Exhibit 10.13
Execution Copy
AMENDMENT NO. 8 TO
AMENDED AND
RESTATED
CONSTRUCTION AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 8 TO AMENDED AND
RESTATED CONSTRUCTION AND TERM LOAN AGREEMENT (this “Amendment”), dated as of
November___, 2001, is made by and among (i) ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E PARTNERS, a Virginia
general partnership, as Borrower (the “Borrower”), (ii) CREDIT SUISSE FIRST
BOSTON, NIB CAPITAL BANK N.V., THE BANK OF NOVA SCOTIA, SUMITOMO MITSUI BANKING
CORPORATION (formerly known as The Sumitomo Bank Limited), New York Branch, THE SANWA BANK
LIMITED, UNION BANK OF CALIFORNIA, N.A., THE FUJI BANK LIMITED, New York Branch, CREDIT
LYONNAIS, New York Branch, CREDIT LYONNAIS, Cayman Island Branch, LANDESBANK
HESSEN-THURINGEN GIROZENTRALE and each Purchasing Lender, as Lenders, (iii) THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, as Institutional Lender and as Institutional Agent and each
Purchasing Institutional Lender, (iv) CREDIT SUISSE FIRST BOSTON, New York Branch, as the
Issuing Bank, (v) CREDIT SUISSE FIRST BOSTON, NIB CAPITAL BANK N.V., THE BANK OF NOVA
SCOTIA and THE SUMITOMO BANK, LIMITED, New York Branch, as Co-Agents (together with their
successors in such capacity) and (vi) CREDIT SUISSE FIRST BOSTON, as Agent for the
Lenders, the Institutional Lenders and the Issuing Bank (together with its successors in
such capacity).
Reference
is made to the Amended and Restated Construction and Term Loan Agreement, dated as of
December 1, 1993, as amended by Amendment No. 1 dated as of November 4,
1994, Amendment No. 2 dated as of December 30, 1994, Amendment No. 3 dated
as of January 31, 1995, Amendment No. 4 dated as of October 19, 1995, Amendment
No. 5 dated as of December 15, 1996, Amendment No. 5 dated as of August 23,
2000, Amendment No. 6 dated as of November 21, 2000 and Amendment No. 7 dated as
of November 15, 2001, each among Borrower, the Lenders, the Institutional Lenders, the
Issuing Bank, the Co-Agents and Agent (each, as defined therein) and the letter agreement,
dated July 20, 1999 from Credit Suisse First Boston as Agent, as Issuing Bank, as
Co-Agent and as Securities Intermediary, and acknowledged and agreed to by the Borrower,
the Lenders, the Institutional Lenders and the Institutional Agent (collectively, the
“Credit Agreement”).
W I T N E S S E T H:
WHEREAS, the
Bond Letters of Credit will expire on December 20, 2001 and Borrower does not expect
the Issuing Bank to renew or extend the terms of the Bond Letters of Credit;
WHEREAS,
Borrower desires to provide a Series 1991 Substitute Letter of Credit and a Series 1993
Substitute Letter of Credit after the expiration of the Bond Letters of Credit;
WHEREAS,
Credit Suisse First Boston is the issuer of the Rova I Virginia Power Letter of
Credit, the Rova II Virginia Power Letter of Credit (collectively, the “Virginia
Power Letters of Credit”) and the Bond Letters of Credit;
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WHEREAS,
Borrower desires to arrange for a Series 1991 Substitute Letter of Credit to be in
effect in accordance with Section 5.2(b) of the Series 1991 Loan Agreement and
for a Series 1993 Substitute Letter of Credit to be in effect in accordance with
Section 5.2(b) of the Series 1993 Loan Agreement (the “Substitute Bond
Letters of Credit”);
WHEREAS,
pursuant to Section 3.4(e) of the Credit Agreement, the term “Lender” or
“Lenders” includes the Issuing Bank, in its individual capacity, with respect to
any Advances and any Note issued to the Issuing Bank or for its benefit;
WHEREAS,
pursuant to Section 9.2 of the Credit Agreement, any Lender may sell to one or more
first-class financial institutions, with the consent of Agent, Issuing Bank and the
Borrower, its rights or obligations with respect to a Letter of Credit;
WHEREAS,
the parties to this Amendment contemplate that the financial institution that issues the
Substitute Bond Letters of Credit will assume the rights and obligations of Credit Suisse
First Boston with respect to Bond Letters of Credit and all drawings made thereunder,
including the participation and funding commitment of Credit Suisse First Boston as set
forth in Section 3.2 of the Credit Agreement with respect to any Series 1991 Term Loan and
Series 1993 Term Loan;
WHEREAS,
in the event that the Substitute Letters of Credit are issued by a financial institution
other than Credit Suisse First Boston and Credit Suisse First Boston sells its rights and
obligations with respect to Bond Letters of Credit to another financial institution (the
effective date of such sale being referred to as the “Bond L/C Transfer Date”),
Credit Suisse First Boston will not be the issuing bank with respect to the Substitute
Bond Letters of Credit, but will continue to be the issuing bank with respect to the
Virginia Power Letters of Credit until the expiration or substitution of the Virginia
Power Letters of Credit;
WHEREAS,
Section 9.4 of the Credit Agreement requires the written consent of the Majority Lenders
and the signature of the Borrower and the Agent in order to amend the Credit Agreement or
any other Loan Instrument; and
WHEREAS,
the parties hereto desire to amend certain provisions of the Credit Agreement in the
manner set forth below in order to (i) permit the substitution of Credit Suisse First
Boston, in its capacity as issuer of the Bond Letters of Credit, with another first-class
financial institution, (ii) eliminate the requirement of Section 3.2(c) of the Credit
Agreement that (x) any issuer of a Series 1991 Substitute Letter of Credit agree to become
a Purchasing Lender with pro rata extensions of credit or commitments of an amount at
least equal to fifteen percent of the Outstanding Tranche A Extensions of Credit at such
time, (y) any issuer of a Series 1993 Substitute Letter of Credit agree to become a
Purchasing Lender with pro rata extensions of credit or commitments of an amount at least
equal to fifteen percent of the Outstanding Tranche B Extensions of Credit at such time,
and (z) the Lenders sell, assign or otherwise transfer, at par, to any such issuer, such
portions of the Lenders’ Loans, L/C Reimbursement Obligations or Letter of Credit
participations, or commitments therefor in such pro rata amounts as are necessary to
provide such issuer with the aforesaid extensions of credit or commitments therefor, and
(iii) permit the Borrower to provide a Series 1991 Substitute Letter of Credit and a
Series 1993 Substitute Letter of Credit at any time after the expiration of the Bond
Letters of Credit.
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NOW,
THEREFORE, in consideration of the premises set forth above and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, each of
the parties hereto hereby agrees as follows:
1. Definitions.
For all purposes of this Amendment, capitalized terms used herein
(including in the preamble and the recitals hereof) but not otherwise
defined herein shall have the meanings set forth in the Credit Agreement
including Exhibit X thereto.
2. Amendment
to Exhibit X to the Credit Agreement. Exhibit X to the Credit
Agreement is hereby amended as follows:
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(a) The
definition of “Cash Revenues” is hereby amended by deleting
the words “Issuing Bank” in the twelfth line thereof and
replacing such words with the words “Bond L/C Issuing Bank”.
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(b) The
definition of “Issuing Bank” is hereby amended by deleting
such term and its corresponding definition in its entirety and replacing
it with the following language: “Issuing Bank” means (i)
Credit Suisse First Boston, New York Branch, and its successors and
assigns, in its capacity as the issuer of the Rova I Virginia Power
Letter of Credit, the Rova II Virginia Power Letter of Credit, any
Rova I Trade Letter of Credit and any Rova II Trade Letter of
Credit for so long as such letters of credit are in effect, or (ii) the
issuer of any replacement Rova I Virginia Power Letter of Credit, Rova II
Virginia Power Letter of Credit any Rova I Trade Letter of Credit and any
Rova II Trade Letter of Credit then in effect, and its successors and
assigns in such capacity.
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(c) The
definition of “Rova I L/C Reimbursement Obligation” is
hereby amended by replacing the words “Issuing Bank” in the
fifth line thereof with the words “Bond L/C Issuing Bank”.
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(d) The
definition of “Rova II L/C Reimbursement Obligation” is
hereby amended by replacing the words “Issuing Bank” in the fifth
line thereof with the words “Bond L/C Issuing Bank”.
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(e) The
definition of “Secured Parties” is hereby amended by
inserting the words “the Bond L/C Issuing Bank” immediately
after the words “the Issuing Bank,” in the first line thereof.
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(f) The
definition of “Series 1991 Letter of Credit” is hereby
amended by deleting the words “Issuing Bank” in the second line
thereof and replacing such words with the words “Bond L/C Issuing
Bank and its successors and assigns”.
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(g) The
definition of “Series 1991 Letter of Credit Facility” is
hereby amended by deleting the words “Issuing Bank” and replacing
such words with the words “Bond L/C Issuing Bank and its successors
and assigns”.
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(h) The
definition of “Series 1993 Letter of Credit” is hereby
amended by deleting the words “Issuing Bank” in the sixth line
thereof and replacing such words with the words “Bond L/C Issuing
Bank and its successors and assigns”.
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(i) The
definition of “Series 1993 Letter of Credit Facility” is
hereby amended by deleting the words “Issuing Bank” and replacing
such words with the words “Bond L/C Issuing Bank and its successors
and assigns”.
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(j) The
definition of “Taxes” is hereby amended by inserting the
words “or the branch of any Bond L/C Issuing Bank issuing any Bond
Letters of Credit” immediately after the words “Letters of
Credit,” in the eleventh line thereof.
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(k) The
definition of “Tranche A Advance” is hereby amended by
inserting the words “or by the Bond L/C Issuing Bank, as applicable” in
clause (d) thereof immediately after the words “Issuing Bank” in
the ninth line thereof.
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(l) The
definition of “Tranche A Application for Borrowing” is
hereby amended by deleting (i) the words “Issuing Bank” in the
fifth line of clause (d) thereof and replacing such words with the words
“Bond L/C Issuing Bank” and by inserting before the words “Rova
I Letter of Credit” in clause (d) thereof the word “initial.”
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(m) The
definition of “Tranche B Advance” is hereby amended by
inserting the words “or by the Bond L/C Issuing Bank, as applicable” in
clause (d) thereof immediately after the words “Issuing Bank” in
the ninth line thereof and by inserting before the words “Rova II
Letter of Credit” in clause (d) of thereof the word “initial.”
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(n) Exhibit
X is further amended by inserting the following definition in the
appropriate alphabetical order:
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“Bond
L/C Issuing Bank” means Credit Suisse First Boston, New York Branch, and its
successors and assigns, in its capacity as the issuer of, and for so long as it is the
issuer of the Bond Letters of Credit then in effect or (ii) the issuer of any Series 1991
Substitute Letter of Credit and any Series 1993 Substitute Letter of Credit then in effect
and its successors and assigns in such capacity.
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3. Amendments
to the Credit Agreement. The Credit Agreement is hereby amended as
follows:
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(a) Section 2.3(a)(i)
is hereby amended by (i) inserting the words “, the Bond
L/C Issuing Bank” immediately after the words “the Lenders” in
the second, eighth, thirty-seventh, fortieth, forty-second and the
forty-eighth lines thereof, (ii) inserting the words “, the
Bond L/C Issuing Bank” immediately after the word “Lender” in
the fourth, tenth, eleventh, nineteenth, twenty-fourth, twenty-sixth,
forty-eighth and fifty-sixth lines thereof, (iii) inserting the words
“, the Bond L/C Issuing Bank” immediately after the words
“Issuing Bank” in the fourteenth, fifty-fourth and fifty-seventh
lines thereof, and (iv) inserting the words “or Bond L/C Issuing
Bank’s” immediately after the words “Issuing Bank’s” in
the fiftieth line thereof.
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(b) Section 2.3(b)
is hereby amended by (i) inserting the words “or the Bond L/C Issuing
Bank” immediately after the words “Issuing Bank” in the
seventh line thereof and in the fifth and ninth lines of the last
paragraph thereof and (ii) inserting the words “or Bond L/C
Issuing Bank’s” immediately after the word “Bank’s” in
the sixth line of the last paragraph thereof.
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(c) Section 2.3(c)
is hereby amended by (i) inserting the words “or Bond L/C
Issuing Bank” immediately after the words “Issuing Bank” in
the sixth, seventeenth, and twenty-first lines thereof and (ii) inserting the
words “or Bond L/C Issuing Bank’s” immediately after the
words “Issuing Bank’s” in the seventeenth line thereof.
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(d) Section 2.4(c)
is hereby amended by (i) deleting the words “on the Tranche A
Conversion Date” in the sixth, seventh and eighth lines of
subparagraph (i)(B) thereof and replacing such words with the words “on
such Tranche A Repayment Date”, (ii) deleting the words “on the
Tranche B Conversion Date” in the sixth, seventh, and eighth lines of
subparagraph (i)(D) thereof and replacing such words with the words “on
such Tranche B Repayment Date” and (iii) inserting the words “Bond
L/C” immediately before the words “Issuing Bank” in the
third and seventh lines of subparagraph (ii)(C) thereof.
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(e) Section 2.6(b)
is hereby amended by inserting the words “, Bond L/C Issuing Bank” immediately
after the words “Institutional Lender” in the second, fourth,
seventh, twelfth, nineteenth, twenty-first and twenty-third lines thereof
and immediately after the words “Institutional Lenders” in the
fifteenth and seventeenth lines thereof.
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(f) Section 2.6(c)
is hereby amended by inserting the words “, Bond L/C Issuing Bank” immediately
after the words “Institutional Lenders” in the third line
thereof.
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(g) Section 2.6(c)(i)(B)
is hereby amended by (i) inserting the words “the Bond L/C
Issuing Bank,” immediately after the words “Issuing Bank,” in
the first line thereof and (ii) inserting the words “or to the Bond
L/C Issuing Bank” immediately after the words “Issuing Bank” in
the fourth line thereof.
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(h) Section 2.6(c)(ii)(C)
is hereby amended by (i) inserting the words “the Bond L/C
Issuing Bank,” immediately after the words “Issuing Bank,” in
the first line thereof, and (ii) inserting the words “or to the Bond
L/C Issuing Bank” immediately after the words “Issuing Bank” in
the fifth line thereof.
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(i) Sections 3.2(a)
through 3.2(b) and Section 3.2(d) through Section 3.2(g) are hereby
amended by (i) deleting the words “Issuing Bank” everywhere
that such words appear in such sections and replacing such words with the
words “Bond L/C Issuing Bank” and (ii) deleting the words
“Issuing Bank’s” everywhere that such words appear in such
sections and replacing such words with the words “Bond L/C Issuing
Bank’s”.
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(j) Section
3.2(b) is hereby amended by inserting the following at the end of the
first paragraph thereof after the word “anniversary”:
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;provided
further that, in addition to the foregoing, in the case of any Series 1991 Substitute
Letter of Credit issued on or after December 20, 1996, such Series 1991 Substitute Letter
of Credit may provide either that the term thereof (i) may be renewed for additional
periods of one year from each anniversary of the issuance date thereof if the Bond L/C
Issuing Bank shall, at least ninety (90) days prior to any such anniversary, give written
notice to Borrower that the Series 1991 Substitute Letter of Credit shall be extended
beyond the day immediately preceding such anniversary or (ii) shall be automatically
renewed for additional periods of one year from each anniversary of the issuance date
thereof unless the Bond L/C Issuing Bank shall, at least six months prior to any such
anniversary, give written notice to the Borrower that the Series 1991 Substitute Letter of
Credit shall not be extended beyond the day immediately preceding such anniversary. |
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(k) Section
3.2(b) is hereby amended by inserting the following at the end of the
second paragraph thereof after the word anniversary”:
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;provided
further that, in addition to the foregoing, in the case of any Series 1993 Substitute
Letter of Credit issued on or after December 20, 1996, such Series 1993 Substitute Letter
of Credit may provide either that the term thereof (i) may be renewed for additional
periods of one year from each anniversary of the issuance date thereof if the Bond L/C
Issuing Bank shall, at least six months prior to any such anniversary, give written notice
to Borrower that the Series 1993 Substitute Letter of Credit shall be extended beyond the
day immediately preceding such anniversary or (ii) shall be automatically renewed for
additional periods of one year from each anniversary of the issuance date thereof unless
the Bond L/C Issuing Bank shall, at least ninety (90) days prior to any such anniversary,
give written notice to the Borrower that the Series 1993 Substitute Letter of Credit shall
not be extended beyond the day immediately preceding such anniversary. |
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(l) Section 3.2(c) is hereby amended and restated as follows:
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“(c)
Substitute Letters of Credit and Fixed Rate Credit Facilities. Borrower
agrees that it shall not be entitled to provide a Series 1991
Substitute Letter of Credit or a Series 1991 Fixed Rate Credit
Facility except (A) if the Bond/LC Issuing Bank shall have wrongfully
dishonored a Series 1991 Drawing under the Series 1991 Letter of
Credit and such wrongful dishonor shall be continuing or (B) if the
Bond L/C Issuing Bank shall no longer be a Lender and no other Lender
shall have issued a Series 1991 Substitute Letter of Credit or a
Series 1991 Fixed Rate Credit Facility or (C) as otherwise provided
below in this Section 3.2(c). After the Tranche A Conversion Date, to
but not including the first anniversary of the Tranche A Conversion
Date, Borrower shall be entitled to provide a Series 1991 Substitute
Letter of Credit or a Series 1991 Fixed Rate Credit Facility with the
prior written consent of the Bond L/C Issuing Bank and the Majority
Lenders (including the Lenders and Institutional Lenders, and which
consent shall be given or withheld in the sole discretion of the
aforesaid parties) and upon payment to Agent for the account of the
Lenders of an amount equal to 0.500% of the amount of the Series 1991
Letter of Credit then outstanding. If the Bond L/C Issuing Bank does
not renew the Series 1991 Letter of Credit at the expiration thereof,
and if no Lender shall replace the Bond L/C Issuing Bank as the
issuer of the Series 1991 Letter of Credit should such replacement be
necessary, then Borrower shall be entitled to provide a Series 1991
Substitute Letter of Credit or a Series 1991 Fixed Rate Credit Facility at
any time on or after the expiration of the Series 1991 Letter of
Credit (whether or not there are any Tranche A Loans then outstanding
pursuant to Section 3.2(d)(i)); provided that (1) Borrower
must obtain (A) any consent required under the Series 1991 Bond
Documents and (B) the prior written consent of Institutional Agent if
the issuer of the Series 1991 Substitute Letter of Credit or the
provider of the Series 1991 Fixed Rate Credit Facility is (in the
judgment of Institutional Agent) less creditworthy than the Issuing
Bank, and (2) Borrower shall pay to each Secured Party all of such
Secured Party’s administrative, legal and other costs and
expenses associated with the transactions contemplated pursuant to
this Section 3.2(c). |
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Borrower
agrees that it shall not be entitled to provide a Series 1993 Substitute Letter of Credit
or a Series 1993 Fixed Rate Credit Facility for the Series 1993 Letter of Credit except
(A) if the Bond L/C Issuing Bank shall have wrongfully dishonored a Series 1993 Drawing
under the Series 1993 Letter of Credit and such wrongful dishonor shall be continuing or
(B) if the Bond L/C Issuing Bank shall no longer be a Lender and no other Lender shall
have issued a Series 1993 Substitute Letter of Credit or a Series 1993 Fixed Rate Credit
Facility or (C) as otherwise provided below in this Section 3.2(c). After the Tranche B
Conversion Date, to but not including the first anniversary of the Tranche B Conversion
Date, Borrower shall be entitled to provide a Series 1993 Substitute Letter of Credit or a
Series 1993 Fixed Rate Credit Facility with the prior written consent of the Bond L/C
Issuing Bank and the Majority Lenders (including the Lenders and Institutional Lenders,
and which consent shall be given or withheld in the sole discretion of the aforesaid
parties) and upon payment to Agent for the account of the Lenders of an amount equal to
0.500% of the amount of the Series 1993 Letter of Credit then outstanding. If the Bond L/C
Issuing Bank does not renew the Series 1993 Letter of Credit at the expiration thereof,
and if no Lender shall replace the Bond L/C Issuing Bank as the issuer of the Series 1993
Letter of Credit should such replacement be necessary, then Borrower shall be entitled to
provide a Series 1993 Substitute Letter of Credit or a Series 1993 Fixed Rate Credit
Facility at any time on or after the expiration of the Series 1993 Letter of Credit (and
whether or not there are any Tranche B Loans then outstanding pursuant to Section
3.2(d)(i)); provided that (1) Borrower must obtain (A) any consent required under
the Series 1993 Bond Documents and (B) the prior written consent of Institutional Agent if
the issuer of the Series 1993 Substitute Letter of Credit or the provider of the Series
1993 Fixed Rate Credit Facility is (in the judgment of Institutional Agent) less
creditworthy than the Issuing Bank, (2) Borrower shall pay to each Secured Party all of
such Secured Party’s administrative, legal and other costs and expenses associated
with the transactions contemplated pursuant to this Section 3.2(c).” |
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(m) Sections
3.3 is hereby amended and restated as follows:
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“Nature
of Issuing Bank’s and Bond L/C Issuing Bank’s Duties. As among Borrower, the
Issuing Bank, the Bond L/C Issuing Bank, the Lenders and Agent, Borrower hereby assumes
all risks of the acts, omissions or misuse of any Letter of Credit by its beneficiary or
any successor thereto. The Issuing Bank, the Bond L/C Issuing Bank, the Lenders and Agent
shall not be responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection with the
application for and issuance of, or the making of any drawing under, any Letter of Credit,
even if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged, (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason, (iii) for failure of any
beneficiary to comply fully with the conditions required in order to effect a drawing,
(iv) for errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise, (v) for any loss or
delay in the transmission or otherwise of any document or draft required in order to make
any drawing and (vi) for any consequences arising from causes beyond the control of
the Issuing Bank, or the Bond L/C Issuing Bank, the Lenders or Agent, except only that
Borrower shall have a claim against the Issuing Bank or the Bond L/C Issuing Bank, as
applicable, and the Issuing Bank or the Bond L/C Issuing Bank, as applicable, shall be
liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by Borrower which Borrower proves were caused by
(A) the Issuing Bank’s or the Bond L/C Issuing Bank’s, as the case may be,
willful misconduct or gross negligence in determining whether documents presented under a
Letter of Credit comply with the terms of such Letter of Credit or (B) the Issuing
Bank’s or the Bond L/C Issuing Bank’s, as the case may be, failure to pay under
a Letter of Credit in accordance with its terms after the presentation to it by the
beneficiary of a sight draft and certificate strictly complying with the terms and
conditions of such Letter of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Bank and the Bond L/C Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless
of any notice or information to the contrary. None of the above shall affect, impair, or
prevent the vesting of any of the Issuing Bank’s or the Bond L/C Issuing Bank’s
rights or powers hereunder. |
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In
furtherance and extension and not in limitation of the specific provisions hereinabove set
forth, any action taken or omitted by the Issuing Bank or the Bond L/C Issuing Bank, under
or in connection with a Letter of Credit or any related certificates or other documents,
if taken or omitted in good faith and without gross negligence, shall be binding upon
Borrower and shall not put the Issuing Bank or the Bond L/C Issuing Bank under any
resulting liability to Borrower.” |
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(n) Section 3.4(a)
is hereby amended by (i) inserting the number “(i)” immediately
after the word “Appointment.” in the first line thereof,
(ii) deleting the words “Letters of Credit” beginning in the
third and seventeenth lines thereof and replacing such words with the
words “each Virginia Power Letter of Credit and the Trade Letters of
Credit”, and (iii) adding the following subsection as a new
paragraph at the end of such section:
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“(ii) Each
Lender hereby irrevocably designates and appoints the Bond L/C Issuing Bank as the Bond
L/C Issuing Bank under this Agreement with respect to the Bond Letters of Credit, and each
such Lender hereby irrevocably authorizes the Bond L/C Issuing Bank, as the Bond L/C
Issuing Bank, to take such action under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated to the Bond L/C Issuing
Bank by the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Bond L/C Issuing Bank shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Bond L/C Issuing Bank;
provided that nothing contained in this Section 3.4 shall be deemed to limit
or impair the rights and obligations of the Bond L/C Issuing Bank under the Bond Letters
of Credit.” |
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(o) Section 3.4(b)
is hereby amended by deleting the words “Neither the Issuing Bank nor
any of its officers, directors, employees, agents, attorneys-in-fact shall
be” in the first line thereof and replacing such words with the words
“The Issuing Bank, the Bond L/C Issuing Bank and each of their
officers, directors, employees, agents and attorneys-in-fact shall not be”.
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(p) Section 3.4(b)(ii)
is hereby amended (i) by deleting the words “Issuing Bank” in
the eleventh line thereof and replacing such words with the words “Issuing
Bank or Bond L/C Issuing Bank” and (ii) deleting the words “the
Issuing Bank shall not” in the seventeenth line thereof and replacing
such words with the words “Neither the Issuing Bank or the Bond L/C
Issuing Bank shall”.
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(q) Section 3.4(c)
is hereby amended by (i) replacing the words “Letters of Credit” in
the twelfth line thereof with the words “each Virginia Power Letter
of Credit and the Trade Letters of Credit”, (ii) inserting the
number “(i)” immediately before the words “Reliance by
Issuing Bank.” in the first line thereof and (iii) inserting
the following new subsection as a new paragraph at the end of such
section:
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“(ii) Reliance
by Bond L/C Issuing Bank. The Bond L/C Issuing Bank shall be entitled
to rely, and shall be fully protected in relying, upon any agreement
(including this Agreement), note (including any Note), writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or telephone conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to Borrower), independent accountants and
other experts selected by the Bond L/C Issuing Bank. Except for the
issuance of the Bond Letters of Credit in accordance with the terms of this
Agreement and the payment of drawings thereunder, the Bond L/C Issuing
Bank shall be fully justified in failing or refusing to take any action
under this Agreement unless the Bond L/C Issuing Bank shall first receive
such advice or concurrence of the Majority Lenders as the Bond L/C Issuing
Bank deems appropriate or the Bond L/C Issuing Bank shall first be
indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Bond L/C Issuing Bank shall in all
cases be fully protected in acting, or in refraining from acting, under
this Agreement and the Notes in accordance with a request of the Majority
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of
the Notes.” |
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(r) Section 3.4(d)
is hereby amended by (i) deleting the words “Issuing Bank in its
capacity” in the second line thereof and replacing such words with
the words “Issuing Bank and Bond L/C Issuing Bank in their capacity”,
(ii) deleting the words “Issuing Bank” beginning in the twelfth
and fifteenth lines thereof and replacing such words with the words “Issuing
Bank or Bond L/C Issuing Bank”, and (iii) deleting the words “Issuing
Bank’s” in the twentieth line thereof and replacing such words
with the words “Issuing Bank’s or Bond L/C Issuing Bank’s”.
|
| |
(s) Section 3.4(e)
is hereby amended by (i) inserting the number “(i)” immediately
before the words “Issuing Bank in its Individual Capacity” in
the first line thereof and (ii) inserting the following subsection as a
new paragraph at the end of such section:
|
| |
“(ii) Bond
L/C Issuing Bank in Its Individual Capacity. The Bond L/C Issuing Bank
and its affiliates may make loans to accept deposits from and generally
engage in any kind of business with Borrower as though the Bond L/C
Issuing Bank were not the Bond L/C Issuing Bank hereunder. With respect to
Advances made or renewed by the Bond L/C Issuing Bank or on their behalf
and any Note issued to the Bond L/C Issuing Bank or for its benefit, the
Bond L/C Issuing Bank shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not
the Bond L/C Issuing Bank, and the terms ‘Lender’ and ‘Lenders’ shall
include the Bond L/C Issuing Bank in its individual capacity.” |
-11-
| |
(t) Section 3.5(a)
is hereby amended by (i) deleting the words “Issuing Bank” beginning
in the second, fifth, tenth, twelfth, thirty-second, thirty-fifth and
thirty-ninth lines thereof and replacing such words with the words “Bond
L/C Issuing Bank”, (ii) inserting the words (other than a Lender that
has assigned any of its rights and obligations, including L/C
Reimbursement Obligations, with respect to a Bond Letter of Credit
pursuant to Section 9.2 of this Agreement and, then, only to the extent of
such rights and obligations that it has assigned) immediately after the
words “other Lenders” in the ninth line thereof and (iii)
inserting the words “, the Bond L/C Issuing Bank,” immediately
before the words “the Lenders” in the twenty-fifth line thereof.
|
| |
(u) Section
3.5(b) is hereby amended by deleting the words “Issuing Bank” in
the eighth, nineteenth, twenty-seventh, thirty-second, thirty-seventh,
forty-first, forty-fifth, forty-eighth, fifty-third and sixty-second lines
thereof and replacing such words with the words “Bond L/C Issuing
Bank” and (ii) inserting the words “, the Bond L/C Issuing Bank
and any Lender that has assigned any of its rights and obligations,
including L/C Reimbursement Obligations, with respect to a Bond Letter of
Credit pursuant to Section 9.2 of this Agreement (to the extent of such
rights and obligations that it has assigned)” immediately after the
words “other than the Issuing Bank” in the thirteenth and
twenty-sixth lines thereof.
|
| |
(v) Section
3.5(c) is hereby amended by deleting all references to “Issuing Bank” in
the first and sixth lines thereof and replacing such references with the
words “Bond L/C Issuing Bank”.
|
| |
(w) Section
3.5(d) is hereby amended by (i) deleting the words “Issuing Bank” in
the sixth line thereof and replacing such words with the words “Bond
L/C Issuing Bank”, and (ii) inserting after the words “Lenders” in
the sixth line thereof the words “(other than a Lender that has
assigned any of its rights and obligations, including L/C Reimbursement
Obligations, with respect to a Bond Letter of Credit pursuant to Section
9.2 of this Agreement and, then, only to the extent of such rights and
obligations that it has assigned)".
|
| |
(x) Section
3.5(e) is hereby amended by (i) deleting the words “Issuing Bank” in
the first, third and eleventh lines thereof and replacing such words with
the words “Bond L/C Issuing Bank” and (ii) inserting after the
words “Each Lender” in the twelfth line thereof the words “(other
than a Lender that has assigned any of its rights and obligations,
including L/C Reimbursement Obligations, with respect to a Bond Letter of
Credit pursuant to Section 9.2 of this Agreement and, then, only to the
extent of such rights and obligations that it has assigned)".
|
| |
(y) Section
3.5(f) is hereby amended by inserting after the words “Each Lender” in
the first line thereof the words “(other than a Lender that has
assigned any of its rights and obligations, including L/C Reimbursement
Obligations, with respect to a Bond Letter of Credit pursuant to Section
9.2 of this Agreement and, then, only to the extent of such rights and
obligations that it has assigned)".
|
-12-
| |
(z) Section 4.1(a)(i)
is hereby amended by deleting the words “Rova I Letters of Credit” in
the ninth line thereof and replacing such words with the words “Rova I
Virginia Power Letter of Credit and the Rova I Trade Letter of Credit
and the Bond L/C Issuing Bank commits to issue the Series 1991 Letter
of Credit”.
|
| |
(aa) Section 4.1(a)(ii)
is hereby amended by deleting the words “Rova II Letters of
Credit” in the ninth line thereof and replacing such words with the
words “Rova II Virginia Power Letter of Credit and the Rova II
Trade Letter of Credit and the Bond L/C Issuing Bank commits to issue the
Series 1993 Letter of Credit”.
|
| |
(bb) Section 4.2
is hereby amended by deleting the words “Rova II Letters of
Credit” in the third line thereof and replacing such words with the
words “initial Rova II Virginia Power Letter of Credit and the
Rova II Trade Letter of Credit and the obligation of the Bond L/C
Issuing Bank to Issue the Series 1993 Letter of Credit”.
|
| |
(cc) Section 4.3
is hereby amended by (i) inserting the words “and the Bond L/C
Issuing Bank” immediately after the words “Issuing Bank” in
the fourth line thereof, (ii) by replacing the reference to “any
Letter of Credit” in the fourth, fifth and seventh lines thereof with
“the initial Series 1991 Letter of Credit and initial Series 1993
Letter of Credit”, and (iii) by replacing the words “Rova II
Letter of Credit” in the thirteenth line thereof with the words “any
initial Rova II Letter of Credit”.
|
| |
(dd) Section 4.4
is hereby amended by (i) inserting the words “Bond L/C” immediately
before the words “Issuing Bank” in the first line thereof and
(ii) by replacing the words “the Series 1993 Letter of Credit” in
the second and third lines thereof with the words “the initial Series
1993 Letter of Credit”.
|
| |
(ee) Section 4.4(a)
is hereby amended by deleting the words “Issuing Bank” in the
second and third lines of subsection (iii) thereof and in the second line
of subsection (x) thereof and replacing such words with the words “Bond
L/C Issuing Bank”.
|
| |
(ff) Section 4.5(a)
is hereby amended by deleting the words “Issuing Bank” in the
first and ninth lines thereof and replacing such words with the words
“Bond L/C Issuing Bank”.
|
| |
(gg) Section 4.6
is hereby amended by deleting the words “Rova I Letters of Credit” in
the third line thereof and replacing such words with the words “Rova I
Virginia Power Letter of Credit and the Rova I Trade Letter of Credit
and the obligation of the Bond L/C Issuer (in accordance with Article 3
hereof) to issue the Series 1991 Letter of Credit”.
|
| |
(hh) Section 4.7(a)
is hereby amended by deleting the words “Rova II Letters of
Credit” in the tenth line thereof and replacing such words with the
words “Rova II Virginia Power Letter of Credit and the Rova II
Trade Letter of Credit and the obligation of the Bond L/C Issuer (in
accordance with Article 3 hereof) to issue the Series 1991 Letter
of Credit”.
|
-13-
| |
(ii) Section 4.8
is hereby amended by deleting the words “Rova II Letters of
Credit” in the third line thereof and replacing such words with the
words “Rova II Virginia Power Letter of Credit and the Rova II
Trade Letter of Credit and the obligation of the Bond L/C Issuer (in
accordance with Article 3 hereof) to issue the Series 1993 Letter
of Credit”.
|
| |
(jj) Section 6.1(c)(xi)
is hereby amended by inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “the Institutional Lenders” in the thirty-third
line of the second paragraph thereof.
|
| |
(kk) Section 6.8(a)
is hereby amended by inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “the Institutional Lenders” in the nineteenth
line thereof.
|
| |
(ll) Section 6.8(c)
is hereby amended by inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “the Institutional Lenders” in the seventh line
thereof.
|
| |
(mm) Section 6.15
is hereby amended by inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “the Institutional Lenders” in the fifteenth
line thereof.
|
| |
(nn) Section
6.25(a) is hereby amended by inserting the words “except during any
period when the Bonds are held as Series 1991 Pledged Bonds or Series 1993
Pledged Bonds,” at the beginning of such Section before the word
“Borrower.”
|
| |
(oo) Section 6.25(c)
is hereby amended by inserting the words “the Bond L/C” immediately
before the words “Issuing Bank” in the second and sixth lines
thereof.
|
| |
(pp) Section
6.25(o) is hereby amended by deleting the word “At” at the
beginning of such Section and replacing such word with the words “Unless
the Interest Rate Period (as defined in the Series 1991 Indenture and
Series ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) of the Bonds is a Term Interest Period (as defined
in the Series ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Series ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) or the Bonds
are held as Series 1991 Pledged Bonds or Series 1993 Pledged Bonds, at”.
|
| |
(qq) Section 7.1(s)
is hereby amended by inserting the words “Bond L/C” immediately
before the words “Issuing Bank” in the fifth line thereof.
|
| |
(rr) Section 7.2(a)
is hereby amended by inserting the words “Bond L/C” immediately
before the words “Issuing Bank” in the sixth line thereof.
|
-14-
| |
(ss) Section 7.2(b)(ii)is
hereby amended by inserting the words “, the L/C Bond Issuing Bank” immediately
after the words “Issuing Bank” in the third line thereof.
|
| |
(tt) Section 7.2(c)
is hereby amended by inserting the words “, the L/C Bond Issuing Bank” immediately
after the word “Lenders” in the nineteenth line thereof.
|
| |
(uu) Section 8.1
is hereby amended by inserting the words “the Bond L/C Issuing Bank,” immediately
after the words “each Institutional Lender,” in the first line
thereof.
|
| |
(vv) Section 8.2
is hereby amended by inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “Institutional Agent” in the third line thereof.
|
| |
(ww) Section 8.4
is hereby amended by inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “Each of Agent” in the eighth line thereof.
|
| |
(xx) Section 8.5
is hereby amended by (i) inserting the words “Bond L/C Issuing Bank,” immediately
after the words “as a Lender,” in the first line thereof, (ii)
inserting the words “, the Bond L/C Issuing Bank” immediately
after the words “Institutional Agent” in the fourth line
thereof, and (iii) inserting the words “, Bond L/C Issuing Bank” immediately
after the words “In addition, Agent” in the thirteenth line
thereof.
|
| |
(yy) Section 9.1
is hereby amended by deleting the words “the Bond Letters of Credit,” beginning
in the first line immediately after the Agent’s contact information
for notices and by inserting the following language immediately after the
Issuing Bank’s contact information for notices:
|
| |
“If
to the Bond L/C Issuing Bank (with respect to the Bond Letters of Credit): |
| |
So
long as Credit Suisse First Boston is the Bond L/C Issuing Bank to: |
| |
[Credit
Suisse First Boston
Tower 49
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
| |
Attention:
Group Head, Portfolio Management
Project Finance, Telex: 420149
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇] |
| |
At
such time, if any, as Credit Suisse First Boston is not the Bond L/C Issuing Bank, to such
address as may be designated in writing by any Bond L/C Issuing Bank to the Agent, the
Institutional Agent and the Borrower.
|
-15-
| |
(zz) Section 9.2(a)
is hereby amended by (i) deleting the words “a Letter of Credit” in
the fifth line thereof and replacing such words with the words “either
of the Bond Letters of Credit, the consent of the Bond L/C Issuing Bank,
and with respect to a Virginia Power Letter of Credit or either of the
Trade Letters of Credit” and (ii) inserting the words “the Bond
L/C Issuing Bank or” immediately before the words “the Issuing
Bank” in the eleventh line thereof.
|
| |
(aaa) Section 9.4
is hereby amended by (i) inserting the words “the Bond L/C Issuing
Bank,” immediately after the words “Issuing Bank” in the
second line of clause (iv) thereof and (ii) inserting the words “,
the Bond L/C Issuing Bank” immediately after the words “Institutional
Lenders” in the eighth and twelfth lines of clause (v) thereof.
|
| |
(bbb) Section 9.13(d)
is hereby amended by inserting the words “THE BOND L/C ISSUING BANK,” immediately
after the words “THE ISSUING BANK,” in the third line thereof.
|
4. Conditions
of Amendment. The amendment to Section 3.2(c) of the Credit Agreement
contained in Section 3(l) of this Amendment, permitting the Borrower to
provide a Series 1991 Substitute Letter of Credit and a Series 1993
Substitute Letter of Credit after the expiration of the Bond Letters of
Credit is expressly conditioned upon the satisfaction of the condition
that Borrower obtain a waiver, modification or amendment, in accordance
with Section 11.9 of each of the Series 1991 Loan Agreement and the Series
1993 Loan Agreement and Section 6.04 of each Indenture, from the Series
1991 Trustee and the Series 1993 Trustee of the requirements set forth in
Section 5.2 of the Series 1991 Loan Agreement and Series 1993 Loan
Agreement (i) to the effect that a Letter of Credit (as defined in the
Indenture) or Substitute Letter of Credit (as defined in the Indenture) is
not required pursuant to Section 5.2(a) of the Series 1991 Loan Agreement
or the Series 1993 Loan Agreement if the Bonds have been purchased
pursuant to Section 8.15(c) of the applicable Indenture such that they are
Series 1991 Pledged Bonds or Series 1993 Pledged Bonds, as applicable, (ii)
to permit the delivery of a Series 1991 Substitute Letter of Credit and a
Series 1993 Substitute Letter of Credit on any Business Day, and (iii) to
change the 45-day notice period in Section 5.2(b) of the Series 1991 Loan
Agreement and the Series 1993 Loan Agreement from forty-five (45) days to
ten (10) days, if a Substitute Letter of Credit is being delivered while
the Bonds are held as Series 1991 Pledged Bonds or Series 1993 Pledged
Bonds, as applicable.
5. Limitation.
Except as expressly stated herein, all of the representations, warranties,
terms, covenants and conditions of the Credit Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and
effect in accordance with their respective terms. This Amendment shall be
limited precisely as provided for herein, and shall not be deemed to be a
waiver of, amendment of, consent to or modification of any other term or
provision of the Credit Agreement.
6. Credit
Agreement References. On and after the effective date of this
Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import, and
each reference to the Credit Agreement by the words “thereunder”,
“thereof” or words of like import in any Project Document, Loan
Instrument or other document executed in connection with the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as
amended or otherwise modified by this Amendment.
-16-
7. Governing
Law. This Amendment shall for all purposes be considered a Loan
Instrument and shall be governed by, construed and interpreted in
accordance with, the laws of the State of New York without regard to
principles of conflict of laws (except for Section 5-1401 of the General
Obligations Law of the State of New York).
8. Successors
and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
and all future parties to the Credit Agreement.
9. Counterparts.
This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts
shall together constitute one and the same instrument. A facsimile
signature on a counterpart of this Amendment shall be binding to the same
extent as an original signature by the signatory.
10. Effectiveness.
This Amendment shall be effective when executed by the Agent, the Borrower
and the Majority Lenders.
-17-
IN
WITNESS WHEREOF, the parties hereto have executed this consent through their duly
authorized representatives as of
, 2001.
| |
▇▇▇▇▇▇▇▇▇▇▇▇-LG&E
PARTNERS,
as Borrower |
| |
By: |
▇▇▇▇▇▇▇▇▇▇▇▇-ROANOKE VALLEY, L.P.
as
general partner |
| |
|
By: |
WEI-ROANOKE VALLEY, INC.,
as
general partner |
| |
|
|
By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Executive Vice President |
| |
By: |
LG&E ROANOKE VALLEY, L.P.,
as general
partner |
| |
|
By: |
LG&E POWER 16 INCORPORATED,
as
general partner |
| |
|
|
By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Treasurer |
| |
CREDIT
SUISSE FIRST BOSTON,
as Agent, Co-Agent, Lender and Issuing Bank |
| |
By: |
/s/ p.p. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate |
| |
By: |
/s/ p.p. Naval
Name:
▇▇▇▇▇▇▇▇▇ ▇. Naval
Title: Associate |
-▇▇-
| |
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as Co-Agent and Lender |
| |
By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director |
| |
SUMITOMO
MITSUI BANKING CORPORATION
(formerly known as THE
SUMITOMO BANK, LIMITED),
NEW YORK BRANCH,
as Co-Agent and Lender |
| |
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice
President |
| |
NIB
CAPITAL BANK, N.V.,
as Co-Agent and Lender |
| |
By: |
/s/ Halbart Völker
Name:
Halbart Völker
Title: Head of Energy and
Environment |
| |
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Vice President |
| |
UNION
BANK OF CALIFORNIA, N.A.,
(AS SUCCESSOR IN INTEREST TO
UNION BANK),
as Lender |
| |
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President |
-19-
| |
THE
FUJI BANK LIMITED,
LOS ANGELES AGENCY,
as Lender |
| |
By: |
________________________________
Name:
Title: |
| |
CREDIT
LYONNAIS, NEW YORK BRANCH,
as Lender |
| |
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP |
| |
CREDIT
LYONNAIS,
CAYMAN ISLAND BRANCH,
as Lender |
| |
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP |
| |
THE
SANWA BANK LIMITED,
as Lender |
| |
By: |
________________________________
Name:
Title: |
| |
LANDESBANK
HESSEN THURINGEN GIROZENTRALE,
as Lender |
| |
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Corporate Finance Division, Structure Finance
Dept. |
-20-
| |
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Asst. Vice
President, Corporate Finance Division,
Structured Finance Dept. |
| |
THE
PRUDENTIAL INSURANCE COMPANY
OF AMERICA,
as Institutional Agent and Institutional Lender |
| |
By: |
/s/ [illegible]
Name:
Title: |
-21-