MDU ENERGY CAPITAL, LLC Senior Notes MASTER SHELF AGREEMENT Dated as of August 9, 2007
MDU
ENERGY CAPITAL, LLC
$125,000,000
Senior
Notes
__________
__________
Dated
as of August 9, 2007
TABLE
OF CONTENTS
1.
AUTHORIZATION
OF
NOTES
1.1 Authorization
of Issue of Initial Notes
1.2 Authorization
of Issue of Shelf Notes
2.
SALE AND PURCHASE OF NOTES
2.1 Sale
and Purchase; Facility
2.2 Issuance
Period
2.3 Periodic
Spread Information
2.4 Request
for Purchase
2.5 Rate
Quotes
2.6 Acceptance
2.7 Market
Disruption
2.8 Fees
3.
CLOSING
3.1 Closings
3.2 Rescheduled
Closings
4.
CONDITIONS TO CLOSING
4.1 Representations
and Warranties
4.2 Performance;
No Default
4.3 Compliance
Certificates
4.4 Opinions
of Counsel
4.5 Purchase
Permitted By Applicable Law, etc.
4.6 Payment
of Facility Fee and Structuring Fee
4.7 Private
Placement Number
4.8 Changes
in Corporate Structure
4.9 Certain
Documents
4.10 Proceedings
and Documents
4.11 Funding
Instructions
4.12 Payment
of Centennial Notes
5.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 Organization;
Power and Authority
5.2 Authorization,
etc.
5.3 Disclosure
5.4 Organization
and Ownership of Shares of Subsidiaries; Affiliates
5.5 Financial
Statements
5.6 Compliance
with Laws, Other Instruments, etc.
5.7 Governmental
Authorizations, etc.
5.8 Litigation;
Observance of Agreements, Statutes and Orders
5.9 Taxes
5.10 Title
to Property; Leases
5.11 Licenses,
Permits, etc.
5.12 Compliance
with ERISA
5.13 Private
Offering by the Company
5.14 Use
of Proceeds; Margin Regulations
5.15 Existing
Indebtedness; Future Liens
5.16 Status
under Certain Statutes
5.17 Environmental
Matters
5.18 Hostile
Tender Offers
5.19 Foreign
Assets Control Regulations, Etc.
6.
REPRESENTATIONS OF THE PURCHASER
6.1 Purchase
for Investment
6.2 Source
of Funds
7.
INFORMATION AS TO COMPANY
7.1 Financial
and Business Information
7.2 Officer’s
Certificate
7.3 Inspection
8.
PREPAYMENT OF THE NOTES
8.1 Required
Prepayments
8.2 Optional
Prepayments with Make-Whole Amount
8.3 Allocation
of Partial Prepayments
8.4 Maturity;
Surrender, etc.
8.5 Purchase
of Notes
8.6 Make-Whole
Amount
9.
AFFIRMATIVE COVENANTS
9.1 Compliance
with Law
9.2 Insurance
9.3 Maintenance
of Properties
9.4 Payment
of Taxes
9.5 Corporate
Existence, etc.
9.6 Information
Required by Rule 144A
9.7 Covenant
to Secure Notes Equally
9.8 Books
and Records
9.9 Parity
With Other Indebtedness
10.
NEGATIVE COVENANTS
10.1 Maximum
Capitalization Ratios
10.2 Minimum
Interest Coverage Ratio
10.3 Limitation
on Liens
10.4 Limitation
on Securing Cascade Loan Agreement
10.5 Limitation
on Sale of Assets
10.6 Consolidations
and Mergers
10.7 Loans
and Investments
10.8 Transactions
with Affiliates
10.9 Use
of Proceeds
10.10
Agreements
Restricting
Subsidiary Dividends
10.11 Restrictions
on
Subsidiary Guarantees
10.12 Terrorism
Sanctions
Regulations
10.13 Limitation
on Sale
and Lease-Back Transactions
10.14 Limitation
on Issuance
and Sale of Capital Stock by Subsidiaries
10.15 Limitation
on Restricted
Payments
10.16 Limitation
on Activities
of Prairie
11.
EVENTS OF DEFAULT
12.
REMEDIES ON DEFAULT, ETC.
12.1 Acceleration
12.2 Other
Remedies
12.3 Rescission
12.4 No
Waivers or Election of Remedies, Expenses, etc.
13.
REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
13.1 Registration
of Notes
13.2 Transfer
and Exchange of Notes
13.3 Replacement
of Notes
14.
PAYMENTS ON NOTES
14.1 Place
of Payment
14.2 Home
Office Payment
15.
EXPENSES, ETC.
15.1 Transaction
Expenses
15.2 Survival
16.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT
17.
AMENDMENT AND WAIVER
17.1 Requirements
17.2 Solicitation
of Holders of Notes
17.3 Binding
Effect, etc.
17.4 Notes
held by Company, etc.
18.
NOTICES
19.
REPRODUCTION OF DOCUMENTS
20.
CONFIDENTIAL INFORMATION
21.
SUBSTITUTION OF PURCHASER
22.
MISCELLANEOUS
22.1 Successors
and Assigns
22.2 Payments
Due on Non-Business Days
22.3 Severability
22.4 Construction
22.5 Counterparts
22.6 Governing
Law
SCHEDULE
B -- Defined Terms
MDU
ENERGY CAPITAL, LLC
0000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxx Xxxxxx 00000
As
of
August 9, 2007
To: Prudential
Investment Management, Inc.
The
Prudential Insurance
Company
of
America
Each
of the other Initial Purchasers
(as hereinafter defined)
named
on the attached Information
Schedule
c/o
Prudential Capital
Group
Gateway
Center Four
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000-0000
Ladies
and Gentlemen:
MDU
Energy Capital, LLC, a Delaware limited liability company (the
“Company”), agrees with you as follows:
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1.
|
AUTHORIZATION
OF NOTES.
|
1.1 Authorization
of Issue of Initial Notes.
The
Company will authorize the issue of (a) $25,000,000 principal amount of
5.74% Senior Notes, Series A, dated August 14, 2007, and due
October 22, 2012, to be substantially in the form of
Exhibit 1-A attached hereto (the “Series A
Notes”), and (b) $25,000,000 principal amount of its 6.17% Senior
Notes, Series B, dated August 14, 2007 and due May 15, 2013, to be
substantially in the form of Exhibit 1-B attached hereto (the
“Series B Notes” and together with the Series A
Notes, individually and collectively, the “Initial
Notes”). Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a “Schedule” or an
“Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement.
1.2 Authorization
of Issue of Shelf Notes
The
Company also will authorize the
issue of up to $75,000,000 aggregate principal amount of its senior promissory
notes (together with any other Notes hereafter purchased and sold pursuant
to
this Agreement as contemplated by the third sentence of Section 2.1(b), the
“Shelf Notes”), each Shelf Note to be dated the date of issue
thereof; to mature, in the case of each Note so issued, no more than 15 years
after the date of original issuance thereof; to have an average life, in the
case of each note so issued, of no more than 13 years after the date of original
issuance thereof (provided that up to $50,000,000 aggregate principal amount
of
the Shelf Notes may have an average life of no more than 15 years after the
date
of original issuance thereof); to bear interest on the unpaid balance thereof
from the date thereof at the rate per annum, and to have such other particular
terms, as shall be set forth, in the case of each Shelf Note so issued, in
the
Confirmation of Acceptance with respect to such Shelf Note delivered pursuant
to
Section 2.6; and to be substantially in the form of Exhibit 1-D
attached hereto. The term “Notes” as used herein
shall include each Series A Note, Series B Note and Shelf Note
delivered pursuant to any provision of this Agreement and each Note delivered
in
substitution or exchange for any such Series A Note, Series B Note and
Shelf Note pursuant to any such provision. Notes which have
(i) the same final maturity, (ii) the same installment payment dates,
(iii) the same installment payment amounts (as a percentage of the original
principal amount of each Note), (iv) the same interest rate, (v) the
same interest payment periods, and (vi) the same original date of issuance
are herein called a “Series” of Notes.
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2.
|
SALE
AND PURCHASE OF NOTES.
|
2.1 Sale
and Purchase; Facility.
(a) Sale
and Purchase of Initial Notes. Subject to the terms and
conditions of this Agreement, the Company will issue and sell the Initial Notes
to each Initial Purchaser and each Initial Purchaser will purchase from the
Company the Initial Notes in the principal amount specified opposite such
Initial Purchaser’s name on the Information Schedule at the purchase
price of 100% of the principal amount thereof at the Initial Closing provided
for in Section 3.1. The Purchasers’
obligations hereunder are several and not joint obligations
and no Purchaser
shall have any liability to any Person for the performance or non-performance
of
any obligation by any other Purchaser hereunder.
(b) Facility. Prudential
is willing to consider, in its sole discretion and within limits which may
be
authorized for purchase by Prudential Affiliates from time to time, the purchase
of the total amount of authorized Notes pursuant to this
Agreement. The willingness of Prudential to consider such purchase of
Notes is herein called the “Facility.” At any time,
the “Available Facility Amount” shall be (i) $125,000,000
minus (ii) the aggregate principal amount of Notes purchased
and sold
pursuant to this Agreement prior to such time, minus (iii) the aggregate
principal amount of Accepted Notes which have not yet been purchased and sold
hereunder prior to such time, plus (iv) (to the extent that the Company
authorizes additional Shelf Notes) the aggregate principal amount of Notes
purchased and sold pursuant to this Agreement and thereafter retired prior
to
such time; provided, that at no time may the aggregate principal amount
of Notes outstanding under this Agreement exceed
$125,000,000. NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL
TO CONSIDER PURCHASES OF SHELF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE
EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE
SHALL
BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO QUOTE
RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF SHELF NOTES,
AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY PRUDENTIAL
OR
ANY PRUDENTIAL AFFILIATE.
2.2 Issuance
Period.
Shelf
Notes may be issued and sold pursuant to this Agreement until the earlier of
(i) August 14, 2010 (or if such date is not a Business Day, the
Business Day next preceding such date) and (ii) the thirtieth day after
Prudential shall have given to the Company, or the Company shall have given
to
Prudential, a notice stating that it elects to terminate the issuance and sale
of Shelf Notes pursuant to this Agreement (or if such thirtieth day is not
a
Business Day, the Business Day next preceding such thirtieth
day). The period during which Shelf Notes may be issued and sold
pursuant to this Agreement is herein called the “Issuance
Period”.
2.3 Periodic
Spread Information.
Provided
no Default or Event of Default exists, not later than 9:30 A.M. (New York City
local time) on a Business Day during the Issuance Period if there is an
Available Facility Amount on such Business Day, the Company may request by
telecopier or telephone, and Prudential will, to the extent reasonably
practicable, provide to the Company on such Business Day (or, if such request
is
received after 9:30 A.M. (New York City local time) on such Business Day, on
the
following Business Day), information (by telecopier or telephone) with respect
to various spreads at which Prudential Affiliates might be interested in
purchasing Shelf Notes of different average lives; provided,
however, that the Company may not make such requests more frequently
than
once in every five Business Days or such other period as shall be mutually
agreed to by the Company and Prudential. The amount and content of
information so provided shall be in the sole discretion of Prudential but it
is
the intent of Prudential to provide information which will be of use to the
Company in determining whether to initiate procedures for use of the
Facility. Information so provided shall not constitute an offer to
purchase Shelf Notes, and neither Prudential nor any Prudential Affiliate shall
be obligated to purchase Shelf Notes at the spreads
specified. Information so provided shall be representative of
potential interest only for the period commencing on the day such information
is
provided and ending on the earlier of the fifth Business Day after such day
and
the first day after such day on which further spread information is
provided. Prudential may suspend or terminate providing information
pursuant to this Section 2.3 if, in its sole discretion, it determines that
there has been an adverse change in the credit quality of the Company after
the
date of this Agreement.
2.4 Request
for Purchase.
The
Company may from time to time during the Issuance Period make requests for
purchases of Shelf Notes (each such request being a “Request for
Purchase”). Each Request for Purchase shall be made to
Prudential by telecopier and confirmed by nationwide overnight delivery service,
shall be on the letterhead of the Company, and shall (i) specify the
aggregate principal amount of Notes covered thereby, which shall not be less
than $5,000,000 and not be greater than the Available Facility Amount at the
time such Request for Purchase is made if the request is made, (ii) specify
the principal amounts, final maturities, installment payment dates and amounts
and interest payment periods (quarterly or semi-annual in arrears) of the Shelf
Notes covered thereby, (iii) specify the use of proceeds of such Shelf
Notes (which use of proceeds shall be in compliance with the terms of
Section 10.9), (iv) specify the proposed day for the closing of the
purchase and sale of such Shelf Notes, which shall be a Business Day during
the
Issuance Period not less than 10 Business Days and not more than 25 Business
Days after the making of such Request for Purchase, (v) specify the number
of the account and the name and address of the depository institution to which
the purchase prices of such Notes are to be transferred on the Closing Day
for
such purchase and sale, (vi) certify that the representations and
warranties contained in Section 5 (as they may have been amended pursuant
to this Section 2.4) are true on and as of the date of such Request for
Purchase except to the extent of changes caused by the transactions herein
contemplated and that there exists on the date of such Request for Purchase
no
Event of Default or Default, and (vii) be substantially in the form of
Exhibit 2.4 attached hereto. Each Request for Purchase
shall be in writing and shall be deemed made when received by
Prudential. Any previous notification referenced in a Request
for Purchase or any Request for Purchase that contains information that purports
to amend the information contained in any Schedule or Exhibit hereto, shall
not be effective to amend such
information unless it is received by Prudential at least five Business Days
prior to the Acceptance Day for Shelf Notes to which such Request for Purchase
relates. If Prudential provides such interest rates quotes earlier
than five Business Days after Prudential receives a Request for Purchase which
contains information that purports to amend the information contained in any
Schedule or Exhibit hereto and Prudential states in writing that it waives
the requirement in this Section 2.4 that the information shall not be
effective to amend unless it is received by Prudential at least five Business
Days prior to the Acceptance Day, the information contained in such
Schedule or Exhibit shall be deemed effective to amend such information at
the time of the issuance of the quotes.
2.5 Rate
Quotes.
Not
later
than six Business Days after the Company shall have given Prudential a Request
for Purchase pursuant to Section 2.4, Prudential may provide (by telephone
promptly thereafter confirmed by telecopier, in each case no earlier than 9:30
A.M. and no later than 1:30 P.M. New York City local time) interest rate quotes
for the several principal amounts, maturities, installment payment schedules,
and interest payment periods of Shelf Notes specified in such Request for
Purchase. Each quote shall represent the interest rate per annum
payable on the outstanding principal balance of such Shelf Notes until such
balance shall have become due and payable, at which a Prudential Affiliate
would
be willing to purchase such Shelf Notes at 100% of the principal amount
thereof.
2.6 Acceptance.
Within
30
minutes after Prudential shall have provided any interest rate quotes pursuant
to Section 2.5 or, in the event that due to conditions in the market place
it shall not be feasible to hold such interest rate quotes open 30 minutes,
such
shorter period as Prudential may specify to the Company (such period being
the
“Acceptance Window”), the Company may, subject to
Section 2.7, elect to accept such interest rate quotes as to not less than
$5,000,000 aggregate principal amount of the Notes specified in the related
Request for Purchase. Such election shall be made by an Authorized
Officer of the Company notifying Prudential by telephone or telecopier within
the Acceptance Window (but not earlier than 9:30 A.M. or later than 1:30 P.M.,
New York City local time) that the Company elects to accept such interest rate
quotes, specifying the Shelf Notes (each such Shelf Note being an
“Accepted Note”) as to which such acceptance (an
“Acceptance”) relates. The day the Company notifies
an Acceptance with respect to any Accepted Notes is herein called the
“Acceptance Day” for such Accepted Notes. Any
interest rate quotes as to which Prudential does not receive an Acceptance
within the Acceptance Window shall expire, and no purchase or sale of Shelf
Notes hereunder shall be made based on such expired interest rate
quotes. Subject to Section 2.7 and the other terms and
conditions hereof, the Company agrees to sell to a Prudential Affiliate, and
Prudential agrees to cause the purchase by a Prudential Affiliate of, the
Accepted Notes at 100% of the principal amount of such Accepted
Notes. As soon as practicable following the Acceptance Day, the
Company, Prudential and each Prudential Affiliate which is to purchase any
such
Accepted Notes will execute a confirmation of such Acceptance substantially
in
the form of Exhibit 2.6 attached hereto (a “Confirmation of
Acceptance”).
2.7 Market
Disruption.
Notwithstanding
the provisions of Section 2.6, if Prudential shall have provided interest
rate quotes pursuant to Section 2.5 and thereafter prior to the time an
Acceptance with respect to such quotes shall have been notified to Prudential
in
accordance with Section 2.6 there shall occur a general suspension,
material limitation, or significant disruption of trading in securities
generally on the New York Stock Exchange or in the market for U.S. Treasury
securities and other financial instruments, then such interest rate quotes
shall
expire, and no purchase or sale of Shelf Notes hereunder shall be made based
on
such expired interest rate quotes. If the Company thereafter notifies
Prudential of the Acceptance of any such interest rate quotes, such Acceptance
shall be ineffective for all purposes of this Agreement, and Prudential shall
promptly notify the Company that the provisions of this Section 2.7 are
applicable with respect to such Acceptance.
2.8 Fees.
(a) Facility
Fee. The Company will pay to each Purchaser in immediately
available funds a fee (the “Facility Fee”) on each Closing Day
after December 30, 2007, in an amount equal to 0.10% of the aggregate
principal amount of Notes sold to such Purchaser on such Closing
Day.
(b) Delayed
Delivery Fee. If the closing of the purchase and sale of any
Accepted Note is delayed for any reason (other than in the case where all
conditions in Section 4 (other than Section 4.5 and Section 4.7)
have been satisfied and a Purchaser fails to purchase its Accepted Notes) beyond
the original Closing Day for such Accepted Note, the Company will pay to
Prudential on the Cancellation Date or actual closing date of such purchase
and
sale (if such Cancellation Date or closing date occurs on a date later than
the
date specified in the Confirmation of Acceptance for such Accepted Note), a
fee
(the “Delayed Delivery Fee”) calculated as
follows:
(BEY
- MMY) X DTS/360 X PA
where
“BEY” means Bond Equivalent Yield, i.e., the bond equivalent
yield per annum of such Accepted Note, “MMY” means Money Market
Yield, i.e., the yield per annum on an alternative investment selected by
Prudential on the date Prudential receives notice of the delay in the closing
for such Accepted Notes having a maturity date or dates the same as, or closest
to, the Rescheduled Closing Day or Rescheduled Closing Days (a new alternative
investment being selected by Prudential each time such closing is delayed);
“DTS” means Days to Settlement, i.e., the number of
actual days elapsed from and including the originally scheduled Closing Day
with
respect to such Accepted Note (in the case of the first such payment with
respect to such Accepted Note) or from and including the date of the next
preceding payment (in the case of any subsequent delayed delivery fee payment
with respect to such Accepted Note) to but excluding the date of such payment;
and “PA” means Principal Amount, i.e., the principal
amount of the Accepted Note for which such calculation is being
made. In no case shall the Delayed Delivery Fee be less than
zero. Nothing contained herein shall obligate any Purchaser to
purchase any Accepted Note on any day other than the Closing Day for such
Accepted Note, as the same may be rescheduled from time to time in compliance
with Section 3.2.
(c) Cancellation
Fee. If the Company at any time notifies Prudential in writing
that the Company is canceling the closing of the purchase and sale of any
Accepted Note, or if Prudential notifies the Company in writing under the
circumstances set forth in the last sentence of Section 3.2 that the
closing of the purchase and sale of such Accepted Note is to be canceled, or
if
the closing of the purchase and sale of such Accepted Note is not consummated
on
or prior to the last day of the Issuance Period (the date of any such
notification, or the last day of the Issuance Period, as the case may be, being
the “Cancellation Date”), the Company will pay Prudential in
immediately available funds an amount (the “Cancellation Fee”)
calculated as follows:
PI
X PA
where
“PI” means Price Increase, i.e., the quotient (expressed in
decimals) obtained by dividing (a) the excess of the ask price (as
determined by Prudential) of the Hedge Treasury Note(s) on the Cancellation
Date
over the bid price (as determined by Prudential) of the Hedge Treasury Notes(s)
on the Acceptance Day for such Accepted Note by (b) such bid price; and
“PA” has the meaning specified in
Section 2.8(b). The foregoing bid and ask prices shall be as
reported by TradeWeb LLC (or, if such data for any reason ceases to be available
through TradeWeb LLC, any publicly available source of similar market
data). Each price shall be based on a U.S. Treasury security having a
par value of $100.00 and shall be rounded to the second decimal
place. In no case shall the Cancellation Fee be less than
zero.
(d) Structuring
Fee. In consideration for the time, effort and expense involved
in the preparation, negotiation, and execution of this Agreement, on September
10, 2007, the Company will pay to Prudential in immediately available funds
a
fee (the “Structuring Fee”) in the amount of $125,000 unless
the Company issues at least $25,000,000 of Notes prior to such date in addition
to the Series A Notes and the Series B Notes.
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3.
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CLOSING.
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3.1 Closings.
(a) Initial
Closing. The sale and purchase of the Initial Notes to be
purchased by the applicable Initial Purchaser shall occur at the offices of
Xxxxx Xxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, no later
than
11:30 a.m. (New York City local time), at a closing (the “Initial
Closing”) on August 14, 2007 (the day of the Initial Closing being
the “Initial Closing Day”). At the Initial Closing,
the Company will deliver to each Initial Purchaser the Initial Notes to be
purchased by such Initial Purchaser in the form of a single Series A Note
or Series B Note, as the case may be (or such greater number of applicable
Initial Notes in denominations of at least $100,000 as such Initial Purchaser
may request), dated August 14, 2007, and registered in such Initial Purchaser’s
name (or in the name of its nominee), against delivery to the Company by such
Initial Purchaser of immediately available funds in the amount of the purchase
price for the Initial Notes to be purchased by such Initial Purchaser by wire
transfer of immediately available funds for the account of the Company to
account number 163070647736 at US Bank, N.A., ABA# 000000000 for credit of
MDU
Energy Capital, LLC. If at the Initial Closing the Company shall fail
to tender such Initial Notes to any Initial Purchaser as provided above in
this
Section 3.1(a), or any of the conditions specified in Section 4 shall
not have been fulfilled to such Initial Purchaser’s satisfaction, such Initial
Purchaser shall, at its election, be relieved of all further obligations under
this Agreement, without thereby waiving any rights such Initial Purchaser may
have by reason of such failure or such nonfulfillment. The Initial
Closing and each Shelf Closing are referred to as a
“Closing”.
(b) Subsequent
Closings. Not later than 11:30 A.M. (New York City local time) on
the Closing Day for any Accepted Notes, the Company will deliver to each
Purchaser listed in the Confirmation of Acceptance relating thereto at a closing
(each, a “Shelf Closing”), at the offices of Xxxxx Xxxxx
L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 the Accepted Notes to
be
purchased by such Purchaser in the form of one or more Notes in authorized
denominations as such Purchaser may request for each Series of Accepted
Notes to be purchased on the Closing Day, dated the Closing Day and registered
in such Purchaser’s name (or in the name of its nominee), against payment of the
purchase price thereof by transfer of immediately available funds for credit
to
the Company’s account specified in the Request for Purchase of such Accepted
Notes.
3.2 Rescheduled
Closings.
If
the
Company fails to tender to any Purchaser the Accepted Notes to be purchased
by
such Purchaser on the scheduled Closing Day for such Accepted Notes as provided
in Section 3.1(b), or any of the conditions specified in Section 4
shall not have been fulfilled by the time required on such scheduled Closing
Day, the Company shall, prior to 1:00 P.M., New York City local time, on such
scheduled Closing Day notify such Purchaser in writing whether (i) such
closing is to be rescheduled (such rescheduled date to be a Business Day during
the Issuance Period not less than one Business Day and not more than 30 Business
Days after such scheduled Closing Day (the “Rescheduled Closing
Day”) and certify to such Purchaser that the Company reasonably
believes that it will be able to comply with the conditions set forth in
Section 4 on such Rescheduled Closing Day and that the Company will pay the
Delayed Delivery Fee in accordance with Section 2.8(b) or (ii) such
closing is to be canceled as provided in Section 2.8(c). In the
event that the Company shall fail to give such notice referred to in the
preceding sentence, such Purchaser may at its election, at any time after 1:00
P.M., New York City local time, on such scheduled Closing Day, notify the
Company in writing that such closing is to be canceled as provided in
Section 2.8(c).
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4.
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CONDITIONS
TO CLOSING.
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The
obligation of any Purchaser to purchase and pay for any Initial Notes or any
Accepted Notes is subject to the fulfillment to such Purchaser’s satisfaction,
prior to or at the Initial Closing Day, in the case of the Initial Notes, or,
in
the case of any Accepted Notes, prior to or at the Closing Day for such Accepted
Notes, of the following conditions:
4.1 Representations
and Warranties.
The
representations and warranties of the Company in this Agreement shall be correct
when made and at the Initial Closing Day or at such Closing Day, as the case
may
be.
4.2 Performance;
No Default.
The
Company shall have performed and complied with all agreements and conditions
contained in this Agreement required to be performed or complied with by it
prior to or at the Initial Closing Day or such Closing Day, as the case may
be,
and after giving effect to the issue and sale of Initial Notes or issue and
sale
of such Accepted Notes, as the case may be (and, with respect to such Accepted
Notes, the application of the proceeds thereof as contemplated by this Agreement
and the Request for Purchase for such Accepted Notes) no Default or Event of
Default shall have occurred and be continuing. From December 31,
2006 to the date of this Agreement, neither the Company nor any Subsidiary
shall
have entered into any transaction that remains in effect on the date of this
Agreement and that would have been prohibited by Sections 10.1 through
10.16 hereof had such Sections applied since December 31, 2006.
4.3 Compliance
Certificates.
(a) Officer’s
Certificate. The Company shall have delivered to such Purchaser
an Officer’s Certificate, dated the date of the Initial Closing Day, with
respect to the Initial Closing, and dated the date of the applicable Closing
Day, with respect to such Closing Day, certifying that the conditions specified
in Sections 4.1, 4.2 and 4.8 have been fulfilled.
(b) Secretary’s
Certificate. The Company shall have delivered to such Purchaser a
certificate, dated as of the Initial Closing Day, with respect to the Initial
Closing, and dated the date of the applicable Closing Day, with respect to
such
Closing Day, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery
of
such Notes and this Agreement.
4.4 Opinions
of Counsel.
Such
Purchaser shall have received opinions in form and substance reasonably
satisfactory to such Purchaser, dated the date of the applicable Closing
from Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for
the Company, and Xxxx X. Xxxxxxxx, Esq., General Counsel of the Company,
covering the matters set forth in Exhibits 4.4(a) and 4.4(b),
respectively, and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably
request. The Company hereby directs each such counsel to deliver such
opinions and agrees that the issuance and sale of any Notes will constitute
a
renewal of such direction. The Company has advised such counsel that
each Purchaser receiving such an opinion will rely on such opinion, as of the
date of such opinion.
4.5 Purchase
Permitted By Applicable Law, etc.
On
the
date of each Closing the purchase of Notes by such Purchaser shall (i) be
permitted by the laws and regulations of each jurisdiction to which it is
subject, without recourse to provisions (such as Section 1405(a)(8) of the
New York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment,
(ii) not violate any applicable law or regulation (including, without
limitation, Regulation T, U or X of the Board of Governors of the Federal
Reserve System) and (iii) not subject such Purchaser to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law
or
regulation was not in effect on the date hereof. If requested, such
Purchaser shall have received an Officer’s Certificate certifying as to such
matters of fact as it may reasonably specify to enable such Purchaser to
determine whether such purchase is so permitted.
4.6 Payment
of Facility Fee and Structuring Fee.
The
Company shall have paid on or before such Closing Day the Facility Fee required
by Section 2.8(a) for such Accepted Notes and the Structuring Fee, if
required by Section 2.8(d).
4.7 Private
Placement Number.
A
Private
Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in
cooperation with the Securities Valuation Office of the National Association
of
Insurance Commissioners) shall have been obtained by the Purchasers for such
Notes.
4.8 Changes
in Corporate Structure.
The
Company shall not be in violation of Section 9.5.
4.9 Certain
Documents.
Such
Purchaser shall have received the following:
(i) The
Note(s) to be purchased by such Purchaser at such Closing.
(ii) Certified
copies of the Certificate of Formation and the Limited Liability Company
Agreement of the Company as of the date of such Closing, or a certificate of
the
Secretary or an Assistant Secretary of the Company certifying that there have
been no changes to the Certificate of Incorporation and By-laws of the Company
since the same were previously delivered pursuant to this
Agreement.
(iii) A
good
standing certificate for the Company from the Secretary of State of Delaware
dated of a recent date prior to such Closing and such other evidence of the
status of the Company as such Purchaser may reasonably request.
(iv) Certified
copies of the resolutions of the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and the issuance of the Notes,
and
of all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the Notes (provided,
that
for any Closing, the Company may certify that there has been no change to any
applicable authorization or approval since the date on which it was most
recently delivered to such Purchaser under this Section 4.9 as an
alternative to the further delivery thereof).
(v) A
certificate of the Secretary or an Assistant Secretary and one other officer
of
the Company certifying the names and true signatures of the officers of the
Company authorized to sign this Agreement and the Notes and the other documents
to be delivered hereunder (provided, that for any Closing, the Secretary or
an
Assistant Secretary and one other officer of the Company may certify that there
has been no change to the officers of the Company authorized to sign Notes
and
other documents to be delivered therewith since the date on which a certificate
setting forth the names and true signatures of such officers, as described
above, was most recently delivered to such Purchaser under this
Section 4.9, as an alternative to the further delivery
thereof).
4.10 Proceedings
and Documents.
All
of
the Company’s corporate and other proceedings required in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory to Prudential
and
its counsel, and Prudential and its counsel shall have received all such
counterpart originals or certified or other copies of such documents as
Prudential or they may reasonably request.
4.11 Funding
Instructions.
With
respect to the Initial Closing only, at least three Business Days prior to
the
date of the Initial Closing, each Purchaser shall have received written
instructions signed by an authorized officer of the Company on letterhead of
the
Company confirming the information specified in Section 3.1(a) including
(i) the name and address of the transferee bank, (ii) such transferee
bank’s ABA number and (iii) the account name and number into which the
purchase price for the Initial Notes is to be deposited.
4.12 Payment
of Centennial Notes.
On
the
Initial Closing Day, the Centennial Notes shall have been prepaid, in whole
and
at par, together with accrued interest thereon to (but not including) the
Initial Closing Day.
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5.
|
REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
|
The
Company represents and warrants to each Purchaser that:
5.1 Organization;
Power and Authority.
The
Company is a limited liability company duly organized, validly existing and
in
good standing under the laws of its jurisdiction of organization, and is duly
qualified as a foreign limited liability company and is in good standing in
each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect. The Company has the limited liability
company power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts
and
proposes to transact, to execute and deliver this Agreement and the Notes and
to
perform the provisions hereof and thereof.
5.2 Authorization,
etc.
This
Agreement and the Notes have been duly authorized by all necessary limited
liability company action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.3 Disclosure.
The
Company has (i) delivered to Prudential and PICA a copy of the Cascade Annual
Report and (ii) through the public filings of Cascade has made available to
Prudential and PICA copies of each of the Cascade Exchange Act
Reports. The information with respect to Cascade contained in the
Cascade Annual Report and the Cascade Exchange Act Reports fairly describes,
in
all material respects, the general nature of the business and principal
properties of Cascade and its Subsidiaries as of the date of this
Agreement. This Agreement, the Cascade Annual Report, the Cascade
Exchange Act Reports and the documents, certificates or other writings
(including the financial statements referred to in Section 5.5) delivered
to the Purchasers by or on behalf of the Company in connection with the
transactions contemplated hereby (this Agreement, the Cascade Annual Report,
the
Cascade Exchange Act Reports and such documents, certificates or other writings
and such financial statements delivered (or deemed delivered pursuant to Section
7.1(e)) to each Purchaser prior to the applicable Closing being referred to,
collectively, as the “Disclosure Documents”), taken as a whole,
do not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made. Except as disclosed
in the Disclosure Documents, since the end of the most recent fiscal year for
which audited financial statements have been furnished, there has been no change
in the financial condition, operations or properties of the Company or any
Subsidiary except changes that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. There is no
fact known to the Company that would reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the Disclosure
Documents.
5.4 Organization
and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4,
as it may be amended from time to time pursuant to Section 2.4, contains
(except as noted therein) complete and correct lists (i) of the Company’s
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization and the percentage of shares of each class
of
its capital stock or similar equity interests outstanding owned by the Company
and each other Subsidiary (ii) of the Company’s Affiliates, other than
Subsidiaries, and (iii) of the Company’s directors and senior
officers.
(b) All
of
the outstanding shares of capital stock or membership interests of each
Subsidiary shown in Schedule 5.4, as it may be amended from time to
time pursuant to Section 2.4, as being owned by the Company and its
Subsidiaries have been validly issued, are fully paid and nonassessable and
are
owned by the Company or another Subsidiary free and clear of any Lien (except
as
permitted by Section 10.3).
(c) Each
Subsidiary identified in Schedule 5.4, as it may be amended from
time to time pursuant to Section 2.4, is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws
of
its jurisdiction of organization, and is duly qualified as a foreign corporation
or other legal entity and is in good standing in each jurisdiction in which
such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing could not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse
Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to
transact.
(d) No
Subsidiary is a party to, or otherwise subject to any legal restriction or
any
agreement (other than the agreements listed on Schedule 5.4, as it
may be amended from time to time, pursuant to Section 2.4, and customary
limitations imposed by Requirements of Law) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to the Company or any of its Subsidiaries that owns
outstanding shares of capital stock or similar equity interests of such
Subsidiary.
5.5 Financial
Statements.
The
Company has delivered to each Purchaser of Accepted Notes copies of
the following financial statements: (i) a consolidated balance sheet of the
Company and its Subsidiaries as at December 31 in each of the two fiscal
years of the Company most recently completed prior to the date as of which
this
representation is made or repeated to such Purchaser (other than fiscal years
completed within 120 days prior to such date for which audited financial
statements have not been released) and consolidated statements of income,
stockholders’ equity and cash flows of the Company and its Subsidiaries for each
such year, all reported on by the Company’s independent auditors (which shall be
Deloitte & Touche LLP or another nationally recognized independent
accounting firm); and (ii) an unaudited consolidated balance sheet of the
Company and its Subsidiaries as at the end of the quarterly period (if any)
most
recently completed prior to such date and after the end of such fiscal year
(other than quarterly periods completed within 60 days prior to such date for
which financial statements have not been released) and the comparable quarterly
period in the preceding fiscal year and unaudited consolidated statements of
income, stockholders’ equity and cash flows for the periods from the beginning
of the fiscal years in which such quarterly periods are included to the end
of
such quarterly periods, prepared by the Company. All of said
financial statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial position
of
the Company and its Subsidiaries as of the respective dates specified in such
financial statements and the consolidated results of their operations and cash
flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments). Until the earlier of
April 30, 2009 and the delivery by the Company pursuant to Section 7.1(b) of its
audited financial statements for the fiscal year ending December 31, 2008,
the
Purchasers and the Company agree that the requirements of the first sentence
of
this Section 5.5 shall be satisfied, as to financial statements with respect
to
fiscal periods ended prior to the Cascade Acquisition, by the delivery by the
Company of the applicable annual and quarterly financial statement of
Cascade.
5.6 Compliance
with Laws, Other Instruments, etc.
The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (i) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Company or any Subsidiary under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or
any
other agreement or instrument to which the Company or any Subsidiary is bound
or
by which the Company or any Subsidiary or any of their respective properties
may
be bound or affected, (ii) conflict with or result in a breach of any of
the terms, conditions or provisions of any order, judgment, decree, or ruling
of
any court, arbitrator or Governmental Authority applicable to the Company or
any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
5.7 Governmental
Authorizations, etc.
No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by the Company of this Agreement or the
Notes.
5.8 Litigation;
Observance of Agreements, Statutes and Orders.
(a) Except
as
disclosed in Schedule 5.8, as it may be amended from time to time
pursuant to Section 2.4, there are no actions, suits or proceedings pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have
a
Material Adverse Effect.
(b) Neither
the Company nor any Subsidiary is in default under any term of any agreement
or
instrument to which it is a party or by which it is bound, or any order,
judgment, decree or ruling of any court, arbitrator or Governmental Authority
or
is in violation of any applicable law, ordinance, rule or regulation (including
without limitation Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
5.9 Taxes.
The
Company and its Subsidiaries have filed all tax returns that are required to
have been filed in any jurisdiction, and have paid all taxes shown to be due
and
payable on such returns and all other taxes and assessments levied upon them
or
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments (i) the amount of which is not
individually or in the aggregate Material or (ii) the amount, applicability
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. As
of the date of this Agreement, (x) the Company knows of no basis for any
other tax or assessment that could reasonably be expected to have a Material
Adverse Effect; (y) the charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of Federal, state or other taxes for
all
fiscal periods are adequate; and (z) the Federal income tax liabilities of
the Company and its Subsidiaries have been determined by the Internal Revenue
Service and accrued for all fiscal years up to and including the fiscal year
ended December 31, 2001.
5.10 Title
to Property; Leases.
The
Company and its Subsidiaries have good and sufficient title to their respective
properties that individually or in the aggregate are Material, including all
such properties reflected in the most recent audited balance sheet referred
to
in Section 5.5 or purported to have been acquired by the Company or any
Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business or listed on Schedule 5.10, as it may be
amended from time to time pursuant to Section 2.4), in each case free and
clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and
are
in full force and effect in all material respects.
5.11 Licenses,
Permits, etc.
(a) The
Company and its Subsidiaries own or possess all licenses, permits, franchises,
authorizations, patents, copyrights, service marks, trademarks and trade names,
or rights thereto, that individually or in the aggregate are Material to the
operation of the business of the Company and its Subsidiaries, taken as a whole,
without known conflict with the rights of others.
(b) To
the
best knowledge of the Company, no product of the Company infringes in any
material respect any license, permit, franchise, authorization, patent,
copyright, service xxxx, trademark, trade name or other right owned by any
other
Person.
(c) To
the
best knowledge of the Company, there is no Material violation by any Person
of
any right of the Company or any of its Subsidiaries with respect to any patent,
copyright, service xxxx, trademark, trade name or other right owned or used
by
the Company or any of its Subsidiaries.
5.12 Compliance
with ERISA.
(a) Each
Plan
is in compliance in all material respects with ERISA, the Code and other
applicable federal or state law. Each Plan which is intended to
quality under Section 401 (a) of the Code has received a favorable
determination letter from IRS and, to the best knowledge of the Company, nothing
has occurred which would or could reasonably be expected to cause the loss
of
such qualification of any such Plan or related trust.
(b) There
are
no pending or, to the best knowledge of the Company, threatened claims (other
than routine claims for benefits in the ordinary course), actions or lawsuits,
or action by any Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material Adverse
Effect. To the best knowledge of the Company, there has been no
prohibited transaction within the meaning of Section 4975 of the Code or
Section 406 of ERISA or other material violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) No
Reportable Event has occurred or is reasonably expected to occur with respect
to
any Pension Plan or Multiemployer Plan.
(d) The
aggregate Unfunded Pension Liability for all Pension Plans (calculated based
on
the most recent actuarial report for each Pension Plan) does not exceed
$15,000,000.
(e) Neither
the Company nor any ERISA Affiliate has incurred nor does it reasonably expect
to incur, any liability under Title IV or ERISA with respect to any Pension
Plan
(other than premiums due and not delinquent under Section 4007 of
ERISA).
(f) Neither
the Company nor any ERISA Affiliate has transferred any Unfunded Pension
Liability to any Person or otherwise engaged in a transaction that could be
subject to Section 4069 of ERISA.
(g) Neither
the Company nor any ERISA Affiliate has incurred nor reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan.
(h) The
execution and delivery of this Agreement and the issuance and sale of the Notes
will be exempt from, or will not involve any transaction which is subject to,
the prohibitions of Section 406(a) of ERISA and will not involve any
transaction in connection with which a penalty could be imposed under
Section 502(i) of ERISA or a tax could be imposed pursuant to
Section 4975(c)(i)(A)-(D) of the Code. The representation by the Company in
the next preceding sentence is made in reliance upon and subject to the accuracy
of the representation of each Purchaser in Section 6.2 as to the source of
funds to be used by it to purchase any Notes.
5.13 Private
Offering by the Company.
Neither
the Company nor anyone acting on its behalf has offered the Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from,
or
otherwise approached or negotiated in respect thereof with, any person other
than the Purchasers and other Institutional Investors, each of which has been
offered the Notes at a private sale for investment. Neither the
Company nor anyone acting on its behalf has taken, or will take, any action
that
would subject the issuance or sale of the Notes to the registration requirements
of Section 5 of the Securities Act.
5.14 Use
of Proceeds; Margin Regulations.
The
Company will apply the proceeds of the sale of the Notes of any Series as
set forth in the Request for Purchase for such Notes. No part of the
proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation
of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer
in a
violation of Regulation T of said Board (12 CFR 220). Margin stock
does not constitute more than 2% of the value of the consolidated assets of
the
Company and its Subsidiaries and the Company does not have any present intention
that margin stock will constitute more than 5% of the value of such
assets. As used in this Section, the terms “margin
stock” and “purpose of buying or carrying” shall have
the meanings assigned to them in said Regulation U.
5.15 Existing
Indebtedness; Future Liens.
(a) Schedule 5.15
sets forth a complete and correct list of all outstanding Indebtedness of the
Company and its Subsidiaries as of the date of this
Agreement. Neither the Company nor any of its Subsidiaries has any
outstanding Indebtedness except in accordance with and as permitted by Sections
9.9, 10.1, 10.2 and 10.4. Neither the Company nor any Subsidiary is
in default and no waiver of default is currently in effect, in the payment
of
any principal or interest on any Indebtedness of the Company or such Subsidiary
and no event or condition exists with respect to any Indebtedness of the Company
or any Subsidiary that would permit (or that with notice or the lapse of time,
or both, would permit) one or more Persons to cause such Indebtedness to become
due and payable before its stated maturity or before its regularly scheduled
dates of payment.
(b) As
of the
date of this Agreement, neither the Company nor any Subsidiary has any
Indebtedness secured by a Lien on any of their respective
property. Neither the Company nor any Subsidiary has agreed or
consented to cause or permit in the future (upon the happening of a contingency
or otherwise) any of its property, whether now owned or hereafter acquired,
to
be subject to a Lien securing Indebtedness, in violation of
Section 10.3.
5.16 Status
under Certain Statutes.
Neither
the Company nor any Subsidiary or Affiliate is subject to regulation under
the
Investment Company Act of 1940, as amended. The Company is not
subject to regulation under the Public Utility Holding Company Act of 2005,
the
Interstate Commerce Act, as amended, the Federal Power Act, as amended, any
state public utilities code or statute, or any other Federal or state statute
or
regulation limiting its ability to incur indebtedness.
5.17 Environmental
Matters.
Except
as
described in Schedule 5.17, as it may be amended from time to time
pursuant to Section 2.4, the Company and its Subsidiaries and all of their
respective properties and facilities have complied at all times and in all
respects with all Federal, state, local and regional statutes, laws, ordinances
and judicial or administrative orders, judgments, rulings and regulations
relating to protection of the environment except, in any such case, where
failure to comply would not result in a Material Adverse Effect.
5.18 Hostile
Tender Offers.
None
of
the proceeds of the sale of any Notes will be used to finance a Hostile Tender
Offer.
5.19 Foreign
Assets Control Regulations, Etc.
(a) Neither
the sale of the Notes by the Company hereunder nor its use of the proceeds
thereof will violate the Trading with the Enemy Act, as amended, or any of
the
foreign assets control regulations of the United States Treasury Department
(31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
(b) Neither
the Company nor any Subsidiary (i) is a Person described or designated in
the Specially Designated Nationals and Blocked Persons List of the Office of
Foreign Assets Control or in Section 1 of the Anti Terrorism Order or
(ii) engages in any dealings or transactions with any such
Person. The Company and its Subsidiaries are in compliance, in all
material respects, with the USA Patriot Act.
(c) No
part
of the proceeds from the sale of the Notes hereunder will be used, directly
or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that
such Act applies to the Company.
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6.
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REPRESENTATIONS
OF THE PURCHASER.
|
6.1 Purchase
for Investment.
Each
Purchaser represents that it is purchasing the Notes for its own account or
for
one or more separate accounts maintained by it or for the account of one or
more
pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of its or their property shall at all times
be within its or their control. Each Purchaser understands that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that
the
Company is not required to register the Notes.
6.2 Source
of Funds.
Each
Purchaser represents that at least one of the following statements is an
accurate representation as to each source of funds (a “Source”)
to be used by it to pay the purchase price of the Notes to be purchased by
it
hereunder:
(a) the
Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption
(“PTE”) 95-60) in respect of which the reserves and liabilities
(as defined by the annual statement for life insurance companies approved by
the
National Association of Insurance Commissioners (the “NAIC Annual
Statement”)) for the general account contract(s) held by or on behalf
of any employee benefit plan together with the amount of the reserves and
liabilities for the general account contract(s) held by or on behalf of any
other employee benefit plans maintained by the same employer (or affiliate
thereof as defined in PTE 95-60) or by the same employee organization in the
general account do not exceed 10% of the total reserves and liabilities of
the
general account (exclusive of separate account liabilities) plus surplus as
set
forth in the NAIC Annual Statement filed with such Purchaser’s state of
domicile; or
(b) the
Source is a separate account that is maintained solely in connection with such
Purchaser’s fixed contractual obligations under which the amounts payable, or
credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary of
such
plan (including any annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c) the
Source is either (i) an insurance company pooled separate account, within
the meaning of PTE 90-1 or (ii) a bank collective investment fund, within
the meaning of PTE 91-38 and, except as disclosed by such Purchaser to the
Company in writing pursuant to this clause (c), no employee benefit plan or
group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund; or
(d) the
Source constitutes assets of an “investment fund” (within the meaning of Part V
of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified
professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM
Exemption), no employee benefit plan’s assets that are included in such
investment fund, when combined with the assets of all other employee benefit
plans established or maintained by the same employer or by an affiliate (within
the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or
by the same employee organization and managed by such QPAM, exceed 20% of the
total client assets managed by such QPAM, the conditions of Part I(c) and (g)
of
the QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or
controlled by the QPAM (applying the definition of “control” in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment fund have
been disclosed to the Company in writing pursuant to this clause (d);
or
(e) the
Source constitutes assets of a “plan(s)” (within the meaning of Section IV
of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house
asset manager” or “INHAM” (within the meaning of Part IV of the INHAM
exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption
are
satisfied, neither the INHAM nor a person controlling or controlled by the
INHAM
(applying the definition of “control” in Section IV(d) of the INHAM
Exemption) owns a 5% or more interest in the Company and (i) the identity
of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose
assets constitute the Source have been disclosed to the Company in writing
pursuant to this clause (e); or
(f) the
Source is a governmental plan; or
(g) the
Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been
identified to the Company in writing pursuant to this clause (g);
or
(h) the
Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As
used
in this Section 6.2, the terms “employee benefit plan”,
“governmental plan”, “party in interest” and
“separate account”
shall
have the respective meanings assigned
to such terms in Section 3 of ERISA.
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7.
|
INFORMATION
AS TO COMPANY.
|
7.1 Financial
and Business Information.
The
Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly
Statements. As soon as practicable and in any event within 60
days after the end of each quarterly fiscal period in each fiscal year of the
Company (other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) unaudited
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) unaudited
consolidated and consolidating statements of income, changes in shareholders’
equity and cash flows of the Company and its Subsidiaries, for such quarter
and
(in the case of the second and third quarters) for the portion of the fiscal
year ending with such quarter,
setting
forth in each case in comparative form the figures for the corresponding periods
in the previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP applicable to quarterly financial statements generally, and certified
by a Senior Financial Officer as fairly presenting, in all material respects,
the financial position of the companies being reported on and their results
of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that, at such times as the Company is subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act,
delivery within the time period specified above of copies of the Company’s
Quarterly Report on Form 10-Q prepared in compliance with the requirements
therefor and filed with the SEC shall be deemed to satisfy the requirements
of
this Section 7.1(a);
(b) Annual
Statements. As soon as practicable and in any event within 120
days after the end of each fiscal year of the Company, duplicate copies
of,
(i) a
consolidated balance sheet of the Company and its Subsidiaries, as at the end
of
such year,
(ii) consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such year,
(iii) if
the
Company has a Principal Operating Subsidiary other than Cascade, an unaudited
consolidating balance sheet of the Company and its Subsidiaries, as at the
end
of such year, and
(iv) if
the
Company has a Principal Operating Subsidiary other than Cascade, unaudited
consolidating statements of income, changes in shareholders’ equity and cash
flows of the Company and its Subsidiaries, for such year,
setting
forth in each case in comparative form the figures for the previous fiscal
year,
all in reasonable detail, prepared in accordance with GAAP, and, in the case
of
the consolidated statements, accompanied
(A) by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and cash flows
and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances,
and
(B) a
certificate of such accountants stating that, in making the audit necessary
for
their report on such financial statements, they have obtained no knowledge
of
any Default or any Event of Default, or, if they have obtained knowledge of
any
Default or Event of Default, specifying the nature and period of the existence
thereof (it being understood that such accountants shall not be liable, directly
or indirectly, for any failure to obtain knowledge of any Default or Event
of
Default unless such accountants should have obtained knowledge thereof in making
an audit in accordance with generally accepted auditing standards or did not
make such an audit);
provided
that, at such times as the Company is subject to the reporting requirements
of
Section 13 or 15(d) of the Exchange Act, the delivery within the time
period specified above of the Company’s Annual Report on Form 10-K for such
fiscal year (together with the Company’s annual report to shareholders, if any,
prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance
with the requirements therefor and filed with the SEC, together with the
accountant’s certificate described in clause (B) above, shall be
deemed to satisfy the requirements of this Section 7.1(b);
(c) Annual
Statements of Principal Operating Subsidiaries -- as soon as available, but
not later than 120 days after the end of each fiscal year, a copy of the audited
consolidated balance sheet of each of the Principal Operating Subsidiaries
and
their respective Subsidiaries (and any other Subsidiary the audited financial
statements of which are delivered to other creditors of the Company, such
Subsidiary being an “Additional Reporting Subsidiary”) as at
the end of such year and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, and
accompanied in each case by the opinion of independent certified public
accountants of recognized national standing which opinion shall state that
such
consolidated financial statements present fairly, in all material respects,
the
financial position and the results of operations of the companies being reported
on at the time and for the periods indicated in conformity with GAAP applied
on
a basis consistent with prior years. Such opinions shall not be
qualified or limited because of a restricted or limited examination by such
accountants of any material portion of any of the Principal Operating
Subsidiaries’ or any other Subsidiary’s or Additional Reporting Subsidiary’s
records.
(d) Quarterly
Statements of Principal Operating Subsidiaries -- as soon as available, but
not later than 60 days after the end of each of the first three fiscal quarters
of each fiscal year, a copy of the unaudited consolidated balance sheet of
each
of the Principal Operating Subsidiaries and its Subsidiaries and any Additional
Reporting Subsidiary, respectively, as of the end of such quarter and the
related consolidated statements of income, shareholders’ equity and cash flows
for the period commencing on the first day and ending on the last day of such
quarter, certified by a Responsible Officer as fairly presenting, in all
material respects, in accordance with GAAP (subject to ordinary, good faith
year-end audit adjustments), the financial positions and the results of
operations of each of the companies being reported on at the time and for the
periods indicated;
(e) SEC
and Other Reports. Promptly upon transmission thereof, copies of
all financial statements and regular, periodical or special reports (including
Forms 10K, 10Q and 8K) that MDU or Cascade may make to, or file with, the SEC,
provided, that such information need not be provided by the Company if it
is available on the SEC’s XXXXX system and the Company sends to such holder an
email notification at the time such information becomes available on such
system.
(f) Reports
of Accountants. Promptly upon receipt thereof, a copy of each
other material (in the reasonable judgment of the Company) report submitted
to
the Company or any Subsidiary by independent public accountants in connection
with any annual, interim or special audit made by them of the books and records
of the Company or any Subsidiary;
(g) Notice
of Default or Event of Default. Promptly, and in any event within
five days after a Senior Financial Officer becomes aware of the existence of
any
Default or Event of Default, a written notice specifying the nature and period
of existence thereof and what action the Company is taking or proposes to take
with respect thereto;
(h) ERISA
Matters. Promptly, and in any event within five days after a
Senior Financial Officer becomes aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the Company or
an
ERISA Affiliate proposes to take with respect thereto:
(i) with
respect to any Plan, any Reportable Event; or
(ii) the
taking by the PBGC of steps to institute, or the threatening by the PBGC of
the
institution of, proceedings under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan, or the receipt
by
the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any
event, transaction or condition that could result in the incurrence of any
liability by the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of the rights, properties
or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such liability or Lien,
taken
together with any other such liabilities or Liens then existing, would
reasonably be expected to have a Material Adverse Effect;
(i) Notices
from Governmental Authority. Promptly, and in any event within 30
days of receipt thereof, copies of any notice to the Company or any Subsidiary
from any Federal or state Governmental Authority relating to any order, ruling,
statute or other law or regulation that could reasonably be expected to have
a
Material Adverse Effect;
(j) Notice
of Change in Ratings. Promptly, written notice of the
announcement by S&P, Xxxxx’x or any other NRSRO of any change or possible
change in the senior unsecured debt rating of the Company or any of its
Subsidiaries; and
(k) Requested
Information. With reasonable promptness, such other data and
information relating to the business, operations, affairs, financial condition,
assets or properties of the Company or any of its Subsidiaries or relating
to
the ability of the Company to perform its obligations hereunder and under the
Notes, in any case as from time to time may be reasonably requested by any
such
holder of Notes.
7.2 Officer’s
Certificate.
Each
set
of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) Covenant
Compliance. The information (including detailed calculations)
required in order to establish whether the Company was in compliance with the
requirements of Section 10.1, Section 10.2, Section 10.5 and
Section 10.7 hereof, during the quarterly or annual period covered by the
statements then being furnished (including with respect to each such Section,
where applicable, the calculations of the maximum or minimum amount, ratio
or
percentage, as the case may be, permissible under the terms of such Sections,
and the calculation of the amount, ratio or percentage then in existence);
and
(b) Event
of Default. A statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
its
Subsidiaries from the beginning of the quarterly or annual period covered by
the
statements then being furnished to the date of the certificate and that such
review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default or, if
any
such condition or event existed or exists, specifying the nature and period
of
existence thereof and what action the Company shall have taken or proposes
to
take with respect thereto.
7.3 Inspection.
The
Company shall permit the representatives of each holder of Notes that is an
Institutional Investor:
(a) No
Default. If no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the Company, to
visit
the principal executive office of the Company, to discuss the affairs, finances
and accounts of the Company and its Subsidiaries with the Company’s officers,
and (with the consent of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be reasonably
requested in writing; and
(b) Default. If
a Default or Event of Default then exists, at the expense of the Company to
visit and inspect any of the offices or properties of the Company or any
Subsidiary, to examine all the respective books of account, records, reports
and
other papers of the Company and any Subsidiary, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers and independent public accountants (and by this
provision the Company authorizes said accountants to discuss the affairs,
finances and accounts of the Company and its Subsidiaries, so long as a
representative of the Company is offered, on at least two Business Days’ notice,
the opportunity to be present), all at such times and as often as may be
requested.
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8.
|
PREPAYMENT
OF THE NOTES.
|
8.1 Required
Prepayments.
The
Notes
of each Series shall be subject to the required prepayments, if any, set
forth in the Notes of such Series.
8.2 Optional
Prepayments with Make-Whole Amount.
The
Company may, at its option, upon notice as provided below, prepay at any time
all, or from time to time any part of, the Notes of each Series, in an amount
not less than $1,000,000 of the aggregate principal amount of the Notes of
such
Series then outstanding in the case of a partial prepayment, at 100% of the
principal amount so prepaid, plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount. The Company
will give each holder of Notes of each Series written notice of each
optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each
such notice shall specify such date, the aggregate principal amount of the
Notes
of each Series to be prepaid on such date, the principal amount of each
Note of such Series held by such holder to be prepaid (determined in
accordance with Section 8.3), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer as to the estimated
Make-Whole Amount due in connection with such prepayment (calculated as if
the
date of such notice were the date of the prepayment), setting forth the details
of such computation. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of
the
specified prepayment date. Any partial prepayment of a Series of
Notes pursuant to this Section 8.2 shall be applied in satisfaction of
required payments of principal of the Notes in such Series in inverse order
of their scheduled due dates.
8.3 Allocation
of Partial Prepayments.
In
the
case of each partial prepayment of the Notes of any Series pursuant to
Section 8.1 or 8.2, the principal amount of the Notes to be prepaid shall
be allocated among all of the Notes of such Series at the time outstanding
in proportion, as nearly as practicable, to the respective unpaid outstanding
principal amounts thereof.
8.4 Maturity;
Surrender, etc.
In
the
case of each prepayment of Notes pursuant to this Section 8, the principal
amount of each Note to be prepaid shall mature and become due and payable on
the
date fixed for such prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount
shall
cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and canceled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any
Note.
8.5 Purchase
of Notes.
The
Company will not and will not permit any Affiliate to purchase, redeem, prepay
or otherwise acquire, directly or indirectly, any of the outstanding Notes
except upon the payment or prepayment of the Notes in accordance with the terms
of this Agreement and the Notes. The Company will promptly cancel all
Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes
may
be issued in substitution or exchange for any such Notes.
8.6 Make-Whole
Amount.
The
term
“Make-Whole Amount” means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount
of
such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings:
“Called
Principal” means, with respect to any Note, the principal of such Note
that is to be prepaid pursuant to Section 8.2 or has become or is declared
to be immediately due and payable pursuant to Section 12.1, as the context
requires.
“Discounted
Value” means, with respect to the Called Principal of any Note, the
amount obtained by discounting all Remaining Scheduled Payments with respect
to
such Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to
the
Reinvestment Yield with respect to such Called Principal.
“Reinvestment
Yield” means, with respect to the Called Principal of any Note, 0.50%
over the yield to maturity implied by (i) the yields reported as of 10:00
a.m. (New York City time) on the second Business Day preceding the Settlement
Date with respect to such Called Principal, on the display designated as
“Page PX1” (or such other display as may replace Page PX1) on
Bloomberg Financial Markets for the most recently issued actively traded on
the
run U.S. Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date,
or (ii) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable (including
by
way of interpolation), the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported as
of
the second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable
successor publication) for U.S. Treasury securities having a constant maturity
equal to the Remaining Average Life of such Called Principal as of such
Settlement Date. In the case of each determination under
clause (i) or clause (ii) above, as the case may be, such implied
yield will be determined, if necessary, by (a) converting U.S. Treasury
xxxx quotations to bond equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the applicable
U.S. Treasury security with the maturity closest to and greater than such
Remaining Average Life and (2) the applicable U.S. Treasury security with
the maturity closest to and less than such Remaining Average
Life. The Reinvestment Yield shall be rounded to the number of
decimal places as appears in the interest rate of the applicable
Note.
“Remaining
Average Life” means, with respect to any Called Principal, the number
of years (calculated to the nearest one-twelfth year) obtained by dividing
(i) such Called Principal into (ii) the sum of the products obtained
by multiplying (a) the principal component of each Remaining Scheduled
Payment with respect to such Called Principal by (b) the number of years
(calculated to the nearest one-twelfth year) that will elapse between the
Settlement Date with respect to such Called Principal and the scheduled due
date
of such Remaining Scheduled Payment.
“Remaining
Scheduled Payments” means, with respect to the Called Principal of any
Note, all payments of such Called Principal and interest thereon that would
be
due after the Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which interest
payments are due to be made under the terms of the Notes, then the amount of
the
next succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on such
Settlement Date pursuant to Section 8.2 or 12.1.
“Settlement
Date” means, with respect to the Called Principal of any Note, the date
on which such Called Principal is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
|
9.
|
AFFIRMATIVE
COVENANTS.
|
The
Company covenants that so long as any of the Notes are outstanding:
9.1 Compliance
with Law.
The
Company will and will cause each of its Subsidiaries to comply with all laws,
ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws, and will obtain
and
maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to consummate the Cascade Acquisition
and
necessary to the ownership of their respective properties or to the conduct
of
their respective businesses, in each case to the extent necessary to ensure
that
non-compliance with such laws, ordinances or governmental rules or regulations
or failure to obtain or maintain in effect such licenses, certificates, permits,
franchises and other governmental authorizations could not, individually or
in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
9.2 Insurance.
The
Company will and will cause each of its Subsidiaries to maintain, insurance
with
respect to their respective properties and businesses against such casualties
and contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities engaged
in the same or a similar business and similarly situated.
9.3 Maintenance
of Properties.
The
Company will and will cause each of its Subsidiaries to maintain and keep,
or
cause to be maintained and kept, their respective properties in good repair,
working order and condition (other than ordinary wear and tear) so that the
business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or
any Subsidiary from discontinuing the operation and the maintenance of any
of
its properties if such discontinuance is desirable in the conduct of its
business and the Company has concluded that such discontinuance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4 Payment
of Taxes.
The
Company will and will cause each of its Subsidiaries to file all income tax
or
similar tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges, or levies payable by any of them,
to
the extent such taxes and assessments have become due and payable and before
they have become delinquent, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment if (i) the amount,
applicability or validity thereof is contested by the Company or such Subsidiary
on a timely basis in good faith and in appropriate proceedings, and the Company
or a Subsidiary has established adequate reserves therefor in accordance with
GAAP on the books of the Company or such Subsidiary or (ii) the nonpayment
of all such taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
9.5 Corporate
Existence, etc.
Subject
to Section 10.6, the Company will at all times preserve and keep in full
force and effect its corporate existence. Subject to
Section 10.6, the Company will at all times preserve and keep in full force
and effect the corporate existence of each of its Subsidiaries (unless merged
into the Company or a Subsidiary) and all rights and franchises of the Company
and its Subsidiaries unless, in the good faith judgment of the Company, the
termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise could not, individually or in the
aggregate, have a Material Adverse Effect.
9.6 Information
Required by Rule 144A.
The
Company will, upon the request of the holder of any Note, provide such holder,
and any qualified institutional buyer designated by such holder, such financial
and other information as such holder and the Company may reasonably determine
to
be necessary in order to permit compliance with the information requirements
of
Rule 144A under the Securities Act in connection with the resale of Notes,
except at such times as the Company is subject to the reporting requirements
of
Sections 13 or 15(d) of the Exchange Act. For the purpose of this
paragraph, the term “qualified institutional buyer” shall have
the meaning specified in Rule 144A under the Securities Act.
9.7 Covenant
to Secure Notes Equally.
If
the
Company or any Subsidiary (other than Cascade or any of its Subsidiaries, none
of which shall be subject to this Section 9.7), shall create or assume any
Lien
upon any of its property or assets, whether now owned or hereafter acquired,
other than Liens permitted by Section 10.3 (unless prior written consent to
the creation or assumption thereof shall have been obtained pursuant to this
Agreement), the Company will make or cause to be made effective provisions
whereby the Notes will be secured by such Lien equally and ratably with any
and
all other Indebtedness so long as such Indebtedness shall be so
secured.
9.8 Books
and Records.
The
Company will at all times keep at its principal accounting office proper books
of record and account in which full, true and correct entries will be made
of
its transactions in accordance with GAAP.
9.9 Parity
With Other Indebtedness.
The
Company will, and will cause its Subsidiaries to, execute all such documents
and
take all such other actions as the Required Holder(s) may reasonably request
in
order to assure that at all times the Notes shall rank in right of payment
senior to or pari passu with all other Indebtedness of the Company.
|
10.
|
NEGATIVE
COVENANTS.
|
The
Company covenants that so long as any of the Notes are outstanding:
10.1 Maximum
Capitalization Ratios.
(a) Maximum
Company Capitalization Ratio. The Company shall not permit the
Company’s Capitalization Ratio to exceed 70% at any time.
(b) Maximum
Subsidiary Capitalization Ratio. The Company shall not permit the
Subsidiary Capitalization Ratio to exceed 65% at any time.
10.2 Minimum
Interest Coverage Ratio.
The
Company shall not permit the ratio of EBIT to Interest Expense, in each case
calculated for the period of four consecutive fiscal quarters ending on the
date
of calculation, to be less than 1.50 to 1.00 as of the last day of any fiscal
quarter during the term hereof, commencing with the fiscal quarter ending
September 30, 2007.
10.3 Limitation
on Liens.
The
Company shall not, and shall not suffer or permit any Subsidiary (other than
Cascade or any of its Subsidiaries, none of which shall be subject to this
Section 10.3), to directly or indirectly, make, create, incur, assume or suffer
to exist any Lien upon or with respect to any part of its property, whether
now
owned or hereafter acquired, other than the following (“Permitted
Liens”):
(a) any
Lien
existing on property of the Company or any Subsidiary on the date of this
Agreement and set forth in Schedule 10.3 securing Indebtedness
outstanding on such date and any Lien renewing, extending or refunding such
Lien, provided that (i) the principal amount of the Indebtedness secured by
the subject Liens is not increased over the amount of the Indebtedness secured
thereby immediately prior to such extension, renewal or refunding,
(ii) such Lien is not extended to any other property and
(iii) immediately after such extension, renewal or refunding, no Default or
Event of Default would exist;
(b) any
Lien
created under any Loan Document;
(c) Liens
for
taxes, fees, assessments or other governmental charges which are not delinquent
or remain payable without penalty, or to the extent that non-payment thereof
is
permitted by Section 9.4;
(d) carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s, operators’
(including Liens arising under operating, pooling or unitizing agreements of
a
scope and nature customary in the oil and gas industry) or other similar Liens
arising in the ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property subject thereto;
(e) Liens
(other than any Lien imposed by ERISA) in connection with workers’ compensation
laws, unemployment insurance and other social security or retirement benefits,
or similar legislation;
(f) Liens
on
the property of the Company or its Subsidiaries securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) contingent obligations on
surety, reclamation and appeal bonds, and (iii) other non-delinquent
obligations of a like nature, in each case, incurred in the ordinary course
of
business, provided all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(g) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries;
(h) Liens
arising solely by virtue of any statutory or common law provision relating
to
banker’s liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution;
provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the FRB,
and
(ii) such deposit account is not intended by the Company or any Subsidiary
to provide collateral to the depository institution;
(i) Liens
consisting of judgment or judicial attachment liens, provided that the
enforcement of such Liens is effectively stayed within 45 days of entry or
all
such Liens in the aggregate at any time outstanding for the Company and its
Subsidiaries do not exceed $10,000,000; and
(j) Liens
on
assets of Persons which become Subsidiaries after the Date of this Agreement
or
Liens existing on any property acquired by the Company or any Subsidiary at
the
time such property is acquired, provided that such Liens existed at the
time the respective Persons became Subsidiaries or at the time such property
was
acquired, as applicable, and were not created in anticipation
thereof.
10.4 Limitation
on Securing Cascade Loan Agreement.
The
Company shall not at any time permit Cascade to secure any Indebtedness
outstanding under the Cascade Loan Agreement in any manner by any Lien on any
Property.
10.5 Limitation
on Sale of Assets.
The
Company shall not, and shall not permit any Subsidiary to, make any Asset Sale;
provided, that so long as no Default or Event of Default exists both
immediately prior to and after giving effect to any Asset Sale, the Company
or
any Subsidiary may make any Asset Sale if (1)(a) the Gross Proceeds Amount
from such Asset Sale plus the Gross Proceeds Amounts from all other Asset Sales
during the then current fiscal year do not exceed 10% of Consolidated Total
Assets as at the end of the prior fiscal year and (b) the EBITDA
attributable to such property or assets plus the EBITDA attributable to all
other properties and assets subject to Asset Sales during the then current
fiscal year does not exceed 10% of EBITDA in any of the three preceding fiscal
years (beginning with the 2007 fiscal year), and (2)(a) the sum of all
Gross Proceeds Amounts from all Asset Sales occurring after the date of this
Agreement does not exceed 30% of Consolidated Total Assets as at the end of
the
prior fiscal year and (b) the EBITDA attributable to the property or assets
the subject of such proposed Asset Sale for the fiscal year prior to such
proposed Asset Sale plus the EBITDA from the property or assets the subject
of
Asset Sales after the date of this Agreement (in the case of each Asset Sale,
for the fiscal year ending immediately prior to such Asset Sale) does not exceed
30% of EBITDA, in any of the three fiscal years preceding such proposed Asset
Sale (beginning with the 2007 fiscal year); provided, further,
that Asset Sales in excess of the foregoing limits may be made if the Excess
Proceeds Amount (i) (x) is applied to a Property Reinvestment
Application within six months (or 12 months if the Excess Proceeds Amount
is invested, not later than the end of the sixth month, in United States
Governmental Securities maturing within 365 days after the closing date of
any such Asset Sale) after any such Asset Sale and (y) is held, free from
any Liens, prior to such Property Reinvestment Application in a segregated
bank
account with a bank that is not a creditor of the Company or any Subsidiary
or,
in the case of United States Governmental Securities, in a segregated account
with an Acceptable Broker Dealer which is not a creditor of the Company or
any
Subsidiary; or (ii) applied to the prepayment of the Notes pursuant to
Section 8.2 within 30 days after such Asset Sale causing the foregoing
limits to be exceeded.
10.6 Consolidations
and Mergers.
The
Company shall not, and shall not suffer or permit any Subsidiary to, merge
or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to
or
in favor of, any Person, except:
(a) any
Subsidiary may merge or consolidate with or into (i) the Company,
provided that the Company shall be the continuing or surviving
corporation, or (ii) any one or more Subsidiaries, provided that if
any transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary,
the
Wholly-Owned Subsidiary shall be the continuing or surviving
corporation;
(b) any
Subsidiary may convey, transfer, lease or otherwise dispose of all or
substantially all of its assets in compliance with the provisions of
Section 10.5;
(c) any
Subsidiary may convey, transfer, lease or otherwise dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) to
the
Company or another Wholly-Owned Subsidiary; and
(d) any
Subsidiary may merge, consolidate or combine with or into any Person
provided that the successor formed by such consolidation or combination
or the survivor of such merger is a Subsidiary and the Company directly or
indirectly through Wholly-Owned Subsidiaries owns at least the same percentage
of outstanding stock of the successor or survivor Subsidiary as the Subsidiary
involved in the consolidation, combination or merger;
provided
that the foregoing restrictions shall not apply to the consolidation or merger
of the Company with, or the conveyance, transfer or lease of substantially
all
of the assets of the Company in a single transaction or series of
transactions to, any Person so long as:
(i) the
successor formed by such consolidation or the survivor of such merger or the
Person that acquires by conveyance, transfer or lease substantially all of
the
assets of the Company as an entirety, as the case may be (the “Successor
Corporation”), shall be a solvent corporation organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia;
(ii) if
the
Company is not the Successor Corporation, such corporation (x) shall have
executed and delivered to each holder of Notes its assumption of the due and
punctual performance and observance of each covenant and condition of this
Agreement and the Notes and (y) shall have caused to be delivered to each
holder of any Notes an opinion of independent counsel, or of counsel to the
Successor Corporation, which counsel and opinion must be reasonably satisfactory
to the Required Holders, to the effect that all agreements or instruments
effecting such assumption are enforceable in accordance with their terms and
comply with the terms hereof; and
(iii) immediately
before and after giving effect to such transaction no Default or Event of
Default shall exist.
No
such
conveyance, transfer or lease of substantially all of the assets of the Company
shall have the effect of releasing the Company or any Successor Corporation
from
its liability under this Agreement or the Notes.
10.7 Loans
and Investments.
The
Company shall not purchase, acquire or own, or suffer or permit any Subsidiary
to purchase, acquire or own, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or make
any
Acquisitions, or make any advance, loan, extension of credit or capital
contribution to or any other investment in, any Person including any Affiliate
of the Company, except for:
(a) investments
in cash equivalents and short term marketable securities pursuant to and in
accordance with the terms of the Company’s then current investment policy duly
adopted by the board of directors of the Company or such Subsidiary (the
“Investment Policy”) and investments in the MDU Benefits
Protection Trust;
(b) extensions
of credit in the nature of accounts receivable or notes receivable arising
from
the sale or lease of goods or services in the ordinary course of
business;
(c) advances,
loans and other extensions of credit by the Company to any of its Wholly-Owned
Subsidiaries or by any of its Wholly-Owned Subsidiaries to another of its
Wholly-Owned Subsidiaries;
(d) equity
investments in or capital contributions to any Wholly-Owned Subsidiary by the
Company or any of its Wholly-Owned Subsidiaries;
(e) investments,
advances, loans, extensions of credit or capital contributions incurred or
made
in order to consummate Acquisitions, provided that such Acquisitions are
undertaken in accordance with all material applicable Requirements of Law and
the prior, effective written consent or approval to such Acquisition of the
board of directors or equivalent governing body of the acquiree is obtained;
or
(f) other
investments provided that the aggregate amount of investments permitted
by this clause (f) shall not at any time exceed 10% of Consolidated Net
Worth.
10.8 Transactions
with Affiliates.
The
Company shall not enter into any transaction or arrangement or series of
related transactions or arrangements with any Affiliate of the Company, and
the
Company shall not suffer or permit any Subsidiary to enter into any transaction
or arrangement or series of related transactions or arrangements with any
Affiliate of the Company other than another Subsidiary of the Company that
is a
Wholly-Owned Subsidiary, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain, taking into
account all facts and circumstances, in a comparable arm’s-length transaction
with a Person not an Affiliate of the Company or such Subsidiary.
10.9 Use
of Proceeds.
The
Company shall not, and shall not suffer or permit any Subsidiary to, use any
portion of the proceeds of the Notes, directly or indirectly, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise refinance
Indebtedness of the Company or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to make any Acquisition that is opposed by either the
board of directors, or by stockholders possessing a majority of the voting
power
of the outstanding voting stock, of the entity that is subject to, or whose
assets are the subject of, such Acquisition.
10.10 Agreements
Restricting Subsidiary Dividends.
With
the
exception of (a) the referenced sections of the existing agreements
specified in Schedule 5.4, (b) Requirements of Law and
(c) agreements, instruments or other documents, evidencing Indebtedness
having an aggregate principal amount not in excess of $5,000,000, to which
any
Person which becomes a Subsidiary after June 30, 2007 is a party, that existed
at the time the Person became a Subsidiary and were not entered into in
anticipation thereof, the Company agrees that it shall not, and it shall not
permit any of its Subsidiaries to, be a party to or enter into any agreement,
instrument or other document which contractually prohibits or restricts the
ability of any Subsidiary to pay dividends or make any other similar
distributions to the Company or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such
Subsidiary.
10.11 Restrictions
on Subsidiary Guarantees.
The
Company shall not at any time permit any Subsidiary to guarantee any
Indebtedness.
10.12 Terrorism
Sanctions Regulations.
The
Company shall not and shall not permit any Subsidiary to (a) become a
Person described or designated in the Specially Designated Nationals and Blocked
Persons List of the Office of Foreign Assets Control or in Section 1 of the
Anti Terrorism Order or (b) engage in any dealings or transactions with any
such Person.
10.13 Limitation
on Sale and Lease-Back Transactions.
The
Company shall not and shall not permit any Subsidiary to enter into any Sale
and
Lease-Back Transaction; provided, that the Company may enter into one or
more Sale and Lease-Back Transactions if the Attributable Debt with respect
to
all Sale and Lease-Back Transactions does not at any time exceed
10% of the Company’s Consolidated Net Worth.
10.14 Limitation
on Issuance and Sale of Capital Stock by Subsidiaries.
The
Company shall not permit any Subsidiary to issue any Capital Stock of such
Subsidiary except to the Company or a Wholly Owned Subsidiary of the
Company. The Company shall not and shall not permit any Subsidiary to
sell or otherwise dispose of, or part with control of, any Capital Stock or
any
Indebtedness of any Subsidiary except to the Company or a Wholly Owned
Subsidiary of the Company.
10.15 Limitation
on Restricted Payments.
The
Company shall not and shall not permit any Subsidiary to directly or indirectly
declare, order, pay, make or set apart any sum for any Restricted Payment at
any
time during the occurrence or continuation of a Default or an Event of
Default.
10.16 Limitation
on Activities of Prairie.
The
Company shall not permit Prairie to (a) conduct, transact or otherwise engage
in
any business or operations other than any business or operations that are
incidental to the ownership by Prairie of all the outstanding Capital Stock
of
Cascade, (b) create, incur, assume or otherwise become obligated with
respect to any Indebtedness, (c) create, incur, assume or suffer to exist
any Lien on any of the Capital Stock of Cascade or (d) cease to own
directly, both beneficially and of record, all the outstanding Capital Stock
of
Cascade.
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11.
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EVENTS
OF DEFAULT.
|
An
“Event of Default” shall exist if any of the following
conditions or events shall occur and be continuing:
(a) the
Company defaults in the payment of any principal, Make-Whole Amount, if any,
on
any Note when the same becomes due and payable, whether at maturity or at a
date
fixed for prepayment or by declaration or otherwise; or
(b) the
Company defaults in the payment of any interest on any Note, or the payment
of
the structuring fee described in Section 2.8(d), for more than 5 days after
the same becomes due and payable; or
(c) (i) the
Company defaults in the performance of or compliance with any term contained
in
Sections 10.1 through 10.16, inclusive, or Section 7.1(g); or
(d) the
Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in paragraphs (a), (b) and (c) of this
Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Senior Financial Officer obtaining actual knowledge of
such default and (ii) the Company receiving written notice of such default
from any holder of a Note (any such written notice to be identified as a
“notice of default” and to refer specifically to this
paragraph (d) of Section 11); or
(e) any
representation or warranty made in writing by or on behalf of the Company or
by
any officer of the Company in this Agreement or in any writing furnished in
connection with the transactions contemplated hereby proves to have been false
or incorrect in any material respect on the date as of which made;
or
(f) (i) the
Company or any Subsidiary (other than Cascade or any of its Subsidiaries) is
in
default (as principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any Indebtedness
that is outstanding in an aggregate principal amount of at least
$10,000,000 beyond any period of grace provided with
respect thereto, or (ii) the Company or any Subsidiary (other than Cascade
or any of its Subsidiaries) is in default in the performance of or compliance
with any term of any evidence of any Indebtedness in an aggregate outstanding
principal amount of at least $10,000,000 or of any
mortgage, indenture or other agreement relating thereto or any other condition
exists, and as a consequence of such default or condition such Indebtedness
has
become, or has been declared (or one or more Persons are entitled to declare
such Indebtedness to be), due and payable before its stated maturity or before
its regularly scheduled dates of payment, or (iii) as a consequence of the
occurrence or continuation of any event or condition (other than the passage
of
time or the right of the holder of Indebtedness to convert such Indebtedness
into equity interests), (x) the Company or any Subsidiary (other than
Cascade or any of its Subsidiaries) has become obligated to purchase or repay
Indebtedness before its regular maturity or before its regularly scheduled
dates
of payment in an aggregate outstanding principal amount of at least $10,000,000,
or (y) one or more Persons have the right to require the Company or any
Subsidiary (other than Cascade or any of its Subsidiaries) so to purchase or
repay such Indebtedness; or
(g) the
Company or any Subsidiary (i) is generally not paying, or admits in writing
its inability to pay, its debts as they become due, (ii) files, or consents
by answer or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, (v) is adjudicated as insolvent or to be liquidated, or
(vi) takes corporate action for the purpose of any of the foregoing;
or
(h) a
court
or governmental authority of competent jurisdiction enters an order appointing,
without consent by the Company or any Subsidiary, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect to
any
substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up
or
liquidation of the Company or any Subsidiary, or any such petition shall be
filed against the Company or any Subsidiary and such petition shall not be
dismissed within 60 days; or
(i) a
final
judgment or judgments for the payment of money aggregating in excess of
$10,000,000 are rendered against one or more of the Company and its Subsidiaries
and which judgments are not, within 45 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 45 days after
the expiration of such stay; or
(j) (i) an
ERISA Event or ERISA Termination Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or would reasonably be expected
to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of 10% of
Consolidated Net Worth; (ii) the commencement or increase of contributions
to, or the adoption of or the amendment of, a Pension Plan by the Company or
an
ERISA Affiliate which has resulted or could reasonably be expected to result
in
an increase in Unfunded Pension Liability among all Pension Plans in an
aggregate amount in excess of 10% of Consolidated Net Worth; or (iii) the
Company or an ERISA Affiliate shall fail to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan
which has resulted or could reasonably be expected to result in a Material
Adverse Effect; or
(k) there
occurs any Change of Control; or
(l) the
Company or any Subsidiary fails to comply with any Requirements of Law or with
the provisions of any agreement, and as a consequence of such failure to comply
any Subsidiary is prohibited or restricted from paying dividends, distributions
or similar payments to the Company or to a Subsidiary of the Company that owns
Capital Stock of such Subsidiary; or
(m) any
Loan
Document ceases to be in full force and effect or the Company contests in any
manner the validity or enforceability thereof; or
(n) (i)
Cascade or any of its Subsidiaries is in default in the performance of or
compliance with any payment or other term of any evidence of any Indebtedness
in
an aggregate outstanding principal amount of at least
$5,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other condition exists, and as a consequence
of such default or condition such Indebtedness has become, or has been declared,
due and payable before its stated maturity or before its regularly scheduled
dates of payment, or (ii) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time or the
right of the holder of Indebtedness to convert such Indebtedness into equity
interests), Cascade or any of its Subsidiaries has become obligated to
purchase or repay Indebtedness before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $5,000,000.
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12.
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REMEDIES
ON DEFAULT, ETC.
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12.1 Acceleration.
(a) If
an
Event of Default with respect to the Company described in paragraph (g) or
(h) of Section 11 (other than an Event of Default described in
clause (i) of paragraph (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses
clause (i) of paragraph (g)) has occurred, all the Notes then
outstanding shall automatically become immediately due and payable.
(b) If
any
other Event of Default has occurred and is continuing, the Required Holders
of
the Notes at the time outstanding may at any time at its or their option, by
notice or notices to the Company, declare all the Notes then outstanding to
be
immediately due and payable.
(c) If
any
Event of Default described in paragraph (a) or (b) of Section 11
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by
it or
them to be immediately due and payable.
Upon
any
Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid
interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby
waived. The Company acknowledges, and the parties hereto agree, that
each holder of a Note has the right to maintain its investment in the Notes
free
from repayment by the Company (except as herein specifically provided for)
and
that the provision for payment of a Make-Whole Amount by the Company in the
event that the Notes are prepaid or are accelerated as a result of an Event
of
Default, is intended to provide compensation for the deprivation of such right
under such circumstances.
12.2 Other
Remedies.
If
any
Default or Event of Default has occurred and is continuing, and irrespective
of
whether any Notes have become or have been declared immediately due and payable
under Section 12.1, the holder of any Note at the time outstanding may
proceed to protect and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for the specific
performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in
aid
of the exercise of any power granted hereby or thereby or by law or
otherwise.
12.3 Rescission.
At
any
time after any Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the Required Holders of the Notes,
by written notice to the Company, may rescind and annul any such declaration
and
its consequences if (a) the Company has paid all overdue interest on the
Notes, all principal of and Make-Whole Amount, if any, on any Notes that are
due
and payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other
than non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17,
and (c) no judgment or decree has been entered for the payment of any monies
due
pursuant hereto or to the Notes. No rescission and annulment under
this Section 12.3 will extend to or affect any subsequent Event of Default
or Default or impair any right consequent thereon.
12.4 No
Waivers or Election of Remedies, Expenses, etc.
No
course
of dealing and no delay on the part of any holder of any Note in exercising
any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder’s rights, powers or remedies. No right, power or remedy
conferred by this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein or therein
or
now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under
Section 15, the Company will pay to the holder of each Note on demand such
further amount as shall be sufficient to cover all costs and expenses of such
holder incurred in any enforcement or collection under this Section 12,
including, without limitation, reasonable attorneys’ fees, expenses and
disbursements.
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13.
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REGISTRATION;
EXCHANGE; SUBSTITUTION OF
NOTES.
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13.1 Registration
of Notes.
The
Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the
name
and address of each transferee of one or more Notes shall be registered in
such
register. Prior to due presentment for registration of transfer, the
Person in whose name any Note shall be registered shall be deemed and treated
as
the owner and holder thereof for all purposes hereof, and the Company shall
not
be affected by any notice or knowledge to the contrary. The Company
shall give to any holder of a Note that is an Institutional Investor promptly
upon request therefor, a complete and correct copy of the names and addresses
of
all registered holders of Notes.
13.2 Transfer
and Exchange of Notes.
Upon
surrender of any Note at the principal executive office of the Company for
registration of transfer or exchange (and in the case of a surrender for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note or his attorney
duly authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute and deliver,
at the Company’s expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an aggregate principal
amount equal to the unpaid principal amount of the surrendered
Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of
(i) Exhibit 1-A, in the case of a Series A
Note, (ii) Exhibit 1-B, in the case of a Series B Note,
and (iii) Exhibit 1-C, in the case of a Shelf
Note. Each such new Note shall be dated and bear interest from the
date to which interest shall have been paid on the surrendered Note or dated
the
date of the surrendered Note if no interest shall have been paid
thereon. The Company may require payment of a sum sufficient to cover
any stamp tax or governmental charge imposed in respect of any such transfer
of
Notes. Notes shall not be transferred in denominations of less than
$2,000,000, provided that if necessary to enable the registration of
transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $2,000,000. Any transferee, by its
acceptance of a Note registered in its name (or the name of its nominee), shall
be deemed to have made the representation set forth in
Section 6.2.
13.3 Replacement
of Notes.
Upon
receipt by the Company of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of any Note (which
evidence shall be, in the case of an Institutional Investor, notice from such
Institutional Investor of such ownership and such loss, theft, destruction
or
mutilation), and
(a) in
the
case of loss, theft or destruction, of indemnity reasonably satisfactory to
it
(provided that if the holder of such Note is a Prudential Affiliate, or a
nominee of a Prudential Affiliate, or another holder of a Note with a minimum
net worth of at least $50,000,000, a Prudential Affiliate’s or such other
holder’s own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in
the
case of mutilation, upon surrender and cancellation thereof, the Company at
its
own expense shall execute and deliver, in lieu thereof, a new Note, dated and
bearing interest from the date to which interest shall have been paid on such
lost, stolen, destroyed or mutilated Note or dated the date of such lost,
stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
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14.
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PAYMENTS
ON NOTES.
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14.1 Place
of Payment.
Subject
to Section 14.2, payments of principal, Make-Whole Amount, if any, and
interest becoming due and payable on the Notes shall be made in New York, New
York, at the principal office of JPMorgan Chase Bank, N.A. in such
jurisdiction. The Company may at any time, by notice to each holder
of a Note, change the place of payment of the Notes so long as such place of
payment shall be either the principal office of the Company in such jurisdiction
or the principal office of a bank or trust company in such
jurisdiction.
14.2 Home
Office Payment.
So
long
as any Purchaser shall be the holder of any Note, and notwithstanding anything
contained in Section 14.1 or in such Note to the contrary, the Company will
pay all sums becoming due on such Note for principal, Make-Whole Amount, if
any,
and interest by the method and at the address specified for such purpose below
such Purchaser’s name in Schedule A, or by such other method or at
such other address as a holder of Notes shall have from time to time specified
to the Company in writing for such purpose, without the presentation or
surrender of such Note or the making of any notation thereon, except that upon
written request of the Company made concurrently with or reasonably promptly
after payment or prepayment in full of any Note, such Purchaser shall surrender
such Note for cancellation, reasonably promptly after any such request, to
the
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant to
Section 14.1. Prior to any sale or other disposition of any Note
held by a Purchaser, such Purchaser will, at its election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon or surrender such Note to the Company in exchange for
a
new Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any Institutional Investor that
is the direct or indirect transferee of any Note purchased by any Purchaser
under this Agreement and that has made the same agreement relating to such
Note
as the Purchasers have made in this Section 14.2.
|
15.
|
EXPENSES,
ETC.
|
15.1 Transaction
Expenses.
Whether
or not the transactions contemplated hereby are consummated, the Company will
pay all costs and expenses (including reasonable attorneys’ fees of a special
counsel and, if reasonably required, local or other counsel) incurred by a
Purchaser or each other holder of a Note in connection with such transactions
and in connection with any amendments, waivers or consents under or in respect
of this Agreement or the Notes (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and
expenses incurred in enforcing or defending (or determining whether or how
to
enforce or defend) any rights under this Agreement or the Notes or in responding
to any subpoena or other legal process or informal investigative demand issued
in connection with this Agreement or the Notes, or by reason of being a holder
of any Note, and (b) the costs and expenses, including financial advisors’
fees, incurred in connection with the insolvency or bankruptcy of the Company
or
any Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will
pay, and will save any Purchaser and each other holder of a Note harmless from,
all claims in respect of any fees, costs or expenses if any, of brokers and
finders (other than those retained by such Purchaser). The Company’s
obligations to pay the fees of special counsel to the Purchasers in connection
with the negotiation, execution and delivery of this Agreement as required
by
this Section 15.1 shall be deemed to have been fully
satisfied.
15.2 Survival.
The
obligations of the Company under this Section 15 will survive the payment
or transfer of any Note, the enforcement, amendment or waiver of any provision
of this Agreement or the Notes, and the termination of this
Agreement.
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16.
|
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
|
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement and the Notes, the purchase or transfer by any
Purchaser of any Note or portion thereof or interest therein and the payment
of
any Note, and may be relied upon by any subsequent holder of a Note, regardless
of any investigation made at any time by or on behalf of any Purchaser or any
other holder of a Note. All statements contained in any certificate
or other instrument delivered by or on behalf of the Company pursuant to this
Agreement shall be deemed representations and warranties of the Company under
this Agreement. Subject to the preceding sentence, this Agreement and
the Notes embody the entire agreement and understanding between the Purchasers
and the Company and supersede all prior agreements and understandings relating
to the subject matter hereof.
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17.
|
AMENDMENT
AND WAIVER.
|
17.1 Requirements.
This
Agreement and the Notes may be amended, and the observance of any term hereof
or
of the Notes may be waived (either retroactively or prospectively), with (and
only with) the written consent of the Company and the Required Holders,
except that (a) with the written consent of the holders of
all Notes of a particular Series, and if an Event of Default shall have occurred
and be continuing, of the holders of all Notes of all Series, at the time
outstanding (and not without such written consents), the Notes of such
Series may be amended, or the provisions thereof waived, to change the
maturity thereof, to change or affect the principal thereof, or to change or
affect the rate or time of payment of interest on or any Make-Whole Amount
payable with respect to the Notes of such Series, (b) without the
written consent of the holder or holders of all Notes at the time outstanding,
no amendment to, or waiver of, the provisions of this Agreement shall change
or
affect the provisions of (i) Sections 8, 11(a), 11(b), 12, 17, or 20
insofar as such provisions relate to proportions of the principal amount of
the
Notes of any Series, or the rights of any individual holder of Notes, required
with respect to any declaration of Notes to be due and payable or with respect
to any consent, amendment, waiver or declaration, or (ii) amend the
definition of “Change of Control” or any constituent definitions thereof,
(c) with the written consent of Prudential (and not without the
written consent of Prudential) the provisions of Section 2 may be amended
or waived (except insofar as any such amendment or waiver would affect any
rights or obligations with respect to the purchase and sale of Notes which
shall
have become Accepted Notes prior to such amendment or waiver),
(d) with the written consent of all of the Purchasers which shall
have become obligated to purchase Accepted Notes of any Series (and not
without the written consent of all such Purchasers), any of the provisions
of
Sections 2, 3 and 4 may be amended or waived insofar as such amendment or waiver
would affect only rights or obligations with respect to the purchase and sale
of
the Accepted Notes of such Series or the terms and provisions of such
Accepted Notes, and (e) with the written consent of Prudential and
Prudential Affiliates only the provisions of Section 10.10 may be
amended or waived.
17.2 Solicitation
of Holders of Notes.
(a) Solicitation. The
Company will provide each holder of the Notes (irrespective of the amount of
Notes then owned by it) with sufficient information, sufficiently far in advance
of the date a decision is required, to enable such holder to make an informed
and considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the
Notes. The Company will deliver executed or true and correct copies
of each amendment, waiver or consent effected pursuant to the provisions of
this
Section 17 to each holder of outstanding Notes promptly following the date
on which it is executed and delivered by, or receives the consent or approval
of, the requisite holders of Notes.
(b) Payment. The
Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any security, to any holder of Notes as consideration for
or
as an inducement to the entering into by any holder of Notes or any waiver
or
amendment of any of the terms and provisions hereof unless such remuneration
is
concurrently paid, or security is concurrently granted, on the same terms,
ratably to each holder of Notes then outstanding even if such holder did not
consent to such waiver or amendment.
17.3 Binding
Effect, etc.
Any
amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note
has
been marked to indicate such amendment or waiver. No such amendment
or waiver will extend to or affect any obligation, covenant, agreement, Default
or Event of Default not expressly amended or waived or impair any right
consequent thereon. No course of dealing between the Company and the
holder of any Note nor any delay in exercising any rights hereunder or under
any
Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term “this Agreement” and
references thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
17.4 Notes
held by Company, etc.
Solely
for the purpose of determining whether the holders of the requisite percentage
of the aggregate principal amount of Notes then outstanding approved or
consented to any amendment, waiver or consent to be given under this Agreement
or the Notes, or have directed the taking of any action provided herein or
in
the Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then outstanding, Notes
directly or indirectly owned by the Company or any of its Affiliates shall
be
deemed not to be outstanding.
|
18.
|
NOTICES.
|
All
notices and communications provided for hereunder shall be in writing and sent
(a) by telecopy if the sender on the same day sends a confirming copy of
such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if
to a
Purchaser or its nominee, to it at the address specified for such communications
in Schedule A, or at such other address as such Purchaser or it
shall have specified to the Company in writing,
(ii) if
to any
other holder of any Note, to such holder at such address as such other holder
shall have specified to the Company in writing, or
(iii) if
to the
Company, to the Company at its address set forth at the beginning hereof to
the
attention of Chief Financial Officer, or at such other address as the Company
shall have specified to the holder of each Note in writing.
Notices
under this Section 18 will be deemed given only when actually
received.
|
19.
|
REPRODUCTION
OF DOCUMENTS.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by a Purchaser on any Closing Day (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to any Purchaser, may be reproduced by such
Purchaser by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and such Purchaser may destroy
any original document so reproduced. The Company agrees and
stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by a Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence. This Section 19 shall not prohibit the Company or any
other holder of Notes from contesting any such reproduction to the same extent
that it could contest the original, or from introducing evidence to demonstrate
the inaccuracy of any such reproduction.
|
20.
|
CONFIDENTIAL
INFORMATION.
|
For
the
purposes of this Section 20, “Confidential Information”
means (1) information delivered to Prudential or PICA prior
to the date of this
Agreement that was clearly marked or labeled or otherwise adequately identified
as being confidential information when delivered, to the extent that it contains
information that is proprietary in nature, and (2) information delivered on
and
after the date of this Agreement to Prudential or PICA, or any holder of Notes
by or on behalf of the Company or any Subsidiary in connection with the
transactions contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified when received by Prudential or PICA, or any holder of
Notes as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was
publicly known or otherwise known to Prudential or PICA, or any holder of Notes
prior to the time of such disclosure, (b) subsequently becomes publicly
known through no act or omission by Prudential or PICA, or any holder of Notes,
or any person acting on its behalf, (c) otherwise becomes known to Prudential
or
PICA, or any holder of Notes other than through disclosure by the Company or
any
Subsidiary or (d) constitutes financial statements delivered to Prudential
or PICA, or any holder of Notes under Section 7.1 that are otherwise
publicly available. Prudential, PICA and any holder of Notes will
maintain the confidentiality of such Confidential Information in accordance
with
procedures adopted by Prudential or PICA, or such holder of Notes, respectively,
in good faith to protect confidential information of third parties delivered
to
Prudential or PICA, or such holder of Notes, provided that Prudential or
PICA, or any holder of Notes may deliver or disclose Confidential Information
to
(i) its directors, officers, employees, agents, attorneys and affiliates
(to the extent such disclosure reasonably relates to the administration of
the
investment represented by its Notes), (ii) its financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20,
(iii) any other holder of any Note, (iv) any Institutional Investor to
which it sells or offer to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this
Section 20), (v) any Person from which it offers to purchase any
security of the Company (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 20), (vi) any federal or state regulatory authority having
jurisdiction over it, (vii) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency that
requires access to information about its investment portfolio or (viii) any
other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or order
applicable to it, (x) in response to any subpoena or other legal process,
(y) in connection with any litigation to which it is a party or (z) if an
Event of Default has occurred and is continuing, to the extent it may reasonably
determine such delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under its Notes
and
this Agreement. Each holder of a Note, by its acceptance of a Note,
will be deemed to have agreed to be bound by and to be entitled to the benefits
of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with
the delivery to any holder of a Note of information required to be delivered
to
such holder under this Agreement or requested by such holder (other than a
holder that is a party to this Agreement or its nominee), such holder will
enter
into an agreement with the Company embodying the provisions of this
Section 20.
|
21.
|
SUBSTITUTION
OF PURCHASER.
|
Each
Purchaser shall have the right to substitute any one of its Affiliates as the
purchaser of the Notes that such Purchaser has agreed to purchase hereunder,
by
written notice to the Company, which notice shall be signed by both such
Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be
bound by this Agreement and shall contain a confirmation by such Affiliate
of
the accuracy with respect to it of the representations set forth in
Section 6. Upon receipt of such notice, wherever the word
“Purchaser” (or a pronoun referring to a Purchaser) is used in this Agreement
(other than in this Section 21), such word shall be deemed to refer to such
Affiliate in lieu of such Purchaser. In the event that such Affiliate
is so substituted as a purchaser hereunder and such Affiliate thereafter
transfers to such Purchaser all of the Notes then held by such Affiliate, upon
receipt by the Company of notice of such transfer, wherever the word “Purchaser”
(or a pronoun referring to a Purchaser) is used in this Agreement (other than
in
this Section 21), such word shall no longer be deemed to refer to such
Affiliate, but shall refer to such Purchaser, and such Purchaser shall have
all
the rights of an original holder of the Notes under this Agreement.
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22.
|
MISCELLANEOUS.
|
22.1 Successors
and Assigns.
All
covenants and other agreements contained in this Agreement by or on behalf
of
either of the parties hereto bind and inure to the benefit of their respective
successors and assigns (including, without limitation, any subsequent holder
of
a Note) whether so expressed or not.
22.2 Payments
Due on Non-Business Days.
Anything
in this Agreement or the Notes to the contrary notwithstanding, any payment
of
principal of or Make-Whole Amount or interest on any Note that is due on a
date
other than a Business Day shall be made on the next succeeding Business Day
without including the additional days elapsed in the computation of the interest
payable on such next succeeding Business Day.
22.3 Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4 Construction.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall
be applicable whether such action is taken directly or indirectly by such
Person.
22.5 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one
instrument. Each counterpart may consist of two copies hereof, each
signed by either, but together signed by both, of the parties
hereto.
22.6 Governing
Law.
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the law of the State of New York excluding,
to
the extent permitted by the law of such State, choice of law principles of
the
law of such State that would require the application of the laws of a
jurisdiction other than such State.
* * * * *
If
you
are in agreement with the foregoing, please sign the form of agreement on the
accompanying counterpart of this Agreement and return it to the Company,
whereupon the foregoing shall become a binding agreement between you and the
Company.
Very
truly yours,
MDU
ENERGY CAPITAL, LLC
By: /s/
Xxxxxx X.
Xxxxx
Name: Xxxxxx
X.
Xxxxx
Title: Vice
President
and Treasurer
The
foregoing is hereby agreed to as of the date thereof.
PRUDENTIAL
INVESTMENT MANAGEMENT, INC.
By: /s/
Xxxxx X.
Xxxxxx
Vice
President
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/
Xxxxx X.
Xxxxxx
Vice
President
PRUCO
LIFE INSURANCE COMPANY
By: /s/
Xxxxx X.
Xxxxxx
Vice
President
PRUCO
LIFE INSURANCE COMPANY OF
NEW
JERSEY
By: /s/
Xxxxx X.
Xxxxxx
Vice
President
AMERICAN
SKANDIA LIFE ASSURANCE
CORPORATION
By: Prudential
Investment Management, Inc.,
as
investment manager
By:/s/
Xxxxx X.
Xxxxxx
Vice
President
SCHEDULE
B
DEFINED
TERMS
As
used
herein, the following terms have the respective meanings set forth below or
set
forth in the Section hereof following such term:
“Acceptable
Broker-Dealer” means any Person other than a natural person
(i) which is registered as a broker or dealer pursuant to the Exchange Act
and (ii) whose long-term unsecured debt obligations shall be rated “A” or
better by S&P or “A2” or better by Xxxxx’x.
“Acceptance”
is defined in Section 2.6.
“Acceptance
Day” is defined in Section 2.6.
“Acceptance
Window” is defined in Section 2.6.
“Accepted
Note” is defined in Section 2.6.
“Acquisition”
means any transaction or series of related transactions for the purpose of
or resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any business or division
of a
Person, (b) the acquisition of 50% or more of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person provided that
the Company or any Subsidiary is the surviving entity.
“Additional
Reporting Subsidiary” is defined in Section 7.1(c).
“AdjustedTotal
Capitalization” means the sum of (a) the total stockholders’
equity of the Subsidiaries of the Company determined in accordance
with GAAP
minus amounts attributable to mandatorily Redeemable Preferred Stock of
the Subsidiaries of the Company determined in accordance with GAAP plus
(b) Total Debt.
“Affiliate”
means, at any time, and with respect to any Person, any other Person that at
such time directly or indirectly through one or more intermediaries Controls,
or
is Controlled by, or is under common Control with, such first
Person. As used in this definition, “Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Unless the context
otherwise clearly requires, any reference to an “Affiliate” is
a reference to an Affiliate of the Company.
“Agreement”
is defined in Section 17.3.
“Asset
Sale” means any conveyance, transfer, lease or other disposition
(including, without limitation, by means of a Sale and Lease-Back Transaction)
(collectively, for purposes of this definition, a “transfer”),
directly or indirectly, in one or a series of related transactions, of
(a) any Capital Stock of any Subsidiary (including, without limitation, the
issuance thereof by such Subsidiary to any Person other than the Company or
a
Wholly-Owned Subsidiary); (b) all or substantially all of the properties of
any division or line of business of the Company or any Subsidiary; (c) any
other
properties of the Company or any Subsidiary (other than, in the case of this
clause (c), (i) transfers of cash or cash equivalents, (ii) sales
of inventory or oil and gas production in the ordinary course of business,
(iii) any transfer of properties of any Subsidiary to the Company or a
Wholly-Owned Subsidiary, and (iv) sales of damaged, worn-out or obsolete
equipment that, in the Company’s reasonable judgment, are either no longer used
or no longer useful in the business of the Company or its
Subsidiaries.
“Attributable
Debt” means, as to any particular lease relating to a Sale and
Lease-Back Transaction, the present value of all Long Term Lease Rentals
required to be paid by the Company or any Subsidiary under such lease during
the
remaining term thereof (determined in accordance with generally accepted
financial practice using a discount factor equal to the interest rate implicit
in such lease if known or, if not known, 8% per annum).
“Authorized
Officer” means (i) in the case of the Company, any officer of the
Company designated as an “Authorized Officer” of the Company in the
Information Schedule attached hereto or any vice president of the
Company designated as an “Authorized Officer” of the Company for the purpose of
this Agreement in an Officer’s Certificate executed by the Company’s chief
executive officer or chief financial officer and delivered to Prudential, and
(ii) in the case of Prudential, any officer of Prudential designated as its
“Authorized Officer” in the Information Schedule or any officer of
Prudential designated as its “Authorized Officer” for the purpose of this
Agreement in a certificate executed by one of its Authorized
Officers. Any action taken under this Agreement on behalf of the
Company by any individual who on or after the date of this Agreement shall
have
been an Authorized Officer of the Company and whom Prudential in good faith
believes to be an Authorized Officer of the Company at the time of such action
shall be binding on the Company even though such individual shall have ceased
to
be an Authorized Officer of the Company, and any action taken under this
Agreement on behalf of Prudential by any individual who on or after the date
of
this Agreement shall have been an Authorized Officer of Prudential and whom
the
Company in good faith believes to be an Authorized Officer of Prudential at
the
time of such action shall be binding on Prudential even though such individual
shall have ceased to be an Authorized Officer of Prudential.
“Available
Facility Amount” is defined in Section 2.1.
“Business
Day” means (a) any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City are required or authorized to be closed,
and (b) for the purposes of Section 2.3 only a day on which Prudential
is open for business.
“Called
Principal” is defined in Section 8.6.
“Cancellation
Date” is defined in Section 2.8(c).
“Cancellation
Fee” is defined in Section 2.8(c).
“Capitalization
Ratio” means the ratio of Total Debt to Adjusted Total
Capitalization.
“Capitalized
Lease Obligation” means any rental obligation which, under GAAP, is or
will be required to be capitalized on the books of the Company or any
Subsidiary, taken at the amount thereof accounted for as indebtedness (net
of
interest expenses) in accordance with such principles.
“Capital
Lease” means, at any time, a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
“Capital
Stock” of any Person means any and all shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person and any rights (other than debt securities convertible into
an
equity interest), warrants or options to acquire an equity interest in such
Person.
“Cascade”
means Cascade Natural Gas Corporation, a Washington corporation.
“Cascade
Acquisition” means the completion of the transaction which resulted in
Cascade becoming a Subsdiary of Prairie.
“Cascade
Annual Report” means the Annual Report on Form
10-K of Cascade for the fiscal year ended September 30, 2006.
“Cascade
Exchange Act Reports” means Cascade’s Quarterly Reports on
Form 10-Q for the quarters ended December 31, 2006 and March 31, 2007 and its
Current Reports on Form 8-K dated February 6, February 21, March 8, May 8,
May
9, June 7, June 28 and June 29, 2007, each of which has been filed with or
furnished to the SEC under the Exchange Act.
“Cascade
Loan Agreement” means, at any time, the primary bank credit agreement
of Cascade including, so long as it shall remain in effect, the Amended and
Restated Loan Agreement, dated as of September 30, 2004, between Cascade and
U.S. Bank National Association (as from time to time amended, modified,
supplemented, restated, refinanced or replaced).
“Centennial”
means Centennial Energy Holdings, Inc., a Delaware corporation.
“Centennial
Notes” means, collectively, $25,000,000 in aggregate principal amount
of Centennial's 5.49% Senior Notes, Series I, due October 22, 2012 and
$25,000,000 in aggregate principal amount of Centennial's 5.92% Senior Notes,
Series N, due May 15, 2013.
“Change
of Control” means the occurrence of any event whereby MDU ceases to own
direct or indirect sole beneficial ownership (as defined under Regulation 13d-3
of the Exchange Act as in effect on the date of this Agreement) of at least
51%
of (x) the combined voting power of the Company’s securities which are
entitled to vote generally in the election of directors of the Company and
(y) each other class of equity securities of the Company.
“Closing”
is defined in Section 3.1(a).
“Closing
Day” for any Accepted Note means the Business Day specified for the
closing of the purchase and sale of such Note in the Request for Purchase of
such Note, provided that (i) if the Acceptance Day for such Accepted
Note is less than five Business Days after the Company shall have made such
Request for Purchase and the Company and the Purchaser which is obligated to
purchase such Note agree on an earlier Business Day for such closing, the
“Closing Day” for such Accepted Note shall be such earlier Business Day, and
(ii) if the closing of the purchase and sale of such Accepted Note is
rescheduled pursuant to Section 3.2, the Closing Day for such Accepted
Note, for all purposes of this Agreement except Section 2.8(c), shall mean
the Rescheduled Closing Day with respect to such Closing.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and
the
final rules and regulations promulgated thereunder from time to
time.
“Company”
means MDU Energy Capital, LLC, a Delaware limited liability company, until
a
Person becomes a successor in a transaction permitted by Section 10.6, and
thereafter shall mean any such successor Person.
“Confidential
Information” is defined in Section 20.
“Confirmation
of Acceptance” is defined in Section 2.6.
“Consolidated
Net Income” means, for any period, consolidated net income (or net
loss) of the Company and its Subsidiaries for such period as determined in
accordance with GAAP computed for the purposes of this definition without giving
effect to extraordinary losses or extraordinary gains for such
period.
“Consolidated
Net Worth” means, at any time, the excess of total assets of the
Company and its Subsidiaries over total liabilities of the Company and its
Subsidiaries as of the last day of the fiscal quarter most recently then ended,
determined on a consolidated basis in accordance with GAAP.
“Consolidated
Total Assets” means, as of any time, the total amount of assets which
would appear on a consolidated balance sheet of the Company at such time
prepared in accordance with GAAP.
“Default”
means an event or condition the occurrence or existence of which would, with
the
lapse of time or the giving of notice or both, become an Event of
Default.
“Default
Rate” means, with respect to the Notes of a Series, that rate of
interest that is the greater (determined on a daily basis) of (i) 2.0% per
annum over the stated rate of interest on the Notes of such Series or
(ii) 2.0% over the rate of interest publicly announced by JPMorgan Chase
Bank, N.A. in New York, New York as its “base” or “prime” rate.
“Delayed
Delivery Fee” is defined in Section 2.8(b).
“Disclosure
Documents” is defined in Section 5.3.
“Discounted
Value” is defined in Section 8.6.
“EBIT”
means, for any period, the sum of (a) Consolidated Net Income for such
period plus to the extent deducted from the determination of Consolidated
Net Income in accordance with GAAP (b) Interest Expense plus (c) all
taxes accrued for such period on or measured by income to the extent included
in
the determination of Consolidated Net Income; provided that Consolidated
Net Income shall be computed for purposes of this definition without giving
effect to extraordinary losses or extraordinary gains for such
period.
“EBITDA”
means, for any period, the sum of (a) Consolidated Net Income for such
period plus to the extent deducted from the determination of Consolidated
Net Income in accordance with GAAP (b) Interest Expense plus (c) all
amounts treated as expenses for depreciation (including any non-cash charge
relating to asset impairment determined in accordance with GAAP) and the
amortization of intangibles of any kind for such period to the extent included
in the determination of Consolidated Net Income plus (d) all taxes
accrued for such period on or measured by income to the extent included in
the
determination of Consolidated Net Income; provided that Consolidated Net
Income shall be computed for purposes of this definition without giving effect
to extraordinary losses or extraordinary gains for such period.
“Environmental
Laws” means all Federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, consent decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to the regulation or protection of human health, safety
or
the environment or to emissions, discharges, releases or threatened releases
of
Hazardous Materials into the environment, including, without limitation, ambient
air, soil, surface water, groundwater, wetlands, land or subsurface strata
or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous
Materials. Without limiting the foregoing, Environmental Laws shall
include, but not be limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §9601 et seq., the Xxxxx Xxxxx
Xxxxxxxx Xxx, 00 X.X.X. §0000 et seq., the Federal Water Pollution Xxxxxxx Xxx,
00 X.X.X. §0000 et seq., the Clear Air Act, 42 U.S.C. §7401 et seq., the Toxic
Substances Xxxxxxx Xxx, 00 X.X.X. §0000 et seq., the Emergency Planning and
Community Xxxxx-xx-Xxxx Xxx, 00 X.X.X. §00000 et seq., the Natural Gas Pipeline
Safety Act, 00 Xxx. X.X.X. §0000 et seq., the Hazardous Liquid Pipeline Safety
Act, 00 Xxx. X.X.X. §0000 et seq., the Occupational Safety and Health Act, 29
U.S.C. §651 et seq., the Hazardous Materials Xxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000
et seq., in each case as amended from time to time, and any analogous foreign,
state and local laws, and any rules or regulations from time to time promulgated
thereunder.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, and the final rules and regulations promulgated thereunder from time
to
time in effect.
“ERISA
Affiliate” means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under
Section 414 of the Code.
“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan
or a Multiemployer Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is treated
as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization;
(d) the commencement of proceedings by the PBGC to terminate a Pension Plan
or Multiemployer Plan; (e) a failure by the Company or an ERISA Affiliate
to make required contributions to a Pension Plan, Multiemployer Plan or other
Plan subject to Section 412 of the Code; (f) an event or condition
which might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; (g) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate or
(h) an application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code with respect to any
Plan.
“ERISA
Termination Event” means the filing of a notice of intent to terminate,
or the treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA of, a Pension Plan or Multiemployer Plan.
“Event
of Default” is defined in Section 11.
“Excess
Proceeds Amount” means, at any time, the greater of (i) the
excess, if any, of (A) the Gross Proceeds Amounts of all Asset Sales during
the then current fiscal year over (B) 10% of Consolidated Total Assets as
of the end of the prior fiscal year or (ii) the Gross Proceeds Amounts of
all Assets Sales during the then current fiscal year multiplied by a fraction
(x) the numerator of which is the excess, if any, of (A) the
percentage of EBITDA attributable to the property and assets subject to such
Asset Sales over (B) 15% of EBITDA for any of the three preceding fiscal
years (beginning with the 2004 fiscal year) and (y) the denominator of
which is the percentage of EBITDA for any of such three fiscal years
attributable to the property and assets subject to such Asset
Sales. In making any calculation pursuant to
subclause (x) of clause (ii) of the preceding sentence, the
fiscal year which results in the greatest excess shall be utilized, and the
same
such fiscal year shall be utilized for purposes of subclause (y) of
said clause (ii).
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“Facility”
is defined in Section 2.1(b).
“Facility
Fee” is defined in Section 2.8(a).
“Fair
Market Value” means, at any time with respect to any property of any
kind or character, the sale value of such property that would be realized in
an
arm’s-length sale at such time between an informed and willing buyer and an
informed and willing seller, under no compulsion to buy or sell,
respectively.
“Financial
Contract” means any agreement, device or arrangement providing for
payments related to fluctuations of interest rates, including, but not limited
to, interest rate swap or exchange agreements, interest rate cap or collar
protection agreements and interest rate options.
“FRB”
means the Board of Governors of the Federal Reserve System, and any Governmental
Authority succeeding to any of its principal functions.
“GAAP”
means generally accepted accounting principles set forth from time to time
in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are in effect in the United States at the time of application
thereof. The term “consistently applied,” as used in
connection therewith, means that the accounting principles applied are
consistent in all material respects with those applied at prior dates or for
prior periods.
“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and
any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
“Gross
Proceeds Amount” means, with respect to any Asset Sale, the aggregate
amount of the proceeds received from such Asset Sale. For purposes of
any calculation pursuant to clause (1)(a) or (2) of Section 10.5 or
clause (i) of the definition of “Excess Proceeds Amount”, such
proceeds shall be deemed to equal the Fair Market Value of the property and
assets subject to the Asset Sales with respect to which such calculation is
being made, determined in good faith at the time of such Asset Sales by a Senior
Financial Officer.
“Guaranty”
means, with respect to any Person, any obligation (except the endorsement in
the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a) to
purchase such indebtedness or obligation or any property constituting security
therefor;
(b) to
advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any other
Person or otherwise to advance or make available funds for the purchase or
payment of such indebtedness or obligation;
(c) to
lease properties or to purchase properties or services primarily for the purpose
of assuring the owner of such indebtedness or obligation of the ability of
any
other Person to make payment of the indebtedness or obligation; or
(d) otherwise
to assure the owner of such indebtedness or obligation against loss in respect
thereof.
In
any
computation of the indebtedness or other liabilities of the obligor under any
Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
“Hazardous
Material” means any and all pollutants, toxic or hazardous wastes or
any other substances that might pose a hazard to health or safety, the removal
of which may be required or the generation, manufacture, refining, production,
processing, treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage, or filtration of which is
or
shall be restricted, prohibited or penalized by any applicable law (including,
without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
“Hedge
Treasury Note(s)” means, with respect to any Accepted Note, the United
States Treasury Note or Notes whose duration (as determined by Prudential)
most
closely matches the duration of such Accepted Note.
“holder”
means, with respect to any Note, the Person in whose name such Note is
registered in the register maintained by the Company pursuant to
Section 13.1.
“HostileTender
Offer” means, with respect to the use of proceeds of any Note, any
offer to purchase, or any purchase of, shares of capital stock of any
corporation or equity interests in any other entity, or securities convertible
into or representing the beneficial ownership of, or rights to acquire, any
such
shares or equity interests, if such shares, equity interests, securities or
rights are of a class which is publicly traded on any securities exchange or
in
any over-the-counter market, other than purchases of such shares, equity
interests, securities or rights representing less than 5% of the equity
interests or beneficial ownership of such corporation or other entity for
portfolio investment purposes, and such offer or purchase has not been duly
approved by the board of directors of such corporation or the equivalent
governing body of such other entity prior to the date on which the Company
makes
the Request for Purchase of such Note.
“Indebtedness”
with respect to any Person means, at any time, without duplication,
(a) its
liabilities for borrowed money, including those evidenced by notes, bonds,
debentures and similar instruments and its redemption obligations in respect
of
mandatorily Redeemable Preferred Stock;
(b) its
liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business but
including all liabilities created or arising under any conditional sale or
other
title retention agreement with respect to any such property);
(c) all
Capitalized Lease Obligations;
(d) all
liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person, or payable out of the proceeds of production of property
or assets owned by such Person, whether or not it has assumed or otherwise
become liable for such liabilities (other than Indebtedness of others secured
by
Liens, neither assumed nor guaranteed by the Company or any Subsidiary nor
with
respect to which the Company or any Subsidiary pays principal and/or interest,
existing upon real estate or rights in or relating to real estate acquired
by
the Company or any Subsidiary for substation, metering station, gathering line,
transmission line, transportation line, distribution line or right of way
purposes to the extent such Lien does not, or the foreclosure thereof could
not,
materially impair the value of such property or the use of such property for
the
purpose for which it was acquired by the Company or such
Subsidiary);
(e) all
its liabilities in respect of letters of credit or instruments serving a similar
function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed
money);
(f) Swaps
of such Person (excluding commodity swaps in the ordinary course of business
(and for which such Person has production or products covered by such commodity
swaps in sufficient volume to deliver under such commodity swaps) and
non-speculative interest rate swaps);
(g) all
Securitization Obligations of such Person;
(h) Preferred
Stock of any Subsidiary held by a Person other than the Company or a
Wholly-Owned Subsidiary of the Company;
(i) all
Attributable Debt; and
(j) any
Guaranty of such Person with respect to liabilities of a type described in
any
of clauses (a) through (i) hereof.
Indebtedness
of any Person shall include all obligations of such Person of the character
described in clauses (a) through (j) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation
is
deemed to be extinguished under GAAP.
“Initial
Closing” is defined in Section 3.1(a).
“Initial
Closing Day” is defined in Section 3.1(a).
“Initial
Notes” is defined in Section 1.1.
“Initial
Purchasers” means each of the institutions named on the Information
Schedule attached hereto as of the date of the Initial
Closing.
“Institutional
Investor” means any bank, trust company, savings and loan association
or other financial institution, any insurance company, investment company,
broker or dealer, pension plan, mutual fund or other similar financial
institution, including, without limiting the foregoing, any “qualified
institutional buyer” within the meaning of Rule 144A under the Securities Act,
which is or becomes a holder of any Note and any Prudential
Affiliate.
“Interest
Expense” means, for any period, the sum of (a) gross consolidated
interest expense of the Company and its Subsidiaries determined in conformity
with GAAP plus (b) to the extent not otherwise included in the
determination of gross consolidated interest expense of the Company and its
Subsidiaries in accordance with GAAP, the cost to the Company of, and the net
amount payable (or minus the net amount receivable) under, all Financial
Contracts of the Company and its Subsidiaries during such period (whether or
not
actually paid or received during such period) plus (c) all dividends
paid, declared or otherwise accrued in respect of preferred stock of the Company
and any Subsidiary that is not a Wholly-Owned Subsidiary plus the
consolidated yield or discount accrued during such period on all Securitization
Obligations.
“Investment
Policy” is defined in Section 10.7.
“Issuance
Period” is defined in Section 2.2.
“Lien”
means, with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor,
lender or other secured party to or of such Person under any conditional sale
or
other title retention agreement or Capital Lease, upon or with respect to any
property or asset of such Person (including in the case of stock, stockholder
agreements, voting trust agreements and all similar arrangements).
“Loan
Documents” means this Agreement, the Notes and the other documents and
agreements contemplated hereby and executed by the Company in favor of
Prudential or any holder of Notes.
“Long
Term Lease Rentals” means, with respect to any period, the sum of the
minimum amount of rental and other obligations required to be paid during such
period by the Company or any Subsidiary as lessee under all leases of real
or
personal property having a term (including terms of renewal or extension at
the
option of the lessor or the lessee, whether or not such option has been
exercised) expiring more than one year after the
commencement of the initial term, excluding any amounts required to be paid
by
the lessee (whether or not therein designated as rental or additional rental)
(a) which are on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, or (b) which are based on
profits, revenues or sales realized by the lessee from the leased property
or
otherwise based on the performance of the lessee.
“Make-Whole
Amount” is defined in Section 8.6.
“Margin
Stock” means “margin stock” as such term is defined in Regulation T, U
or X of the FRB.
“Material”
means material in relation to the business, operations, affairs, financial
condition, assets or properties of the Company and its Subsidiaries taken as
a
whole.
“Material
Adverse Effect” means a material adverse effect on (i) the
business, property, condition (financial or otherwise), results of operations
of
the Company and its Subsidiaries taken as a whole, (ii) the ability of the
Company to perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of Prudential or the holders of Notes thereunder.
“MDU”
means MDU Resources Group, Inc., a Delaware corporation.
“Moody’s”
means Xxxxx’x Investors Service, Inc.
“Multiemployer
Plan” means a “multiemployer plan” (within the meaning of
Section 4001(a)(3) of ERISA) to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make,
contributions.
“Notes”
is defined in Section 1.2.
“NRSRO”
means a nationally recognized statistical rating organization.
“Officer’s
Certificate” means a certificate of a Senior Financial Officer, an
Authorized Officer or of any other officer of the Company whose responsibilities
extend to the subject matter of such certificate.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any Governmental Authority
succeeding to any of its principal functions under ERISA.
“Pension
Plan” means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA which the Company or any ERISA Affiliate sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five plan years but excluding any Multiemployer
Plan.
“Permitted
Liens” is defined in Section 10.3.
“Person”
means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or a government or agency
or
political subdivision thereof.
“PICA”
means The Prudential Insurance Company of America, a New Jersey
corporation.
“Plan”
means an “employee benefit plan” (as defined in section 3(3) of ERISA) that
is or, within the preceding five years, has been established or maintained,
or
to which contributions are or, within the preceding five years, have been made
or required to be made, by the Company or any ERISA Affiliate or with respect
to
which the Company or any ERISA Affiliate may have any liability.
“Prairie”
means Prairie Cascade Energy Holdings, LLC, a Delaware limited liability
company.
“Preferred
Stock” means any class of capital stock of a corporation that is
preferred over any other class of capital stock of such corporation as to the
payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
“Principal
Operating Subsidiary” means (i) Cascade and its permitted
successors and (ii) when used with respect to any fiscal year of the
Company, each other Subsidiary of the Company having either (a) EBITDA in
excess of 10% of the consolidated EBITDA of the Company and its Subsidiaries
for
such fiscal year or (b) Total Assets in excess of 10% of Consolidated Total
Assets at the end of such fiscal year.
“Property”
or “properties” means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
“Property
Reinvestment Application” means the application of an amount equal to
the Excess Proceeds Amount to the acquisition by the Company or any Subsidiary,
as the case may be, of assets (i) similar to those disposed of by such
Person, or (ii) of a type used in the business of the Company or such
Subsidiary as of the date of this Agreement or another business that is
substantially similar thereto. For clarification, an exchange of
property on which recognition of gain or loss would be exempted from recognition
pursuant to Section 1031 of the Code shall constitute an Asset Sale and a
Property Reinvestment Application.
“Prudential”
means Prudential Investment Management, Inc., a New Jersey
corporation.
“Prudential
Affiliate” means (i) any corporation or other entity controlling,
controlled by, or under common control with, Prudential and (ii) any
managed account or investment fund which is managed by Prudential or a
Prudential Affiliate described in clause (i) of this
definition. For purposes of this definition the terms
“control”, “controlling” and
“controlled” shall mean the ownership,
directly or through
subsidiaries, of a majority of a corporation’s or other entity’s voting stock or
equivalent voting securities or interests.
“Purchasers”
means, with respect to any Accepted Notes, the Persons, either PICA or a
Prudential Affiliate, who is purchasing such Accepted Notes.
“QPAM
Exemption” means Prohibited Transaction Class Exemption 84-14 issued by
the United States Department of Labor.
“Redeemable
Preferred Stock” of any Person means any equity interest of such Person
that by its terms (or by the terms of any equity interest into which it is
convertible or for which it is exchangeable), or otherwise (including on the
happening of an event), is required to be redeemed for cash or other property
or
is redeemable for cash or other property at the option of the holder thereof,
in
whole or in part, on or prior to the maturity date of any Note; or is
exchangeable for Indebtedness at any time, in whole or in part, on or prior
to
the maturity date of any Note; provided, however, that Redeemable
Preferred Stock shall not include any equity interest by virtue of the fact
that
it may be exchanged or converted at the option of the holder or of the Company
for equity interests of the Company having no preference as to dividends,
distributions or liquidation over any other equity interests of the
Company.
“Reinvestment
Yield” is defined in Section 8.6.
“Remaining
Average Life” is defined in Section 8.6.
“Remaining
Scheduled Payments” is defined in Section 8.6.
“Reportable
Event” means any of the events set forth in Section 4043(b) or
4043(c) of ERISA or the regulations thereunder, other than any such event for
which the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
“Request
for Purchase” is defined in Section 2.4.
“Required
Holders” means, with respect to the Notes, at any time, the holders of
at least 51% in principal amount of the Notes at the time outstanding (exclusive
of Notes then owned by the Company or any of its Affiliates).
“Requirement
of Law” means, as to any Person, any law (statutory or common), treaty,
rule or regulation or determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon the Person or any of
its
property or to which the Person or any of its property is subject, including,
without limitation, any law, requirement, rule or regulation of the public
regulatory commissions for the States of Washington and Oregon.
“Rescheduled
Closing Day” is defined in Section 3.2.
“Restricted
Payment” means (i) the declaration of any dividend on, or the
incurrence of any liability to make any other payment or distribution in respect
of any Capital Stock (except, in the case of a Subsidiary, dividends or other
payments or distributions in respect of its Capital Stock to the Company or
a
Wholly Owned Subsidiary of the Company) or (ii) the distribution or other
payment on account of the purchase, redemption or other retirement of any such
Capital Stock (except, in the case of a Subsidiary, purchases, redemptions
or
other retirements of its Capital Stock from the Company or a Wholly Owned
Subsidiary of the Company).
“Sale
and Leaseback Transaction” means, with respect to any Person, any
direct or indirect arrangement pursuant to which properties are sold or
transferred by such Person or a Subsidiary of such Person and are thereafter
leased back from the purchaser or transferee thereof by such Person or one
of
its Subsidiaries.
“S&P”
means Standard & Poor’s Ratings Group, a division of McGraw Hill,
Inc.
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Secured
Indebtedness” means any Indebtedness that is secured in any manner by
any Lien on any Property, provided, however, that “Secured Indebtedness” will
not include Indebtedness secured by Liens permitted under Section 10.3
(other than Section 10.3(k)).
“Securities
Act” means the Securities Act of 1933, as amended from time to
time.
“Securitization
Obligations” means, with respect to any Securitization Transaction, the
aggregate investment or claim held at any time by all purchasers, assignees
or
transferees of (or of interests in) or holders of obligations that are supported
or secured by accounts receivable, lease receivables and other rights to payment
in connection with such Securitization Transaction.
“Securitization
Transaction” means any sale, assignment or other transfer by the
Company or any Subsidiary of accounts receivable, lease receivables or other
payment obligations owing to the Company or such Subsidiary or any interest
in
any of the foregoing, together in each case with any collections and other
proceeds thereof, any collection or deposit accounts related thereto, and any
collateral, guaranties or other property or claims in favor of the Company
or
such Subsidiary supporting or securing payment by the obligor thereon of, or
otherwise related to, any such receivables.
“Senior
Financial Officer” means the President, the Financial Vice President,
the Treasurer, Chief Financial Officer or the Controller of the
Company.
“Series”
is defined in Section 1.2.
“Series A
Notes” is defined in
Section 1.1.
“Series B
Notes” is defined in
Section 1.1.
“Settlement
Date” is defined in Section 8.6.
“Shelf
Closing” is defined in Section 3.1(b).
“Shelf
Notes” is defined in Section 1.2.
“Source”
is defined in Section 6.2.
“Structuring
Fee” is defined in Section 2.8(d).
“Subsidiary”
means, as to any Person, any corporation, association, limited liability company
or other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence
of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if
more
than a 50% interest in the profits or capital thereof is owned by such Person
or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its
Subsidiaries). Unless the context otherwise clearly requires, any
reference to a “Subsidiary” is a reference to a Subsidiary of
the Company.
“Subsidiary
Capitalization” means the sum of (i) Subsidiary Debt and
(ii) the total stockholders’ equity of the Subsidiaries of the Company
determined in accordance with GAAP minus amounts attributable to
mandatorily Redeemable Preferred Stock of the Subsidiaries of the Company
determined in accordance with GAAP.
“Subsidiary
Capitalization Ratio” means the ratio of Subsidiary Debt to
Subsidiary Capitalization.
“Subsidiary
Debt” means Total Debt minus Indebtedness of the
Company.
“Successor
Corporation” is defined in Section 10.6.
“Swap
Contract” means swap agreements (as such term is defined in
Section 101(53B) of the Bankruptcy Code) and any other agreements or
arrangements designed to provide protection against fluctuations in interest
or
currency exchange rates or commodity prices, including, but not limited to,
Commodity Contracts and Financial Contracts.
“Swaps”
means, with respect to any Person, payment obligations with respect to interest
rate swaps, currency swaps and similar obligations obligating such Person to
make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the
obligation under any Swap shall be the amount determined in respect thereof
as
of the end of the then most recently ended fiscal quarter of such Person, based
on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
“Total
Assets” means, as of any time, the total amount of assets which would
appear on a balance sheet of a Person at such time prepared in accordance with
GAAP.
“Total
Debt” means, with respect to the Company, the total consolidated
Indebtedness of the Company and its Subsidiaries.
“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit
liabilities under Section 302(d)(7) of ERISA, over the current value of
that Plan’s assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
“United
States Governmental Security” means any direct obligation of, or
obligation guaranteed by, the United States of America, or any agency controlled
or supervised by or acting as an instrumentality of the United States of America
pursuant to authority granted by the Congress of the United States of America,
so long as such obligation or guarantee shall have the benefit of the full
faith
and credit of the United States of America which shall have been pledged
pursuant to authority granted by the Congress of the United States of
America.
“Voting
Stock” means, with respect to any Person, the shares of any class or
classes of such Person having voting power (not depending on the happening
of a
contingency) for the election of the majority of the members of the board of
directors, the managers, the trustees or any other governing body of such
Person.
“Wholly
Owned Subsidiary” means, at any time, any Subsidiary 100% of all of the
equity interests (except directors’ qualifying shares) and voting interests of
which are owned by any one or more of the Company and the Company’s other
Wholly-Owned Subsidiaries at such time. MDU ENERGY CAPITAL, LLC
