SEASONAL CREDIT AGREEMENT DATED AS OF October 20, 2006 BETWEEN PEOPLES ENERGY CORPORATION, and ABN AMRO BANK N.V. as Lender.
EXHIBIT
10(b)
Execution
Draft
|
DATED
AS OF
October
20, 2006
BETWEEN
PEOPLES
ENERGY CORPORATION,
and
ABN
AMRO BANK N.V.
as
Lender.
|
TABLE
OF CONTENTS
|
SECTION
1. DEFINITIONS;
INTERPRETATION.
|
1 | ||
| Section 1.1 | Definitions | 1 | |
| Section 1.2 | Interpretation | 7 | |
| SECTION 2. THE REVOLVING CREDIT. | 7 | ||
| Section 2.1 | The Loan Commitment | 7 | |
|
Section
2.2
|
[Reserved]
|
7 | |
|
Section
2.3
|
Applicable
Interest Rates
|
7 | |
|
Section
2.5
|
Minimum
Borrowing Amounts
|
9 | |
|
Section
2.6
|
Manner
of Borrowing Loans and Designating Interest Rates Applicable to
Loans
|
9 | |
|
Section
2.8
|
Interest
Periods
|
10 | |
|
Section
2.9
|
Maturity
of Loans
|
11 | |
|
Section
2.10
|
Prepayments
|
11 | |
|
Section
2.12
|
Default
Rate
|
11 | |
|
Section
2.13
|
Evidence
of Debt
|
12 | |
|
Section
2.14
|
Funding
Indemnity
|
12 | |
|
Section
2.15
|
Revolving
Credit Commitment Terminations
|
13 | |
|
Section
2.16
|
Regulation
D Compensation
|
13 | |
|
Section
2.17
|
Arbitrage
Compensation
|
13 | |
| SECTION 3. FEES. | 13 | ||
|
Section
3.1
|
Fees.
|
13 | |
|
SECTION
4. PLACE
AND APPLICATION OF PAYMENTS.
|
14 | ||
|
Section
4.1
|
Place
and Application of Payments
|
14 | |
|
SECTION
5. REPRESENTATIONS
AND WARRANTIES.
|
14 | ||
|
Section
5.1
|
Corporate
Organization and Authority
|
15 | |
|
Section
5.2
|
Corporate
Authority and Validity of Obligations
|
15 | |
|
Section
5.3
|
Financial
Statements
|
15 | |
|
Section
5.4
|
Approvals
|
15 | |
|
Section
5.5
|
ERISA
|
15 | |
|
Section
5.6
|
Government
Regulation
|
16 | |
|
Section
5.7
|
Margin
Stock; Proceeds
|
16 | |
|
Section
5.8
|
Full
Disclosure
|
16 | |
|
SECTION
6. CONDITIONS
PRECEDENT.
|
16 | ||
|
Section
6.1
|
Initial
Credit Event
|
16 | |
|
Section
6.2
|
All
Credit Events
|
17 | |
|
SECTION
7. COVENANTS.
|
17 | ||
|
Section
7.1
|
Corporate
Existence
|
17 | |
|
Section
7.2
|
ERISA
|
18 | |
|
Section
7.3
|
Financial
Reports and Other Information
|
18 | |
i
|
Section
7.5
|
Regulation
U; Proceeds
|
19 | |
|
Section
7.6
|
Sales
of Assets
|
19 | |
|
Section
7.7
|
Capital
Ratio
|
19 | |
|
Section
7.8
|
Compliance
with Laws
|
19 | |
|
Section
7.9
|
Mergers
and Consolidations
|
19 |
|
SECTION
8. EVENTS
OF DEFAULT AND REMEDIES.
|
20 | ||
|
Section
8.1
|
Events
of Default
|
20 | |
|
Section
8.2
|
Non-Bankruptcy
Defaults
|
21 | |
|
Section
8.3
|
Bankruptcy
Defaults
|
22 | |
|
Section
8.4
|
Expenses
|
22 | |
|
SECTION
9. CHANGE
IN CIRCUMSTANCES.
|
22 | ||
|
Section
9.1
|
Change
of Law
|
22 | |
|
Section
9.2
|
Unavailability
of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR
|
22 | |
|
Section
9.3
|
Increased
Cost and Reduced Return
|
22 | |
|
Section
9.5
|
Lending
Offices
|
24 | |
|
Section
9.6
|
Discretion
of Lender as to Manner of Funding
|
24 | |
| SECTION 10. RESERVED. | 24 | ||
|
SECTION
11. MISCELLANEOUS.
|
24 | ||
|
Section
11.1
|
Withholding
Taxes
|
24 | |
|
Section
11.2
|
No
Waiver of Rights
|
25 | |
|
Section
11.3
|
Non-Business
Day
|
25 | |
|
Section
11.4
|
Documentary
Taxes
|
25 | |
|
Section
11.5
|
Survival
of Representations
|
25 | |
|
Section
11.6
|
Survival
of Indemnities
|
25 | |
|
Section
11.7
|
Set-Off
|
26 | |
|
Section
11.8
|
Notices
|
26 | |
|
Section
11.9
|
Counterparts
|
27 | |
|
Section
11.10
|
Successors
and Assigns
|
27 | |
|
Section
11.11
|
[Reserved].
|
28 | |
|
Section
11.12
|
Assignments,
Participations, Etc
|
28 | |
|
Section
11.13
|
Amendments
|
30 | |
|
Section
11.14
|
Headings
|
30 | |
|
Section
11.15
|
Legal
Fees, Other Costs and Indemnification
|
30 | |
|
Section
11.16
|
[Reserved].
|
30 | |
|
Section
11.17
|
Entire
Agreement
|
30 | |
|
Section
11.18
|
Construction
|
30 | |
|
Section
11.19
|
Governing
Law
|
30 | |
|
Section
11.20
|
SUBMISSION
TO JURISDICTION; WAIVER OF JURY TRIAL
|
30 | |
|
Section
11.21
|
Confidentiality
|
31 | |
|
Section
11.22
|
Patriot
Act
|
31 | |
ii
CREDIT
AGREEMENT
This
SEASONAL
CREDIT AGREEMENT,
dated as
of October 20, 2006, is by and between PEOPLES ENERGY CORPORATION, an Illinois
corporation (the “Borrower”),
and
ABN AMRO BANK N.V., as lender (in such capacity, the “Lender”).
WITNESSETH
THAT:
WHEREAS,
the
Borrower desires to obtain the commitment of the Lender to make available
a
seasonal revolving credit facility for loans (the “Revolving
Credit”),
as
described herein; and
WHEREAS,
the
Lender is willing to extend such commitments subject to all of the terms
and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth.
NOW,
THEREFORE, in
consideration of the recitals set forth above and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION
1. DEFINITIONS;
INTERPRETATION.
Section
1.1 Definitions.
The
following terms when used herein have the following meanings:
“Affiliate”
means,
as to any Person, any other Person which directly or indirectly controls,
or is
under common control with, or is controlled by, such Person. As used in this
definition, “control”
(including “controlled
by”
and
“under
common control with”
and
other cognates thereof,) means possession, directly or indirectly, of power
to
direct or cause the direction of management or policies of a Person (whether
through ownership of securities or partnership or other ownership interests,
by
contract or otherwise), provided that, in any event for purposes of this
definition: (i) any Person which owns directly or indirectly 5% or more of
the
securities having ordinary voting power for the election of directors or
other
governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner
of such
other Person) will be deemed to control such corporation or other Person;
and
(ii) each director and executive officer of the Borrower or any Subsidiary
shall
be deemed an Affiliate of the Borrower and each Subsidiary.
“Agreement”
means
this Credit Agreement, including all Exhibits and Schedules hereto, as it
may be
amended, supplemented or otherwise modified from time to time in accordance
with
the terms hereof.
“Applicable
Margin”
means,
at any time (i) with respect to Base Rate Loans, the Base Rate Margin; and
(ii)
with respect to LIBOR Loans, the LIBOR Margin.
“Applicable
Telerate Page”
is
defined in Section 2.3(b) hereof.
1
“Assignment
and Assumption”
means an
assignment and assumption entered into by the Lender and an Eligible Assignee
(with the consent of any party whose consent is required by
Section 11.12(b)), in substantially any form approved by the
Lender.
“Authorized
Representative”
means
those persons shown on the list of employees provided by the Borrower pursuant
to Section 6.1(e) hereof, or on any such updated list provided by the Borrower
to the Lender, or any further or different employee of the Borrower so named
by
any officer of the Borrower in a written notice to the Lender.
“Base
Rate”
is
defined in Section 2.3(a) hereof.
“Base
Rate Loan”
means
a
Loan bearing interest prior to maturity at a rate specified in Section 2.3(a)
hereof.
“Base
Rate Margin”
means
the percentage set forth in Schedule 1A hereto corresponding to the then
applicable Credit Rating.
“Borrower”
is
defined in the preamble of this Agreement.
“Borrowing”
means
the total of Loans of a single type advanced, continued for an additional
Interest Period, or converted from a different type into such type by the
Lender
on a single date and for a single Interest Period. A Borrowing is “advanced” on
the day the Lender advances funds comprising such Borrowing to the Borrower,
is
“continued” on the date a new Interest Period for the same type of Loans
commences for such Borrowing, and is “converted” when such Borrowing is changed
from one type of Loan to the other, all as requested by the Borrower pursuant
to
Section 2.5(a).
“Business
Day”
means
any day other than a Saturday or Sunday on which Lender is not authorized
or
required to close in Chicago, Illinois and, if the applicable Business Day
relates to the borrowing or payment of a LIBOR Loan, on which banks are dealing
in U.S. Dollars in the interbank market in London, England.
“Capital”
means,
as of any date of determination thereof, without duplication, the sum of
Consolidated Net Worth plus
Indebtedness, excluding accumulated other comprehensive income/loss, as
determined in accordance with generally accepted accounting principles
consistently applied.
“Capital
Lease”
means
at any date any lease of Property which, in accordance with GAAP, would be
required to be capitalized on the balance sheet of the lessee.
“Capital
Ratio”
means,
for any fiscal quarter of the Borrower, the ratio, rounded downwards to two
decimal points, of the sum of Indebtedness for such fiscal quarter to the
sum of
Capital for such fiscal quarter.
“Capitalized
Lease Obligations”
means,
for any Person, the amount of such Person’s liabilities under Capital Leases
determined at any date in accordance with GAAP.
“Code”
means
the Internal Revenue Code of 1986, as amended.
2
“Commitment
Fee Rate” means
the
percentage set forth on Schedule 1A hereto corresponding to the then applicable
Credit Rating.
“Compliance
Certificate”
means
a
certificate in the form of Exhibit A hereto.
“Consolidated
EBIT”
means,
for any period, for the Borrower and its Consolidated Subsidiaries, (A) the
sum
of the amounts for such period of (i) consolidated net income, (ii) net income
taxes in respect of such period (such amount to be a positive number in cases
where net cash taxes are payable and zero in cases where a cash refund in
respect of taxes paid is due), (iii) consolidated interest expense, and (iv)
losses on sales of assets (excluding sales in the ordinary course of business)
and other extraordinary losses less (B) the amount for such period of (i)
interest income and (ii) gains on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary gains, all as determined
on
a consolidated basis in accordance with GAAP.
“Consolidated Net
Worth”
means,
as of the date of any determination thereof, the amount reflected as
shareholders equity upon a consolidated balance sheet of the Borrower and
its
Subsidiaries.
“Contractual
Obligation”
means,
as to any Person, any provision of any security issued by such Person or
of any
agreement, instrument or undertaking to which such Person is a party or by
which
it or any of its Property is bound.
“Controlled
Group”
means
all members of a controlled group of corporations and all trades and businesses
(whether or not incorporated) under common control that, together with the
Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
“Credit
Documents”
means
this Agreement, the Note and all other documents, instrument and agreements
executed and delivered by Borrower or any Affiliate thereof in connection
with
this Agreement.
“Credit
Event”
means
the Borrowing of any Loan.
“Credit
Rating”
means,
at any time, the long-term senior un-secured non-credit enhanced debt rating
of
the Borrower as determined by Standard & Poors’ Ratings Services and/or
Xxxxx’x Investors Service.
“Default”
means
any event or condition the occurrence of which would, with the passage of
time
or the giving of notice, or both, constitute an Event of Default.
“EBIT”
means,
for any period, for the Borrower or any of its Subsidiaries, (A) the sum
of the
amounts for such period of (i) net income, (ii) net income taxes in respect
of
such period (such amount to be a positive number in cases where net cash
taxes
are payable and zero in cases where a cash refund in respect of taxes paid
is
due), (iii) interest expense, and (iv) losses on sales of assets (excluding
sales in the ordinary course of business) and other extraordinary losses
less
(B) the amount for such period of (i) interest income and (ii) gains on sales
of
assets (excluding sales in the ordinary course of business) and other
extraordinary gains, all as determined in accordance with GAAP.
3
“Effective
Date”
means
October 20, 2006.
“Eligible
Assignee”
means
(a) an Affiliate of the Lender, and (b) any other Person (other than a natural
person) approved by (i) the Lender, and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided
that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.
“ERISA”
is
defined in Section 5.5 hereof.
“Event
of Default”
means
any of the events or circumstances specified in Section 8.1 hereof.
“Existing
Credit Agreement”
means
that certain Credit Agreement dated as of June 13, 2006 by and among Borrower,
Bank of America, N.A. as “Agent” thereunder, and the other financial
institutions a party thereto (as may be amended, supplemented or modified
from
time to time).
“Federal
Funds Rate”
means
the fluctuating interest rate per annum described in part (x) of clause (ii)
of
the definition of Base Rate set forth in Section 2.3(a) hereof.
“GAAP”
means
generally accepted accounting principles as in effect in the United States
from
time to time, applied by the Borrower and its Subsidiaries on a basis consistent
with the preparation of the Borrower’s financial statements furnished to the
Lender as described in Section 5.3 hereof.
“Guarantee”
means,
in respect of any Person, any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Indebtedness of another Person,
including, without limitation, by means of an agreement to purchase or pay
(or
advance or supply funds for the purchase or payment of) such Indebtedness
or to
maintain financial covenants, or to assure the payment of such Indebtedness
by
an agreement to make payments in respect of goods or services regardless
of
whether delivered, or otherwise, provided, that the term “Guarantee” shall not
include endorsements for deposit or collection in the ordinary course of
business; and such term when used as a verb shall have a correlative
meaning.
“Indebtedness”
means,
as to any Person, without duplication: (i) all obligations of such Person
for
borrowed money or evidenced by bonds, debentures, notes or similar instruments;
(ii) all obligations of such Person for the deferred purchase price of property
or services (other than in respect of trade accounts payable arising in the
ordinary course of business, customer deposits, provisions for rate refunds
(if
any), deferred fuel expenses and obligations in respect of pensions and other
post-retirement benefits and employee welfare plans); (iii) all Capitalized
Lease Obligations of such Person; (iv) all Indebtedness of others secured
by a
Lien on any properties, assets or revenues of such Person (other than stock,
partnership interests or other equity interests of the Borrower or any
Subsidiaries in other entities) to the extent of the lesser of the value
of the
property subject to such Lien or the amount of such Indebtedness; (v) all
Indebtedness of others Guaranteed by such Person; and (vi) all obligations
of
such Person, contingent or otherwise, in respect of any letters or credit
(whether commercial or standby) or bankers’ acceptances.
4
“Interest
Period”
is
defined in Section 2.6 hereof.
“Lender”
is
defined in the preamble of this Agreement and includes any successor
thereto.
“Lending
Office”
is
defined in Section 9.4 hereof.
“LIBOR”
is
defined in Section 2.3(b) hereof.
“LIBOR
Loan”
means
a
Loan bearing interest prior to maturity at the rate specified in Section
2.3(b)
hereof.
“LIBOR
Margin”
means
the percentage set forth in Schedule 1A hereto beside the then applicable
Credit
Rating.
“LIBOR
Reserve Percentage”
is
defined in Section 2.3(b) hereof.
“Lien”
means
any interest in Property securing an obligation owed to, or a claim by, a
Person
other than the owner of the Property, whether such interest is based on the
common law, statute or contract, including, but not limited to, the security
interest lien arising from a mortgage, encumbrance, pledge, conditional sale,
security agreement or trust receipt, or a lease, consignment or bailment
for
security purposes. For the purposes of this definition, a Person shall be
deemed
to be the owner of any Property which it has acquired or holds subject to
a
conditional sale agreement, Capital Lease or other arrangement pursuant to
which
title to the Property has been retained by or vested in some other Person
for
security purposes, and such retention of title shall constitute a
“Lien.”
“Loan”
is
defined in Section 2.1 hereof and, as so defined, includes a Base Rate Loan
or
LIBOR Loan, each of which is a “type” of Loan hereunder.
“Material
Adverse Effect”
means
a
material adverse effect on (i) the business, financial position or results
of
operations of the Borrower, (ii) the ability of the Borrower to perform its
obligations under the Credit Documents, (iii) the validity or enforceability
of
the obligations of the Borrower, (iv) the rights and remedies of the Lender
against the Borrower or (v) the timely payment of the principal of and interest
on the Loans or other amounts payable by the Borrower hereunder.
“Non-Recourse
Indebtedness”
means
all Indebtedness of the Borrower that is non-recourse to the
Borrower.
“Note”
is
defined in Section 2.10(a) hereof.
“Obligations”
means
all fees payable hereunder, all obligations of the Borrower to pay principal
or
interest on Loans and all other payment obligations of the Borrower arising
under or in relation to any Credit Document.
5
“Person”
means
an individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization or any other entity or organization,
including a government or any agency or political subdivision
thereof.
“Plan”
means
at any time an employee pension benefit plan covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code that
is
either (i) maintained by a member of the Controlled Group or (ii) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions.
“PBGC”
is
defined in Section 5.5 hereof.
“Property”
means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, whether now owned or hereafter acquired.
“Reference
Bank”
means
ABN AMRO Bank N.V.
“Revolving
Credit Commitment”
is
defined in Section 2.1 hereof.
“SEC”
means
the Securities and Exchange Commission.
“Significant
Subsidiary”
means
a
Subsidiary of the Borrower which meets any of the following
conditions:
(1) the
book
value of the Subsidiary’s assets exceeds twenty percent (20%) of the book value
of the assets of the Borrower and its other Subsidiaries consolidated as of
the
end of the most recently completed fiscal quarter; or
(2) the
Subsidiary’s EBIT exceeds twenty percent (20%) of Consolidated EBIT as of the
end of the most recently completed fiscal quarter and the twelve month period
ending therewith.
“SPC”
is
defined in Section 11.12(g) hereof.
“Subsidiary”
means,
as to the Borrower, any corporation or other entity of which more than fifty
percent (50%) of the outstanding stock or comparable equity interests having
ordinary voting power for the election of the Board of Directors of such
corporation or similar governing body in the case of a non-corporation
(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 by the Borrower or by one or more of its
Subsidiaries.
“Telerate
Service”
means
the Moneyline Telerate.
“Termination
Date”
means
the earlier to occur of (i) March 31, 2007 and (ii) the consummation of the
merger between a subsidiary of WPS Resources Corporation and Borrower as
contemplated by that certain merger application filed with the Illinois Commerce
Commission on or about August 2, 2006.
6
“Unfunded
Vested Liabilities”
means,
with respect to any Plan at any time, the amount (if any) by which (i) the
present value of all vested non-forfeitable accrued benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the Controlled Group to the PBGC or the Plan under
Title IV of ERISA.
“Upfront
Fee”
is
defined in Section 3.1(d).
“U.S.
Dollars”
and
“$”
each
means the lawful currency of the United States of America.
“Utilization
Fee Rate”
means
the percentage set forth in Schedule 1A hereto corresponding to the then
applicable Credit Rating.
“Welfare
Plan”
means
a
“welfare plan”, as defined in Section 3(l) of ERISA.
Section
1.2 Interpretation.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the terms defined. All references to times of day in this
Agreement shall be references to Chicago, Illinois time unless otherwise
specifically provided. Where the character or amount of any asset or liability
or item of income or expense is required to be determined or any consolidation
or other accounting computation is required to be made for the purposes of
this
Agreement, the same shall be done in accordance with GAAP, to the extent
applicable, except where such principles are inconsistent with the specific
provisions of this Agreement.
SECTION
2. THE
REVOLVING CREDIT.
Section
2.1 The
Loan Commitment.
Subject
to the terms and conditions hereof the Lender agrees to make a loan or loans
(individually a “Loan”
and
collectively “Loans”)
to the
Borrower from time to time on a revolving basis in an aggregate outstanding
amount up to the TWENTY FIVE MILLION DOLLARS ($25,000,000)
(such amount, as increased or reduced pursuant to Section 2.12 or changed as
a
result of one or more assignments under Section 11.12, the “Revolving
Credit Commitment”)
before
the Termination Date, provided
that the
sum of the aggregate amount of Loans at any time outstanding shall not exceed
the Revolving Credit Commitment in effect at such time. As provided in Section
2.5(a) hereof, the Borrower may elect that each Borrowing of Loans be either
Base Rate Loans or LIBOR Loans. Loans may be repaid and the principal amount
thereof re-borrowed before the Termination Date, subject to all the terms and
conditions hereof.
Section
2.2 [Reserved].
Section
2.3 Applicable
Interest Rates.
Section
2.4 Base
Rate Loans.
Each
Base
Rate Loan made or maintained by Lender shall bear interest during each Interest
Period it is outstanding (computed (x) at all times the Base Rate is based
on
the rate described in clause (i) of the definition thereof, on the basis of
a
year of 365 or 366 days, as applicable, and actual days elapsed or (y) at all
times the Base Rate is based on the rate described in clause (ii) of the
definition thereof, on the basis of a year of 360 days and actual days elapsed)
on the unpaid principal
7
amount
thereof from the date such Loan is advanced, continued or created by conversion
from a LIBOR Loan until maturity (whether by acceleration or otherwise) at
a
rate per annum equal to the sum of the Applicable Margin plus the Base Rate
from
time to time in effect, payable on the last day of its Interest Period and
at
maturity (whether by acceleration or otherwise).
“Base
Rate”
means
for any day the greater of:
i the
rate
of interest announced by ABN AMRO Bank N.V. from time to time as its “Prime
Commercial Lending Rate,” or equivalent, for U.S. Dollar loans as in effect on
such day, with any change in the Base Rate resulting from a change in said
prime
rate to be effective as of the date of the relevant change in said “Prime
Commercial Lending Rate”; and
ii the
sum
of (x) the rate determined by the Lender to be the prevailing rate per annum
(rounded upwards, if necessary, to the nearest one hundred-thousandth of a
percentage point) at approximately 10:00 a.m. (Chicago time) (or as soon
thereafter as is practicable) on such day (or, if such day is not a Business
Day, on the immediately preceding Business Day) for the purchase at face value
of overnight Federal funds in an amount comparable to the principal amount
owed
to ABN AMRO Bank N.V. for which such rate is being determined, plus (y) one-half
of one percent (0.50%).
(b) LIBOR
Loans.
Each
LIBOR Loan made or maintained by Lender shall bear interest during each Interest
Period it is outstanding (computed on the basis of a year of 360 days and actual
days elapsed) on the unpaid principal amount thereof from the date such Loan
is
advanced, continued, or created by conversion from a Base Rate Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal to
the
sum of the Applicable Margin plus the LIBOR applicable for such Interest Period,
payable on the last day of the Interest Period and at maturity (whether by
acceleration or otherwise).
“LIBOR”
means,
for an Interest Period for a Borrowing of LIBOR Loans, (a) the LIBOR Index
Rate
for such Interest Period, if such rate is available, and (b) if the LIBOR
Index
Rate cannot be determined, the arithmetic average of the rates of interest
per
annum (rounded upwards, if necessary, to the nearest one-sixteenth of one
percent) at which deposits in U.S. Dollars in immediately available funds
are
offered to the Reference Bank at 11:00 a.m. (London, England time) two (2)
Business Days before the beginning of such Interest Period by major banks
in the
interbank LIBOR market for delivery on the first day of and for a Period
equal
to such Interest Period in an amount equal or comparable to the principal
amount
of the LIBOR Loan scheduled to be made by the Reference Bank as part of such
Borrowing.
“LIBOR
Index Rate”
means,
for any Interest Period, the rate per annum (rounded upwards, if necessary,
to
the next higher one-sixteenth of one percent) for deposits in U.S. Dollars,
for
delivery on the first day of and for a period equal to such Interest Period
in
an amount equal or comparable to the principal amount of the LIBOR Loan
scheduled to be made by ABN AMRO Bank N.V. as part of such Borrowing, which
appears on the Applicable Telerate Page, as appropriate for such currency,
as of
11:00 a.m. (London, England time) on the day two (2) Business Days before
the
commencement of such Interest Period.
8
“Applicable
Telerate Page”
means
the display page designated as “Page
3750”
on
the
Telerate Service (or such other page as may replace such page, as appropriate,
on that service or such other service as may be nominated by the British
Bankers’ Association as the information vendor for the purpose of displaying
British Bankers’ Association Interest Settlement Rates for deposits in U.S.
Dollars).
“LIBOR
Reserve Percentage”
means
for any Borrowing of LIBOR Loans from Lender, the daily average for the
applicable Interest Period of the actual effective rate, expressed as a decimal,
at which reserves (including, without limitation, any supplemental, marginal
and
emergency reserves) are maintained by Lender during such Interest Period
pursuant to Regulation D of the Board of Governors of the Federal Reserve
System
(or any successor) on “LIBOR
liabilities”,
as
defined in such Board’s Regulation D (or in respect of any other category of
liabilities that includes deposits by reference to which the interest rate
on
LIBOR Loans is determined or any category of extensions of credit or other
assets that include loans by non-United States offices of Lender to United
States residents), subject to any amendments of such reserve requirement
by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the LIBOR Loans shall be deemed
to be
“LIBOR
liabilities”
as
defined in Regulation D without benefit or credit for any prorations, exemptions
or offsets under Regulation D.
(c) Rate
Determinations.
The
Lender shall determine each interest rate applicable to Obligations and the
amount of all Obligations, and a determination thereof by the Lender shall
be
conclusive and binding except in the case of manifest error.
Section
2.5 Minimum
Borrowing Amounts.
Each
Borrowing of Base Rate Loans shall be in an amount not less than $1,000,000
and
in integral multiples of $500,000. Each Borrowing of LIBOR Loans shall be in
an
amount not less than $2,000,000 and in integral multiples of
$1,000,000.
Section
2.6 Manner
of Borrowing Loans and Designating Interest Rates Applicable to
Loans.
Section
2.7 Notice
to the Lender.
The
Borrower shall give notice to the Lender by no later than 10:00 a.m. (Chicago
time) (i) at least two (2) Business Days before the date on which the Borrower
requests the Lender to advance a Borrowing of LIBOR Loans and (ii) at least
one
(1) Business Day before the date on which the Borrower requests the Lender
to
advance a Borrowing of Base Rate Loans. The Loans included in each Borrowing
shall bear interest initially at the type of rate specified in such notice
of a
new Borrowing. Thereafter, the Borrower may from time to time elect to change
or
continue the type of interest rate borne by each Borrowing or, subject to
Section 2.4’s minimum amount requirement for each outstanding Borrowing, a
portion thereof, as follows: (i) if such Borrowing is of LIBOR Loans, on the
last day of the Interest Period applicable thereto, the Borrower may continue
part or all of such Borrowing as LIBOR Loans for an Interest Period or Interest
Periods specified by the Borrower or convert part or all of such Borrowing
into
Base Rate Loans, (ii) if such Borrowing is of Base Rate Loans, on any Business
Day, the Borrower may convert all or part of such Borrowing into LIBOR Loans
for
an Interest Period or Interest Periods specified by the Borrower. The Borrower
shall give all such notices requesting the advance, continuation, or conversion
of a Borrowing to the Lender by telephone or
9
facsimile
(which notice shall be irrevocable once given and, if by telephone, shall be
promptly confirmed in writing). Notices of the continuation of a Borrowing
of
LIBOR Loans for an additional Interest Period or of the conversion of part
or
all of a Borrowing of LIBOR Loans into Base Rate Loans or of Base Rate Loans
into LIBOR Loans must be given by no later than 10:00 a.m. (Chicago time) at
least three (3) Business Days before the date of the requested continuation
or
conversion. All such notices concerning the advance, continuation, or conversion
of a Borrowing shall specify the date of the requested advance, continuation
or
conversion of a Borrowing (which shall be a Business Day), the amount of the
requested Borrowing to be advanced, continued, or converted, the type of Loans
to comprise such new, continued or converted Borrowing and, if such Borrowing
is
to be comprised of LIBOR Loans, the Interest Period applicable thereto. The
Borrower agrees that the Lender may rely on any such telephonic or facsimile
notice given by any person it in good faith believes is an Authorized
Representative without the necessity of independent investigation, and in the
event any such notice by telephone conflicts with any written confirmation,
such
telephonic notice shall govern if the Lender has acted in reliance thereon.
There may be no more than five different Interest Periods in effect at any
one
time, provided that for purposes of determining the number of Interest Periods
in effect at any one time, all Base Rate Loans shall be deemed to have one
and
the same Interest Period.
(a) [Reserved]
.
(b) Borrower’s
Failure to Notify.
Any outstanding Borrowing of Base Rate Loans shall, subject to Section 6.2
hereof, automatically be continued for an additional Interest Period on the
last
day of its then current Interest Period as a Base Rate Loan unless the Borrower
has notified the Lender within the period required by Section 2.5(a) that it
intends to convert such Borrowing into a Borrowing of LIBOR Loans or notifies
the Lender within the period required by Section 2.8(a) that it intends to
prepay such Borrowing. If the Borrower fails to give notice pursuant to Section
2.5(a) above of the continuation or conversion of any outstanding principal
amount of a Borrowing of LIBOR Loans before the last day of its then current
Interest Period within the period required by Section 2.5(a) and has not
notified the Lender within the period required by Section 2.8(a) that it intends
to prepay such Borrowing, such Borrowing shall automatically be converted into
a
Borrowing of Base Rate Loans, subject to Section 6.2 hereof.
Section
2.8 Interest
Periods. As
provided in Section 2.5(a) hereof, at the time of each request to advance,
continue, or create by conversion a Borrowing of LIBOR Loans, the Borrower
shall
select an Interest Period applicable to such Loans from among the available
options. The term “Interest
Period”
means
the period commencing on the date a Borrowing of Loans is advanced, continued,
or created by conversion and ending: (a) in the case of Base Rate Loans, on
the
last Business Day of the calendar quarter in which such Borrowing is advanced,
continued, or created by conversion (or on the last day of the following
calendar quarter if such Loan is advanced, continued or created by conversion
on
the last Business Day of a calendar quarter), and (b) in the case of LIBOR
Loans, 1, 2 or 3 months thereafter; provided,
however,
that:
(a) any
Interest Period for a Borrowing of Base Rate Loans that otherwise would end
after the Termination Date shall end on the Termination Date;
10
(b) for
any
Borrowing of LIBOR Loans, the Borrower may not select an Interest Period that
extends beyond the Termination Date;
(c) whenever
the last day of any Interest Period would otherwise be a day that is not a
Business Day, the last day of such Interest Period shall be extended to the
next
succeeding Business Day, provided that, if such extension would cause the last
day of an Interest Period for a Borrowing of LIBOR Loans to occur in the
following calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and
(d) for
purposes of determining an Interest Period for a Borrowing of LIBOR Loans,
a
month means a period starting on one day in a calendar month and ending on
the
numerically corresponding day in the next calendar month; provided,
however,
that if
there is no numerically corresponding day in the month in which such an Interest
Period is to end or if such an Interest Period begins on the last Business
Day
of a calendar month, then such Interest Period shall end on the last Business
Day of the calendar month in which such Interest Period is to end.
Section
2.9 Maturity
of Loans. Unless
an
earlier maturity is provided for hereunder (whether by acceleration or
otherwise), each Loan shall mature and become due and payable by the Borrower
on
the Termination Date.
Section
2.10 Prepayments.
Section
2.11 The
Borrower may prepay without premium or penalty and in whole or in part (but,
if
in part, then: (i) if such Borrowing is of Base Rate Loans, in an amount not
less than $1,000,000 and integral multiples of $500,000 in excess thereof,
(ii)
if such Borrowing is of LIBOR Loans, in an amount not less than $2,000,000
and
integral multiples of $1,000,000 in excess thereof and (iii) in an amount such
that the minimum amount required for a Borrowing pursuant to Section 2.4 hereof
remains outstanding) any Borrowing of LIBOR Loans upon three Business Days’
prior notice to the Lender or, in the case of a Borrowing of Base Rate Loans,
notice delivered to the Lender no later than 10:00 a.m. (Chicago time) on the
date of prepayment, such prepayment to be made by the payment of the principal
amount to be prepaid and accrued interest thereon to the date fixed for
prepayment. In the case of LIBOR Loans, any amounts owing under Section 2.11
hereof as a result of such prepayment shall be paid contemporaneously with
such
prepayment. Any amount paid or prepaid before the Termination Date may, subject
to the terms and conditions of this Agreement, be borrowed, repaid and borrowed
again.
(a) At
any
time that the Borrower becomes aware, or should have become aware (pursuant
to
Borrower’s ordinary business practices) that the aggregate amount of outstanding
Loans shall at any time for any reason exceed the Revolving Credit Commitment
then in effect, the Borrower shall, immediately notify the Lender of this
determination. Within two (2) Business Days of the delivery of the notice
described in the preceding sentence, the Borrower shall, without further notice
or demand, pay the amount of such excess to the Lender as a prepayment of the
Loans. Each such prepayment shall be accompanied by a payment of all accrued
and
unpaid interest on the Loans prepaid and shall be subject to Section
2.11.
Section
2.12 Default
Rate. If
any
payment of principal on any Loan or other Obligation is not made when due
(whether by acceleration or otherwise), such Loan shall bear interest (computed
on the basis of a year of 360 days and actual days elapsed or, if based on
the
rate described in clause (i) of the definition of Base Rate, on the basis of
a
year of 365 or 366 days, as applicable, and the actual number of days elapsed)
from the date such payment was due until paid in full, payable on demand, at
a
rate per annum equal to:
11
(a) for
any
Base Rate Loan or Obligation other than a LIBOR Loan, the sum of two percent
(2%) plus the Applicable Margin plus the Base Rate from time to time in effect;
and
(b) for
any
LIBOR Loan, the sum of two percent (2%) plus the rate of interest in effect
thereon at the time of such default until the end of the Interest Period
applicable thereto and, thereafter, at a rate per annum equal to the sum of
two
percent (2%) plus the Applicable Margin plus the Base Rate from time to time
in
effect.
Section
2.13 Evidence
of Debt. (a)
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to Lender resulting from
each Loan owing to Lender from time to time, including the amounts of principal
and interest payable and paid to Lender from time to time hereunder in respect
of Loans. The Borrower agrees that upon notice by Lender to the Borrower to
the
effect that a Note is required or appropriate in order for Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Loans owing
to,
or to be made by, Lender under the Credit Documents, the Borrower shall promptly
execute and deliver to Lender a promissory note in the form of Exhibit A hereto
(such promissory note is hereinafter referred to as the “Note”).
Section
2.14 Funding
Indemnity. If
Lender
shall incur any loss, cost or expense (including, without limitation, any loss,
cost or expense (excluding loss of margin) incurred by reason of the liquidation
or re-employment of deposits or other funds acquired by Lender to fund or
maintain any LIBOR Loan or the relending or reinvesting of such deposits or
amounts paid or prepaid to Lender) as a result of:
(a) any
payment (whether by acceleration or otherwise), prepayment or conversion of
a
LIBOR Loan on a date other than the last day of its Interest
Period,
(b) any
failure (because of a failure to meet the conditions of Section 6 or otherwise)
by the Borrower to borrow or continue a LIBOR Loan, or to convert a Base Rate
Loan into a LIBOR Loan, on the date specified in a notice given pursuant to
Section 2.5(a) or established pursuant to Section 2.5(c) hereof,
(c) any
failure by the Borrower to make any payment of principal on any LIBOR Loan
when
due (whether by acceleration or otherwise), or
(d) any
acceleration of the maturity of a LIBOR Loan as a result of the occurrence
of
any Event of Default hereunder,
then,
upon the demand of Lender, the Borrower shall pay to Lender such amount as
will
reimburse Lender for such loss, cost or expense. If Lender makes such a claim
for compensation, it shall provide to the Borrower a certificate executed by
an
officer of Lender setting forth the amount of such loss, cost or expense in
reasonable detail (including an explanation of the basis for and the computation
of such loss, cost or expense) and the amounts shown on such certificate if
reasonably calculated shall be conclusive absent manifest error.
12
Section
2.15 Revolving
Credit Commitment Terminations. The
Borrower shall have the right at any time and from time to time, upon five
(5)
Business Days’ prior written notice to the Lender, to terminate the Revolving
Credit Commitment without premium or penalty, in whole or in part, any partial
termination to be in an amount not less than $2,000,000 and integral multiples
of $1,000,000 in excess thereof, provided
that the
Revolving Credit Commitment may not be reduced to an amount less than the sum
of
the amount of all Loans then outstanding. Any termination of Revolving Credit
Commitment pursuant to this Section 2.12 may not be reinstated.
Section
2.16 Regulation
D Compensation. The
Lender may require the Borrower to pay, contemporaneously with each payment
of
interest on the LIBOR Loans, additional interest on the related LIBOR Loans
of
Lender at a rate per annum equal to the excess of (i)(A) the applicable LIBOR
rate (or other base rate determined pursuant to Section 2.9(b)) divided by
(B)
one minus the LIBOR Reserve Percentage over (ii) the rate specified in clause
(i)(A). Any computation by Lender of such additional interest shall be
conclusive absent manifest error. If the Lender requires payment of such
additional interest (x) it shall notify the Borrower that it is subject to
LIBOR
reserves under Regulation D of the Board of Governors of the Federal Reserve
System (or any successor regulation), in which case such additional interest
on
the LIBOR Loans of Lender shall be payable to Lender at the place indicated
in
such notice with respect to each Interest Period commencing at least five (5)
Business Days after the giving of such notice and (y) shall notify the Borrower
at least five (5) Business Days prior to each date on which interest is payable
on the LIBOR Loans of the amount then due under this Section.
Section
2.17 Arbitrage
Compensation. If
at the
time of the making of any Loan hereunder, the interest rate payable hereunder
in
respect of such Loan is less than the rate (as determined by the Lender in
consultation with the Borrower) at which funds of comparable term and amount
are
generally available to the Borrower in the commercial paper market (the
“CP
Rate”)
(an
“Arbitrage
Condition”),
the
Borrower agrees to pay to the Lender arbitrage compensation on such Loan at
a
rate equal to the difference between the effective interest rate payable
hereunder (inclusive of all fees) in respect of such Loan and the CP Rate as
applied to such Loan. Such payments shall continue, at the time and in the
manner set forth for payments of interest on such Loan, for as long as the
Arbitrage Condition continues. Upon the termination of the Arbitrage Condition
for any reason (as determined by the Lender in consultation with the Borrower),
such payments shall no longer be due with respect to such Loan, even if a future
Arbitrage Condition were to occur prior to repayment in full of such
Loan.
SECTION
3. FEES.
Section
3.1 Fees.
(a) Commitment
Fee.
For the
period from the Effective Date to and including the Termination Date, Borrower
shall pay to the Lender a commitment fee accruing at a rate per annum equal
to
the Commitment Fee Rate on the average daily amount of the unused Revolving
Credit Commitment. Such commitment fee is payable in arrears on December 31,
2006, on the last Business Day of each calendar quarter thereafter and on the
Termination Date, unless the Revolving Credit Commitment are terminated in
whole
on an earlier date, in which event the fee for the period to but not including
the date of such termination shall be paid in whole on the date of such
termination.
13
(b) [Reserved].
(c) Utilization
Fee.
From
and after the Effective Date, for any day on which the aggregate principal
amount of Loans then outstanding exceeds fifty percent (50%) of the Revolving
Credit Commitment then in effect, Borrower shall pay to the Lender a utilization
fee accruing at a rate per annum equal to the Utilization Fee Rate on the
aggregate amount of Loans outstanding on such date. Such fee is payable in
arrears on the last Business Day of each calendar quarter and on the Termination
Date, and if the Revolving Credit Commitment is terminated in whole prior to
the
Termination Date, the fee for the period to but not including the date of such
termination shall be paid in whole on the date of such termination.
(d) Upfront
Fee.
The
Borrower shall pay to the Lender a fee (the “Upfront
Fee”)
in an
amount equal to $6,250 representing two and one half basis points (0.025%)
of
the Revolving Credit Commitment. The Upfront Fee shall be non-refundable and
shall be fully earned, due and payable in full on the Effective
Date.
(e) [Reserved].
(f) [Reserved].
(g) Fee
Calculations.
All
fees payable under this Agreement shall be payable in U.S. Dollars and shall
be
computed on the basis of a year of 360 days, for the actual number of days
elapsed. All determinations of the amount of fees owing hereunder (and the
components thereof) shall be made by the Lender and shall be conclusive absent
manifest error..
SECTION
4. PLACE
AND
APPLICATION OF PAYMENTS.
Section
4.1 Place
and Application of Payments. All
payments of principal of and interest on the Loans, and of all other Obligations
and other amounts payable by the Borrower under the Credit Documents, shall
be
made by the Borrower to the Lender by no later than 12:30 p.m. (Chicago time)
on
the due date thereof at the principal office of the Lender in New York, New
York, pursuant to the payment instructions set forth on Part A of Schedule
1
hereof (or such other location in the United States as the Lender may designate
to the Borrower). Any payments received after such time shall be deemed to
have
been received by the Lender on the next Business Day. All such payments shall
be
made free and clear of, and without deduction for, any set-off, counterclaim,
levy, or any other deduction of any kind in U.S. Dollars, in immediately
available funds at the place of payment.
SECTION
5. REPRESENTATIONS
AND WARRANTIES.
The
Borrower hereby represents and warrants to the Lender as to itself and, where
the following representations and warranties apply to Subsidiaries, as to each
of its Subsidiaries, as follows:
14
Section
5.1 Corporate
Organization and Authority. The
Borrower is duly organized and existing in good standing under the laws of
the
State of Illinois; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and, in good standing in each
jurisdiction in which the failure to be so licensed, qualified or in good
standing would have a Material Adverse Effect.
Section
5.2 Corporate
Authority and Validity of Obligations. The
Borrower has full right and authority to enter into this Agreement and the
other
Credit Documents to which it is a party, to make the borrowings herein provided
for, to issue its Notes in evidence thereof, and to perform all of its
obligations under the Credit Documents to which it is a party. Each Credit
Document to which it is a party has been duly authorized, executed and delivered
by the Borrower and constitutes valid and binding obligations of the Borrower
enforceable in accordance with its terms, except as such enforceability may
be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors’ rights generally and by equitable
principles of general applicability (regardless of whether such enforceability
is considered in a proceeding in equity or at law). No Credit Document, nor
the
performance or observance by the Borrower of any of the matters or things
therein provided for, contravenes any provision of law or any charter or by-law
provision of the Borrower or any material Contractual Obligation of or affecting
the Borrower or any of its Properties or results in or requires the creation
or
imposition of any Lien on any of the Properties or revenues of the
Borrower.
Section
5.3 Financial
Statements. All
financial statements heretofore delivered to the Lender showing historical
performance of the Borrower for each of the Borrower’s fiscal quarters and/or
years ending on or before June 30, 2006, have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent, except
as otherwise noted therein, with that of the previous fiscal year. Each of
such
financial statements fairly presents on a consolidated basis the financial
condition of the Borrower and its Subsidiaries as of the dates thereof and
the
results of operations for the periods covered thereby. The Borrower and its
Subsidiaries have no material contingent liabilities other than those disclosed
in the financial statements or in comments or footnotes thereto, or in any
report supplementary thereto, most recently furnished to the Lender as of the
time such representation and warranty is made, including reports of the Borrower
filed with the SEC from time to time. Since June 30, 2006 through the Effective
Date, there has been no event or series of events which has resulted in a
Material Adverse Effect.
Section
5.4 Approvals.
No
authorization, approval, consent, license, exemption, filing or registration
with any court or governmental department, agency or instrumentality, nor any
approval or consent of the stockholders of the Borrower or any Subsidiary or
from any other Person, is necessary to the valid execution, delivery or
performance by the Borrower or any Subsidiary of any Credit Document to which
it
is a party.
Section
5.5 ERISA.
With
respect to each Plan, the Borrower and each other member of the Controlled
Group
has fulfilled its obligations under the minimum funding standards of and is
in
compliance in all material respects with the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”),
and
with the Code to the extent applicable to it and has not incurred any liability
to the Pension Benefit Guaranty Corporation (“PBGC”)
or a
Plan under Title IV of ERISA other than a liability to the PBGC for premiums
under Section 4007 of ERISA. Neither the Borrower nor any Subsidiary has any
contingent liabilities for any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title
I of
ERISA.
15
Section
5.6 Government
Regulation. Neither
the Borrower nor any Subsidiary is an “investment
company”
within
the meaning of the Investment Company Act of 1940, as amended.
Section
5.7 Margin
Stock; Proceeds. Neither
the Borrower nor any Subsidiary is engaged principally, or as one of its primary
activities, in the business of extending credit for the purpose of purchasing
or
carrying margin stock (“margin
stock”
to
have
the same meaning herein as in Regulation U of the Board of Governors of the
Federal Reserve System). The Borrower will not use the proceeds of any Loan
in a
manner that violates any provision of Regulation U or X of the Board of
Governors of the Federal Reserve System. The Borrower is not subject to
regulation under the Investment Company Act of 1940. In addition, the Borrower
is not an “investment company” registered or required to be registered under the
Investment Company Act of 1940. Proceeds of the Loans will only be used to
backstop commercial paper issued by the Borrower and for general corporate
purposes.
Section
5.8 Full
Disclosure. All
information heretofore furnished by the Borrower to the Lender for purposes
of
or in connection with the Credit Documents or any transaction contemplated
thereby is, and all such information hereafter furnished by the Borrower to
the
Lender will be, to the best of the Borrower’s knowledge, after due inquiry, true
and accurate in all material respects and not misleading on the date as of
which
such information is stated or certified.
SECTION
6. CONDITIONS
PRECEDENT.
The
obligation of Lender to advance any Loan shall be subject to the following
conditions precedent:
Section
6.1 Initial
Credit Event. Before
or
concurrently with the Effective Date:
(a) The
Lender shall have received the favorable written opinion of counsel to the
Borrower in form and substance reasonably acceptable to the Lender;
(b) The
Lender shall have received copies of (i) the Articles of Incorporation, together
with all amendments and (ii) the Borrower’s bylaws (or comparable constituent
documents) and any amendments thereto, certified in each instance by its
Secretary or an Assistant Secretary;
(c) The
Lender shall have received copies of resolutions of the Borrower’s Board of
Directors authorizing the execution and delivery of the Credit Documents and
the
consummation of the transactions contemplated thereby together with specimen
signatures of the persons authorized to execute such documents on the Borrower’s
behalf, all certified in each instance by its Secretary or an Assistant
Secretary;
16
(d) The
Lender shall have received, if requested, an executed Note of the Borrower
dated
the date hereof and otherwise in compliance with the provisions of Section
2.10(a) hereof;
(e) The
Lender shall have received a duly executed original of (i) this Agreement,
(ii)
a list of the Borrower’s Authorized Representatives and (iii) such other
documents as the Lender may reasonably request;
(f) The
Lender shall have received a certificate by the chief financial officer of
the
Borrower, stating that on the Effective Date no Default or Event of Default
has
occurred and is continuing, and that all representations and warranties set
forth herein are true and correct as of such date;
(g) The
Lender shall have received evidence that Borrower is validly existing and in
good standing under the laws of the jurisdiction of incorporation;
(h) The
Lender shall have received payment of the Upfront Fee; and
(i) The
Lender shall have received a duly executed Compliance Certificate containing
information as of June 30, 2006.
Section
6.2 All
Credit Events. As
of the
time of each Credit Event hereunder:
(a) The
Lender shall have received the notice required by Section 2.5
hereof;
(b) Each
of
the representations and warranties set forth in Section 5 hereof (except the
last sentence of Section 5.3) shall be and remain true and correct in all
material respects as of said time, taking into account any amendments to such
Section (including without limitation any amendments, modifications and updates
to the Schedules referenced therein) made after the date of this Agreement
in
accordance with its provisions, except that if any such representation or
warranty relates solely to an earlier date it need only remain true as of such
date; and
(c) The
Borrower shall be in full compliance with all of the terms and conditions
hereof, and no Default or Event of Default shall have occurred and be continuing
or would occur as a result of such Credit Event.
Each
request for a Borrowing consisting of an advance of a Loan hereunder shall
be
deemed to be a representation and warranty by the Borrower on the date of such
Credit Event as to the facts specified in paragraphs (b) and (c) of this Section
6.2.
SECTION
7. COVENANTS.
The
Borrower covenants and agrees that, so long as any Loan is outstanding
hereunder, or any Revolving Credit Commitment is available to or in use by
the
Borrower hereunder, except to the extent compliance in any case is waived in
writing by the Lender:
Section
7.1 Corporate
Existence. Borrower
shall preserve and maintain its corporate existence.
17
Section
7.2 ERISA.
The
Borrower will, and will cause each of its Subsidiaries to, promptly pay and
discharge all obligations and liabilities arising under ERISA of a character
which if unpaid or unperformed might result in the imposition of a Lien against
any of its properties or assets and will promptly notify the Lender of (i)
the
occurrence of any reportable event (as defined in ERISA) affecting a Plan,
other
than any such event of which the PBGC has waived notice by regulation, (ii)
receipt of any notice from PBGC of its intention to seek termination of any
Plan
or appointment of a trustee therefor, (iii) its or any of its Subsidiaries’
intention to terminate or withdraw from any Plan, and (iv) the occurrence of
any
event affecting any Plan which could result in the incurrence by the Borrower
or
any of its Subsidiaries of any material liability, fine or penalty, or any
material increase in the contingent liability of the Borrower or any of its
Subsidiaries under any post-retirement Welfare Plan benefit.
Section
7.3 Financial
Reports and Other Information. (a)
The
Borrower will maintain a system of accounting in accordance with GAAP and will
furnish to the Lender and its duly authorized representatives such information
respecting the business and financial condition of the Borrower as Lender may
reasonably request; and without any request, the Borrower will furnish each
of
the following to the Lender:
i within
one hundred twenty (120) days after the end of its fiscal year ending September
30, 2006, a copy of the Borrower’s financial statements for such fiscal year,
including the consolidated balance sheet of the Borrower for such year and
the
related statement of income and statement of cash flow, as certified by
independent public accountants of recognized national standing selected by
the
Borrower in accordance with GAAP with such accountants’ opinion to the effect
that the financial statements have been prepared in accordance with GAAP and
present fairly in all material respects in accordance with GAAP the consolidated
financial position of the Borrower and its Subsidiaries as of the close of
such
fiscal year and the results of their operations and cash flows for the fiscal
year then ended and that an examination of such accounts in connection with
such
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, such examination included such tests of
the
accounting records and such other auditing procedures as were considered
necessary in the circumstances;
ii within
sixty (60) days after the end of each of the quarterly fiscal periods of the
Borrower during the term hereof, a consolidated un-audited balance sheet of
the
Borrower, and the related statement of income and statement of cash flow, as
of
the close of such period, all of the foregoing prepared by the Borrower in
reasonable detail in accordance with GAAP and certified by the Borrower’s chief
financial officer as fairly presenting the financial condition as at the dates
thereof and the results of operations for the periods covered thereby;
and
iii within
five (5) days after Borrower files a Form 8-K with the SEC, a copy of said
form
8-K.
(b) Each
financial statement furnished to the Lender pursuant to subsection (i) or (ii)
of this Section 7.3 shall be accompanied by (A) a written certificate signed
by
the Borrower’s chief financial officer to the effect that no Default or Event of
Default has occurred during the period covered by such statements or, if any
such Default or Event of Default has occurred during such period, setting forth
a description of such Default or Event of Default and specifying the action,
if
any, taken by the Borrower to remedy the same, and (B) a Compliance Certificate
in the form of Exhibit B hereto showing the Borrower’s compliance with the
covenants set forth in Sections 7.5 and 7.8 hereof.
18
(c) The
Borrower will promptly (and in any event within five Business Days after an
officer of the Borrower has knowledge thereof) give notice to the Lender of
the
occurrence of any Default or Event of Default.
Section
7.4 Regulation
U; Proceeds. The
Borrower will not use any part of the proceeds of any of the Borrowings,
directly or indirectly to purchase or carry any margin stock (as defined in
Section 5.7 hereof) or to extend credit to others for the purpose of purchasing
or carrying any such margin stock. The Borrower will only use proceeds of the
Loans to backstop commercial paper issued by the Borrower and for general
corporate purposes.
Section
7.5 Sales
of Assets. The
Borrower will not during the term of this Agreement sell, lease or otherwise
dispose of more that (i) thirty-five percent (35%) of the consolidated fixed
assets of the Borrower or (ii) fifteen percent (15%) of the consolidated
"regulated assets" of the Borrower. For purposes of this Section 7.5(a) the
amount of consolidated fixed assets shall be determined using the net book
value
of such assets at the time of such sale, lease or disposition.
(b) The
Borrower will not sell, transfer or otherwise dispose of, or permit any
Subsidiary to issue, sell, transfer or otherwise dispose of, more than twenty
percent (20%) of any of its public utility Subsidiaries’ shares of stock of any
class (including as “stock” for purposes of this Section, any warrants, rights
or options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into stock).
Section
7.6 Capital
Ratio. The
Borrower will not at any time permit the Capital Ratio to exceed 0.65 to
1.00.
Section
7.7 Compliance
with Laws. Without
limiting any of the other covenants of the Borrower in this Section 7, the
Borrower will conduct its business, and otherwise be, in compliance with all
applicable laws, regulations, ordinances and orders of any governmental or
judicial authorities; provided,
however,
that
the Borrower shall not be required to comply with any such law, regulation,
ordinance or order if the failure to comply therewith could not reasonably
be
expected to have a Material Adverse Effect.
Section
7.8 Mergers
and Consolidations. The
Borrower will not, and will not permit any public utility Subsidiary, to
consolidate with or be a party to merger with any other Person; provided,
however,
that
the Borrower or any public utility Subsidiary of the Borrower may, upon prior
notice to the Lender, enter into one or more mergers or acquisitions with any
other Person so long as (a) in the case of the Borrower, the Borrower is the
surviving entity and (b) in the case of a public utility Subsidiary of the
Borrower, the Borrower will at all times continue to own at least 80% of the
equity securities of such public utility Subsidiary. The Lender acknowledges
that Borrower has entered into an agreement and plan of merger with a subsidiary
of WPS Resources Corporation.
19
SECTION
8. EVENTS
OF
DEFAULT AND REMEDIES.
Section
8.1 Events
of Default. Any
one
or more of the following shall constitute an Event of Default:
(a) non-payment
by Borrower (i) when due of the principal of any Loan or (ii) in the payment
of
fees, interest or of any other Obligation within five (5) days of the due
date;
(b) default
by the Borrower in the observance or performance of any covenant set forth
in
Section 7.1 with regard to the Borrower or (ii) Section 7.3(c), Section 7.4
through 7.6 hereof;
(c) any
default by the Borrower in the observance or performance of any provision
hereof, or of any other Credit Document not mentioned in (a) or (b) above,
which
is not remedied within thirty (30) days after notice thereof shall have been
given to the Borrower by the Lender, provided
that,
with respect only to Section 7.7, if Borrower (or its Subsidiary, as applicable)
has made good faith efforts to cure such default, then the Borrower shall be
afforded an additional period of time to cure such default, such additional
cure
period not to exceed thirty (30) days;
(d) failure
to pay when due Indebtedness in an aggregate principal amount of $15,000,000
or
more of the Borrower, or (ii) default shall occur under one or more indentures,
agreements or other instruments under which any Indebtedness of the Borrower
in
an aggregate principal amount of $15,000,000 or more and such default shall
continue for a period of time sufficient to permit the holder or beneficiary
of
such Indebtedness (including, without limitation the Lender with respect to
loans, credit facilities and other extensions of credit other than pursuant
to
this Agreement) or a trustee therefor to cause the acceleration of the maturity
of any such Indebtedness or any mandatory unscheduled prepayment, purchase
or
funding;
(e) representation
or warranty made herein or in any other Credit Document by the Borrower, or
in
any statement or certificate furnished pursuant hereto or pursuant to any other
Credit Document by the Borrower, or in connection with any Credit Document,
proves untrue in any material respect as of the date of the issuance or making,
or deemed making or issuance, thereof;
(f) Borrower
shall (i) have entered involuntarily against it an order for relief under the
United States Bankruptcy Code, as amended, or any analogous action is taken
under any other applicable law relating to bankruptcy or insolvency and such
action continues un-discharged or is not dismissed or stayed for a period of
sixty (60) days, (ii) fail to pay its debts generally as they become due and
such failure to pay would constitute an Event of Default under Section 8.1(d)
or
admit in writing its inability to pay its debts generally as they become due,
(iii) make an assignment for the benefit of creditors, (iv) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of
its
Property, (v) institute any proceeding seeking to have entered
20
against
it an order for relief under the United States Bankruptcy Code, as amended,
to
adjudicate it insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (vi) take any corporate
action (such as the passage by its board of directors of a resolution) in
furtherance of any matter described in parts (i)-(v) above, or (vii) fail to
contest in good faith any appointment or proceeding described in Section 8.1(g)
hereof;
(g) Custodian,
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Borrower or any of its Significant Subsidiaries, or any substantial
part
of any of their Property, or a proceeding described in Section 8.1(f)(v) shall
be instituted against the Borrower, and such appointment continues un-discharged
or such proceeding continues un-dismissed or un-stayed for a period of sixty
(60) days;
(h) the
Borrower shall fail within thirty (30) days to pay, bond or otherwise discharge
any judgment or order for the payment of money in excess of $15,000,000 which
is
not stayed on appeal or otherwise being appropriately contested in good faith
in
a manner that stays execution thereon;
(i) the
Borrower or any other member of the Controlled Group shall fail to pay when
due
an amount or amounts which it shall have become liable, to pay to the PBGC
or to
a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or
Plans
having aggregate Unfunded Vested Liabilities in excess of $5,000,000
(collectively, a “Material
Plan”)
shall
be filed under Title IV of ERISA by the Borrower or any other member of the
Controlled Group, any plan administrator or any combination of the foregoing;
or
the PBGC shall institute proceedings under Title IV of ERISA to terminate or
to
cause a trustee to be appointed to administer any Material Plan or a proceeding
shall be instituted by a fiduciary of any Material Plan against the Borrower
or
any other member of the Controlled Group to enforce Section 515 or 4219(c)(5)
of
ERISA and such proceeding shall not have been dismissed within thirty (30)
days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or
(j) any
Event
of Default under the Existing Credit Agreement, it being the express intent
of
the parties hereto that this Agreement shall benefit from the covenants and
agreements contained in the Existing Credit Agreement.
Section
8.2 Non-Bankruptcy
Defaults. When
any
Event of Default other than those described in subsections (f) or (g) of Section
8.1 hereof has occurred and is continuing, the Lender may: (a) terminate the
remaining Revolving Credit Commitment and all other obligations of the Lender
hereunder (other than the obligations of the Lender under section 11.21 hereof)
on the date stated in such notice (which may be the date thereof); and (b)
declare the principal of and the accrued interest on the outstanding Note to
be
forthwith due and payable and thereupon the Note, including both principal
and
interest thereon, and all other Obligations, shall be and become immediately
due
and payable together with all other amounts payable under the Credit Documents
without further demand, presentment, protest or notice of any kind.
21
Section
8.3 Bankruptcy
Defaults. When
any
Event of Default described in subsections (f) or (g) of Section 8.1 hereof
has
occurred and is continuing, then the Note shall immediately become due and
payable together with all other amounts payable under the Credit Documents
without presentment, demand, protest or notice of any kind and the obligation
of
the Lender to extend further credit pursuant to any of the terms hereof shall
immediately terminate.
Section
8.4 Expenses.
The
Borrower agrees to pay to the Lender and any other holder of the Note, all
costs
and expenses incurred or paid by the Lender or any such holder, including
reasonable attorneys’ fees (including reasonable allocable fees of in-house
counsel) and court costs, in connection with any Default or Event of Default
by
the Borrower hereunder or in connection with the enforcement of any of the
Credit Documents.
SECTION
9. CHANGE
IN
CIRCUMSTANCES.
Section
9.1 Change
of Law. Notwithstanding
any other provisions of this Agreement or the Note, if at any time after the
date hereof any change in applicable law or regulation or in the interpretation
thereof makes it unlawful for Lender to make or continue to maintain LIBOR
Loans
or to perform its obligations as contemplated hereby, Lender shall promptly
give
notice thereof to the Borrower and Lender’s obligations to make or maintain
LIBOR Loans under this Agreement shall terminate until it is no longer unlawful
for Lender to make or maintain LIBOR Loans. The Borrower shall prepay on demand
the outstanding principal amount of any such affected LIBOR Loans, together
with
all interest accrued thereon at a rate per annum equal to the interest rate
applicable to such Loan; provided,
however,
subject
to all of the terms and conditions of this Agreement, the Borrower may then
elect to borrow the principal amount of the affected LIBOR Loans from Lender
by
means of Base Rate Loans from Lender.
Section
9.2 Unavailability
of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR..
If
on or
prior to the first day of any Interest Period for any Borrowing of LIBOR
Loans:
(a) the
Lender determines that deposits in U.S. Dollars (in the applicable amounts)
are
not being offered to major banks in the LIBOR interbank market for such Interest
Period, or that by reason of circumstances affecting the interbank LIBOR market
adequate and reasonable means do not exist for ascertaining the applicable
LIBOR, or
(b) Lender
reasonably determines that LIBOR as reasonably determined by the Lender will
not
adequately and fairly reflect the cost to Lender of funding its LIBOR Loans
or
Loan for such Interest Period, then the Lender shall forthwith give notice
thereof to the Borrower, whereupon until the Lender notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Lender to make LIBOR Loans shall be suspended.
Section
9.3 Increased
Cost and Reduced Return. Section
9.4
If, on or after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by Lender (or its Lending Office) with any request or directive (whether or
not
having the force of law but, if not having the force of law, compliance with
which is customary in the relevant jurisdiction) of any such authority, central
bank or comparable agency:
22
i shall
subject Lender (or its Lending Office) to any tax, duty or other charge with
respect to its LIBOR Loans, its Notes or
its
participation in any thereof or its obligation to make Eurodollar Loans, or
to
participate therein, or
shall
change the basis of taxation of payments to Lender (or its Lending Office)
of
the principal of or interest on its LIBOR Loans, Letter(s) of Credit, or
participations therein or any other amounts due under this Agreement in respect
of its LIBOR Loans or its obligation to make LIBOR Loans, (except for changes
in
the rate of tax on the overall net income or profits of Lender or its Lending
Office imposed by the jurisdiction in which Lender or its lending office is
incorporated in which Lender’s principal executive office or Lending Office is
located); or
ii shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by
the
Board of Governors of the Federal Reserve System, but excluding with respect
to
any LIBOR Loans any such requirement included in an applicable LIBOR Reserve
Percentage) against assets of, deposits with or for the account of, or credit
extended by, Lender (or its Lending Office) or shall impose on Lender (or its
Lending Office) or on the interbank market any other condition affecting its
LIBOR Loans, its Note, or
its
obligation to make Eurodollar Loans;
and
the
result of any of the foregoing is to increase the cost to Lender (or its Lending
Office) of making or maintaining any LIBOR Loan, or to reduce the amount of
any
sum received or receivable by Lender (or its Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed by Lender
to be material, then, within fifteen (15) days after demand by Lender, the
Borrower shall be obligated to pay to Lender such additional amount or amounts
as will compensate Lender for such increased cost or reduction. In the event
any
law, rule, regulation or interpretation described above is revoked, declared
invalid or inapplicable or is otherwise rescinded, and as a result thereof
Lender is determined to be entitled to a refund from the applicable authority
for any amount or amounts which were paid or reimbursed by Borrower to Lender
hereunder, Lender shall refund such amount or amounts to Borrower without
interest.
(b) If,
after
the date hereof, Lender shall have determined that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein (including, without limitation, any revision in the Final Risk-Based
Capital Guidelines of the Board of Governors of the Federal Reserve System
(12
CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of
the
Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other
applicable capital rules heretofore adopted and issued by any governmental
authority), or any change in the interpretation or administration thereof by
any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Lender (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law but, if not having the force of law,
compliance with which is customary in
23
the
applicable jurisdiction) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on Lender’s
capital, or on the capital of any corporation controlling Lender, as a
consequence of its obligations hereunder to a level below that which Lender
could have achieved but for such adoption, change or compliance (taking into
consideration Lender’s policies with respect to capital adequacy) by an amount
deemed by Lender to be material, then from time to time, within fifteen (15)
days after demand by Lender, the Borrower shall pay to Lender such additional
amount or amounts as will compensate Lender for such reduction.
(c) If
Lender
determines to seek compensation under this Section 9.3, it shall notify the
Borrower of the circumstances that entitle it to such compensation pursuant
to
this Section 9.3 and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of Lender, be otherwise disadvantageous
to
Lender. A certificate of Lender claiming compensation under this Section 9.3
and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount,
Lender may use any reasonable averaging and attribution methods. Lender shall
not be entitled to demand compensation under this Section 9.3 for any period
more than 90 days prior to the day on which such demand is made; provided
however,
that
the foregoing shall in no way limit the right of Lender to demand or receive
such compensation to the extent that such compensation relates to the
retroactive application of any law, regulation, guideline or request if such
demand is made within 90 days after the implementation of such retroactive
law,
interpretation, guideline or request. A certificate as to the nature and amount
of such increased cost, submitted to the Borrower and the Lender in good faith,
shall be conclusive and binding for all purposes, absent manifest
error.
Section
9.5 Lending
Offices. The
Lender may, at its option, elect to make Loans hereunder at the branch, office
or affiliate specified on the appropriate signature page hereof or in the
assignment agreement which any assignee bank executes pursuant to Section 11.12
hereof (each a “Lending Office”) for each type of Loan available hereunder or at
such other of its branches, offices or affiliates as it may from time to time
elect and designate in a written notice to the Borrower.
Section
9.6 Discretion
of Lender as to Manner of Funding. Notwithstanding
any other provision of this Agreement, the Lender shall be entitled to fund
and
maintain its funding of all or any part of its Loans in any manner it sees
fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if the Lender had actually funded
and
maintained each LIBOR Loan through the purchase of deposits in the LIBOR
interbank market having a maturity corresponding to such Loan’s Interest Period
and bearing an interest rate equal to LIBOR for such Interest
Period.
SECTION
10. RESERVED.
SECTION
11. MISCELLANEOUS.
Section
11.1 Withholding
Taxes. Subject
to this Section 11.1, each payment by the Borrower under this Agreement or
the
other Credit Documents shall be made without withholding for or on account
of
any present or future taxes (other than overall net income taxes on the
recipient). If any such withholding is so required, the Borrower shall make
the
withholding, pay the amount withheld to the appropriate governmental authority
before penalties attach thereto or interest accrues thereon and forthwith pay
such additional amount as may be necessary to ensure that the net amount
actually received by the Lender free and clear of such taxes (including such
taxes on such additional
24
amount)
is equal to the amount which the Lender would have received had such withholding
not been made. If the Lender pays any amount in respect of any such taxes,
penalties or interest the Borrower shall reimburse the Lender for that payment
on demand. If the Borrower pays any such taxes, penalties or interest, it shall
deliver official tax receipts evidencing that payment or certified copies
thereof to the Lender on or before the thirtieth day after payment. If the
Lender determines it has received or been granted a credit against or relief
or
remission for, or repayment of, any taxes paid or payable by it because of
any
taxes, penalties or interest paid by the Borrower and evidenced by such a tax
receipt, Lender shall, to the extent it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment, pay
to
the Borrower such amount as Lender determines is attributable to such deduction
or withholding and which will leave Lender (after such payment) in no better
or
worse position than it would have been in if the Borrower had not been required
to make such deduction or withholding. Nothing in this Agreement shall interfere
with the right of the Lender to arrange its tax affairs in whatever manner
it
thinks fit nor oblige the Lender to disclose any information relating to its
tax
affairs or any computations in connection with such taxes.
Section
11.2 No
Waiver of Rights. No
delay
or failure on the part of the Lender or on the part of the holder or holders
of
the Note in the exercise of any power or right under any Credit Document shall
operate as a waiver thereof, nor as an acquiescence in any default, nor shall
any single or partial exercise thereof preclude any other or further exercise
of
any other power or right, and the rights and remedies hereunder of the Lender
and/or the holder or holders of the Note are cumulative to, and not exclusive
of, any rights or remedies which any of them would otherwise have.
Section
11.3 Non-Business
Day. If
any
payment of principal or interest on any Loan or of any other Obligation shall
fall due on a day which is not a Business Day, interest or fees (as applicable)
at the rate, if any, such Loan or other Obligation bears for the period prior
to
maturity shall continue to accrue on such Obligation from the stated due date
thereof to and including the next succeeding Business Day, on which the same
shall be payable.
Section
11.4 Documentary
Taxes. The
Borrower agrees that it will pay any documentary, stamp or similar taxes payable
in respect to any Credit Document, including interest and penalties, in the
event any such taxes are assessed, irrespective of when such assessment is
made
and whether or not any credit is then in use or available
hereunder.
Section
11.5 Survival
of Representations. All
representations and warranties made herein or in certificates given pursuant
hereto shall survive the execution and delivery of this Agreement and the other
Credit Documents, and shall continue in full force and effect with respect
to
the date as of which they were made as long as any credit is in use or available
hereunder.
Section
11.6 Survival
of Indemnities. All
indemnities and all other provisions relative to reimbursement to the Lender
of
amounts sufficient to protect the yield of the Lender with respect to the Loans,
including, but not limited to, Section 2.11, Section 9.3 and Section 11.15
hereof, shall survive the termination of this Agreement and the other Credit
Documents and the payment of the Loans and all other Obligations.
25
Section
11.7 Set-Off.
In
addition to any rights now or hereafter granted under applicable law and not
by
way of limitation of any such rights, upon the occurrence of any Event of
Default, Lender and each subsequent holder of the Note is hereby authorized
by
the Borrower at any time or from time to time, without notice to the Borrower
or
to any other Person, any such notice being hereby expressly waived, to set
off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, and in whatever currency denominated)
and
any other Indebtedness at any time held or owing by the Lender or that
subsequent holder to or for the credit or the account of the Borrower, whether
or not matured, against and on account of the obligations and liabilities of
the
Borrower to the Lender or that subsequent holder under the Credit Documents,
including, but not limited to, all claims of any nature or description arising
out of or connected with the Credit Documents, irrespective of whether or not
(a) the Lender or that subsequent holder shall have made any demand hereunder
or
(b) the principal of or the interest on the Loans or the Note and other amounts
due hereunder shall have become due and payable pursuant to Section 8 and
although said obligations and liabilities, or any of them, may be contingent
or
unmatured.
Section
11.8 Notices.
Except
as
otherwise specified herein, all notices under the Credit Documents shall be
in
writing (including facsimile or other electronic communication) and shall be
given to a party hereunder at its address or facsimile number set forth below
or
such other address or facsimile number as such party may hereafter specify
by
notice to the Lender and the Borrower, given by courier, by United States
certified or registered mail, or by other telecommunication device capable
of
creating a written record of such notice and its receipt. Notices under the
Credit Documents to the Lender and the Borrower shall be addressed
to:
|
If
to the Borrower:
|
|
Peoples
Energy Corporation
000
Xxxx Xxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Vice President, Finance
Facsimile:
000.000.0000
Telephone:
000.000.0000
|
|
If
to the Lender: (Notices related to commitments, covenants or extensions
of
expiry/termination dates)
|
|
ABN
AMRO Bank N.V.
000
X. Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000-0000
Attention:
Xxxx Xxxxxxxxx
Facsimile:
000 000 0000
Telephone:
000 000 0000 (Xx. Xxxxxxxxx)
|
26
|
ABN
AMRO Bank N.V.
000
Xxxx Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX 00000-0000
Attn:
Credit Administration
E-Mail:
xxxxxxx.xxxxxxx@xxxxxxx.xxx
FAX: 000-000-0000
ABN
AMRO Bank N.V.
0000
Xxxx Xxx Xxxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxxx
E-Mail:
xxxxx.xxxxxxxxx@xxxxxxx.xxx
Fax:
(000)000-0000
|
|
Borrowing
Requests and notices relating to Loans, Interest and
Fees:
|
|
ABN
AMRO Bank N.V.
000
X. Xxxxxxx Xx., 00xx
Xxx.
Xxxxxxx,
XX 00000-0000
Attn:
Loan Administration
Facsimile:
(000) 000-0000
E-mail:
xxx.xxxx.x@xxxxxxx.xxx
Telephone:
(000) 000-0000
|
Each
such
notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section 11.8 or on the signature pages hereof and a confirmation
of
receipt of such facsimile has been received by the sender, (ii) if given
by
courier, when delivered, (iii) if given by mail, three business days after
such
communication is deposited in the mail, registered with return receipt
requested, addressed as aforesaid or (iv) if given by any other means, when
delivered at the addresses specified in this Section 11.8; provided
that
any
notice given pursuant to Section 2 hereof shall be effective only upon
receipt.
Section
11.9 Counterparts.
This
Agreement may be executed in any number of counterpart signature pages, and
by
the different parties on different counterparts, each of which when executed
shall be deemed an original but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart
via
facsimile or other electronic means shall for all purposes be deemed as
effective as delivery of an original counterpart.
Section
11.10 Successors
and Assigns.
This
Agreement shall be binding upon the Borrower and its successors and assigns,
and
shall inure to the benefit of each of the Lender and the benefit of their
respective successors, and assigns, including any subsequent holder of any
Note.
The Borrower may not assign any of its rights or obligations under any Credit
Document without the written consent of all of the Lender.
27
Section
11.11 [Reserved].
Section
11.12 Assignments,
Participations, Etc.
(a) Successors
and Assigns Generally 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 the Borrower may not assign or otherwise transfer any of its
rights
or obligations hereunder without the prior written consent of the Lender
and
Lender may not assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this
Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto 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, Participants to the extent provided in
paragraph (d) of this Section and, to the extent expressly contemplated
hereby, the affiliates of each of the Lender and the Lender) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lender. The
Lender may at any time assign to one or more Eligible Assignees its rights
and
obligations under this Agreement (including its Revolving Credit Commitment
and
the Loans at the time owing to it); provided
that so
long as no Event of Default has occurred and is continuing, any assignment
of a
Revolving Credit Commitment must be approved by the Borrower, which approval
shall not be unreasonably withheld, unless the Person that is the proposed
assignee is itself an Eligible Assignee. Subject to acceptance and recording
thereof by the Lender pursuant to paragraph (c) of this Section, from and
after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of Lender under this Agreement shall to the extent
of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the Lender’s rights and obligations under this
Agreement, Lender shall cease to be a party hereto) but shall continue to
be
entitled to the benefits of Sections 9.3 and 11.1 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by 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 Lender of a participation in such rights and obligations
in accordance with paragraph (d) of this Section.
(e) Participations.
Lender
and/or any holder of the Note may at any time, without the consent of, or
notice
to, the Borrower, sell participations to any Person (other than a natural
person
or a Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”)
in all
or a portion of Lender’s or such holder’s rights and/or obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment
and/or
the Loans owing to it); provided
that
(i) Lender’s obligations under this Agreement shall remain unchanged,
(ii) Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower shall continue
to deal solely and directly with Lender in connection with Lender’s rights and
obligations under this Agreement.
28
Any
agreement or instrument pursuant to which Lender sells such a participation
shall provide that 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 Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
of
the type described in Section 11.13(i) that directly affects such Participant.
Subject to paragraph (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Section 2.11, Section
9.3 and
Section 11.7 to the same extent as if it were Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. Lender
shall keep a register, meeting the requirements of Treasury Regulation
Section
5f.103-1(c), of each participant, specifying such participant’s entitlement to
payments of principal and interest with respect to such
participation.
(f) Limitations
upon Participant Rights. A
Participant shall not be entitled to receive any greater payment under Section
2.11, Section 9.3 or Section 11.7 than the 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.
(g) Certain
Pledges. The
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of the Lender,
including without limitation any pledge or assignment to secure obligations
to a
Federal Reserve Bank; provided that no such pledge or assignment shall release
Lender from any of its obligations hereunder or substitute any such pledgee
or
assignee for Lender as a party hereto. Certain
Funding Arrangements. Notwithstanding
anything to the contrary contained herein, Lender may grant to a special purpose
funding vehicle (a “SPC”),
identified as such in writing from time to time by the Lender and the Borrower,
the option to provide to the Borrower all or any part of any Loan that the
Lender would otherwise be obligated to make to the Borrower pursuant to this
Agreement; provided
that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide
all
or any part of such Loan, the Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Revolving Credit Commitment of the Lender to the same extent, and
as
if, such Loan were made by the Lender. Each party hereto hereby agrees that
no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Lender). In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year
and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any
other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof arising out of any claim relating to the Credit
Documents. In addition, notwithstanding anything to the contrary contained
in
this Section 11.12(b), any SPC may (i) with notice to, but without the prior
written consent of, the Borrower, assign all or a portion of its interests
in
any Loan to the Lender or to any financial institutions (consented to by the
Borrower and Lender) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This section may
not
be amended without the written consent of the SPC.
29
Section
11.13 Amendments.
Any
provision of the Credit Documents may be amended or waived if, but only if,
such
amendment or waiver is in writing and is signed by the Borrower and the
Lender.
Section
11.14 Headings.
Section
headings used in this Agreement are for reference only and shall not affect
the
construction of this Agreement.
Section
11.15 Legal
Fees, Other Costs and Indemnification.
The
Borrower agrees to pay all reasonable costs and expenses of the Lender in
connection with the preparation and negotiation of the Credit Documents,
including without limitation, the reasonable fees and disbursements of counsel
to the Lender in connection with the preparation and execution of the Credit
Documents, and any amendment, waiver or consent related hereto, whether or
not
the transactions contemplated herein are consummated. The Borrower further
agrees to indemnify the Lender and its directors, agents, officers and
employees, against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all reasonable expenses
of litigation or preparation therefor, whether or not the indemnified Person
is
a party thereto) which any of them may incur or reasonably pay arising out
of or
relating to any Credit Document or any of the transactions contemplated thereby
or the direct or indirect application or proposed application of the proceeds
of
any Loan, other than those which arise from the gross negligence or willful
misconduct of the party claiming indemnification. The Borrower, upon demand
by
the Lender at any time, shall reimburse the Lender for any reasonable legal
or
other expenses (including reasonable allocable fees and expenses of in-house
counsel) incurred in connection with investigating or defending against any
of
the foregoing except if the same is directly due to the gross negligence or
willful misconduct of the party to be indemnified.
Section
11.16 [Reserved].
Section
11.17 Entire
Agreement.
The
Credit Documents constitute the entire understanding of the parties thereto
with
respect to the subject matter thereof and any prior or contemporaneous
agreements, whether written or oral, with respect thereto are superseded
thereby.
Section
11.18 Construction.
The
parties hereto acknowledge and agree that neither this Agreement nor the other
Credit Documents shall be construed more favorably in favor of one than the
other based upon which party drafted the same, it being acknowledged that all
parties hereto contributed substantially to the negotiation of this Agreement
and the other Credit Documents.
Section
11.19 Governing
Law.
This
Agreement and the other Credit Documents, and the rights and duties of
the
parties hereto, shall be construed and determined in accordance with the
internal laws of the State of Illinois.
Section 11.20 SUBMISSION
TO JURISDICTION; WAIVER OF JURY TRIAL.
THE
BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
30
THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY
ILLINOIS STATE COURT SITTING IN THE CITY OF CHICAGO FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE BORROWER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH
A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF
OR RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
Section
11.21 Confidentiality.
The
Lender shall hold all non-public information provided to it by Borrower pursuant
to or in connection with this Agreement in accordance with its customary
procedures for handling confidential information of this nature, but may make
disclosure to any of its examiners, regulators, Affiliates, outside auditors,
counsel and other professional advisors in connection with this Agreement or
any
other Credit Document or as reasonably required by any potential bona
fide
transferee, participant or assignee, or in connection with the exercise of
remedies under a Credit Document, or to any nationally recognized rating agency
that requires access to information about Lender’s investment portfolio in
connection with ratings issued with respect to Lender, or as requested by any
governmental agency or representative thereof or pursuant to legal process;
provided,
however,
that
unless specifically prohibited by applicable law or court order, the Lender
shall use reasonable efforts to promptly notify Borrower of any request by
any
governmental agency or representative thereof (other than any such request
in
connection with an examination of the financial condition of the Lender by
such
governmental agency) for disclosure of any such non-public information and,
where practicable, prior to disclosure of such information. Prior to any such
disclosure pursuant to this Section 11.21, the Lender shall require any
such bona
fide transferee,
participant and assignee receiving a disclosure of non-public information to
agree, for the benefit of Borrower, in writing to be bound by this Section
11.21; and to require such Person to require any other Person to whom such
Person discloses such non-public information to be similarly bound by this
Section 11.21. The Lender shall not be required to hold confidential any
information that becomes public by any means other than as a result of a breach
by it of its obligations under this Section 11.21.
Section
11.22 Patriot
Act.
As
required by federal law or the Lender or Lender’s polices and practices, the
Lender may need to collect certain customer identification information
and
documentation in connection with opening or maintaining accounts or establishing
or continuing to provide services.
Balance
of Page Intentionally Left Blank
-
Signature Page Follows -
31
In
Witness Whereof, the parties hereto have caused this Seasonal Credit Agreement
to be duly executed and delivered in Chicago, Illinois by their duly authorized
officers as of the day and year first above written.
|
PEOPLES
ENERGY CORPORATION,
an Illinois corporation, as Borrower
|
|
|
By:
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
Its:
Vice President & Treasurer
|
|
|
ABN
AMRO BANK N.V.,
as Lender
|
|
|
By:
/s/ Xxxxxxx X. Xxxxxxxx
|
|
|
Its:
Managing Director
|
|
|
Title:
_________________________________________
|
|
|
By:
/s/ X. Xxxxxxx
|
|
|
Its:
Director
|
|
|
Title:
_________________________________________
|
32
EXHIBIT
A
REVOLVING
NOTE
| $25,000,000 |
October 20, 2006
|
FOR
VALUE RECEIVED,
the
undersigned, PEOPLES
ENERGY CORPORATION,
an
Illinois corporation (the “Borrower”),
promises to pay to the order of ABN
AMRO Bank N.V.
(the
“Bank”)
on the
Termination Date of the hereinafter defined Credit Agreement, or such earlier
date as provided in the Credit Agreement or this Note, at the principal office
of the Bank in Chicago, Illinois, in U.S. Dollars in accordance with Section
4.1
of the Credit Agreement, the aggregate unpaid principal of all Loans made by
the
Bank to the Borrower pursuant to the Credit Agreement, together with interest
on
the principal amount of each Loan from time to time outstanding hereunder at
the
rates, and payable in the manner and on the dates, specified in the Credit
Agreement.
The
Bank
shall record on its books or records or on a schedule attached to this Note,
which is a part hereof, each Loan made by it pursuant to the Credit Agreement,
together with all payments of principal and interest and the principal balances
from time to time outstanding hereon, whether the Loan is a Base Rate Loan
or a
LIBOR Loan and the interest rate and Interest Period applicable thereto,
provided that prior to the transfer of this Note all such amounts shall be
recorded on a schedule attached to this Note. The record thereof, whether
shown
on such books or records or on a schedule to this Note, shall be prima
facie
evidence
of the same, provided, however, that the failure of the Bank to record any
of
the foregoing or any error in any such record shall not limit or otherwise
affect the obligation of the Borrower to repay all Loans made to it pursuant
to
the Credit Agreement together with accrued interest thereon.
This
Note
is the “Note” referred to in that certain Seasonal Credit Agreement dated as of
October 20, 2006, by and between the Borrower and ABN AMRO Bank N.V. (the
“Credit
Agreement”),
and
this Note and the holder hereof are entitled to all the benefits provided
for
thereby or referred to therein, to which Credit Agreement reference is hereby
made for a statement thereof. This Note may only be conveyed, transferred,
assigned or otherwise negotiated to a holder in accordance with the terms
of the
Credit Agreement. All defined terms used in this Note, except terms otherwise
defined herein, shall have the same meaning as in the Credit Agreement. This
Note shall be governed by and construed in accordance with the internal laws
of
the State of Illinois.
Prepayments
may be made hereon and this Note may be declared due prior to the expressed
maturity hereof, all in the events, on the terms and in the manner as provided
for in the Credit Agreement.
The
Borrower hereby waives demand, presentment, protest or notice of any kind
hereunder.
|
PEOPLES
ENERGY CORPORATION,
an Illinois corporation
|
|
|
By:
__________________________________________
|
|
|
Its:
__________________________________________
|
A-1
EXHIBIT
B
COMPLIANCE
CERTIFICATE
This
Compliance Certificate is furnished to ABN AMRO Bank N.V., as Lender pursuant
to
the Credit Agreement (the “Credit
Agreement”)
dated
as of October 20, 2006, by and between Peoples Energy Corporation and ABN AMRO
Bank N.V. Unless otherwise defined herein, the terms used in this Compliance
Certificate have the meanings ascribed thereto in the Credit
Agreement.
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
1. I
am the
duly elected or appointed ___________________of Peoples Energy
Corporation;
2. I
have
reviewed the terms of the Credit Agreement and I have made, or have caused
to be
made under my supervision, a detailed review of the transactions and conditions
of Peoples Energy Corporation and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The
examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes a Default or
an
Event of Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate, except
as
set forth below. Without limitation to the foregoing, except as noted below
the
Borrower is in compliance with 7.5 and Section 7.6 of the Credit Agreement;
and
4. Schedule
1 attached hereto sets forth (i) financial data and computations evidencing
compliance with certain covenants of the Credit Agreement, all of which data
and
computations are true, complete and correct, and are made in accordance with
the
terms of the Credit Agreement, and (ii) the list of Subsidiaries in existence
as
of the date hereof.
Described
below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and
the
action which the Borrower has taken, is taking, or proposes to take with respect
to each such condition or event:
The
foregoing certifications, together with the list set forth in Schedule 1 hereto
and the financial statements delivered with this Certificate in support hereof,
are made and delivered this ___________day of __________, 20 __.
B
-
1
Credit
Agreement
SCHEDULE
1 TO COMPLIANCE CERTIFICATE
Compliance
Calculations for Credit Agreement
CALCULATION
AS OF ________ __,200_
|
Capital
Ratio (Sec. 7.6)
|
||
|
1.
(a)
consolidated Indebtedness
|
$
|
|
|
(b) less
accumulated other comprehensive income/loss
|
$__________
|
|
|
(c) net consolidated Indebtedness
|
$__________
|
|
|
2.
Consolidated
Net Worth
|
$
|
|
|
3.
Sum
of Line 1(c) plus
Line 2
|
$
|
|
|
4.
Capital
Ratio
|
_____:1.00
|
(ratio
of (A) Line 1(c) to (B) Line 3 not to exceed 0.65 to
1.00)
|
List
of Subsidiaries
|
The
Peoples Gas Light and Coke Company
Peoples
Gas Light Exploration Company
Peoples
Gas Neighborhood Development Corporation
North
Shore Gas Company
North
Shore Exploration Company
Peoples
District Energy Corporation
Peoples
NGV Corp.
Peoples
Energy Production Company
PEP
Holding, LLC
Peoples
Energy Canadian Holdings, Inc.
Peoples
Energy Production Company of Canada
Peoples
Energy Production Operating Company
Peoples
Energy Production Partners, X.X.
Xxxxxxx
Energy Production - Texas, L.P.
EnerVest
Energy, L.P.
Sierra
1996-I Limited Partnership
Peoples
Energy Resources Company, LLC
Peoples
Energy Wholesale Marketing, LLC
|
PERC
Canada, Inc.
Peoples
Natural Gas Liquids, LLC
PERC
Holdings, LLC
PV
Midstream Ventures, LLC
PERC
Power, LLC
COB
Energy Facility, LLC
Peoples
Calumet, LLC
Calumet
Power, LLC
Xxxxxxx
Xxxxxx, LLC
Xxxxxx
Energy, LLC
Xxxxxxx
Xxxxxx Expansion, LLC
Xxxxxx
Expansion, LLC
Valencia
Energy, LLC
Xxxxxxx
XX, LLC
Peoples
Energy Services Corporation
Peoples
Energy Ventures, LLC
Peoples
Energy Business Services, LLC
Peoples
Energy Home Services, LLC
Peoples
Energy Neighborhood Development, LLC
Peoples
Technology, LLC
|
Credit
Agreement
SCHEDULE
1
LENDER’S
PAYMENT INFORMATION
Loan
Repayments, Interest, Fees:
ABN
AMRO
Bank N.V.
New
York,
NY
ABA
#
000000000
F/O
ABN
AMRO Bank, N.V.
Chicago
Branch CPU
Account
#
650-001-1789-41
Reference:
Peoples Energy Corporation
ACBS#:
00004049
Schedule
1
Credit
Agreement
SCHEDULE
1A
PRICING
GRID
(Basis
Points)
|
S
& P/ Xxxxx’x Senior Un-Secured Rating
|
A/
A2 or higher
|
A-/
A3
|
BBB+/
Baa1
|
BBB/
Baa2
|
BBB-/
Baa3
|
lower
than
BBB-/ Baa3 |
|
Commitment
Fee
|
6.0
|
7.0
|
8.0
|
10.0
|
12.5
|
20.0
|
|
Base
Rate Margin
|
0.0
|
0.0
|
0.0
|
0.0
|
0.0
|
0.0
|
|
LIBOR
Margin
|
25.0
|
30.0
|
40.0
|
50.0
|
62.5
|
87.5
|
|
Utilization
Fee (>50%)
|
10.0
|
10.0
|
12.5
|
12.5
|
12.5
|
12.5
|
Any
change in a Credit Rating of the Borrower (and if applicable, any change in
fees
or interest payable hereunder based on such Credit Rating), shall be effective
as of the date such change is announced by the applicable rating
agency.
*
If
the Borrower is split-rated and the ratings differential is one level, the
higher rating will apply. If the Borrower is split-rated and the ratings
differential is two levels or more, the rating level one below the higher level
will apply. If at any time the Borrower has no Xxxxx’x rating or no Standard
& Poors’ rating, the “Lower than BBB-/Baa3” level will apply; provided,
however, that in such event the Borrower may propose an alternative rating
agency or mechanism in replacement thereof.
Schedule
1 - A
Credit
Agreement
