CREDIT AGREEMENT
among
MIDAMERICAN ENERGY COMPANY,
THE LENDING INSTITUTIONS PARTY HERETO,
as Banks,
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
dated as of
November 18, 2004
UNION BANK OF CALIFORNIA, N.A.
and
J.P. MORGAN SECURITIES, INC.
Co-Lead Arrangers and Co-Book Runners
MIDAMERICAN ENERGY COMPANY
CREDIT AGREEMENT
This Agreement dated as of November 18, 2004 is among MidAmerican Energy Company, the Banks, Union Bank of California, N.A., as Syndication Agent, and JPMorgan Chase Bank, N.A., as Administrative Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
1.1 Definitions. As used in this Agreement:
Administrative Agent means JPMorgan in its capacity as administrative agent for the Banks pursuant to Article X, and not in its individual capacity as a Bank, and any successor Administrative Agent appointed pursuant to Article X.
Administrative Questionnaire means an administrative questionnaire, substantially in the form supplied by the Administrative Agent, completed by a Bank and furnished to the Administrative Agent in connection with this Agreement.
Advance means a borrowing hereunder consisting of the aggregate amount of the several Loans made by the Banks to the Company on the same Borrowing Date, at the same Rate Option and for the same Interest Period.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes hereof, control, when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled having correlative meanings.
Aggregate Commitment means the aggregate of the Commitments of the Banks, as changed from time to time pursuant to the terms hereof.
Aggregate Outstanding Credit Exposure means, at any time, the aggregate of the Outstanding Credit Exposure of the Banks.
Agreement means this credit agreement.
Alternate Base Rate means, on any date and with respect to all Floating Rate Advances, a fluctuating rate of interest per annum equal to the higher of (i) the Prime Rate, and (ii) the Federal Funds Effective Rate most recently determined by the Administrative Agent plus 1/2% per annum. Changes in the rate of interest on that portion of any Advance maintained as a Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. The Administrative Agent will give notice promptly to the Company and the Banks of changes in the Alternate Base Rate.
Applicable Margin - see Schedule I.
Arrangers means Union Bank of California, N.A. and J.P. Morgan Securities, Inc. in their capacity as Co-Lead Arrangers and Co-Book Runners.
Assignment Agreement means an assignment agreement substantially in the form of Exhibit C.
Authorized Officer means the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the General Counsel, any Assistant General Counsel, the Secretary, any Assistant Secretary, any Senior Vice President or any Vice President of the Company.
Banks means the financial institutions listed on the signature pages of this Agreement and their respective successors and assigns.
Borrowing Date means a date on which an Advance is made hereunder.
Borrowing Notice is defined in Section 2.2.3.
Business Day means (i) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day other than Saturday or Sunday on which banks are open for business in Chicago and New York and on which dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day other than Saturday or Sunday on which banks are open for business in Chicago.
Capitalized Lease of a Person means any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person.
Capitalized Lease Obligations of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person.
Code means the Internal Revenue Code of 1986.
Collateral Shortfall Amount is defined in Section 8.1.
Commitment means, for each Bank, the obligation of such Bank to make Loans to, and to participate in Facility LCs issued upon the application of, the Company in an aggregate amount not exceeding the amount set forth opposite its signature below or assumed by such Bank pursuant to an assignment, as such amount may be modified from time to time pursuant to the terms of this Agreement.
Company means MidAmerican Energy Company, an Iowa corporation, and its successors and assigns.
Consolidated Debt means all Indebtedness of the Company and its Subsidiaries determined on a consolidated basis.
Consolidated Net Worth means, as at any date of determination, the sum of the capital stock and additional paid-in capital plus retained earnings (or minus accumulated deficit) plus preferred securities of the Company and its Subsidiaries on a consolidated basis.
Contingent Obligation of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including any comfort letter, operating agreement or take-or-pay contract and shall include the contingent liability of such Person in connection with any application for a letter of credit.
Controlled Group means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Company or any Subsidiary, are treated as a single employer under Section 414(b) or 414(c) of the Code.
Conversion/Continuation Notice is defined in Section 2.2.4.
Credit Extension means the making of an Advance or the issuance of a Facility LC.
Credit Extension Date means the Borrowing Date for an Advance or the issuance date for a Facility LC.
Default means an event described in Article VII.
ERISA means the Employee Retirement Income Security Act of l974.
Eurodollar Advance means an Advance which bears interest at a Eurodollar Rate as requested by the Company pursuant to Section 2.2.
Eurodollar Base Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, the applicable British Bankers Association LIBOR rate for deposits in U.S. dollars as reported by any generally recognized financial service as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period; providedthat if no such British Bankers Association LIBOR rate is available to the Administrative Agent for any reason, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at which JPMorgan or one of its affiliate banks offers to place deposits in U.S. dollars with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of JPMorgans relevant Eurodollar Loan and having a maturity equal to such Interest Period.
Eurodollar Loan means a Loan which bears interest at a Eurodollar Rate as requested by the Company pursuant to Section 2.2.
Eurodollar Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to that Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to that Interest Period, plus (ii) the Applicable Margin. The Eurodollar Rate shall be rounded, if necessary, to the next higher 1/100 of 1%.
Existing Agreement means the Credit Agreement dated as of January 15, 2004 among the Company, various financial institutions and JPMorgan (as successor to Bank One, NA), as Administrative Agent.
Facility Fee Rate - see Schedule I.
Facility LC is defined in Section 2.7.1.
Facility LC Application is defined in Section 2.7.3.
Facility LC Collateral Account is defined in Section 2.7.11.
FERC means the Federal Energy Regulatory Commission or any other federal regulatory body that succeeds to the functions of the Federal Energy Regulatory Commission.
Federal Funds Effective Rate means, for any period, a fluctuating interest rate per annum equal for each day during such period to (i) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York; or (ii) if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10 a.m. for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
Floating Rate means, for any day, a rate per annum equal to the Alternate Base Rate, changing when and as the Alternate Base Rate changes.
Floating Rate Advance means an Advance which bears interest at the Floating Rate.
Floating Rate Loan means a Loan which bears interest at the Floating Rate.
FRB means the Board of Governors of the Federal Reserve System.
GAAP is defined in Section 1.3.
Indebtedness of a Person means such Persons (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of property or services other than accounts payable arising in the ordinary course of such Persons business payable on terms customary in the trade, (iii) obligations, whether or not assumed, secured by liens on, or payable out of the proceeds or production from, property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi) net liabilities under interest rate swap, exchange or cap agreements, and (vii) all Contingent Obligations of such Person.
Interest Period means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by the Company pursuant to this Agreement. Such Interest Period shall end on (but exclude) the day which corresponds numerically to such date one, two, three or six months thereafter, provided that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided that if said next succeeding Business Day falls in a new month, such Interest Period shall end on the immediately preceding Business Day.
JPMorgan means JPMorgan Chase Bank, N.A. in its individual capacity, and its successors and assigns.
LC Fee Rate - see Schedule I.
LC Issuer means JPMorgan (or any subsidiary or affiliate of JPMorgan designated by JPMorgan) in its capacity as issuer of Facility LCs hereunder.
LC Obligations means, at any time, the sum, without duplication, of (i) the aggregate undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate unpaid amount of all Reimbursement Obligations at such time.
LC Payment Date is defined in Section 2.7.5.
Lending Installation means any office, branch, subsidiary or affiliate of any Bank or the Administrative Agent.
Loan means, with respect to a Bank, such Banks portion of any Advance.
Loan Documents means this Agreement, any Note and the Facility LC Applications.
Midwest Power Indenture means the General Mortgage Indenture and Deed of Trust dated as of January 1, 1993 between Midwest Power Systems Inc. and Morgan Guaranty Trust Company of New York (Harris Trust and Savings Bank, successor trustee), as trustee, and indentures supplemental thereto.
Modify and Modification are defined in Section 2.7.1.
Moodys means Moodys Investors Service, Inc., or any successor thereto.
Moodys Rating means at any time the rating issued by Moodys and then in effect with respect to the Companys senior unsecured long-term debt securities without third-party credit enhancement (it being understood that if the Company does not have any outstanding debt securities of the type described above but has an indicative rating from Moodys for debt securities of such type, then such indicative rating shall be used for determining the Moodys Rating).
Multiemployer Plan means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Company or any member of the Controlled Group is a party to which more than one employer is obligated to make contributions.
Note means a promissory note in substantially the form of Exhibit A.
Obligations means all unpaid principal of and accrued and unpaid interest on the Loans, all Reimbursement Obligations, all accrued and unpaid fees and all other reimbursements, indemnities or other obligations of the Company to any Bank, the LC Issuer, the Administrative Agent or any indemnified party hereunder arising under the Loan Documents.
Outstanding Credit Exposure means, as to any Bank at any time, the sum of (i) the aggregate principal amount of its Loans outstanding at such time plus (ii) an amount equal to its Pro Rata Share of the LC Obligations at such time.
Payment Date means the last day of each March, June, September and December.
PBGC means the Pension Benefit Guaranty Corporation and its successors and assigns.
Permitted Encumbrance means:
(i) (a) any mortgage, pledge or other lien or encumbrance on any property hereafter acquired or constructed by the Company or a Subsidiary, or on which property so constructed is located, and created prior to, contemporaneously with or within 360 days after, such acquisition or construction or the commencement of commercial operation of such property to secure or provide for the payment of any part of the purchase or construction price of such property, (b) any property subject to any mortgage, pledge, or other lien or encumbrance upon such property existing at the time of acquisition thereof by the Company or any Subsidiary, whether or not assumed by the Company or such Subsidiary, (c) any mortgage, pledge or other lien or encumbrance existing on the property, shares of stock, membership interests or indebtedness of a corporation or limited liability company at the time such corporation or limited liability company becomes a Subsidiary or any pledge of the shares of stock or membership interests of such corporation or limited liability company prior to, contemporaneously with or within 360 days after such corporation or limited liability company becomes a Subsidiary to secure or provide for the payment of any part of the purchase price of such stock or membership interests or (d) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired or constructed; provided that, in the case of clauses (a) through (d), the lien of any such mortgage, pledge or other lien does not spread to property owned prior to such acquisition or construction or to other property thereafter acquired or constructed other than additions to such acquired or constructed property and other than property on which property so constructed is located; and provided, further, that if a firm commitment from a bank, insurance company or other lender or investor (not including the Company, a Subsidiary or an Affiliate of the Company) for the financing of the acquisition or construction of property is made prior to, contemporaneously with or within the 360-day period referred to above, the applicable mortgage, pledge, lien or encumbrance shall be deemed to be permitted by this clause (i) whether or not created or assumed within such period;
(ii) any mortgage, pledge or other lien or encumbrance created for the sole purpose of extending, renewing or refunding any mortgage, pledge, lien or encumbrance permitted by clause (i) above; provided that the principal amount of indebtedness secured thereby shall not exceed the principal amount of indebtedness so secured at the time of such extension, renewal or refunding and that such extension, renewal or refunding mortgage, pledge or other lien or encumbrance shall be limited to all or any part of the same property that secured the mortgage, pledge or other lien or encumbrance extended, renewed or refunded;
(iii) any lien for taxes or assessments or governmental charges or levies not then due and delinquent or the validity of which is being contested in good faith, and against which an adequate reserve has been established; any lien on any property created in connection with pledges or deposits to secure public or statutory obligations or to secure performance in connection with bids or contracts; any materialmens, mechanics, carriers, workmens, repairmens or other similar lien or any lien on any property created in connection with deposits to obtain the release of any such lien; any lien on any property created in connection with deposits to secure surety, stay, appeal or customs bonds; any lien created by or resulting from any litigation or legal proceeding which is currently being contested in good faith by appropriate proceedings; any lease and any lien, right of reverter or other possessory right of the lessor thereunder; any zoning restriction, easement, right-of-way or other restriction on the use of real property or any minor irregularity in the title thereto; and any other lien or encumbrance similar to those described in this clause (iii), the existence of which, in the opinion of the board of directors of the Company, does not materially impair the use by the Company or a Subsidiary of the affected property in the operation of the business of the Company or a Subsidiary, or the value of such property for the purposes of such business;
(iv) any mortgage, pledge or other lien or encumbrance created after the date hereof on any property leased to or purchased by the Company or a Subsidiary after that date and securing, directly or indirectly, obligations issued by a state, a territory or a possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, to finance the cost of acquisition or cost of construction of such property; provided that the interest paid on such obligations is entitled to be excluded from gross income of the recipient pursuant to Section 103(a)(1) of the Internal Revenue Code of 1986 (or any successor to such provision), as in effect at the time of the issuance of such obligations;
Home
Intelligence
Services
Subscriptions
News
About Us
Contact Us
Terms of Use
Resend Documents
Shopping Cart
Copyright © 2008 The Consus Group LLC