agent (or its counsel) shall have received from
each party thereto either (i) a counterpart of this Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Lenders, the Administrative Agent, the Arrangers and each
other Person entitled to the payment of fees or the reimbursement or payment of
expenses, pursuant hereto or to that certain fee letter dated July 6, 2000 or
that certain amended and restated supplemental fee letter date July 14, 2000, in
each case, executed and delivered with respect to the credit facility provided
for herein, shall have received all fees required to be paid by the Initial
Credit Event Date, and all expenses for which invoices have been presented on or
before the Initial Credit Event Date.
(c) The Administrative Agent shall have received certified copies of
the resolutions of the Board of Directors of each of the Guarantors and the
Borrower approving this Agreement, and of all documents evidencing other
necessary corporate action and governmental and regulatory approvals with
respect to this Agreement.
(d) The Administrative Agent shall have received from each of the
Borrower and the Guarantors, to the extent generally available in the relevant
jurisdiction, a copy of a certificate or certificates of the Secretary of State
(or other appropriate public official) of the jurisdiction of its incorporation,
dated reasonably near the Initial Credit Event Date, (i) listing the charters of
the Borrower or such Guarantor, as the case may be, and each amendment thereto
on file in such office (and, if possible, reflecting the Merger) and certifying
that such amendments are the only amendments to the Borrower's or such
Guarantor's charter, as the case may be, on file in such office, and (ii)
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stating that the Borrower, or such Guarantor, as the case may be, is duly
incorporated and in good standing under the laws of the jurisdiction of its
place of incorporation.
(e) (i) The Administrative Agent shall have received a certificate or
certificates of each of the Borrower and each Guarantor, signed on behalf of the
Borrower and such Guarantor respectively, by a the Secretary, an Assistant
Secretary or a Responsible Officer thereof, dated the Initial Credit Event Date,
certifying as to (A) the absence of any amendments to the charter of the
Borrower or such Guarantor, as the case may be, since the date of the
certificates referred to in paragraph (d) above, except as contemplated by the
Merger Agreement or this Agreement in connection with the Transactions, (B) a
true and correct copy of the bylaws of each of the Borrower or such Guarantor,
as the case may be, as in effect on the Initial Credit Event Date, (C) the
absence of any proceeding for the dissolution or liquidation of the Borrower or
such Guarantor, as the case may be (but excluding the Guarantor Merger), (D) the
truth, in all material respects, of the representations and warranties contained
in the Credit Documents to which the Borrower or such Guarantor is a party, as
the case may be, as though made on and as of the Initial Credit Event Date, (E)
to the best knowledge of the officer signing such certificate, the truth, in all
material respects, of the representations and warranties of all parties to the
Merger Agreement contained therein, (1) with respect to representations and
warranties that are not specifically limited to a prior date, as though made on
the Initial Credit Event Date and immediately prior to the Effective Time, and
(2) with respect to representations and warranties that are specifically limited
to a prior date, on and as of such prior date; and (F) the absence, as of the
Initial Credit Event Date, of any Default or Event of Default; and (ii) each of
such certifications shall be true.
(f) The Administrative Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of the Guarantors and the Borrower
certifying the names and true signatures of the officers of such Guarantor or
the Borrower, as the case may be, authorized to sign, and signing, this
Agreement and the other Credit Documents to be delivered hereunder on or before
the Initial Credit Event Date.
(g) The Effective Time shall have occurred in compliance with the
Merger Agreement and with all laws and regulations, including any state
anti-takeover law regulating the Merger, and, in connection therewith, (i) (A)
all applicable waiting or appeals periods shall have expired, (B) either no
appeal shall have been initiated or all such appeals shall have been resolved,
and (C) all requisite Governmental Authorities and other Persons shall have
approved or consented to the Merger to the extent required, in each case,
without the imposition of any materially burdensome or adverse conditions, (ii)
all such approvals shall be in full force and effect, and (iii) and the
Administrative Agent shall have received copies, certified by the Parent
Guarantor, of all such filings made with, or approvals obtained from, any
Governmental Authority in connection with the Merger as the Administrative Agent
may request.
(h) The Administrative Agent shall have received written confirmation
(i) from S&P that, immediately after the Effective Time, the Index Debt will be
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rated at least BBB- by S&P, and (ii) from Moody's that, immediately after the
Effective Time, the Index Debt will be rated at least Baa3 by Moody's.
(i) The Administrative Agent shall have received pro forma balance
sheets as of the end of the fiscal quarter immediately preceding the Initial
Credit Event Date and pro forma statements of operations and cash flows for the
immediately preceding fiscal year of New NiSource and its Consolidated
Subsidiaries and for the period from the end of such fiscal year to the end of
the fiscal quarter immediately preceding the Initial Credit Event Date, (i)
giving effect to the Transactions and (ii) demonstrating that, had the Effective
Time occurred on the first day of the immediately preceding fiscal year of the
Parent Guarantor, each of the financial covenants set forth in Article VII would
have been satisfied as at the end of such fiscal year and at the end of each
succeeding fiscal quarter ending on or before the Initial Credit Event Date,
certified by the chief financial officer or treasurer of the Parent Guarantor.
(j) The Administrative Agent shall have received (i) from Schiff
Hardin & Waite, counsel for the Guarantors and the Borrower, a favorable
opinion, substantially in the form of Exhibit B hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably request,
and (ii) from the general counsel of each Subsidiary of a Credit Party that is
subject to regulation as a public utility, a favorable opinion, in form and
substance satisfactory to the Administrative Agent, as to the sufficiency of the
approvals or consents obtained from the relevant Governmental Authorities of
such State or, if no such approvals or consents were required, so stating.
(k) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of the Borrower certifying as to (i) the
aggregate Net Cash Proceeds, exclusive of Retained Proceeds, received by the
Parent Guarantor and its Subsidiaries in respect of Reduction Events (A) on or
after February 27, 2000, and on or before the Effective Date, and (B) after the
Effective Date and before the Initial Credit Event Date; and (ii) if Commercial
Paper will be outstanding on the Initial Credit Event Date, the aggregate
principal amount of such Commercial Paper.
The occurrence of the Initial Credit Event Date shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraph (g) of this Section.
SECTION 3.02. Conditions Precedent to Each Loan. The obligation of
---------------------------------
each Lender to make a Loan on the occasion of any Borrowing (including the
Initial Loan and any conversion of Revolving Loans to Term Loans, but excluding
any other conversion or continuation of any Loan) shall be subject to the
satisfaction (or waiver in accordance with Section 11.02) of each of the
following conditions:
(a) The representations and warranties of the Guarantors and the
Borrower set forth in this Agreement shall be true and correct in all material
respects on and as of the date of such Borrowing, except to the extent that such
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representations and warranties are specifically limited to a prior date, in
which case such representations and warranties shall be true and correct in all
material respects on and as of such prior date.
(b) (i) After giving effect to (A) such Loan, together with all other
Loans to be made contemporaneously therewith, and (B) the repayment of any Loans
that are to be contemporaneously repaid at the time such Loan is made, such Loan
will not result in the sum of the then Total Outstanding Principal exceeding the
Aggregate Commitments and (ii) with respect to the conversion of Revolving Loans
to Term Loans on the Termination Date, the Total Outstanding Principal after
giving effect thereto shall not exceed the aggregate principal amount of the
Revolving Loans outstanding on the third Business Day before the Termination
Date (after giving effect to any repayment of Revolving Loans effected on such
third Business Day).
(c) At the time of and immediately after giving effect to such
Borrowing, no Default or Event of Default shall have occurred and be continuing.
(d) In the case of a Revolving Loan or a Term Loan, the Administrative
Agent shall have timely received a Borrowing Request; and, in the case of a
Competitive Loan, the Borrower shall have timely accepted the Competitive Bid
relating to such Competitive Loan.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01. Representations and Warranties of the Credit Parties.
----------------------------------------------------
Each of the Borrower and the Guarantors represents and warrants as follows:
(a) Each of the Borrower and the Parent Guarantor, and (as of the
Effective Date) each of Old NiSource, PAC and CAC, is a corporation duly
organized, validly existing and in good standing under the laws of the State of
its incorporation.
(b) The execution, delivery and performance by each of the Credit
Parties, PAC and CAC of the Merger Agreement and the Credit Documents to which
it is a party are within such Credit Party's or other Person's corporate powers,
(i) have been duly authorized by all necessary corporate action, (ii) do not
contravene (A) such Credit Party's or other Person's charter or by-laws, as the
case may be, or (B) any law, rule or regulation (including, without limitation,
the Public Utility Holding Company Act of 1935, as amended), or any material
Contractual Obligation or legal restriction, binding on or affecting any Credit
Party, PAC, CAC or any Material Subsidiary, as the case may be, and (iii) do not
require the creation of any Lien on the property of any Credit Party, PAC, CAC
or any Material Subsidiary under any Contractual Obligation binding on or
affecting such Credit Party, PAC, CAC or any Material Subsidiary.
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(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or other Person is required for the
due execution, delivery and performance by any Credit Party of this Agreement or
any other Credit Document to which any of them is a party, except for such as
have been obtained or made and that are in full force and effect.
(d) Each of the Merger Agreement and each Credit Document to which any
Credit Party, PAC or CAC is a party is a legal, valid and binding obligation of
such Credit Party or such other Person, as the case may be, enforceable against
such Credit Party or such other Person in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
The Credit Parties have delivered to the Administrative Agent a true and correct
copy of the Merger Agreement, and no material condition or other provision of
the Merger Agreement has been waived, amended or supplemented except as
described on Schedule 4.01(d) or with the prior written consent of the Required
Lenders.
(e) The balance sheet of Old NiSource as at June 30, 2000, and the
related statements of income and retained earnings of Old NiSource for the six
months then ended, copies of which have been made available or furnished to each
Lender, fairly present (subject to year-end adjustments) the financial condition
of Old NiSource as at such date and the results of the operations of Old
NiSource for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. To the best knowledge of
each Credit Party, the balance sheet of the Company as at June 30, 2000, and the
related statements of income and retained earnings of the Company for the six
months then ended, copies of which have been made available or furnished to each
Lender, fairly present (subject to year-end adjustments) the financial condition
of the Company as at such date and the results of the operations of the Company
for the period ended on such date, all in accordance with generally accepted
accounting principles consistently applied.
(f) Since June 30, 2000, there has been no material adverse change in
such condition or operations, or in the business, assets, operations, condition
(financial or otherwise) or prospects of any of the Credit Parties or of the
Company.
(g) There is no pending or threatened action or proceeding affecting
such Credit Party, PAC, CAC or any Material Subsidiary, before any court,
governmental agency or other Governmental Authority or arbitrator that (taking
into account the exhaustion of appeals) would have a Material Adverse Effect,
or, as of the Initial Credit Event Date, that (i) purports to affect the
legality, validity or enforceability of this Agreement, or (ii) seeks to
challenge, or to prohibit, the consummation of the Transactions or to prohibit
the ownership or operation, by any Credit Party, the Company, PAC or CAC, or any
of their respective Subsidiaries, of all or a material portion of their
respective businesses or assets.
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(h) The Parent Guarantor and its Subsidiaries, taken as a whole, do
not hold or carry Margin Stock having an aggregate value in excess of 10% of the
value of their consolidated assets, and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect.
(j) Schedule B (Actuarial Information) to the 1998 annual report (Form
5500 Series) for each Plan, copies of which have been filed with the Internal
Revenue Service and made available or furnished to each Lender, is complete and
accurate and fairly presents the funding status of such Plan, and since the date
of such Schedule B there has been no adverse change in such funding status which
may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Parent Guarantor nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Parent Guarantor nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title VI of
ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, in either such
case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(n) (i) Until the Effective Time: (A) neither New NiSource nor the
Borrower is a "public utility holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended; and (B) Old NiSource is such a
public utility holding company, but is exempt from registration under such Act
pursuant to an order under Section 3(a)(1) of such Act dated February 10, 1999;
(ii) at the Effective Time, the Parent Guarantor will have obtained all
necessary approvals for the execution and delivery of, and the performance of
its obligations under, the Credit Documents; and (iii) within 5 Business Days
after the Effective Time, the Parent Guarantor will be a "public utility holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and
local) required to be filed by it and has paid or caused to be paid all taxes
due for the periods covered thereby, including interest and penalties, except
for any such taxes, interest or penalties which are being contested in good
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faith and by proper proceedings and in respect of which such Credit Party has
set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in
compliance with all laws (including, without limitation, the Public Utility
Holding Company Act of 1935, as amended, and all Environmental Laws), except to
the extent that any failure to be in compliance, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound
by, any agreement that prohibits such Subsidiary from making any payments,
directly or indirectly, to such Credit Party, by way of dividends, advances,
repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party, other than prohibitions
and restrictions permitted to exist under Section 6.01(e).
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
SECTION 5.01. Affirmative Covenants. So long as any Lender shall have
---------------------
any Commitment hereunder or any principal of any Loan, interest or fees payable
hereunder shall remain unpaid, each of the Credit Parties will, unless the
Required Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (including, without limitation, any of the
foregoing relating to employee health and safety or public utilities and all
Environmental Laws), unless the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each Material Subsidiary to maintain and preserve, all of its material
properties which are used in the conduct of its business in good working order
and condition, ordinary wear and tear excepted, if the failure to do so could
reasonably be expected to have a Material Adverse Effect.
(c) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property, and (ii) all legal claims which, if unpaid, might by law
become a lien upon its property; provided, however, that neither any Credit
Party nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained.
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(d) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
obtained by companies engaged in similar businesses of comparable size and
financial strength and owning similar properties in the same general areas in
which such Credit Party or such Subsidiary operates, or to the extent such
Credit Party or Subsidiary deems it reasonably prudent to do so, through its own
program of self-insurance.
(e) Preservation of Corporate Existence, Etc.; Guarantor Merger.
-----------------------------------------------------------
(i) Preserve and maintain, and cause each Material Subsidiary to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises, except as otherwise permitted under this
Agreement; provided that that no such Person shall be required to preserve
any right or franchise with respect to which the Board of Directors of such
Person has determined that the preservation thereof is no longer desirable
in the conduct of the business of such Person and that the loss thereof is
not disadvantageous in any material respect to such Person or the Lenders.
(ii) No later than five Business Days after the Effective Time, cause
the Articles of Merger relating to the Guarantor Merger to be filed with
the Secretary of State of the State of Indiana.
(f) Visitation Rights. At any reasonable time and from time to time,
-----------------
permit the Administrative Agent or any of the Lenders or any agents or
representatives thereof, on not less than five Business Days' notice, to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, such Credit Party or any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Credit Parties and their
respective Subsidiaries with any of their respective officers and with their
independent certified public accountants; subject, however, in all cases to the
imposition of such conditions as the affected Credit Party or Subsidiary shall
deem necessary based on reasonable considerations of safety and security and
provided that so long as no Default or Event of Default shall have occurred and
be continuing, each Lender will be limited to one visit each year.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of each
of the Credit Parties and each of their respective Subsidiaries in accordance
with generally accepted accounting principles consistently applied.
(h) Reporting Requirements. Deliver to the Administrative Agent for
----------------------
distribution to the Lenders:
(i) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Parent
Guarantor, balance sheets of the Parent Guarantor and its Consolidated
Subsidiaries in comparative form as of the end of such quarter and
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statements of income and retained earnings of the Parent Guarantor and its
Consolidated Subsidiaries for the period commencing at the end of the
previous fiscal year of the Parent Guarantor and ending with the end of
such quarter, certified by the chief financial officer of the Parent
Guarantor.
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Parent Guarantor, a copy of the annual
report for such year for the Parent Guarantor and its Consolidated
Subsidiaries containing financial statements for such year reported on by
independent public accountants of recognized national standing acceptable
to the Required Lenders, together with a certificate of such accounting
firm to the Administrative Agent and the Lenders stating that in the course
of the regular audit of the business of the Parent Guarantor and its
Consolidated Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Default or an Event of
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default or an Event of Default has occurred and is
continuing, a statement as to the nature thereof;
(iii) concurrently with the delivery of financial statements pursuant
to clauses (i) and (ii) above or the notice relating thereto contemplated
by the final sentence of this Section 5.01(h), a certificate of a senior
financial officer of each of the Parent Guarantor and the Borrower (A) to
the effect that no Default or Event of Default has occurred and is
continuing (or, if any Default or Event of Default has occurred and is
continuing, describing the same in reasonable detail) and describing the
action that the Parent Guarantor or the Borrower, as the case may be, has
taken and proposes to take with respect thereto, and (B) in the case of the
certificate relating to the Parent Guarantor, setting forth calculations,
in reasonable detail, establishing Borrower's compliance, as at the end of
such fiscal quarter, with the financial covenants contained in Article VII;
(iv) as soon as possible and in any event within five days after the
occurrence of each Default or Event of Default continuing on the date of
such statement, a statement of the chief financial officer of the Borrower
setting forth details of such Event of Default or event and the action
which the Borrower has taken and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof, copies of all
reports which the Parent Guarantor sends to its stockholders, and copies of
all reports and registration statements (other than registration statements
filed on Form S-8 and filings under the Public Utilities Holding Company
Act of 1935, as amended) that the Parent Guarantor, the Borrower or any
Subsidiary of the Parent Guarantor or the Borrower, files with the
Securities and Exchange Commission or any national securities exchange;
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(vi) promptly and in any event within 30 days after the filing thereof
with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each
Plan;
(vii) promptly and in any event within 10 days after the Parent
Guarantor knows or has reason to know that any material ERISA Event has
occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, which the Parent
Guarantor or any affected ERISA Affiliate proposes to take with respect
thereto;
(viii) promptly and in any event within two Business Days after
receipt thereof by the Parent Guarantor (or knowledge being obtained by the
Parent Guarantor of the receipt thereof by any ERISA Affiliate), copies of
each notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any Plan;
(ix) promptly and in any event within five Business Days after receipt
thereof by the Parent Guarantor (or knowledge being obtained by the Parent
Guarantor of the receipt thereof by any ERISA Affiliate) from the sponsor
of a Multiemployer Plan, a copy of each notice received by the Parent
Guarantor or any ERISA Affiliate concerning (A) the imposition of material
Withdrawal Liability by a Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any Multiemployer
Plan or (C) the amount of liability incurred, or which may be incurred, by
the Parent Guarantor or any ERISA Affiliate in connection with any event
described in clause (A) or (B) above;
(x) promptly after the Parent Guarantor has knowledge of the
commencement thereof, notice of any actions, suits and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Parent Guarantor or any
Material Subsidiary of the type described in Section 4.01(g);
(xi) promptly after the Parent Guarantor or the Borrower knows of any
change in the rating of the Index Debt by S&P's or Moody's, a notice of
such changed rating; and
(xii) such other information respecting the condition or operations,
financial or otherwise, of the Parent Guarantor or any of its Subsidiaries
as any Lender through the Administrative Agent may from time to time
reasonably request.
Notwithstanding the foregoing, the Credit Parties' obligations to deliver the
documents or information required under any of clauses (i), (ii) and (v) above
shall be deemed to be satisfied upon (x) the relevant documents or information
being publicly available on the Parent Guarantor's website or other publicly
available electronic medium (such as EDGAR) within the time period required by
such clause, and (y) the delivery by the Parent Guarantor or the Borrower of
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notice to the Administrative Agent and the Lenders, within the time period
required by such clause, that such documents or information are so available.
(i) Use the proceeds of the Loans hereunder to fund the Merger
(including to pay related fees and expenses) or to provide liquidity support for
Commercial Paper, and for no other purpose.
(j) Amend this Agreement and the other Credit Documents, and execute
such additional documents, as may be reasonably requested by the Arrangers,
after consultation with the Borrower and prior to completion of the successful
syndication of the credit facility provided hereby, to change the pricing, terms
and structure of such credit facility if the Arrangers determine that such
changes are advisable to ensure the successful syndication thereof.
(k) At all times maintain ratings by both Moody's and S&P with respect
to the Index Debt.
ARTICLE VI
NEGATIVE COVENANTS
------------------
SECTION 6.01. Negative Covenants. So long as any Lender shall have any
------------------
Commitment hereunder or any principal of any Loan, interest or fees payable
hereunder shall remain unpaid, no Credit Party will, without the written consent
of the Required Lenders:
(a) Limitation on Liens. Create or suffer to exist, or permit any of
-------------------
its Subsidiaries (other than a Utility Subsidiary) to create or suffer to exist,
any lien, security interest, or other charge or encumbrance (collectively,
"Liens") upon or with respect to any of its properties, whether now owned or
hereafter acquired, or collaterally assign for security purposes, or permit any
of its Subsidiaries (other than a Utility Subsidiary) to so assign any right to
receive income in each case to secure or provide for or guarantee the payment of
Debt for Borrowed Money of any Person, without in any such case effectively
securing, prior to or concurrently with the creation, issuance, assumption or
guaranty of any such Debt for Borrowed Money, the Loans (together with, if the
Parent Guarantor shall so determine, any other Debt for Borrowed Money of or
guaranteed by the Parent Guarantor or any of its Subsidiaries ranking equally
with the Loans and then existing or thereafter created) equally and ratably with
(or prior to) such Debt for Borrowed Money; provided, however, that the
foregoing restrictions shall not apply to or prevent the creation or existence
of:
(i) (A) Liens on any property acquired, constructed or improved by the
Parent Guarantor or any of its Subsidiaries (other than a Utility
Subsidiary) after the date of this Agreement that are created or assumed
prior to, contemporaneously with, or within 180 days after, such
acquisition or completion of such construction or improvement, to secure or
provide for the payment of all or any part of the purchase price of such
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property or the cost of such construction or improvement; or (B) in
addition to Liens contemplated by clauses (ii) and (iii) below, Liens on
any property existing at the time of acquisition thereof, provided that the
Liens shall not apply to any property theretofore owned by the Parent
Guarantor or any such Subsidiary other than, in the case of any such
construction or improvement, (1) unimproved real property on which the
property so constructed or the improvement is located, (2) other property
(or improvements thereon) that is an improvement to or is acquired or
constructed for specific use with such acquired or constructed property (or
improvement thereof), and (3) any rights and interests (A) under any
agreements or other documents relating to, or (B) appurtenant to, the
property being so constructed or improved or such other property;
(ii) existing Liens on any property or indebtedness of a corporation
that is merged with or into or consolidated with any Credit Party or any of
its Subsidiaries; provided that such Lien was not created in contemplation
of such merger or consolidation;
(iii) Liens on any property or indebtedness of a corporation existing
at the time such corporation becomes a Subsidiary of any Credit Party;
provided that such Lien was not created in contemplation of such
occurrence;
(iv) Liens to secure Debt for Borrowed Money of a Subsidiary of a
Credit Party to a Credit Party or to another Subsidiary of the Parent
Guarantor;
(v) Liens in favor of the United States of America, any State, any
foreign country or any department, agency or instrumentality or political
subdivision of any such jurisdiction, to secure partial, progress, advance
or other payments pursuant to any contract or statute or to secure any Debt
for Borrowed Money incurred for the purpose of financing all or any part of
the purchase price of the cost of constructing or improving the property
subject to such Liens, including, without limitation, Liens to secure Debt
for Borrowed Money of the pollution control or industrial revenue bond
type;
(vi) Liens on any property (including any natural gas, oil or other
mineral property) to secure all or part of the cost of exploration,
drilling or development thereof or to secured Debt for Borrowed Money
incurred to provide funds for any such purpose;
(vii) Liens existing on the date of this Agreement;
(viii) Liens for the sole purposes of extending, renewing or replacing
in whole or in part Debt for Borrowed Money secured by any Lien referred to
in the foregoing clauses (i) through (vii), inclusive, or this clause
(viii); provided, however, that the principal amount of Debt for Borrowed
Money secured thereby shall not exceed the principal amount of Debt for
Borrowed Money so secured at the time of such extension, renewal or
replacement (which, for purposes of this limitation as it applies to a
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synthetic lease, shall be deemed to be (x) the lessor's original cost of
the property subject to such lease at the time of extension, renewal or
replacement, less (y) the aggregate amount of all prior payments under such
lease allocated pursuant to the terms of such lease to reduce the principal
amount of the lessor's investment, and borrowings by the lessor, made to
fund the original cost of the property), and that such extension, renewal
or replacement shall be limited to all or a part of the property or
indebtedness which secured the Lien so extended, renewed or replaced (plus
improvements on such property); or
(ix) Liens on any property or assets of a Project Financing
Subsidiary, or on any Capital Stock in a Project Financing Subsidiary, in
either such case, that secure only a Project Financing or a Contingent
Guaranty that supports a Project Financing; or
(x) Any Lien, other than a Lien described in any of the foregoing
clauses (i) through (ix), inclusive, to the extent that it secures Debt for
Borrowed Money, or guaranties thereof, the outstanding principal balance of
which at the time of creation of such Lien, when added to the aggregate
principal balance of all Debt for Borrowed Money secured by Liens incurred
under this clause (x) then outstanding, does not exceed 5% of Consolidated
Net Tangible Assets.
If at any time any Credit Party or any of its Subsidiaries shall
create, issue, assume or guaranty any Debt for Borrowed Money secured by any
Lien and the first paragraph of this Section 6.01(a) requires that the Loans be
secured equally and ratably with such Debt for Borrowed Money, the Borrower
shall promptly deliver to the Administrative Agent and each Lender:
(1) a certificate of a duly authorized officer of the Borrower stating
that the covenant contained in the first paragraph of this Section 6.01(a)
has been complied with; and
(2) an opinion of counsel acceptable to the Required Lenders to the
effect that such covenant has been complied with and that all documents
executed by any Credit Party or any of its Subsidiaries in the performance
of such covenant comply with the requirements of such covenant.
(b) Mergers, Etc. Merge or consolidate with or into, or, except in a
------------
transaction permitted under paragraph (c) of this Section, convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, or permit any of its Subsidiaries to do so,
except for the Merger and except that:
(i) any Subsidiary of the Borrower may merge or consolidate with or
transfer assets to or acquire assets from any other Subsidiary of the
Borrower; and
(ii) any Subsidiary of the Borrower may merge into or transfer assets
to the Borrower; and
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(iii) the Parent Guarantor or any Subsidiary of the Parent Guarantor
may merge, or consolidate with or transfer all or substantially all of its
assets to any other Person; provided that in each case, immediately after
giving effect thereto, (A) no Event of Default shall have occurred and be
continuing (determined, for purposes of compliance with Section 7.01 after
giving effect to such transaction, on a pro forma basis for the period of
four consecutive fiscal quarters of the Parent Guarantor then most recently
ended, as if such transaction had occurred on the first day of such period,
and, for purposes of compliance with Section 7.02 after giving effect to
such transaction, on a pro forma basis as if such transaction had occurred
on the last day of the Parent Guarantor's fiscal quarter then most recently
ended); (B) in the case of any merger, consolidation or transfer of assets
to which the Borrower is a party (other than a merger, consolidation or
transfer of assets between the Borrower and the Parent Guarantor), the
Borrower shall be the continuing or surviving corporation; (C) in the case
of any merger, consolidation, or transfer of assets to which NIPSCO or the
Company is a party (other than a merger, consolidation or transfer of
assets between such Person and a Credit Party), NIPSCO or the Company, as
the case may be, shall be the continuing or surviving corporation; (D) in
the case of any merger, consolidation or transfer of assets to which the
Parent Guarantor is a party, the Parent Guarantor shall be the continuing
or surviving corporation; and (E) the Index Debt continues to be rated at
least BBB- by S&P and at least Baa3 by Moody's.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
---------------------
of, or permit any of their respective Subsidiaries to sell, lease, transfer or
otherwise dispose of (other than in connection with a transaction authorized by
paragraph (b) of this Section) any substantial part of its assets; provided that
the foregoing shall not prohibit any such sale, conveyance, lease, transfer or
other disposition that (i) constitutes realization on a Lien permitted to exist
under Section 6.01(a); or (ii) (A) (1) (a) is for a price not materially less
than the fair market value of such assets, (b) would not materially impair the
ability of any Credit Party to perform its obligations under this Agreement and
(c) together with all other such sales, conveyances, leases, transfers and other
dispositions, would have no Material Adverse Effect, or (2) would not result in
the sale, lease, transfer or other disposition, in the aggregate, of more than
10% of the consolidated total assets of the Parent Guarantor and its
Subsidiaries at the Effective Time (after giving effect to the Merger),
determined in accordance with GAAP; and (B) with respect to which the Borrower
complies, if applicable, with Sections 2.07 and 2.08.
(d) Compliance with ERISA. (i) Terminate, or permit any ERISA
---------------------
Affiliate to terminate, any Plan so as to result in a Material Adverse Effect or
(ii) permit to exist any occurrence of any Reportable Event (as defined in Title
IV of ERISA), or any other event or condition, that presents a material (in the
reasonable opinion of the Required Lenders) risk of such a termination by the
PBGC of any Plan, if such termination could reasonably be expected to have a
Material Adverse Effect.
(e) Certain Restrictions. Permit any of its Subsidiaries (other than,
--------------------
in the case of either Guarantor, the Borrower) to enter into or permit to exist
any agreement that by its terms prohibits such Subsidiary from making any
payments, directly or indirectly, to such Credit Party by way of dividends,
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advances, repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party; provided that the
foregoing shall not apply to prohibitions and restrictions imposed by this
Agreement or (i) (A) imposed under an agreement in existence on the date of this
Agreement, and (B) described on Schedule 6.01(e), (ii) existing with respect to
----------------
a Subsidiary on the date it becomes a Subsidiary that are not created in
contemplation thereof (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such prohibition or
restriction), (iii) contained in agreements relating to the sale of a Subsidiary
pending such sale, provided that such prohibitions or restrictions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
imposed on a Project Financing Subsidiary in connection with a Project
Financing, or (v) that could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VII
FINANCIAL COVENANTS
-------------------
After the Effective Time, so long as any of the Commitments remains in
effect, any Loan remains outstanding or any other amount is owing to any Lender
or the Administrative Agent hereunder, the Parent Guarantor shall:
SECTION 7.01. Interest Coverage Ratio. Maintain:
-----------------------
(a) until the end of the fourth full fiscal quarter to end after the
Effective Time, for each period commencing at the Effective Time and ending on
the last day of a fiscal quarter, and
(b) commencing with the period of four consecutive fiscal quarters
ending on the last day of the fourth full fiscal quarter to end after the
Effective Time, for each period of four consecutive fiscal quarters:
an Interest Coverage Ratio of not less than 2.00 to 1.00.
SECTION 7.02. Debt to Capitalization Ratio. Maintain a Debt to
----------------------------
Capitalization Ratio of not more than:
(a) 0.72 to 1.00 at the end of each of the fiscal quarters ending
December 31, 2000 and March 31, 2001;
(b) 0.70 to 1.00 at the end of the fiscal quarter ending June 30,
2001; and
(c) 0.68 to 1.00 at the end of each fiscal quarter thereafter,
commencing with the fiscal quarter ending September 30, 2001.
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ARTICLE VIII
EVENTS OF DEFAULT
-----------------
SECTION 8.01. Events of Default. If any of the following events
-----------------
("Events of Default") shall occur and be continuing:
-----------------
(a) The Borrower shall fail to pay any principal of any Loan when the
same becomes due and payable or shall fail to pay any interest, fees or other
amounts hereunder within three days after when the same becomes due and payable;
or
(b) Any representation or warranty made by any Credit Party herein or
by any Credit Party (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or (c) Any
Credit Party shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(h), 5.01(i), 6.01 or Article VII; or
(d) Any Credit Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement on its part to be performed or
observed (other than one identified in paragraph (a),(b) or (c) above) if the
failure to perform or observe such other term, covenant or agreement shall
remain unremedied for thirty days after written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(e) The Parent Guarantor, the Borrower or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest on any
Indebtedness (excluding Non-Recourse Debt) which is outstanding in a principal
amount of at least $50,000,000 in the aggregate (but excluding the Loans) of the
Parent Guarantor, the Borrower or such Subsidiary, as the case may be, when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the scheduled
maturity of such Indebtedness; or any such Indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or
(f) Any Credit Party shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Credit Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
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reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against any Credit Party (but not instituted by any Credit
Party), either such proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, any Credit Party or
for any substantial part of its property) shall occur; or any Credit Party shall
take any corporate action to authorize any of the actions set forth above in
this paragraph (f); or
(g) One or more Subsidiaries of the Parent Guarantor (other than any
Credit Party) in which the aggregate sum of (i) the amounts invested by the
Parent Guarantor and its other Subsidiaries in the aggregate, by way of
purchases of Capital Stock, Capital Leases, loans or otherwise, and (ii) the
amount of recourse, whether contractual or as a matter of law (but excluding
Non-Recourse Debt), available to creditors of such Subsidiary or Subsidiaries
against the Parent Guarantor or any of its other Subsidiaries, is $100,000,000
or more (collectively, "Substantial Subsidiaries") shall generally not pay their
------------------------
respective debts as such debts become due, or shall admit in writing their
respective inability to pay their debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against Substantial Subsidiaries seeking to adjudicate them bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of them or theft respective debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for them or for any
substantial part of their respective property and, in the case of any such
proceeding instituted against Substantial Subsidiaries (but not instituted by
any Subsidiary of the Parent Guarantor), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, the Substantial Subsidiaries or for any substantial part of their
respective property) shall occur; or Substantial Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
paragraph (g); or
(h) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower, the Parent Guarantor or any
of its other Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) Any ERISA Event shall have occurred with respect to a Plan and, 30
days after notice thereof shall have been given to the Parent Guarantor or the
Borrower by the Administrative Agent, (i) such ERISA Event shall still exist and
(ii) the sum (determined as of the date of occurrence of such ERISA Event) of
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the Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or, in
the case of a Plan with respect to which an ERISA Event described in clauses
(iii) through (vi) of the definition of ERISA Event shall have occurred and then
exist, the liability related thereto) is equal to or greater than $10,000,000
(when aggregated with paragraphs (j), (k) and (l) of this Section), and a
Material Adverse Effect could reasonably be expected to occur as a result
thereof; or
(j) The Parent Guarantor or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Parent
Guarantor and its ERISA Affiliates as Withdrawal Liability (determined as of the
date of such notification), exceeds $10,000,000 or requires payments exceeding
$10,000,000 per annum (in either case, when aggregated with paragraphs (i), (k)
and (l) of this Section), and a Material Adverse Effect could reasonably be
expected to occur as a result thereof; or
(k) The Parent Guarantor or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate annual
contributions of the Parent Guarantor and its ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the respective plan year of each such Multiemployer Plan immediately
preceding the plan year in which the reorganization or termination occurs by an
amount exceeding $10,000,000 (when aggregated with paragraphs (i), (j) and (l)
of this Section), and a Material Adverse Effect could reasonably be expected to
occur as a result thereof; or
(l) The Parent Guarantor or any ERISA Affiliate shall have committed a
failure described in Section 302(f)(1) of ERISA and the amount determined under
Section 302(f)(3) of ERISA is equal to or greater than $10,000,000 (when
aggregated with paragraphs (i), (j) and (k) of this Section), and a Material
Adverse Effect could reasonably be expected to occur as a result thereof; or
(m) Any Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each Lender to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Required Lenders, by notice to the Borrower, declare all amounts payable
under this Agreement to be forthwith due and payable, whereupon all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided that if any Event of Default shall occur at any time
while any Term Loan is outstanding, it shall not be necessary to declare the
Commitments terminated, but, upon any acceleration of the Term Loans pursuant to
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the preceding clause (ii), the Commitments shall automatically terminate,
without further notice of any kind, which is hereby expressly waived by the
Borrower; and provided, further, that in the event of an actual or deemed entry
of an order for relief with respect to any Credit Party under the Federal
Bankruptcy Code, (1) the Commitment of each Lender shall automatically be
terminated and (2) all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
SECTION 9.01. The Administrative Agent
------------------------
(a) Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
(b) The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the any Credit Party or any of
such Credit Party's Subsidiaries or other Affiliates thereof as if it were not
the Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (i) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (ii) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (iii) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower, the Parent Guarantor or any of its other Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (1)
any statement, warranty or representation made in or in connection with this
Agreement, (2) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (3) the performance or observance
57
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of any of the covenants, agreements or other terms or conditions set forth
herein, (4) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (5) the
satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for a Credit Party) independent accountants and
other experts selected by it and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
(e) The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (which consent shall not unreasonably be withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank, in any event having total assets in excess of
$500,000,000 and who shall serve until such time, if any, as an Agent shall have
been appointed as provided above. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
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(g) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
(h) No Lender identified on the signature pages of this Agreement as a
"Co-Syndication Agent", "Documentation Agent" or "Managing Agent", or that is
given any other title hereunder other than the "Administrative Agent", shall
have any right, power, obligation , liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the generality of the foregoing, no Lender so identified as a "Co-Syndication
Agent", "Documentation Agent" or "Managing Agent" or that is given any other
title hereunder, shall have, or be deemed to have, any fiduciary relationship
with any Lender. Each Lender acknowledges that is has not relied, and will not
rely, on the Lenders so identified in deciding to enter into this Agreement or
in taking or not taking action hereunder.
ARTICLE X
GUARANTY
--------
SECTION 10.01. The Guaranty
------------
(a) Each Guarantor, as primary obligor and not merely as a surety,
hereby irrevocably, absolutely and unconditionally guarantees to the
Administrative Agent and the Lenders and each of their respective successors,
endorsees, transferees and assigns (each a "Beneficiary" and collectively, the
-----------
"Beneficiaries") the prompt and complete payment by the Borrower, as and when
-------------
due and payable, of the Obligations, in accordance with the terms of the Credit
Documents. The provisions of this Article X are sometimes referred to
hereinafter as the "Guaranty".
--------
(b) Each Guarantor hereby guarantees that the Obligations will be paid
strictly in accordance with the terms of the Credit Documents, regardless of any
law now or hereafter in effect in any jurisdiction affecting any such terms or
the rights of the Beneficiaries with respect thereto. The obligations and
liabilities of each Guarantor under this Guaranty shall be absolute and
unconditional irrespective of: (i) any lack of validity or enforceability of any
of the Obligations or any Credit Document, or any delay, failure or omission to
enforce or agreement not to enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise of any right with
respect to the foregoing (including, in each case, without limitation, as a
result of the insolvency, bankruptcy or reorganization of any Beneficiary, the
Borrower or any other Person); (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from the Credit
59
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Documents or any agreement or instrument relating thereto; (iii) any exchange or
release of, or non-perfection of any Lien on or in any collateral, or any
release, amendment or waiver of, or consent to any departure from, any other
guaranty of, or agreement granting security for, all or any of the Obligations;
(iv) any claim, set-off, counterclaim, defense or other rights that such
Guarantor may have at any time and from time to time against any Beneficiary or
any other Person, whether in connection with this transaction or any unrelated
transaction; or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any other guarantor or
surety in respect of the Obligations or such Guarantor in respect hereof. The
obligations of the Guarantors under this Guaranty shall be joint and several.
(c) The Guaranty provided for herein (i) is a guaranty of payment and
not of collection; (ii) is a continuing guaranty and shall remain in full force
and effect until the Commitments have been terminated and the Obligations have
been paid in full in cash; and (iii) shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be returned by any
Beneficiary upon or as a result of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or otherwise, all as though such
payment had not been made.
(d) The obligations and liabilities of the Guarantors hereunder shall
not be conditioned or contingent upon the pursuit by any Beneficiary or any
other Person at any time of any right or remedy against the Borrower or any
other Person that may be or become liable in respect of all or any part of the
Obligations or against any collateral security or guaranty therefor or right of
setoff with respect thereto.
(e) Each Guarantor hereby consents that, without the necessity of any
reservation of rights against such Guarantor and without notice to or further
assent by such Guarantor, any demand for payment of any of the Obligations made
by any Beneficiary may be rescinded by such Beneficiary and any of the
Obligations continued after such rescission.
(f) Each Guarantor's obligations under this Guaranty shall be
unconditional, irrespective of any lack of capacity of the Borrower or the other
Guarantor or any lack of validity or enforceability of any other provision of
this Agreement or any other Credit Document, and this Guaranty shall not be
affected in any way by any variation, extension, waiver, compromise or release
of any or all of the Obligations or of any security or guaranty from time to
time therefor.
(g) The obligations of the Guarantors under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding or action, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, marshalling of assets, assignment for
the benefit of creditors, composition with creditors, readjustment, liquidation
or arrangement of the Borrower or any similar proceedings or actions, or by any
defense the Borrower may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding or action.
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Without limiting the generality of the foregoing, each Guarantor's liability
shall extend to all amounts and obligations that constitute the Obligations and
would be owed by the Borrower, but for the fact that they are unenforceable or
not allowable due to the existence of any such proceeding or action.
SECTION 10.02. Waivers
-------
(a) Each Guarantor hereby unconditionally waives: (i) promptness and
diligence; (ii) notice of or proof of reliance by the Administrative Agent or
the Lenders upon this Guaranty or acceptance of this Guaranty; (iii) notice of
the incurrence of any Obligation by the Borrower or the renewal, extension or
accrual of any Obligation or of any circumstances affecting the Borrower's
financial condition or ability to perform the Obligations; (iv) notice of any
actions taken by the Beneficiaries or the Borrower or any other Person under any
Credit Document or any other agreement or instrument relating thereto; (v) all
other notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, of the obligations of either
Guarantor hereunder or under any other Credit Document, the omission of or delay
in which, but for the provisions of this Section 10 might constitute grounds for
relieving either Guarantor of its obligations hereunder; (vi) any requirement
that the Beneficiaries protect, secure, perfect or insure any Lien or any
property subject thereto, or exhaust any right or take any action against the
Borrower or any other Person or any collateral; and (vii) each other
circumstance, other than payment of the Obligations in full, that might
otherwise result in a discharge or exoneration of, or constitute a defense to,
either Guarantor's obligations hereunder.
(b) No failure on the part of any Beneficiary to exercise, and no
delay in exercising, any right, remedy, power or privilege hereunder or under
any Credit Document or any other agreement or instrument relating thereto shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under any Credit Document or any
other agreement or instrument relating thereto preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
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This Guaranty is in addition to and not in limitation of any other rights,
remedies, powers and privileges the Beneficiaries may have by virtue of any
other instrument or agreement heretofore, contemporaneously herewith or
hereafter executed by either Guarantor or any other Person or by applicable law
or otherwise. All rights, remedies, powers and privileges of the Beneficiaries
shall be cumulative and may be exercised singly or concurrently. The rights,
remedies, powers and privileges of the Beneficiaries under this Guaranty against
the Guarantors are not conditional or contingent on any attempt by the
Beneficiaries to exercise any of their rights, remedies, powers or privileges
against any other guarantor or surety or under the Credit Documents or any other
agreement or instrument relating thereto against the Borrower or against any
other Person.
(c) Each Guarantor hereby acknowledges and agrees that, until the
Commitments have been terminated and all of the Obligations have been paid in
full in cash, under no circumstances shall it be entitled to be subrogated to
any rights of any Beneficiary in respect of the Obligations performed by it
hereunder or otherwise, and each Guarantor hereby expressly and irrevocably
waives, until the Commitments have been terminated and all of the Obligations
have been paid in full in cash, (i) each and every such right of subrogation and
any claims, reimbursements, right or right of action relating thereto (howsoever
arising), and (ii) each and every right to contribution, indemnification,
set-off or reimbursement, whether from the Borrower, the other Guarantor or any
other Person now or hereafter primarily or secondarily liable for any of the
Obligations, and whether arising by contract or operation of law or otherwise by
reason of such Guarantor's execution, delivery or performance of this Guaranty.
(d) Each Guarantor represents and warrants that it has established
adequate means of keeping itself informed of the Borrower's financial condition
and of other circumstances affecting the Borrower's ability to perform the
Obligations, and agrees that neither the Administrative Agent nor any Lender
shall have any obligation to provide to such Guarantor any information it may
have, or hereafter receive, in respect of the Borrower.
ARTICLE XI
MISCELLANEOUS
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SECTION 11.01. Notices. Except in the case of notices and other
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communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Credit Party, to it at:
801 East 86th Avenue
Merrillville, Indiana 46410
Attention: Treasurer
Telecopier: (219) 647-6060;
(b) if to the Administrative Agent, to Credit Suisse First Boston,
Eleven Madison Avenue
New York, New York 10010
Attn: Yvette McQueen
Telecopier: (212) 325-8304
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any Party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 11.02. Waivers; Amendments.
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(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Credit Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, the Parent Guarantor and the Required Lenders or
by the Borrower, the Parent Guarantor and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
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the written consent of each Lender affected thereby, (iv) change Section 2.18(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) release either
Guarantor from its obligations under the Guaranty, or (vi) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided,
further, that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written
consent of the Administrative Agent.
SECTION 11.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the initial syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), and (ii)
all out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent, each
Co-Syndication Agent, the Documentation Agent, each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transaction contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property now, in the past or hereafter owned or
operated by the Borrower, the Parent Guarantor or any of its other Subsidiaries,
or any Environmental Liability related in any way to the Borrower, the Parent
Guarantor or any of its other Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
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jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, each party hereto shall
not assert, and hereby waives, any claim against each other party, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
20 days after written demand therefor.
SECTION 11.04. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that no Credit Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by a Credit Party without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may, in consultation with the Borrower, assign to one
or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender, the Administrative Agent must give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
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rights and obligations under this Agreement, except that this clause (iii) shall
not apply to rights in respect of outstanding Competitive Loans, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; provided, further, that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (f) or (g) of Article VIII has
occurred and is continuing. Upon acceptance and recording pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 11.03), any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive (absent manifest error), and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
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under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
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other parties hereto for the performance of such obligations and (iii) the
Borrower, the Guarantors and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 11.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.l5 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(h) Anything herein to the contrary notwithstanding, each Lender (the
"Granting Lender") shall have the right, without the prior consent of the
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Borrower, to grant to a special purpose funding vehicle (the "SPFV") that is an
----
Affiliate of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make hereunder, provided that (i) nothing herein shall
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constitute a commitment to make any Loan by any SPFV or shall relieve its
Granting Lender of any obligation of such Granting Lender hereunder or under any
other Credit Document, except to the extent that such SPFV actually funds all or
part of any Loan such Granting Lender is obligated to make hereunder, (ii) if an
SPFV elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, such Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof, (iii) the Granting Lender hereby indemnifies and
holds the Administrative Agent harmless from and against any liability, loss,
cost or expense (including for or in respect of Taxes) arising out of such
identification and grant or any transaction contemplated thereby, and (iv) the
provisions of this paragraph (h) shall not impose any increased cost or
liability on any Credit Party. The making of a Loan by an SPFV hereunder shall
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utilize the Commitment of its Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto agrees that no
SPFV shall be liable for any payment under this Agreement or any other Credit
Document for which a Lender would otherwise be liable, for so long as, and to
the extent that, its Granting Lender makes such payment. As to any Loans or
portions of Loans made by it, each SPFV shall have all the rights that a Lender
making such Loans or such portions of Loans would have had under this Agreement
and otherwise; provided that (1) its voting rights under this Agreement shall be
exercised solely by its Granting Lender and (2) its Granting Lender shall remain
solely responsible to the other parties hereto for the performance of such
SPFV's obligations under this Agreement, including its obligations in respect of
the Loans or portions of Loans made by it. No additional Notes, if any, shall be
required to evidence the Loans or portions of Loans made by a SPFV; and the
Granting Lender shall be deemed to hold its Note, if any, as agent for its SPFV
to the extent of the Loans or portions of Loans funded by such SPFV. Each
Granting Lender shall act as administrative agent for its SPFV and give and
receive notices and other communications on its behalf. Any payments for the
account of any SPFV shall be paid to its Granting Lender as administrative agent
for such SPFV, and neither any Credit Party nor the Administrative Agent shall
be responsible for any Granting Lender's application of such payments. In
furtherance of the foregoing, each party hereto hereby agrees that, until the
date that is one year and one day after the payment in full of all outstanding
senior Debt of any SPFV, it shall not institute against, or join any other
Person in instituting against, such SPFV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings (or any similar proceedings)
under the laws of the United States of America or any State thereof. In
addition, notwithstanding anything to the contrary contained in this paragraph
(h), an SPFV may (1) (A) with notice to, but without the prior written consent
of, the Administrative Agent or the Borrower and without paying any processing
fee therefor, assign all or any portion of its interest in any Loan to its
Granting Lender or (B) with the consent (which consent shall not be unreasonably
withheld) of the Administrative Agent and (if no Event of Default has occurred
and is continuing) the Borrower, but without paying any processing fee therefor,
assign all or any portion of its interest in any Loan to any financial
institution providing liquidity or credit facilities to or for the account of
such SPFV to fund the Loans funded by such SPFV or to support any securities
issued by such SPFV to fund such Loans, and (2) disclose, on a confidential
basis, any non-public information relating to Loans funded by it to any rating
agency, commercial paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to such SPFV. The Borrower shall not be required to pay,
or to reimburse any Granting Lender for, its expenses relating to any SPFV
identified by such Granting Lender pursuant to this paragraph (h).
SECTION 11.05. Survival. All covenants, agreements, representations
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and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans. The provisions of Sections 2.15, 2.16, 2.17 and 11.03 and Article IX
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 11.06. Counterparts; Integration; Effectiveness. This
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Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the commitment letter relating to the credit facility provided hereby (to the
extent provided therein) and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 3.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 11.07. Severability. Any provision of this Agreement held to
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be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.08. Right of Setoff. If an Event of Default shall have
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occurred and be continuing, each Lender or any Affiliate thereof is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of any Credit
Party against any of and all the Obligations now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although such Obligations
may be unmatured. The rights of each Lender under this Section are in addition
to other rights and remedies (including other rights of setoff) which such
Lender may have.
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SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of
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Process.
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(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York, without regard to principles of conflicts
of law.
(b) Each Credit Party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Credit Party or its properties in the courts of any
jurisdiction.
(c) Each Credit Party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.11. Headings. Article and Section headings and the Table of
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Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 11.12. Confidentiality. Each of the Administrative Agent and
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the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement (provided that so long as no Default
or Event of Default shall have occurred and be continuing, the Borrower has
given its prior consent to such assignee, which consent shall not be
unreasonably withheld), (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source other than a Credit Party
or any Subsidiary of a Credit Party. For the purposes of this Section,
"Information" means all information received from any Credit Party or any
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Subsidiary of a Credit Party relating to a Credit Party or any Subsidiary of a
Credit Party or their respective businesses, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Credit Party or any Subsidiary of a Credit
Party; provided that, in the case of information received from any Credit Party
or any Subsidiary of a Credit Party after the Effective Date, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
NISOURCE FINANCE CORP., as Borrower
By:
-------------------------------------
Name:
Title:
NEW NISOURCE INC., as a Guarantor
By:
-------------------------------------
Name:
Title:
NISOURCE INC., as a Guarantor
By:
-------------------------------------
Name:
Title:
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CREDIT SUISSE FIRST BOSTON, as a Lender
and as Administrative Agent and
Co-Syndication Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
<PAGE>
BARCLAYS BANK PLC as a Lender and as
Documentation Agent and Co-Syndication
Agent
By:
-------------------------------------
Name:
Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender and Managing Agent
By:
-------------------------------------
Name:
Title:
71
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BNP PARIBAS,
as a Lender and Managing Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
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TORONTO DOMINION (TEXAS), INC.,
as a Lender and Managing Agent
By:
-------------------------------------
Name:
Title:
73
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BANK OF MONTREAL
as a Lender and Managing Agent
By:
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Name:
Title:
74
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender and Managing Agent
By:
-------------------------------------
Name:
Title:
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THE BANK OF NOVA SCOTIA
as a Lender and Managing Agent
By:
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Name:
Title:
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BANK ONE, NA, as a Lender and Managing
Agent
By:
-------------------------------------
Name:
Title:
<PAGE>
Annex A
PRICING GRID
The "Applicable Rate" for any day with respect to any Eurodollar
Revolving Loan or Eurodollar Term Loan, ABR Loan, Facility Fee or Utilization
Fee, as the case may be, is the percentage set forth below in the applicable row
under the column corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
---------------------- ----------- ------------ ----------- ------------ ----------- -----------
Status Level I Level II Level III Level IV Level V Level VI
---------------------- ----------- ------------ ----------- ------------ ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Eurodollar Revolving
Loans/Eurodollar 52.5 62.5 85 105 120 150
Term Loans
(basis points)
---------------------- ----------- ------------ ----------- ------------ ----------- -----------
ABR Loans
(basis points) 0 0 0 0 0 100
---------------------- ----------- ------------ ----------- ------------ ----------- -----------
Facility Fee (basis
points) 10 12.5 15 20 40 50
---------------------- ----------- ------------ ----------- ------------ ----------- -----------
Utilization Fee
(basis points) 12.5 12.5 25 25 40 50
---------------------- ----------- ------------ ----------- ------------ ----------- -----------
</TABLE>
For purposes of this Pricing Grid, the following terms have the
following meanings (as modified by the provisos below):
"Level I Status" exists at any date if, at such date, the Index Debt
is rated either A- or higher by S&P or A3 or higher by Moody's.
"Level II Status" exists at any date if, at such date, the Index Debt
is rated either BBB+ or higher by S&P or Baa1 or higher by Moody's.
"Level III Status" exists at any date if, at such date, the Index Debt
is rated either BBB or higher by S&P or Baa2 or higher by Moody's.
"Level IV Status" exists at any date if, at such date, the Index Debt
is rated either BBB- or higher by S&P or Baa3 or higher by Moody's.
"Level V Status" exists at any date if, at such date, the Index Debt
is rated either BB+ or higher by S&P or Ba1 or higher by Moody's.
"Level VI Status" exists at any date if, at such date, no other Status
exists.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
The credit ratings to be utilized for purposes of this Pricing Grid are those
assigned to the Index Debt, and any rating assigned to any other debt security
of the Borrower shall be disregarded. The rating in effect at any date is that
in effect at the close of business on such date.
77
<PAGE>
Provided, if the Index Debt is split-rated and the ratings differential is one
level, the higher rating will apply. If the Index Debt is split-rated and the
differential is two levels or more, the rating at the midpoint will apply. If
there is no midpoint rating, the higher of the two intermediate ratings will
apply.
Provided, further, Level I Status will apply in the event that the Index Debt is
rated at or above either of the Moody's or S&P ratings set out in Level I Status
above. Level VI Status will apply in the event that the Index Debt is rated
below both the Moody's and S&P ratings set out in Level V Status above.
Until the Aggregate Commitments (or, after the Termination Date, if applicable,
the aggregate principal amount of all outstanding Term Loans) are/is permanently
reduced to an amount not exceeding 50% of the Aggregate Commitments as of the
Effective Date, Level II Status shall apply at any time that the Index Debt
maintains any of the Moody's or S&P ratings set out in Level I Status through
Level II Status above.
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SCHEDULE 2.01
ALLOCATION OF MAXIMUM COMMITMENT
--------------------------------
Lender Allocation of $6 billion
------ ------------------------
Credit Suisse First Boston $1,250,000,000
Eleven Madison Avenue
New York, New York 10010
Attn: Yvette McQueen
Tel: 212-325-9934
Fax: 212-325-8304
Barclays Capital plc $1,250,000,000
222 Broadway
New York, New York 10038
Attn:
Tel: 212-412-
Fax: 212-412-5306
The Bank of Tokyo-Mitsubishi, Ltd. $500,000,000
227 West Monroe Street, Ste. 2300
Chicago, Illinois 60606
Attn: Laura Kozlowski/Jean Chaney
Tel: 312-696-4709/4712
Fax: 312-696-4532
BNP Paribas $500,000,000
919 Third Avenue
New York, New York 10022-1278
Attn: Tecla Hurley
Tel: 212-471-6651
Fax: 212-841-2217
Toronto Dominion (Texas), Inc. $500,000,000
The Toronto-Dominion Bank
909 Fannin Street, 17th Floor
Houston, Texas 77010
Attn: Carolyn Faeth
Tel: 713-427-8520
Fax: 713-951-9921
<PAGE>
Bank of Montreal $500,000,000
115 South LaSalle Street, 111-11W
Chicago, Illinois 60603
Attn: Keiko Kuze
Tel: 312-750-3771
Fax: 312-750-4304
The Industrial Bank of Japan, Limited $500,000,000
1251 Avenue of the Americas
New York, New York 10020-1104
Attn: Margaret Schwed/Nitin Sangle
Tel: 212-282-3876/4094
Fax: 212-282-4480
The Bank of Nova Scotia $500,000,000
600 Peachtree Street NE, Ste. 2700
Atlanta, Georgia 30308
Attn: Allyson Mohan
Tel: 404-877-1549
Fax: 404-888-8998
Bank One NA $500,000,000
One Bank One Plaza, Ste. 0634
Chicago, Illinois 60670
Attn: Ken Fecko
Tel: 312-732-4616
Fax: 312-732-4840
<PAGE>
SCHEDULE 4.01(D)
MERGER AGREEMENT - WAIVED OR AMENDED PROVISIONS
-----------------------------------------------
None.
<PAGE>
SCHEDULE 6.01(E)
EXISTING AGREEMENTS
-------------------
1. Lease Agreement, dated August 18, 2000, between Winslow Hill Funding,
Limited Partnership and Ironside Energy LLC. ($61,440,000).
2. Lease Agreement, dated December 14, 1999, between Mattco Funding, Limited
Partnership and Whiting Clean Energy, Inc. ($261,000,000).
3. Lease Agreement, dated May 1, 1998, between Giffords Brook Funding, Limited
Partnership and Cokenergy, Inc ($115,500,000).
4. Lease Agreement, dated July 31, 1997, between Stormville Mountain Funding,
Limited Partnership and Portside Energy Corporation ($60,625,000).
5. Lease Agreement, dated September 24, 1996, between Depot Hill Funding,
Limited Partnership and Lakeside Energy Corporation ($59,232,000).
6. Indenture, dated August 1, 1939, as supplemented from time to time, between
Northern Indiana Public Service Company and Harris Trust and Savings Bank,
as Trustees.
7. Revolving Credit Agreement, dated as of February 23, 1989, between Northern
Utilities, Inc. and The First National Bank of Boston ($10,000,000).
8. Northern Utilities, Inc. Note Agreement, dated as of January 1, 1992, for
the issuance of $13,000,000 principal amount of 9.70% Notes due September
1, 2031.
9. Northern Utilities, Inc. Note Agreement, dated as of September 1, 1995, for
the issuance of $10,000,000 principal amount of 6.93% Senior Notes, Series
A, due September 1, 2010, and $5,000,000 principal amount of 6.30% Senior
Notes, Series B, due September 1, 1998.
10. Term Loan Agreement by and between I.W.C. Resources Corporation and KeyBank
National Association, dated August 7, 1996 ($5,600,000).
11. I.W.C. Resources Corporation Note Agreement, dated as of March 1, 1994 for
th issuance of $14,000,000 principal amount of 6.31% Senior Notes due March
1, 2001.
12. $200,000,000 Credit Agreement (364-Day Facility) dated as of September 22,
2000 among Northern Indiana Public Service Company.
