<PAGE>
Exhibit 4.1
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$100,000,000
FIVE YEAR
CREDIT AGREEMENT
Dated as of July 26, 2004
Among
ALLIANT ENERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent and LC Issuing Bank
--------------------------------------------------------------------------------
BARCLAYS BANK PLC
Syndication Agent
WACHOVIA CAPITAL MARKETS, LLC
AND
BARCLAYS CAPITAL
Co-Lead Arrangers
ABN AMRO BANK N.V.,
BANK ONE, N.A.
AND
WELLS FARGO BANK, N.A.
Co-Documentation Agents
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TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS AND ACCOUNTING
TERMS.................................. 1
SECTION
1.01. Certain Defined Terms...................................
1
SECTION
1.02. Computation of Time Periods.............................
16
SECTION
1.03. Computations of Outstandings............................
16
SECTION
1.04. Accounting Terms........................................
16
ARTICLE II AMOUNTS AND TERMS OF THE
EXTENSIONS OF CREDIT.................... 17
SECTION
2.01. The Advances............................................
17
SECTION
2.02. Making the Advances.....................................
17
SECTION
2.03. Letters of Credit.......................................
18
SECTION
2.04. Fees....................................................
21
SECTION
2.05. Changes in the Commitments..............................
22
SECTION
2.06. Repayment of Advances...................................
23
SECTION
2.07. Interest on Advances....................................
23
SECTION
2.08. Additional Interest on Eurodollar Rate Advances.........
23
SECTION
2.09. Interest Rate Determination.............................
24
SECTION
2.10. Voluntary Conversion of Advances........................
25
SECTION
2.11. Optional Prepayments of Advances........................
26
SECTION
2.12. Increased Costs.........................................
26
SECTION
2.13. Illegality..............................................
27
SECTION
2.14. Payments and Computations...............................
27
SECTION
2.15. Noteless Agreement; Evidence of Indebtedness............
28
SECTION
2.16. Taxes...................................................
29
SECTION
2.17. Sharing of Payments, Etc................................
30
ARTICLE III CONDITIONS TO EXTENSIONS OF
CREDIT.............................. 31
SECTION
3.01. Conditions Precedent to Closing.........................
31
SECTION
3.02. Conditions Precedent to Each Extension of Credit........
32
SECTION
3.03. Conditions Precedent to Extensions of Credit Between
December 31, 2004 and December 31, 2007.................
33
SECTION
3.04. Conditions Precedent to Extensions of Credit After
December 31, 2007.......................................
33
SECTION
3.05. Reliance on Certificates................................
34
ARTICLE IV REPRESENTATIONS AND
WARRANTIES................................... 34
SECTION
4.01. Representations and Warranties of the Borrower..........
34
ARTICLE V COVENANTS OF THE
BORROWER......................................... 36
SECTION
5.01. Affirmative Covenants...................................
36
SECTION
5.02. Negative Covenants......................................
40
ARTICLE VI EVENTS OF
DEFAULT................................................
45
SECTION
6.01. Events of Default.......................................
45
SECTION
6.02. Cash Collateral Account.................................
47
</TABLE>
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ARTICLE VII THE
AGENT.......................................................
47
SECTION
7.01. Authorization and Action................................
47
SECTION
7.02. Agent's Reliance, Etc...................................
48
SECTION
7.03. Wachovia and Affiliates.................................
48
SECTION
7.04. Lender Credit Decision..................................
49
SECTION
7.05. Indemnification.........................................
49
SECTION
7.06. Successor Agent.........................................
49
ARTICLE VIII
MISCELLANEOUS..................................................
50
SECTION
8.01. Amendments, Etc.........................................
50
SECTION
8.02. Notices, Etc............................................
50
SECTION
8.03. No Waiver; Remedies.....................................
51
SECTION
8.04. Costs, Expenses, Taxes and Indemnification..............
51
SECTION
8.05. Right of Set-off........................................
52
SECTION
8.06. Binding Effect..........................................
53
SECTION
8.07. Assignments and Participations..........................
53
SECTION
8.08. Confidentiality.........................................
56
SECTION
8.09. WAIVER OF JURY TRIAL....................................
57
SECTION
8.10. Governing Law...........................................
57
SECTION 8.11. Relation
of the Parties; No Beneficiary................. 57
SECTION
8.12. Execution in Counterparts...............................
58
SECTION
8.13. Entire Agreement........................................
58
</TABLE>
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<PAGE>
EXHIBITS AND SCHEDULES
Exhibit 1.01
-
Form of Note
Exhibit 2.02(a)
-
Form of Notice of Borrowing
Exhibit 2.03
-
Form of Request for Issuance
Exhibit 2.10
-
Form of Notice of Conversion
Exhibit 3.01(a)(viii)-1 - of Opinion of
Foley & Lardner LLP
Exhibit 3.01(a)(viii)-2 - of Opinion of
In-house Counsel
Exhibit 3.01(a)(viii)-3 - of Opinion of
King & Spalding LLP
Exhibit 8.07
-
Form of Lender Assignment
Schedule I
-
Commitment Schedule
Schedule II
-
Existing Liens
Schedule III
-
List of Indentures
iii
<PAGE>
FIVE YEAR CREDIT AGREEMENT
Dated as of July 26, 2004
THIS FIVE
YEAR CREDIT AGREEMENT (this "AGREEMENT") is made by and among:
(i)
ALLIANT ENERGY
CORPORATION, a Wisconsin corporation (the
"BORROWER"),
(ii)
the banks (the
"BANKS") listed on the signature pages hereof and the
other Lenders (as hereinafter defined) from time to time party
hereto, and
(iii)
WACHOVIA BANK, National Association ("WACHOVIA"), as
administrative
agent (the "AGENT") for the Lenders hereunder and as a LC
Issuing
Bank (as defined below).
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Banks and LC Issuing
Bank
provide
certain Extensions of Credit (as hereinafter defined) to the
Borrower.
(2) The Banks and LC Issuing Bank have agreed to make such
Extensions
of Credit subject to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants
herein contained, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION
1.01. CERTAIN DEFINED TERMS As used in this Agreement, the
following terms shall have the following
meanings (such meanings to be equally
applicable to both the singular and plural
forms of the terms defined):
"ADDITIONAL LENDER" has the meaning assigned to that term in
Section
2.05(d).
"ADMINISTRATIVE AGENCY AND ARRANGER FEE LETTER" means the
letter
agreement,
dated June 29, 2004, among the Borrower, the Utilities,
Wachovia,
Wachovia Capital Markets, LLC, Barclays Bank PLC and Barclays
Capital.
"ADVANCE" means an advance by a Lender to the Borrower as part of
a
Borrowing
and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of
which shall be a "TYPE" of Advance.
"AER" means Alliant Energy Resources, Inc., a Wisconsin
corporation.
<PAGE>
"AFFECTED LENDER" has the meaning assigned to that term in
Section
2.13.
"AFFECTED LENDER ADVANCE" has the meaning assigned to that term
in
Section
2.13.
"AFFILIATE" means, with respect to any Person, any other Person
directly
or indirectly controlling (including but not limited to all
directors
and officers of such Person), controlled by, or under direct or
indirect
common control with such Person. A Person shall be deemed to
control
another entity if such Person possesses, directly or
indirectly,
the power
to direct or cause the direction of the management and policies
of such
entity, whether through the ownership of voting securities, by
contract,
or otherwise.
"ALTERNATE BASE RATE" means a fluctuating interest rate per annum
as
shall be
in effect from time to time, which rate per annum shall at all
times be
equal to the higher of:
(i) the rate of interest announced publicly by Wachovia or from
time
to time,
as its corporate base rate or prime rate of interest; and
(ii) 1/2 of one percent per annum above the Federal Funds Rate.
Each
change in the Alternate Base Rate shall take effect concurrently
with
any change
in such base or prime rate or the Federal Funds Rate.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender,
such
Lender's
Domestic Lending Office in the case of a Base Rate Advance and
such
Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate
Advance.
"APPLICABLE MARGIN" means, for any Eurodollar Rate Advance or
Base
Rate
Advance, (i) on any date the Utilization Percentage equals or is
less
than
33-1/3%, the number of basis points set forth below in the
columns
identified
as Level 1, Level 2, Level 3, Level 4, Level 5 or Level 6
below,
opposite the Eurodollar Rate or the Base Rate, as applicable,
and
(ii) on
any date the Utilization Percentage exceeds 33-1/3%, the number
of
basis
points set forth below in the columns identified as Level 1,
Level
2, Level
3, Level 4, Level 5 or Level 6 below, opposite the Utilized
Eurodollar
Rate or the Utilized Base Rate, as applicable.
2
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<TABLE>
<CAPTION>
LEVEL 1
LEVEL 2
LEVEL 3
LEVEL 4
LEVEL 5
LEVEL 6
-------
-------
-------
-------
-------
-------
Reference
Reference
Reference
Reference
Reference Ratings Less
Ratings Less
Ratings Less
Ratings Less
Ratings At
Than Level 1
Than Level 2 Than
Level 3 Than
Level 4
Least A By
But At Least
But At Least But
At Least But
At Least
Rference
BASIS FOR
S&P or A2 A- By S&P or
BBB+ By S&P or BBB By S&P
or BBB- By
S&P or Ratings Less
PRICING
By Moody's. A3
By Moody's. BAA1 By
Moody's. BAA2 By
Moody's. BAA3 By
Moody's. Than
Level 5*
-------
-----------
----------------- ----------------
----------------
----------------
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<C>
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<C>
<C>
Basis Points Per Annum
Eurodollar Rate
27.5
37.5
47.5
57.5
87.5
115.0
Base Rate
0
0
0
0
0
0
Utilized Eurodollar Rate 40.0
50.0
60.0
70.0
100.0
127.5
Utilized Base Rate
12.5
12.5
12.5
12.5
12.5
12.5
</TABLE>
* or unrated
The
Applicable Margin will be based upon the Level that corresponds to
the
Reference
Ratings at the time of determination, subject, however, to the
following:
if the Reference Ratings assigned by S&P and Moody's do not
fall
within the same Level on the grid above (i.e., a "split rating")
and:
(i) the
difference consists of one Level, the Applicable Margin will be
based upon
the Level that corresponds to the higher of such Reference
Ratings,
or (ii) the difference consists of two or more Levels, the
Applicable
Margin will be based upon the Level that corresponds to a
notional
Reference Rating that falls at the midpoint between the actual
Reference
Ratings (or if no Reference Rating on the grid above
corresponds
to such
midpoint, the next higher Reference Rating), unless, in the
case
of clause
(i) or (ii) above, either Reference Rating is below BBB- (in
the
case of
S&P) or Baa3 (in the case of Moody's) or the applicable
debt
securities
are, or the Borrower is, as applicable, unrated, in which case
the
Applicable Margin will be based upon Level 6. Any change in the
Applicable
Margin resulting from a change in the Reference Ratings shall
be
effective, as to any Advance, as of the date on which the
applicable
rating
agency announces the applicable change in ratings.
"APPLICABLE RATE" means:
(i) in the case of each Base Rate Advance, a rate per annum equal
at
all times
to the sum of the Alternate Base Rate in effect from time to
time plus
the Applicable Margin in effect from time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising part
of
the same
Borrowing, a rate per annum during each Interest Period equal
at
all times
to the sum of the Eurodollar Rate for such Interest Period plus
the
Applicable Margin in effect from time to time during such
Interest
Period.
"AVAILABLE COMMITMENT" means, for each Lender at any time on
any
day, the unused
portion of such Lender's Commitment, computed after giving
effect to
all Extensions of Credit made or to be made on such day, the
application of proceeds therefrom, all prepayments and repayments
of
Advances
made on such day and all reductions in the LC Outstandings made
on such
day.
3
<PAGE>
"AVAILABLE COMMITMENTS" means the aggregate of the Lenders'
Available
Commitments hereunder.
"BANKS" has the meaning assigned to that term in the Preamble
to
this
Agreement.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided
in Section
2.07(a).
"BORROWER" has the meaning assigned to that term in the Preamble
to
this
Agreement.
"BORROWING" means a borrowing consisting of simultaneous Advances
of
the same
Type, having the same Interest Period and ratably made or
Converted
on the same day by each of the Lenders pursuant to Section 2.02
or 2.10,
as the case may be. All Advances of the same Type, having the
same
Interest Period and made or Converted on the same day shall be
deemed
a single
Borrowing hereunder until repaid or next Converted.
"BUSINESS DAY" means a day of the year on which banks are not
required
or authorized to close in New York City, Charlotte, North
Carolina
or Madison, Wisconsin and, if the applicable Business Day
relates
to any
Eurodollar Rate Advance, on which dealings are carried on in
the
London
interbank market.
"CAPITALIZED LEASE OBLIGATIONS" means obligations to pay rent
or
other
amounts under any lease of (or other arrangement conveying the
right
to use)
real and/or personal property which obligation is required to
be
classified
and accounted for as a capital lease on a balance sheet
prepared
in accordance with GAAP, and for purposes hereof the amount of
such
obligations shall be the capitalized amount determined in
accordance
with such
principles.
"CASH AND CASH EQUIVALENTS" means, with respect to any Person,
the
aggregate
amount of the following, to the extent owned by such Person
free
and clear
of all Liens, encumbrances and rights of others and not subject
to any
judicial, regulatory or other legal constraint: (i) cash on
hand;
(ii)
Dollar demand deposits maintained in the United States with any
commercial
bank and Dollar time deposits maintained in the United States
with, or
certificates of deposit having a maturity of one year or less
issued by,
any commercial bank which has an office in the United States
and which
has a combined capital and surplus of at least $100,000,000;
(iii)
eurodollar time deposits maintained in the United States with,
or
eurodollar
certificates of deposit having a maturity of one year or less
issued by,
any commercial bank having outstanding unsecured indebtedness
that is
rated (on the date of acquisition thereof) A- or better by S&P
or
A3 or
better by Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing if
neither
of such
corporations is then in the business of rating unsecured bank
indebtedness); (iv) direct obligations of, or unconditionally
guaranteed
by, the
United States and having a maturity of one year or less; (v)
commercial
paper rated (on the date of acquisition thereof) A-1 or P-1 or
better by
S&P or Moody's, respectively (or an equivalent rating by
another
nationally-recognized credit rating agency of similar
4
<PAGE>
standing
if neither of such corporations is then in the business of
rating
commercial
paper), and having a maturity of one year or less; (vi)
obligations with any Lender or any other commercial bank in respect
of the
repurchase
of obligations of the type described in clause (iv) above,
provided
that such repurchase obligations shall be fully secured by
obligations of the type described in said clause (iv) and the
possession
of such
obligations shall be transferred to, and segregated from other
obligations owned by, such Lender or such other commercial bank;
and (vii)
preferred
stock of any Person that is rated A- or better by S&P or A3
or
better by
Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing if
neither
of such
corporations is then in the business of rating preferred stock
of
entities
engaged in such businesses).
"CASH COLLATERAL ACCOUNT" has the meaning assigned to that term
in
Section
6.02.
"CERTIFYING OFFICER" has the meaning assigned to that term in
Section
5.01(h)(iv).
"CLOSING" means the day upon which each of the applicable
conditions
precedent
enumerated in Section 3.01 shall be fulfilled to the
satisfaction of, or waived with the consent of, the Lenders, the
Agent,
the LC
Issuing Bank and the Borrower. All transactions contemplated by
the
Closing
shall take place on a Business Day on or prior to July 26,
2004,
at the
offices of King & Spalding LLP, 1185 Avenue of the Americas,
New
York, New
York 10036, at 10:00 a.m. (New York City time), or such later
Business
Day as the parties hereto may mutually agree.
"CO-LEAD ARRANGERS" shall mean, collectively, Wachovia Capital
Markets,
LLC and Barclays Capital, the Investment Banking Division of
Barclays
Bank PLC.
"COMMITMENT" means, for each Lender, the obligation of such
Lender
to make
Advances to the Borrower and to participate in the
reimbursement
obligations of the Borrower in respect of Letters of Credit in an
amount
no greater
than the amount set forth on Schedule I hereto or, if such
Lender has
entered into one or more Lender Assignments or is an Additional
Lender or
an Increasing Lender, set forth for such Lender in the Register
maintained
by the Agent pursuant to Section 8.07(c), in each such case as
such
amount may be reduced from time to time or increased pursuant
to
Section
2.05.
"COMMITMENT INCREASE APPROVALS" means resolutions of the board
of
directors
of the Borrower authorizing the Commitment Increase.
"COMMITMENTS" means the total of the Lenders' Commitments
hereunder.
"CONFIDENTIAL INFORMATION" has the meaning assigned to that term
in
Section
8.08.
"CONSOLIDATED CAPITAL" means, with respect to any Person, at
any
date of
determination, the sum of (i) Consolidated Debt of such Person,
(ii)
consolidated equity of the common stockholders of such Person and
its
Consolidated Subsidiaries, (iii) consolidated equity of the
preference
stockholders of such Person and its Consolidated Subsidiaries and
(iv)
consolidated equity of the preferred stockholders of such Person
and its
Consolidated
Subsidiaries, in each case determined at such date in
5
<PAGE>
accordance
with GAAP, excluding, however, from such calculation, amounts
identified
as "Accumulated Other Comprehensive Income (Loss)" in the
financial
statements of the Borrower set forth in the Borrower's Report
on
Form 10-K
or 10-Q, as the case may be, filed most recently with the
Securities
and Exchange Commission prior to the date of such
determination.
"CONSOLIDATED DEBT" means, with respect to any Person, without
duplication, at any date of determination, the aggregate Debt of
such
Person and
its Consolidated Subsidiaries determined on a consolidated
basis in
accordance with GAAP, but shall not include Nonrecourse Debt of
any
Subsidiary of the Borrower.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person,
any
Subsidiary
of such Person whose accounts are or are required to be
consolidated with the accounts of such Person in accordance with
GAAP.
"CONTINUING DIRECTORS" means the members of the Board of
Directors
of the
Borrower on the date hereof and each other director of the
Borrower,
if such other director's nomination for election to the Board
of
Directors
of the Borrower is recommended by a majority of the then
Continuing
Directors.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a
conversion
of
Advances of one Type into Advances of another Type, or to the
selection
of a new,
or the renewal of the same, Interest Period for Advances, as
the
case may
be, pursuant to Section 2.09 or 2.10.
"DEBT" means, for any Person, any and all indebtedness,
liabilities
and other
monetary obligations of such Person (i) for borrowed money or
evidenced
by bonds, debentures, notes or other similar instruments, (ii)
to pay the
deferred purchase price of property or services (except trade
accounts
payable arising and repaid in the ordinary course of business),
(iii)
Capitalized Lease Obligations, (iv) under reimbursement or
similar
agreements
with respect to letters of credit (other than trade letters of
credit)
issued to support indebtedness or obligations of such Person or
of
others of
the kinds referred to in clauses (i) through (iii) above and
clause (v)
below, (v) reasonably quantifiable obligations under direct
guaranties
or indemnities, or under support agreements, in respect of, and
reasonably
quantifiable obligations (contingent or otherwise) to purchase
or
otherwise acquire, or otherwise to assure a creditor against loss
in
respect
of, or to assure an obligee against failure to make payment in
respect
of, indebtedness or obligations of others of the kinds referred
to
in clauses
(i) through (iv) above, and (vi) in respect of unfunded vested
benefits
under Plans. In determining Debt for any Person, there shall be
included accrued interest on the
principal amount thereof to the extent
such
interest has accrued for more than six months.
"DEFAULT RATE" means (i) with respect to the unpaid principal of
or
interest
on any Advance, the greater of (A) 2% per annum above the
Applicable
Rate in effect from time to time for such Advance and (B) 2%
per annum
above the Applicable Rate in effect from time to time for Base
Rate
Advances and (ii) with respect to any other unpaid amount
6
<PAGE>
hereunder,
2% per annum above the Applicable Rate in effect from time to
time for
Base Rate Advances.
"DIRECT SUBSIDIARY" means, with respect to any Person, any
Subsidiary
directly owned by such Person.
"DOLLARS" and the sign "$" each means lawful money of the
United
States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the
office or
affiliate of such Lender specified as its "Domestic Lending
Office"
opposite its name on Schedule I hereto or in the Lender
Assignment
pursuant
to which it became a Lender, or such other office or affiliate
of
such
Lender as such Lender may from time to time specify in writing to
the
Borrower
and the Agent.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank or trust
company
organized
under the laws of the United States, or any State thereof; (ii)
a
commercial bank organized under the laws of any other country that
is a
member of
the OECD, or a political subdivision of any such country,
provided
that such bank is acting through a branch or agency located in
the United
States; (iii) the central bank of any country that is a member
of the
OECD; and (iv) any other commercial bank or other financial
institution engaged generally in the business of extending credit
or
purchasing
debt instruments; provided, however, that (A) any such Person
shall also
(1) have outstanding unsecured indebtedness that is rated A- or
better by
S&P or A3 or better by Moody's (or an equivalent rating by
another
nationally-recognized credit rating agency of similar standing
if
neither of
such rating agencies is then in the business of rating
unsecured
indebtedness of entities engaged in such businesses) or (2)
have
combined
capital and surplus (as established in its most recent report
of
condition
to its primary regulator) of not less than $250,000,000 (or its
equivalent
in foreign currency), and (B) any Person described in clause
(ii),
(iii) or (iv) above shall, on the date on which it is to become
a
Lender
hereunder, (x) be entitled to receive payments hereunder
without
deduction
or withholding of any United States Federal income taxes (as
contemplated by Section 2.16) and (y) not be incurring any losses,
costs
or
expenses of the type for which such Person could demand payment
under
Section
2.12.
"EQUITY INTERESTS" means, (i) with respect to a corporation,
shares
of capital
stock of such corporation or any other interest convertible or
exchangeable into any such interest, (ii) with respect to a
limited
liability
company, a membership interest in such company, (iii) with
respect to
a partnership, a partnership interest in such partnership, and
(iv) with
respect to any other Person, an interest in such Person
analogous
to interests described in clauses (i) through (iii).
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended
from time to time, and the regulations promulgated and rulings
issued
thereunder.
"ERISA AFFILIATE" means, with respect to any Person, any trade
or
business
(whether or not incorporated) which is a member of a group of
which such
Person is a
7
<PAGE>
member and
which is under common control within the meaning of the
regulations under Section 414(b) or (c) of the Internal Revenue
Code of
1986, as
amended from time to time.
"ERISA EVENT" means (i) the occurrence of a reportable event,
within
the
meaning of Section 4043 of ERISA, unless the 30-day notice
requirement
with
respect thereto has been waived by the PBGC; (ii) the provision
by
the
administrator of any Plan of notice of intent to terminate such
Plan,
pursuant
to Section 4041(a)(2) of ERISA (including any such notice with
respect to
a plan amendment referred to in Section 4041(e) of ERISA);
(iii) the
cessation of operations at a facility in the circumstances
described
in Section 4062(e) of ERISA; (iv) the withdrawal by the
Borrower
or an
ERISA Affiliate of the Borrower from a Multiple Employer Plan or
a
Multiemployer Plan during a plan year for which it was a
"substantial
employer",
as defined in Section 4001(a)(2) of ERISA; (v) the failure by
the
Borrower or an ERISA Affiliate of the Borrower to make a payment to
a
Plan
required under Section 302(f)(1) of ERISA, which failure results
in
the
imposition of a lien for failure to make required payments; (vi)
the
adoption
of an amendment to a Plan requiring the provision of security
to
such Plan,
pursuant to Section 307 of ERISA; or (vii) the institution by
the PBGC
of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or
the occurrence of any event or condition which might reasonably
be
expected to constitute grounds under Section 4042 of ERISA for
the
termination of, or the appointment of a trustee to administer, a
Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term
in
Regulation
D of the Board of Governors of the Federal Reserve System, as
in effect
from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the
office or
affiliate of such Lender specified as its "Eurodollar Lending
Office"
opposite its name on Schedule I hereto or in the Lender
Assignment
pursuant
to which it became a Lender (or, if no such office is
specified,
its
Domestic Lending Office), or such other office or affiliate of
such
Lender as
such Lender may from time to time specify in writing to the
Borrower
and the Agent.
"EURODOLLAR RATE" means, for each Interest Period for each
Eurodollar
Rate Advance made as part of the same Borrowing, an interest
rate per
annum equal to the average (rounded upward to the nearest whole
multiple
of 1/16 of 1% per annum, if such average is not such a
multiple)
of the
rate per annum at which deposits in U.S. dollars are offered by
the
principal
office of each of the Reference Banks in London, England to
prime
banks in the London interbank market at 11:00 a.m. (London time)
two
Business
Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance made
as part of
such Borrowing and for a period equal to such Interest Period.
The
Eurodollar Rate for the Interest Period for each Eurodollar
Rate
Advance
made as part of the same Borrowing shall be determined by the
Agent on
the basis of applicable rates furnished to and received by the
Agent from
the Reference Banks two Business Days before the first day of
such
Interest Period, subject, however, to the provisions of Section
2.09.
8
<PAGE>
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as
provided
in Section 2.07(b).
"EURODOLLAR RESERVE PERCENTAGE" of any Lender for each Interest
Period for
each Eurodollar Rate Advance means the reserve percentage
applicable
to such Lender during such Interest Period (or if more than one
such
percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such
percentage
shall be so applicable) under Regulation D or other regulations
issued
from time to time by the Board of Governors of the Federal
Reserve
System (or
any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or
other
marginal
reserve requirement) then applicable to such Lender with
respect
to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning assigned to that term in
Section
6.01.
"EXISTING FACILITY" means the $200,000,000 364-Day Credit
Agreement,
dated as
of September 30, 2003, as amended, among the Borrower, the
banks
named
therein and Bank One, NA, as the administrative agent.
"EXISTING LETTER OF CREDIT" means letter of credit number
SLT750762,
with a
stated amount of $57,500, issued by Bank One, NA under the
Existing
Facility.
"EXTENSION OF CREDIT" means (i) the disbursement of the proceeds
of
any
Borrowing and (ii) the issuance of a Letter of Credit or the
amendment
of any
Letter of Credit having the effect of extending the stated
termination date thereof or increasing the maximum amount available
to be
drawn
thereunder.
"FACILITY FEE" means a fee that shall be payable on the
aggregate
amount of
the Commitment of each Lender, irrespective of usage, payable
to
each
Lender on the amount of its Commitment at the rate (expressed
in
basis
points per annum) set forth below in the columns identified as
Level
1, Level
2, Level 3, Level 4, Level 5 or Level 6 based on the Reference
Ratings.
<TABLE>
<CAPTION>
LEVEL 1
LEVEL 2
LEVEL 3
LEVEL 4
LEVEL 5
LEVEL 6
BASIS FOR
Reference Reference
Reference Reference
Reference Reference
PRICING
Ratings At
Ratings Ratings
Less Ratings
Ratings
Ratings Less
Least A By
Less Than Than Level 2
Less Than
Less
Than
Than Level 5*
S&P or A2 Level 1 But
But At Least
Level 3 But
Level 4 But
By Moody's. At
Least A- BBB+ By
S&P At
Least At
Least
By S&P or or BAA1 By
BBB
By S&P
BBB- By S&P
A3 By
Moody's. or
BAA2 By or
BAA3 By
Moody's.
Moody's.
Moody's.
--------
--------
--------
<S>
<C>
<C>
<C>
<C>
<C>
<C>
Facility
Fee
10.0
12.5
15.0
17.5
25.0
35.0
</TABLE>
* or unrated
The
Facility Fee will be based upon the Level that corresponds to
the
Reference
Ratings at the time of determination, subject, however, to the
following:
if the Reference Ratings assigned by S&P and Moody's do not
fall
within the same Level on the grid above (i.e., a
9
<PAGE>
"split
rating") and: (i) the difference consists of one Level, the
Facility
Fee will be based upon the Level that corresponds to the higher
of such
Reference Ratings, or (ii) the difference consists of two or
more
Levels,
the Facility Fee will be based upon the Level that corresponds
to
a notional
Reference Rating that falls at the midpoint between the actual
Reference
Ratings (or if no Reference Rating on the grid above
corresponds
to such
midpoint, the next higher Reference Rating), unless, in the
case
of clause
(i) or (ii) above, either Reference Rating is below BBB- (in
the
case of
S&P) or Baa3 (in the case of Moody's) or the applicable
debt
securities
are, or the Borrower is, as applicable, unrated, in which case
the
Facility Fee will be based upon Level 6. Any change in the
Facility
Fee
resulting from a change in the Reference Ratings shall be effective
as
of the
date on which the applicable rating agency announces the
applicable
change in
ratings.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest
rate per
annum equal for each day during such period to the weighted
average of
the rates on overnight Federal funds transactions with members
of the
Federal Reserve System arranged by Federal funds brokers, as
published
for such day (or, if such day is not a Business Day, for the
next
preceding Business Day) by the Federal Reserve Bank of New York,
or,
if such
rate is not so published for any day which is a Business Day,
the
average of
the quotations for such day on such transactions received by
the Agent
from three Federal funds brokers of recognized standing
selected
by it.
"FIRST SUPPLEMENTAL ORDER" means the order or orders of the
Securities
and Exchange Commission under the PUHCA authorizing the
Borrower
to obtain Extensions of Credit and to perform its obligations
under this
Agreement between December 31, 2004 and December 31, 2007.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower that
is
organized
under the law of any jurisdiction other than any state of the
United
States of America.
"GAAP" has the meaning assigned to that term in Section 1.04.
"GOVERNMENTAL APPROVAL" means any authorization, consent,
approval,
license,
franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or
filing or registration with, any governmental authority
or other
legal or regulatory body.
"GRANTING LENDER" has the meaning assigned to that term in
Section
8.07(i).
"HAZARDOUS SUBSTANCE" means any waste, substance, or material
identified
as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau, or instrumentality of the
United
States or
of the State or locality in which the same is located having or
exercising
jurisdiction over such waste, substance or material.
"HOSTILE ACQUISITION" means any acquisition involving a tender
offer
or proxy
contest that has not been recommended or approved by the board
of
directors
(or similar governing body) of the Person that is the subject
of
such
acquisition prior to the first public announcement or
disclosure
relating
to such acquisition.
"INCREASING LENDER" has the meaning assigned to that term in
Section
2.05(d).
10
<PAGE>
"INDEMNIFIED PERSON" has the meaning assigned to that term in
Section
8.04(c).
"INTEREST COVERAGE RATIO" means, as of any date, the ratio of
(i)
operating
income plus depreciation and amortization of the Borrower and
its
Consolidated Subsidiaries for the four fiscal quarters ending on
such
date to
(ii) the Interest Expense payable by the Borrower and its
Consolidated Subsidiaries during such period.
"INTEREST EXPENSE" means, for any Person and its Consolidated
Subsidiaries and for any period, all interest expense (including
all
amortization of debt discount and expenses and reported interest)
on all
Debt of
such Person and its Consolidated Subsidiaries during such
period.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance made
as
part of
the same Borrowing, the period commencing on the date of such
Eurodollar
Rate Advance or the date of the Conversion of any Advance into
such a
Eurodollar Rate Advance and ending on the last day of the
period
selected
by the Borrower pursuant to the provisions below and,
thereafter,
each
subsequent period commencing on the last day of the immediately
preceding
Interest Period and ending on the last day of the period
selected
by the Borrower pursuant to the provisions below. The duration
of
each such
Interest Period shall be 1, 2, 3 or 6 months, as the Borrower
may, upon notice
received by the Agent not later than 11:00 a.m. on the
third
Business Day prior to the first day of such Interest Period,
select;
provided,
however, that:
(i) the Borrower
may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods
commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period would
otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next
succeeding Business Day, provided, in the case of any Interest
Period for a Eurodollar Rate Advance, that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day.
"IPL" means Interstate Power and Light Company, an Iowa
corporation.
"LC FEE" is defined in Section 2.04(b).
"LC ISSUING BANK" means, (i) with respect to the Existing Letter
of
Credit,
Bank One, NA and (ii) with respect to any other Letter of
Credit,
Wachovia.
"LC OUTSTANDINGS" means, on any date of determination, the sum
of
the
undrawn stated amounts of all Letters of Credit that are
outstanding
on such
date plus the aggregate principal amount of all unpaid
reimbursement obligations of the Borrower on such date with respect
to
payments
made by the LC Issuing Bank under Letters of Credit.
11
<PAGE>
"LC PAYMENT NOTICE" is defined in Section 2.03(d).
"LENDER ASSIGNMENT" means an assignment and acceptance
agreement
entered
into by a Lender and an Eligible Assignee, and accepted by the
Agent and
the LC Issuing Bank, in substantially the form of Exhibit 8.07.
"LENDERS" means the Banks listed on the signature pages hereof,
each
Additional
Lender and each Eligible Assignee that shall become a party
hereto
pursuant to Section 8.07.
"LETTER OF CREDIT" means (i) any letter of credit issued by the
LC
Issuing
Bank pursuant to Section 2.03 and (ii) the Existing Letter of
Credit.
"LIEN" has the meaning assigned to that term in Section
5.02(a).
"LOAN DOCUMENTS" means (i) this Agreement, any Note issued
pursuant
to Section
2.15, the Administrative Agency and Arranger Fee Letter, (ii)
all
agreements, documents and instruments in favor of the Agent, the
LC
Issuing
Bank or the Lenders (or the Agent on behalf of the LC Issuing
Bank
or the
Lenders), and (iii) all other agreements, instruments and
documents
now or
hereafter executed and/or delivered pursuant hereto or thereto.
"MAJORITY LENDERS" means, on any date of determination, Lenders
that,
collectively, on such date (i) hold greater than 50% of the
then
outstanding Advances and participation obligations with respect to
the LC
Outstandings and, (ii) if there are no Outstanding Credits,
have
Percentages in the aggregate greater than 50%. Any determination of
those
Lenders
constituting the Majority Lenders shall be made by the Agent
and
shall be
conclusive and binding on all parties absent manifest error.
"MARGIN STOCK" has the meaning assigned to that term in Regulation
U
of the
Board of Governors of the Federal Reserve System.
"MATERIAL ADVERSE CHANGE" means (i) a material adverse change in,
or
a material
adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or
otherwise) or
prospects
of the Borrower or the Borrower and its Subsidiaries taken as a
whole;
(ii) a material impairment of the ability of the Borrower to
perform
its obligations under any Loan Document to which it is a party;
or
(iii) a
material adverse change upon the legality, validity, binding
effect or
enforceability against the Borrower of any Loan Document to
which it
is a party.
"MOODY'S" means Moody's Investors Service, Inc. or any
successor
thereto.
"MORTGAGE BOND INDENTURES" means the indentures listed on
Schedule
III
hereto.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in
Section
4001(a)(3) of ERISA, which is subject to Title IV of ERISA and
to
which the
Borrower or any ERISA Affiliate of the Borrower is making or
has
an
obligation to make
12
<PAGE>
contributions, or has within any of the preceding five plan years
made or
had an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a "single employer plan", as
defined
in Section
4001(a)(15) of ERISA, which is subject to Title IV of ERISA and
(i) is
maintained for employees of the Borrower or an ERISA Affiliate
of
the
Borrower and at least one Person other than the Borrower and its
ERISA
Affiliates
or (ii) was so maintained and in respect of which the Borrower
or an
ERISA Affiliate of the Borrower could have liability under
Section
4064 or
4069 of ERISA in the event such plan has been or were to be
terminated.
"NON-PERFORMING LENDER" has the meaning assigned to that term
in
Section
2.03(e).
"NONRECOURSE DEBT" means Debt of any Subsidiary of the Borrower
(i)
as to
which (A) the Borrower provides no credit support of any kind
(including
any undertaking, agreement or instrument that would constitute
Debt), (B)
the Borrower is not directly or indirectly liable as a
guarantor
or otherwise, (C) the Borrower is not the lender or other type
of
creditor, or (D) the relevant legal documents do not provide that
the
lenders or
other type of creditors with respect thereto will have any
recourse
to the stock or assets of the Borrower and (ii) no default with
respect to
which would permit, upon notice, lapse of time or both, any
holder of
any other Debt (other than the Advances, any Note and the Debt
under the
Note Purchase Agreement, dated as of October 15, 2003, among
Alliant
Energy Corporate Services, Inc. ("Services"), the Borrower and
the
"Purchasers" party thereto relating to the issuance by Services of
its
4.55%
Guaranteed Senior Notes due 2008) of the Borrower to declare a
default on
such other Debt or cause the payment thereof to be accelerated
or payable
prior to its stated maturity. For the avoidance of doubt, if
the
Borrower provides credit support that is limited in its
drawable
amount for
any portion of Debt of any Subsidiary of the Borrower that
would be
considered Nonrecourse Debt but for the provision of such
credit
support,
such Debt shall be considered Nonrecourse Debt to the extent
that
it is not
so supported.
"NOTE" means a promissory note issued at the request of a
Lender
pursuant
to Section 2.15, in substantially the form of Exhibit 1.01
hereto,
evidencing the aggregate indebtedness of the Borrower to such
Lender
resulting from the Advances made by such Lender.
"NOTICE OF BORROWING" has the meaning assigned to that term in
Section
2.02(a).
"NOTICE OF CONVERSION" has the meaning assigned to that term in
Section
2.10.
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" has the meaning assigned to that term in Section
2.16(b).
"OUTSTANDING CREDITS" means, on any date of determination, an
amount
equal to
the sum of (i) the aggregate principal amount of all Borrowings
outstanding on such date plus (ii) the LC Outstandings on such
date.
13
<PAGE>
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor
entity).
"PERCENTAGE" means, for any Lender on any date of determination,
the
percentage
obtained by dividing such Lender's Commitment on such day by
the total
of the Commitments on such date, and multiplying the quotient
so
obtained
by 100%.
"PERSON" means an individual, partnership, corporation (including
a
business
trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government
or any
political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PUHCA" means the Public Utility Holding Company Act of 1935,
as
amended
from time to time.
"REFERENCE BANKS" means Wachovia, Barclays Bank PLC and any
additional
or substitute Lenders as may be selected from time to time to
act as
Reference Banks hereunder by the Agent.
"REFERENCE RATINGS" means (i) (A) the ratings assigned by S&P
and
Moody's to
the senior unsecured non-credit-enhanced long term debt of the
Borrower
(the "REFERENCE SECURITIES") or, (B) in the event that only one
of S&P
and Moody's has assigned a rating to the Reference Securities,
the
rating
assigned by one of S&P and Moody's to the Reference
Securities
together
with the issuer rating of the Borrower assigned by the other of
S&P
and Moody's or, (C) in the event that no Reference Securities
are
rated, the
issuer ratings assigned to the Borrower by S&P and Moody's,
or
(ii) in
the event that none of the circumstances in clause (i) applies,
(A) the
ratings assigned by S&P and Moody's to the senior unsecured
long-term
debt of AER that is guaranteed by the Borrower (the "AER
REFERENCE
SECURITIES") or, (B) in the event that only one of S&P and
Moody's
has assigned a rating to the AER Reference Securities, the
rating
assigned
by one of S&P and Moody's to the AER Reference Securities
together
with the issuer rating of AER assigned by the other of S&P
and
Moody's
or, (C) in the event that no AER Reference Securities are
rated,
the issuer
ratings assigned to AER by S&P and Moody's; provided,
however,
that in
any case in which an issuer rating assigned by S&P is used
to
determine
the Reference Ratings, the rating level that is one notch below
the issuer
rating assigned by S&P shall be used to determine the
Reference
Ratings.
"REGISTER" has the meaning assigned to that term in Section
8.07(c).
"REPORT" has the meaning assigned to that term in Section
5.01(h)(iv).
"REQUEST FOR ISSUANCE" means a request made pursuant to Section
2.03(a) in
the form of Exhibit 2.03.
14
<PAGE>
"S&P" means Standard & Poor's Ratings Services, a division
of The
McGraw-Hill Companies, Inc., or any successor thereto.
"SECOND SUPPLEMENTAL ORDER" means the order or orders of the
Securities
and Exchange Commission under the PUHCA authorizing the
Borrower
to obtain Extensions of Credit and to perform its obligations
under this
Agreement after December 31, 2007.
"SENIOR FINANCIAL OFFICER" means the President, the Chief
Executive
Officer,
the Chief Financial Officer or the Treasurer of the Borrower.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Borrower
that,
on a
consolidated basis with any of its Subsidiaries as of any date
of
determination, accounts for more than 20% of the consolidated
assets
(valued at
book value) of the Borrower and its Subsidiaries.
"SINGLE EMPLOYER PLAN" means a "single employer plan", as defined
in
Section
4001(a)(15) of ERISA, which is subject to Title IV of ERISA and
which (i) is maintained for
employees of the Borrower or an ERISA
Affiliate
of the Borrower and no Person other than the Borrower and its
ERISA
Affiliates, or (ii) was so maintained and in respect of which
the
Borrower
or an ERISA Affiliate of the Borrower could have liability
under
Section
4069 of ERISA in the event such plan has been or were to be
terminated.
"SPC" has the meaning assigned to that term in Section 8.07(i).
"SUBSIDIARY" means, with respect to any Person, any corporation
or
unincorporated entity of which more than 50% of the outstanding
Equity
Interests
having ordinary voting power (irrespective of whether at the
time
Equity Interests of any other class or classes of such corporation
or
entity
shall or might have voting power upon the occurrence of any
contingency) is at the time owned by said Person, either directly
or
through
one or more other Subsidiaries. In the case of an
unincorporated
entity, a
Person shall be deemed to have more than 50% of interests
having
ordinary
voting power only if such Person's vote in respect of such
interests
comprises more than 50% of the total voting power of all such
interests
in the unincorporated entity.
"SUPPLEMENTAL ORDER" means, collectively, the First
Supplemental
Order and
the Second Supplemental Order.
"TAXES" has the meaning assigned to that term in Section
2.16(a).
"TERMINATION DATE" means the earlier to occur of (i) July 26,
2009
and (ii)
the date of termination or reduction in whole of the
Commitments
pursuant
to Section 2.05 or 6.01.
"TYPE" has the meaning assigned to that term (i) in the
definition
of
"Advance" when used in such context and (ii) in the definition
of
"Borrowing" when used in such context.
15
<PAGE>
"UNMATURED DEFAULT" means an event that, with the giving of
notice
or lapse
of time, or both, would constitute an Event of Default.
"UTILITIES" means, collectively, WPL and IPL.
"UTILITY FACILITIES" means (i) the $300,000,000 Credit
Agreement,
dated the
date hereof, among IPL, the banks named therein and Wachovia,
as
administrative agent; and (ii) the $250,000,000 Credit Agreement,
dated
the date
hereof, among WPL, the banks named therein and Wachovia, as
administrative agent.
"UTILIZATION PERCENTAGE" means, as of any time for the
determination
thereof,
the percentage obtained by dividing the aggregate Outstanding
Credits by
the aggregate Commitments then in effect.
"WACHOVIA" has the meaning assigned to that term in the Preamble
to
this
Agreement.
"WPL" means Wisconsin Power and Light Company, a Wisconsin
corporation.
SECTION
1.02. COMPUTATION OF TIME PERIODS. Unless otherwise indicated,
each reference in this Agreement to a
specific time of day is a reference to
Charlotte, North Carolina time. In the
computation of periods of time under this
Agreement, any period of a specified number
of days or months shall be computed
by including the first day or month
occurring during such period and excluding
the last such day or month. In the case of
a period of time "from" a specified
date "to" or "until" a later specified
date, the word "from" means "from and
including" and the words "to" and "until"
each means "to but excluding".
SECTION
1.03. COMPUTATIONS OF OUTSTANDINGS. Whenever reference is made
in
this Agreement to the "principal amount
outstanding" on any date under this
Agreement, such reference shall refer to
the aggregate principal amount of all
Advances outstanding on such date after
giving effect to all Advances to be made
on such date and the application of the
proceeds thereof.
SECTION
1.04. ACCOUNTING TERMS. Except as otherwise expressly provided
herein, all accounting terms used herein
shall be interpreted, and all financial
statements and certificates and reports as
to financial matters required to be
delivered to the Lenders hereunder shall be
prepared, in accordance with
accounting principles generally accepted in
the United States of America
("GAAP") applied on a consistent basis.
With respect to (and only with respect
to) determining compliance with this
Agreement, all calculations shall (except
as otherwise expressly provided herein) be
made by application of GAAP applied
on a basis consistent with the most recent
annual or quarterly financial
statements delivered pursuant to Section
5.01(h) (or prior to the delivery of
the first financial statements pursuant to
Section 5.01(h), consistent with the
financial statements described in Section
4.01(f)); provided, however, if (i)
the Borrower shall object to determining
such compliance on such basis at the
time of delivery of such financial
statements due to any change in GAAP or the
rules promulgated with respect thereto or
(ii) the Administrative Agent or the
Majority Lenders shall so object in writing
within 30 days after delivery of
such financial statements, then such
calculations shall be made on a basis
16
<PAGE>
consistent with the most recent financial
statements delivered by the Borrower
to the Lenders as to which no such
objection shall have been made.
ARTICLE II
AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
SECTION
2.01. THE ADVANCES.
(a) Each
Lender severally agrees, on the terms and conditions
hereinafter
set forth, to make Advances to the Borrower
from time to time, during the period
from and including the date hereof, to and
up to, but excluding, the Termination
Date, in an aggregate outstanding amount
not to exceed at any time such Lender's
Available Commitment. Each Borrowing shall
be in an aggregate amount not less
than $5,000,000 (or, if lower, the amount
of the Available Commitments) or an
integral multiple of $1,000,000 in excess
thereof and shall consist of Advances
of the same Type made on the same day by
the Lenders ratably according to their
respective Percentages. Within the limits
of each Lender's Commitment and as
hereinabove and hereinafter provided, the
Borrower may request Borrowings
hereunder, and repay or prepay Advances
pursuant to Section 2.11 and utilize the
resulting increase in the Available
Commitments for further Extensions of Credit
in accordance with the terms hereof.
(b) In no
event shall the Borrower be entitled to request or receive any
Borrowings that would cause the Outstanding
Credits to exceed the Commitments.
SECTION
2.02. MAKING THE ADVANCES.
(a) Each
Borrowing shall be made on notice, given not later than 11:00
a.m. (i) on the third Business Day prior to
the date of the proposed Borrowing,
in the case of a Borrowing comprised of
Eurodollar Rate Advances and (ii) on the
date of the proposed Borrowing, in the case
of a Borrowing comprised of Base
Rate Advances, in each case by the Borrower
to the Agent, which shall give to
each Lender prompt notice thereof by
telecopier, telex or cable. Each such
notice of a Borrowing (a "NOTICE OF
BORROWING") shall be by telecopier, telex or
cable, in substantially the form of Exhibit
2.02(a) hereto, specifying therein
the requested (A) date of such Borrowing,
(B) Type of Advances comprising such
Borrowing, (C) aggregate amount of such
Borrowing and (D) in the case of a
Borrowing comprised of Eurodollar Rate
Advances, the initial Interest Period for
each such Advance. Each Lender shall,
before (x) 12:00 noon on the date of such
Borrowing, in the case of a Borrowing
comprised of Eurodollar Rate Advances, and
(y) 1:00 p.m. on the date of such
Borrowing, in the case of a Borrowing
comprised of Base Rate Advances, make
available for the account of its
Applicable Lending Office to the Agent at
its address referred to in Section
8.02, in same day funds, such Lender's
ratable portion of such Borrowing. After
the Agent's receipt of such funds and upon
fulfillment of the applicable
conditions set forth in Article III, the
Agent will promptly make such funds
available to the Borrower at the Agent's
aforesaid address.
(b) Each
Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing
which the related Notice of Borrowing
specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall
indemnify each Lender against any loss,
cost or expense incurred by such Lender
as a result of any failure to fulfill on or
before the date
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<PAGE>
specified in such Notice of Borrowing for
such Borrowing the applicable
conditions set forth in Article III,
including, without limitation, any loss,
cost or expense incurred by reason of the
liquidation or reemployment of
deposits or other funds acquired by such
Lender to fund the Eurodollar Rate
Advance to be made by such Lender as part
of such Borrowing when such Advance,
as a result of such failure, is not made on
such date.
(c) Unless
the Agent shall have received notice from a Lender prior to the
time of any Borrowing that such Lender will
not make available to the Agent such
Lender's Advance as part of such Borrowing,
the Agent may assume that such
Lender has made such Advance available to
the Agent on the time of such
Borrowing in accordance with subsection (a)
of this Section 2.02 and the Agent
may, in reliance upon such assumption, make
available to the Borrower on such
time a corresponding amount. If and to the
extent that such Lender shall not
have so made such Advance available to the
Agent, such Lender and the Borrower
severally agree to repay to the Agent
forthwith on demand such corresponding
amount, together with interest thereon, for
each day from the time such amount
is made available to the Borrower until the
time such amount is repaid to the
Agent, at (i) in the case of the Borrower,
the interest rate applicable at the
time to Advances comprising such Borrowing
and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender
shall repay to the Agent such
corresponding amount, such amount so repaid
shall constitute such Lender's
Advance as part of such Borrowing for
purposes of this Agreement.
(d) The
failure of any Lender to make the Advance to be made by it as
part
of any Borrowing shall not relieve any
other Lender of its obligation, if any,
hereunder to make its Advance on the date
of such Borrowing, but no Lender shall
be responsible for the failure of any other
Lender to make the Advance to be
made by such other Lender on the date of
any Borrowing.
SECTION
2.03. LETTERS OF CREDIT.
(a)
Subject to the terms and conditions hereof, each Letter of
Credit
shall be issued (or the stated maturity
thereof extended or terms thereof
modified or amended) on not less than two
Business Days' prior notice thereof by
delivery of a Request for Issuance to the
Agent and the LC Issuing Bank
substantially in the form attached hereto
in Exhibit 2.03. Each Request for
Issuance shall specify a statement of
drawing conditions applicable to such
Letter of Credit, and if such Request for
Issuance relates to an amendment or
modification of a Letter of Credit, it
shall be accompanied by the consent of
the beneficiary of the Letter of Credit
thereto. The expiry of such Letter of
Credit shall be no later than five Business
Days' prior to the Termination Date.
Each Request for Issuance shall be
irrevocable unless modified or rescinded by
the Borrower not less than one day prior to
the proposed date of issuance (or
effectiveness) specified therein. Not later
than 12:00 noon on the proposed date
of issuance (or effectiveness) specified in
such Request for Issuance, and upon
fulfillment of the applicable conditions
precedent and the other requirements
set forth herein, the LC Issuing Bank shall
issue (or extend, amend or modify)
such Letter of Credit and provide notice
and a copy thereof to the Agent, which
shall promptly furnish copies thereof to
the Lenders.
(b) No
Letter of Credit shall be requested or issued hereunder if,
after
the issuance thereof, the Outstanding
Credits would exceed the total
Commitments.
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<PAGE>
(c) The
Borrower hereby agrees to pay to the Agent for the account of
the
LC Issuing Bank and, if they shall have
purchased participations in the
reimbursement obligations of the Borrower
pursuant to subsection (d) below, the
Lenders, on demand made by the LC Issuing
Bank to the Borrower, on and after
each date on which the LC Issuing Bank
shall pay any amount under any Letter of
Credit issued by the LC Issuing Bank, a sum
equal to the amount so paid plus
interest on such amount from the date so
paid by the LC Issuing Bank until
repayment to the LC Issuing Bank in full at
a fluctuating interest rate per
annum equal to the interest rate applicable
to Base Rate Advances plus, if any
amount paid by the LC Issuing Bank under a
Letter of Credit is not reimbursed by
the Borrower within three Business Days,
2%.
(d) If the
LC Issuing Bank shall not have been reimbursed in full for any
payment made by the LC Issuing Bank under a
Letter of Credit issued by the LC
Issuing Bank on the date of such payment,
the LC Issuing Bank shall give the
Agent and each Lender prompt notice thereof
(an "LC PAYMENT NOTICE") no later
than 12:00 noon on the Business Day
immediately succeeding the date of such
payment by the LC Issuing Bank. Each Lender
severally agrees to purchase a
participation in the reimbursement
obligation of the Borrower to the LC Issuing
Bank by paying to the Agent for the account
of the LC Issuing Bank an amount
equal to such Lender's Percentage of such
unreimbursed amount paid by the LC
Issuing Bank, plus interest on such amount
at a rate per annum equal to the
Federal Funds Rate from the date of the
payment by the LC Issuing Bank to the
date of payment to the LC Issuing Bank by
such Lender. Each such payment by a
Lender shall be made not later than 3:00
P.M. on the later to occur of (i) the
Business Day immediately following the date
of such payment by the LC Issuing
Bank and (ii) the Business Day on which
such Lender shall have received an LC
Payment Notice from the LC Issuing Bank.
Each Lender's obligation to make each
such payment to the Agent for the account
of the LC Issuing Bank shall be
several and shall not be affected by the
occurrence or continuance of an Event
of Default or the failure of any other
Lender to make any payment under this
Section 2.03(d) or the failure of the LC
Issuing Bank to provide the LC Payment
Notice by 12:00 noon on the Business Day
immediately succeeding the date of
payment under a Letter of Credit by the LC
Issuing Bank. Each Lender further
agrees that each such payment shall be made
without any offset, abatement,
withholding or reduction whatsoever.
(e) The
failure of any Lender to make any payment to the Agent for the
account of the LC Issuing Bank in
accordance with subsection (d) above shall not
relieve any other Lender of its obligation
to make payment, but no Lender shall
be responsible for the failure of any other
Lender. If any Lender (a
"NON-PERFORMING LENDER") shall fail to make
any payment to the Agent for the
account of the LC Issuing Bank in
accordance with subsection (d) above within
five Business Days after the LC Payment
Notice relating thereto, then, for so
long as such failure shall continue, the LC
Issuing Bank shall be deemed, for
purposes of Section 8.01 and Article VI
hereof, to be a Lender owed a Borrowing
in an amount equal to the outstanding
principal amount due and payable by such
Non-Performing Lender to the Agent for the
account of the LC Issuing Bank
pursuant to subsection (d) above. Any
Non-Performing Lender and the Borrower
(without waiving any claim against such
Lender for such Lender's failure to
purchase a participation in the
reimbursement obligations of the Borrower under
subsection (d) above) severally agree to
pay to the Agent for the account of the
LC Issuing Bank forthwith on demand such
amount, together with interest thereon
for each day from the date such Lender
would have purchased its participation
had it complied with the requirements of
subsection (d) above until the date
such amount is paid to the Agent at (i) in
the case of the Borrower, the
interest rate applicable at the
19
<PAGE>
time to Base Rate Advances and (ii) in the
case of such Lender, the rate
applicable to Base Rate Advances plus
1%.
(f) The
payment obligations of each Lender under Section 2.03(d) and of
the Borrower under this Agreement in
respect of any payment under any Letter of
Credit by the LC Issuing Bank shall be
unconditional and irrevocable, and shall
be paid strictly in accordance with the
terms of this Agreement under all
circumstances, including, without
limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement,
any
other Loan
Document or any other agreement or instrument relating thereto
or to such
Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure
from,
the terms
of this Agreement, any other Loan Document or such Letter of
Credit;
(iii) the existence of any claim, set-off, defense or other
right
which the
Borrower may have at any time against any beneficiary, or any
transferee, of such Letter of Credit (or any Persons for whom any
such
beneficiary or any such transferee may be acting), the LC Issuing
Bank, or
any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby, thereby or by such Letter of
Credit, or
any unrelated
transaction;
(iv) any statement or any other document presented under such
Letter
of Credit
reasonably proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or
inaccurate
in any respect;
(v) payment in good faith by the LC Issuing Bank under the Letter
of
Credit
issued by the LC Issuing Bank against presentation of a draft
or
certificate that does not comply with the terms of such Letter of
Credit;
or
(vi) any other circumstance or happening whatsoever, whether or
not
similar to
any of the foregoing.
(g) The
Borrower assumes all risks of the acts and omissions of any
beneficiary or transferee of any Letter of
Credit. Neither the LC Issuing Bank,
the Lenders nor any of their respective
officers, directors, employees, agents
or Affiliates shall be liable or
responsible for (i) the use that may be made of
such Letter of Credit or any acts or
omissions of any beneficiary or transferee
thereof in connection therewith; (ii) the
validity, sufficiency or genuineness
of documents, or of any endorsement
thereon, even if such documents should prove
to be in any or all respects invalid,
insufficient, fraudulent or forged; (iii)
payment by the LC Issuing Bank against
presentation of documents that do not
comply with the terms of such Letter of
Credit, including failure of any
documents to bear any reference or adequate
reference to such Letter of Credit;
or (iv) any other circumstances whatsoever
in making or failing to make payment
under such Letter of Credit.
Notwithstanding any provision to the contrary
contained in any Loan Document, the
Borrower and each Lender shall have the
right to bring suit against the LC Issuing
Bank, and the LC Issuing Bank shall
be liable to the Borrower and any Lender,
to the extent of any direct, as
opposed to consequential, damages suffered
by the Borrower or such
20
<PAGE>
Lender which the Borrower or such Lender
proves were caused by the LC Issuing
Bank's willful misconduct or gross
negligence, including, in the case of the
Borrower, the LC Issuing Bank's willful
failure to make timely payment under
such Letter of Credit following the
presentation to it by the beneficiary
thereof of a draft and accompanying
certificate(s) that strictly comply with the
terms and conditions of such Letter of
Credit. In furtherance and not in
limitation of the foregoing, the LC Issuing
Bank may accept sight drafts and
accompanying certificates presented under
the Letter of Credit issued by the LC
Issuing Bank that appear on their face to
be in order, without responsibility
for further investigation, regardless of
any notice or information to the
contrary, and payment against such
documents shall not constitute willful
misconduct or gross negligence by the LC
Issuing Bank. Notwithstanding the
foregoing, no Lender shall be obligated to
indemnify the Borrower for damages
caused by the LC Issuing Bank's willful
misconduct or gross negligence.
(h) If any
Letter of Credit contains a provision pursuant to which it is
deemed to be automatically renewed unless
notice of termination of such Letter
of Credit is given by the LC Issuing Bank,
the LC Issuing Bank shall timely give
notice of termination if (i) as of close of
business on the seventeenth day
prior to the last day upon which the LC
Issuing Bank's notice of termination may
be given to the beneficiaries of such
Letter of Credit, the LC Issuing Bank has
received a notice of termination from the
Borrower or a notice from the Agent
that the conditions to issuance of such
Letter of Credit have not been
satisfied, (ii) the renewed Letter of
Credit would have a term not permitted by
Section 2.03(a) or (iii) such Letter of
Credit is the Existing Letter of Credit.
SECTION
2.04. FEES.
(a) The
Borrower agrees to pay to the Agent for the account of each
Lender
the Facility Fee, from the date hereof, in
the case of each Bank, and from the
effective date specified in the Lender
Assignment pursuant to which it became a
Lender, in the case of each other Lender,
until the later of the Termination
Date and the date all Advances are paid in
full, payable quarterly in arrears on
the last day of each March, June, September
and December during the term of such
Lender's Commitment, commencing September
30, 2004, and on the later of the
Termination Date and the date all Advances
are paid in full.
(b) The
Borrower shall pay to the Agent for the account of each Lender
a
fee (the "LC FEE") on the average daily
amount of the sum of the undrawn stated
amounts of all Letters of Credit
outstanding on each such day, from the date
hereof until the later to occur of the
Termination Date and the date on which no
Letters of Credit are outstanding, payable
on the last day of each March, June,
September and December (commencing
September 30, 2004) and such later date, at a
rate equal at all times to the Applicable
Margin in effect from time to time for
Eurodollar Rate Advances. In addition, the
Borrower shall pay to the LC Issuing
Bank such fees for the issuance and
maintenance of Letters of Credit and for
drawings thereunder as may be separately
agreed between the Borrower and the LC
Issuing Bank.
(c) In
addition to the fees provided for in subsections (a) and (b)
above,
the Borrower shall pay (i) to the Agent and
the LC Issuing Bank, for their own
accounts, such fees as are provided for in
the Administrative Agency and
Arranger Fee Letter and (ii) to the Lenders
and
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<PAGE>
the Co-Lead Arrangers, for their own
accounts, such fees as are provided for in
the Administrative Agency and Arranger Fee
Letter.
SECTION
2.05. CHANGES IN THE COMMITMENTS.
(a) The
Borrower shall have the right, upon at least three Business
Days'
notice to the Agent, to terminate in whole
or reduce ratably in part the unused
portions of the respective Commitments of
the Lenders; provided that the
aggregate amount of the Commitments of the
Lenders shall not be reduced to an
amount which is less than the aggregate
principal amount of the Extensions of
Credit then outstanding; and provided,
further, that each partial reduction
shall be in a minimum amount of $10,000,000
or any whole multiple of $1,000,000
in excess thereof.
(b) On the
Termination Date, the Commitments of the Lenders shall be
reduced to zero.
(c) Any
termination or reduction of the Commitments under this Section
2.05 shall be irrevocable, and the
Commitments shall not thereafter be
reinstated.
(d) On any
date prior to the Termination Date, the Borrower may increase
the aggregate amount of the Commitments by
an amount not less than $5,000,000
and to an amount not to exceed $200,000,000
(any such increase, a "COMMITMENT
INCREASE") by designating either one or
more of the existing Lenders (each of
which, in its sole discretion, may
determine whether and to what degree it may
participate in such Commitment Increase) or
one or more other Eligible Assignees
reasonably acceptable to the Agent that at
the time agree, in the case of any
such Eligible Assignee that is an existing
Lender, to increase its Commitment
(an "INCREASING LENDER") and, in the case
of any other Eligible Assignee (an
"ADDITIONAL LENDER"), to become a party to
this Agreement.
(i) The sum of the increases in the Commitments of the
Increasing
Lenders
pursuant to this subsection (d) plus the Commitments of the
Additional
Lenders upon giving effect to the Commitment Increase shall not
in the
aggregate exceed the amount of the Commitment Increase. The
Borrower
shall provide prompt notice of any proposed Commitment Increase
pursuant
to this Section 2.05(d) to the Agent, which shall promptly
provide a
copy of such notice to the Lenders;
(ii) Any Commitment Increase shall become effective upon (A)
the
receipt by
the Agent of (1) an agreement in form and substance
satisfactory to the Agent signed by the Borrower, each Increasing
Lender
and each
Additional Lender, setting forth the new Commitments of each
such
Lender and
setting forth the agreement of each Additional Lender to become
a party to
this Agreement and to be bound by all the terms and provisions
hereof
binding upon each Lender, and (2) certified copies of the
Commitment
Increase Approvals and such opinions of counsel for the
Borrower
with respect to the Commitment Increase as the Agent may
reasonably
request, (B) the funding by each Lender of the Advance(s) to be
made by
each such Lender described in paragraph (iii) below and (C)
receipt by
the Agent of a certificate (the statements contained in which
shall be
true) of a duly authorized officer of the Borrower stating that
both
before and after giving effect to such Commitment Increase (1)
no
Event of
Default has occurred and is continuing, (2) all representations
and
warranties made by such Borrower in this
22
<PAGE>
Agreement
are true and correct in all material respects, and (3) all
Commitment
Increase Approvals have been obtained and are in full force and
effect.
(iii) Upon the effective date of any Commitment Increase, the
Borrower
shall prepay the outstanding Advances (if any) in full, and
shall
simultaneously make new Borrowings hereunder in an amount equal to
such
prepayment, so that, after giving effect thereto, the Advances are
held
ratably by
the Lenders in accordance with their respective Percentages
(after
giving effect to such Commitment Increase).
(iv) Notwithstanding
any provision contained herein to the
contrary,
from and after the date of any Commitment Increase and the
making of
any Advances on such date pursuant to this subsection (d), all
calculations and payments of the Facility Fee and the LC Fee and
of
interest
on the Advances shall take into account the actual Commitment
of
each
Lender and such Lender's Percentage of the Outstanding Credits
during
the
relevant period of time.
SECTION
2.06. REPAYMENT OF ADVANCES. The Borrower shall repay the
principal amount of each Advance made by
each Lender no later than on the
Termination Date.
SECTION
2.07. INTEREST ON ADVANCES. The Borrower shall pay interest on
the
unpaid principal amount of each Advance
owing to each Lender from the date of
such Advance until such principal amount
shall be paid in full, at the
Applicable Rate for such Advance (except as
otherwise provided in this Section
2.07), payable as follows:
(a) Base Rate
Advances. If such Advance is a Base Rate Advance,
interest
thereon shall be payable quarterly in arrears on the last day
of
each
March, June, September and December, on the date of any Conversion
of
such Base
Rate Advance and on the date such Base Rate Advance shall
become
due and
payable or shall otherwise be paid in full; provided that at
any
time an
Event of Default shall have occurred and be continuing, each
Base
Rate
Advance shall bear interest payable on demand, at a rate per
annum
equal at
all times to the Default Rate.
(b) Eurodollar
Rate Advances. If such Advance is a Eurodollar Rate
Advance,
interest thereon shall be payable on the last day of such
Interest
Period and, if the Interest Period for such Advance has a
duration
of more than three months, on that day of each third month
during
such
Interest Period that corresponds to the first day of such
Interest
Period
(or, if any such month does not have a corresponding day, then
on
the last
day of such month); provided that at any time an Event of
Default
shall have
occurred and be continuing, each Eurodollar Rate Advance shall
bear
interest payable on demand, at a rate per annum equal at all times
to
the
Default Rate.
SECTION
2.08. ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES. The
Borrower shall pay to Agent for the account
of each Lender any costs actually
incurred by such Lender with respect to
Eurodollar Rate Advances that are
attributable to such Lender's compliance
with regulations of the Board of
Governors of the Federal Reserve System
requiring the maintenance of reserves
with respect to liabilities or assets
consisting of or including Eurocurrency
Liabilities. Such costs shall be paid to
the Agent for the account of such
Lender in the form of additional
23
<PAGE>
interest on the unpaid principal amount of
each Eurodollar Rate Advance of such
Lender, from the date of such Advance until
such principal amount is paid in
full, at an interest rate per annum equal
at all times to the remainder obtained
by subtracting (i) the Eurodollar Rate for
the Interest Period for such Advance
from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Reserve
Percentage of such Lender for such
Interest Period, payable on each date on
which interest is payable on such
Advance. Such additional interest shall be
determined by such Lender and
notified to the Borrower through the Agent.
A certificate as to the amount of
such additional interest, submitted to the
Borrower and the Agent by such
Lender, shall be conclusive and binding for
all purposes, absent manifest error,
provided that the determination thereof
shall have been made by such Lender in
good faith.
SECTION
2.09. INTEREST RATE DETERMINATION.
(a) Each
Reference Bank agrees to furnish to the Agent timely
information
for the purpose of determining each
Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such
timely information to the Agent for the
purpose of determining any such interest
rate, the Agent shall determine such
interest rate on the basis of timely
information furnished by the remaining
Reference Banks.
(b) The
Agent shall give prompt notice to the Borrower and the Lenders
of
the applicable interest rate determined by
the Agent for purposes of Section
2.07(a) or (b), and the applicable rate, if
any, furnished by each Reference
Bank for the purpose of determining the
applicable interest rate under Section
2.07(b).
(c) If
fewer than two Reference Banks furnish timely information to
the
Agent for determining the Eurodollar Rate,
due to the unavailability of funds to
such Reference Banks in the relevant
financial markets:
(i) the Agent
shall forthwith notify the Borrower and the Lenders
that the
interest rate cannot be determined for Eurodollar Rate
Advances;
(ii) each such
Eurodollar Rate Advance will automatically, on the
last day
of the then existing Interest Period therefor, Convert into a
Base Rate
Advance (or if such Advance is then a Base Rate Advance, will
continue
as a Base Rate Advance); and
(iii) the obligation of the Lenders to make, or to Convert
Advances
into,
Eurodollar Rate Advances shall be suspended until the Agent
shall
notify the
Borrower and the Lenders that the circumstances causing such
suspension
no longer exist.
(d) If,
with respect to any Eurodollar Rate Advances, the Majority
Lenders
notify the Agent that the Eurodollar Rate
for any Interest Period for such
Advances will not adequately reflect the
cost to such Majority Lenders of
making, funding or maintaining their
respective Eurodollar Rate Advances for
such Interest Period, the Agent shall
forthwith so notify the Borrower and the
Lenders, whereupon:
(i) each
Eurodollar Rate Advance will automatically, on the last
day of the
then existing Interest Period therefor, Convert into a Base
Rate
Advance; and
24
<PAGE>
(ii) the obligation of
the Lenders to make, or to Convert Advances
into,
Eurodollar Rate Advances shall be suspended until the Agent
shall
notify the
Borrower and the Lenders that the circumstances causing such
suspension
no longer exist.
(e) If the
Borrower shall fail to (i) select the duration of any Interest
Period for any Eurodollar Rate Advance in
accordance with the provisions
contained in the definition of "INTEREST
PERIOD" in Section 1.01 or (ii) provide
a Notice of Conversion with respect to any
Eurodollar Rate Advance on or prior
to 12:00 noon on the third Business Day
prior to the last day of the Interest
Period applicable thereto, the Agent will
forthwith so notify the Borrower and
the Lenders and such Advance will
automatically, on the last day of the then
existing Interest Period therefor, Convert
into a Base
