Exhibit 10.30
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DEBT SERVICE RESERVE LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
among
▇▇▇▇▇ CITY OL1 LLC,
as Borrower
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
as Issuing Bank and as Agent
and
THE BANKS NAMED HEREIN
Dated as of December __, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS; CONSTRUCTION...........................................1
SECTION 1.1 DEFINITIONS............................................1
SECTION 1.2 CONSTRUCTION...........................................6
ARTICLE II DEBT SERVICE RESERVE LETTER OF CREDIT..............................7
SECTION 2.1 COMMITMENTS............................................7
SECTION 2.2 AMOUNT AND TERM OF DEBT SERVICE RESERVE
LETTER OF CREDIT.......................................7
SECTION 2.3 PARTICIPATIONS IN DEBT SERVICE RESERVE LETTER
OF CREDIT..............................................8
SECTION 2.4 DRAWING AND REIMBURSEMENT..............................9
SECTION 2.5 FEES...................................................9
SECTION 2.6 INTEREST...............................................9
SECTION 2.7 REPAYMENT.............................................10
SECTION 2.8 PREPAYMENTS...........................................11
SECTION 2.9 SECURITY..............................................11
SECTION 2.10 PAYMENTS..............................................11
SECTION 2.11 COMPUTATION OF INTEREST AND FEES......................12
SECTION 2.12 PAYMENTS ON NON-BUSINESS DAYS.........................12
SECTION 2.13 SHARING OF PAYMENTS, ETC..............................12
SECTION 2.14 EVIDENCE OF DEBT......................................13
SECTION 2.15 INCREASED DEBT SERVICE RESERVE LETTER OF CREDIT COSTS.13
SECTION 2.16 CAPITAL ADEQUACY......................................14
SECTION 2.17 TAXES.................................................14
SECTION 2.18 CHANGE OF LAW.........................................16
SECTION 2.19 NON-AVAILABILITY......................................16
SECTION 2.20 ASSIGNMENTS BY BANKS..................................17
SECTION 2.21 REDUCTION IN COMMITMENTS/DSR LOANS....................18
SECTION 2.22 RIGHT OF SET-OFF......................................18
SECTION 2.23 MINIMUM AMOUNTS.......................................18
ARTICLE III CONDITIONS PRECEDENT.............................................19
SECTION 3.1 CONDITIONS PRECEDENT TO ISSUANCE OF DEBT SERVICE
RESERVE LETTER OF CREDIT..............................19
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................20
ARTICLE V COVENANTS..........................................................21
ARTICLE VI DEFAULTS AND REMEDIES.............................................21
SECTION 6.1 EVENTS OF DEFAULT.....................................21
SECTION 6.2 REMEDIES..............................................22
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ARTICLE VII CHARACTER OF OBLIGATIONS.........................................23
SECTION 7.1 OBLIGATIONS ABSOLUTE..................................23
SECTION 7.2 LIMITED LIABILITY OF AGENT AND BANKS..................24
ARTICLE VIII THE AGENT.......................................................26
SECTION 8.1 AUTHORIZATION AND ACTION..............................26
SECTION 8.2 AGENT'S RELIANCE, ETC.................................26
SECTION 8.3 ISSUING BANK AND AFFILIATES...........................26
SECTION 8.4 BANK CREDIT DECISION..................................27
SECTION 8.5 INDEMNIFICATION.......................................27
SECTION 8.6 SUCCESSOR AGENT.......................................27
SECTION 8.7 COLLATERAL............................................28
ARTICLE IX MISCELLANEOUS.....................................................28
SECTION 9.1 AMENDMENTS, ETC.......................................28
SECTION 9.2 NOTICES, ETC..........................................29
SECTION 9.3 NO WAIVER; REMEDIES...................................29
SECTION 9.4 COSTS AND EXPENSES....................................29
SECTION 9.5 APPLICATION OF MONEYS.................................30
SECTION 9.6 SEVERABILITY..........................................30
SECTION 9.7 LIMITATION OF LIABILITY...............................30
SECTION 9.8 BINDING EFFECT........................................31
SECTION 9.9 ASSIGNMENTS AND PARTICIPATIONS........................31
SECTION 9.10 INDEMNIFICATION.......................................33
SECTION 9.11 FURTHER ASSURANCES....................................34
SECTION 9.12 GOVERNING LAW.........................................34
SECTION 9.13 CONSENT TO JURISDICTION AND VENUE.....................34
SECTION 9.14 HEADINGS..............................................35
SECTION 9.15 EXECUTION IN COUNTERPARTS.............................35
SECTION 9.16 WAIVER OF JURY TRIAL..................................35
Exhibit A Form of Debt Service Reserve Letter of Credit
Exhibit B Debt Service Reserve Letter of Credit Promissory Note
Exhibit C Form of Commitment Transfer Supplement
Schedule 1 Filings with the Securities and Exchange Commission
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DEBT SERVICE RESERVE LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This Debt Service Reserve Letter of Credit and Reimbursement
Agreement (this "AGREEMENT"), dated as of December __, 2001, is entered into by
and among (1) ▇▇▇▇▇ CITY OL1 LLC, a Delaware limited liability company (the
"BORROWER"), (2) WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as the
issuer of the Debt Service Reserve Letter of Credit referred to herein (in such
capacity, the "ISSUING BANK") and as a Bank (as defined below), (3) CREDIT
SUISSE FIRST BOSTON, NEW YORK BRANCH, as a Bank (as defined below), (4) each
bank or other entity that is, or becomes pursuant to SECTION 9.9, a party hereto
(individually, a BANK and collectively, the "Banks") and (5) WESTDEUTSCHE
LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as agent (in such capacity, together
with its successors in such capacity, the "AGENT") for the Banks.
RECITALS
A. Pursuant to the Lease Indenture of Trust and Security
Agreement, dated as of December __, 2001 (the "LEASE INDENTURE"), among the
Borrower, The Bank of New York, as successor to the United States Trust Company
of New York, as Security Agent (the "SECURITY AGENT") and The Bank of New York,
as successor to the United States Trust Company of New York, as trustee (in such
capacity, together with its successors in such capacity, the "TRUSTEE"), the
Borrower issued two series of lessor notes in respect thereof (collectively, the
"LESSOR NOTES").
B. The Borrower has requested that the Issuing Bank issue and
the Banks participate in, and the Issuing Bank is willing to issue and the Banks
are willing to participate in, the Debt Service Reserve Letter of Credit (as
defined below) upon the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, hereby agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 DEFINITIONS. (a) Terms defined in the
Participation Agreement (in the form of such terms as they exist on the date of
this Agreement and as
they may hereafter be amended from time to time, but only to the extent that the
incorporation of any such amendments into this Agreement has been consented to
by the Required Banks in writing) have, unless the same are defined herein or
the context otherwise requires, the same meaning when used herein (with
appropriate substitutions).
(b) The following terms are used in this Agreement with the
following respective meanings:
"ADJUSTED BASE RATE" means the higher of (i) the Federal Funds
Rate plus .50% and (ii) the Prime Rate.
"ADJUSTED BASE RATE LOAN" means a DSR Loan bearing interest at
the Adjusted Base Rate.
"AMENDED AND RESTATED SECURITY DEPOSIT AGREEMENT" means the
Amended and Restated Security Deposit Agreement, dated as of December __, 2001,
among EME Homer City Generation, L.P. and The Bank of New York, as Collateral
Agent.
"APPLICABLE LAW" shall mean, with respect to any Person,
property or matter, any of the following applicable thereto: any statute, law,
regulation, ordinance, rule, judgment, rule of common law, order, decree,
arbitral decision, governmental approval, approval, concession, grant,
franchise, license, agreement or other governmental restriction, or any
voluntary restraint, policy or guideline with which such Person has formally
agreed to comply, whether in effect as of the date of this Agreement or
thereafter and in each case as amended.
"BANK" has the meaning set forth in the Preamble hereto.
"BOND DEBT SERVICE REQUIREMENT" means the amount required to
be on deposit from time to time in the Debt Service Reserve Account.
"BORROWER" has the meaning set forth in the Preamble hereto.
"BUSINESS DAY" means a day (other than a Saturday or Sunday)
on which banks are open for business in New York, New York, and, in matters
relating to the determination of a LIBOR Rate or Interest Period, a day on which
the London interbank market deals in U.S. Dollar deposits.
"CLOSING DATE" means the date on which the conditions
precedent set forth in SECTION 3.1 have been fulfilled and the Debt Service
Reserve Letter of Credit is issued.
"COLLATERAL" has the meaning set forth in the Lease Indenture.
"COLLATERAL AGENT" means The Bank of New York, as successor to
the United States Trust Company of New York, as collateral agent under the
Amended and Restated Security Deposit Agreement, or any successor thereto
pursuant to the terms thereof.
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"COMMITMENT" has the meaning set forth in SECTION 2.1.
"COMMITMENT TRANSFER SUPPLEMENT" means a Commitment Transfer
Supplement entered into by a Bank and another Person substantially in the form
of EXHIBIT C.
"DAMAGES" shall have the meaning set forth in SECTION 9.10.
"DEBT SERVICE RESERVE ACCOUNT" has the meaning set forth in
SECTION 5.4 of the Lease Indenture.
"DEBT SERVICE RESERVE LETTER OF CREDIT" means a letter of
credit substantially in the form of EXHIBIT A, issued or to be issued by the
Issuing Bank, or any letter of credit issued by the Issuing Bank in replacement
thereof.
"DEBT SERVICE RESERVE LETTER OF CREDIT PROMISSORY NOTE" shall
mean a promissory note substantially in the form of EXHIBIT B attached hereto.
"DEFAULT" means an event that with the giving of any required
notice and/or the lapse of any required time would constitute an Event of
Default.
"DRAWING" means a drawing under the Debt Service Reserve
Letter of Credit.
"DSR LOAN" has the meaning set forth in SECTION 2.4.
"DSR NOTE" has the meaning set forth in SECTION 2.14(A).
"DSR NOTEHOLDER" means Westdeutsche Landesbank Girozentrale,
New York Branch.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 6.1.
"EXPIRATION DATE" means the earlier of April 1, 2002 and the
date on which the Debt Service Reserve Letter of Credit is earlier terminated in
accordance with the provisions hereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate PER ANNUM equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
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"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 9.10.
"INTEREST PAYMENT DATE" means, with respect to (i) any
Adjusted Base Rate Loan, the first Business Day of each April and October, and
(ii) any LIBOR Rate Loan, the last day of each Interest Payment with respect
thereto, in each case, commencing on the first such date after the applicable
Drawing giving rise to such DSR Loan, and any date on which interest on such DSR
Loan becomes due and payable upon the prepayment thereof, the final maturity
date thereof, the declaration of acceleration with respect thereto, or
otherwise.
"INTEREST PERIOD" means, with respect to any LIBOR Rate Loan,
an interest period of one (1), two (2), three (3) or six (6) months (or, such
other period as may be mutually agreed to among the Borrower and the Banks);
PROVIDED, HOWEVER, that such Interest Period shall, in all events, end no later
than the next Principal Payment Date to occur.
"ISSUER OF THE DEBT SERVICE RESERVE LETTER OF CREDIT" means
Westdeutsche Landesbank Girozentrale, New York Branch.
"ISSUING BANK" has the meaning set forth in the Preamble
hereto.
"LEASE INDENTURE" has the meaning set forth in RECITAL A.
"LEASE INDENTURE TRUSTEE" has the meaning set forth in RECITAL
A.
"LESSOR NOTES" has the meaning set forth in RECITAL A.
"LETTER OF CREDIT DOCUMENTS" means this Agreement, the DSR
Notes and the Debt Service Reserve Letter of Credit.
"LIBOR RATE" means, for any DSR Loan bearing interest at the
LIBOR Rate, a rate PER ANNUM equal to the offered rate for deposits in United
States dollars (in the approximate amount and having approximately the same
maturity as the LIBOR Rate Loan to be made) which appears on the Telerate LIBOR
screen as of 11:00 a.m. (London time), two (2) Business Days prior to the first
day of the Interest Period for such LIBOR Rate Loan, and in case of variations
in rates, the arithmetic average thereof rounded upwards, if necessary, to the
nearest 1/100 of 1%, calculated by the Agent.
"LIBOR RATE LOAN" means a DSR Loan bearing interest at the
LIBOR Rate.
"MATERIAL ADVERSE EFFECT" shall mean any event, development or
circumstance that has had or could reasonably be expected to have a material
adverse
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effect on (a) the business, assets, results of operations or financial condition
of the Borrower, (b) the ability of the Borrower to perform or comply with its
obligations under any of the Operative Documents, (c) the validity or
enforceability of any of the Operative Documents, the Liens granted thereunder
or the material rights and remedies of the parties thereto, or (d) with respect
to the Owner Participant's interest in the Facility, the residual value or
remaining useful life of the Facility.
"MONTHLY TRANSFER DATE" has the meaning given such term in the
Amended and Restated Security Deposit Agreement.
"NON-U.S. BANK" shall have the meaning set forth in SECTION
2.17(C).
"OBLIGATIONS" means all of the obligations of the Borrower to
the Banks and the Agent under this Agreement and the DSR Notes, whether for
principal (including reimbursement of amounts drawn under the Debt Service
Reserve Letter of Credit), interest, fees, expenses, indemnification or
otherwise.
"OUTSTANDING AMOUNT" means an amount not in excess of
$10,605,180 at any time as the same may be reduced, increased or reinstated
from time to time in accordance with the terms and provisions hereof and of
the Debt Service Reserve Letter of Credit.
"PARTICIPANT" has the meaning set forth in SECTION 9.9(B).
"PARTICIPATION AGREEMENT" means the Participation Agreement by
and among ▇▇▇▇▇ City, the Owner Lessor, ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not in its individual capacity but solely as Owner Manager, General
Electric Capital Corporation, as the Owner Participant, ▇▇▇▇▇ City Funding LLC,
as Lender, the Lease Indenture Trustee and United States Trust Company of New
York, not in its individual capacity but solely as Bondholder Trustee (as
amended, modified and supplemented and in effect from time to time).
"PRIME RATE" means the variable rate of interest PER ANNUM
officially announced or published by the Agent from time to time as its "prime
rate," such rate being set by the Agent as a general reference rate of interest,
taking into account such factors as the Agent may deem appropriate, it being
understood that many of the Agent's commercial or other loans are priced in
relation to such rate, that it is not necessarily the lowest or best rate
actually charged to any customer and that the Agent may make various commercial
or other loans at rates of interest having no relationship to such rate. For
purposes of this Agreement, each change in the Prime Rate shall be effective as
of the opening of business on the date announced as the effective date of the
change in such "prime rate."
"PRINCIPAL PAYMENT DATE" means, with respect to any DSR Loan,
the first Business Day of each April and October, commencing on the first such
date after the applicable Drawing giving rise to such DSR Loan, and any date on
which all or a portion
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of the principal of any DSR Loan becomes due and payable upon the prepayment
thereof, the final maturity date thereof, the declaration of acceleration with
respect thereto, or otherwise.
"PURCHASING BANK" has the meaning set forth in SECTION 9.9(A).
"RATABLE SHARE" shall have the meaning set forth in SECTION
2.3.
"REGULATIONS T, U AND X" shall mean Regulations T, U and X of
the Federal Reserve System of the United States (or any successors thereto).
"REGULATORY CHANGE" means, subsequent to the date of this
Agreement, any adoption or change in United States Federal, state or municipal
or foreign law or regulations (including without limitation Regulation D) or the
adoption or change or making of any application, interpretation, directive,
request or guideline of or under any United States federal, state or municipal
or foreign law or regulations by any court, central bank or Governmental
Authority.
"REQUIRED BANKS" means, at any time, Banks (one of which shall
be the Agent) owed at least 66 2/3% of the sum of the Obligations then
outstanding and/or the Commitments; PROVIDED, HOWEVER, that, if and so long as
there are only two Banks, then "Required Banks" shall mean both of such Banks.
"REQUIRED LEASE INDENTURE" has the meaning set forth in the
Lease Indenture.
"RESERVE REQUIREMENT" means, for DSR Loans bearing interest at
the LIBOR Rate, the rate (expressed as a percentage) at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during the Interest Period therefor under Regulation D by member
banks of the Federal Reserve System in New York City with deposits exceeding one
billion U.S. dollars against "Eurocurrency liabilities" (as such term is used in
Regulation D).
"SECURITY AGENT" has the meaning set forth in RECITAL A.
"TAXES" has the meaning set forth in SECTION 2.17(A).
"TERMINATION NOTICE" has the meaning set forth in SECTION
2.2(D).
"TRUSTEE" has the meaning set forth in RECITAL A.
SECTION 1.2 CONSTRUCTION. In this Agreement, unless expressly
specified to the contrary: the singular includes the plural and the plural the
singular; words importing any gender include the other gender; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible, visible form; the words "including," "includes" and
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"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), recitals,
appendices, exhibits, annexes or schedules are to those of this Agreement;
references to agreements and other instruments shall be deemed to include all
amendments and other modifications to such agreements and instruments, but only
to the extent such amendments and other modifications are not prohibited by the
terms of this Agreement; references to Persons include their respective
permitted successors and assigns and, in the case of Governmental Authorities,
Persons succeeding to their respective functions and capacities; and all
accounting terms used in this Agreement shall be interpreted, all accounting
determinations under this Agreement shall be made and all financial statements
required to be delivered under this Agreement shall be prepared in accordance
with generally accepted accounting principles as in effect from time to time.
ARTICLE II
DEBT SERVICE RESERVE LETTER OF CREDIT
SECTION 2.1 COMMITMENTS. Each Bank irrevocably agrees
severally, on the terms and conditions contained in this Agreement, to
participate in the Debt Service Reserve Letter of Credit in an aggregate amount
not to exceed at any time outstanding the amount set forth opposite such Bank's
name on the signature pages hereof or, if such Bank has entered into one or more
Commitment Transfer Supplements, set forth for such Bank in the register
maintained by the Agent (such agreement by such Bank, as the same may be reduced
from time to time pursuant to the terms of this Agreement, herein called such
Bank's "COMMITMENT").
SECTION 2.2 AMOUNT AND TERM OF DEBT SERVICE RESERVE LETTER OF
CREDIT. (a) Subject to the terms and conditions contained in this Agreement, the
Issuing Bank irrevocably agrees to issue the Debt Service Reserve Letter of
Credit on the Closing Date for the account of the Borrower in favor of the
Security Agent, for the benefit of the holders of the Lessor Notes, in the face
amount of $10,605,180, subject to reduction, increase and reinstatement as
provided hereinafter and in the Debt Service Reserve Letter of Credit. The Debt
Service Reserve Letter of Credit shall expire and all obligations of the Issuing
Bank and any Bank in respect thereof shall terminate on the Expiration Date.
(b) If the Debt Service Reserve Amount shall reduce or
increase in accordance with the Lease Indenture, the Outstanding Amount of
the Debt Service Reserve Letter of Credit shall be reduced or increased, as
the case may be, by an amount equal to the amount of such reduction or
increase in the Debt Service Reserve Amount; PROVIDED, HOWEVER, that in no
event shall the Outstanding Amount exceed $10,605,180 at any time. Subject to
SECTION 2.2(D) and ARTICLE VI, the Outstanding Amount of the Debt Service
Reserve Letter of Credit, as so reduced or increased, shall be reduced to the
extent that Drawings are made and shall be reinstated to the extent that DSR
Loans are repaid, PROVIDED that any such reinstatement shall not cause the
Outstanding Amount (when
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added to the balance in the Debt Service Reserve Account) to exceed the Bond
Debt Service Reserve Requirement.
(c) The Borrower shall deliver, or cause to be delivered, (i)
to each of the Agent and the Security Agent prompt notice of the occurrence of
any event resulting in an adjustment to the Debt Service Reserve Amount and (ii)
to each of the Agent and the Security Agent the calculation of the Outstanding
Amount resulting from the adjustment referred to in clause (i), together with
all information reasonably necessary to make such calculation. The Issuing Bank
shall deliver to the Security Agent a notice in the form of ANNEX 5 to the Debt
Service Reserve Letter of Credit to effect a change in the Outstanding Amount of
the Debt Service Reserve Letter of Credit.
(d) The Issuing Bank shall have the right, upon the occurrence
and during the continuation of an Event of Default, to deliver a notice in the
form of ANNEX 2 to the Debt Service Reserve Letter of Credit (a "TERMINATION
NOTICE"), whereupon the Expiration Date shall occur on the date specified in
such notice. The Outstanding Amount shall not be reinstated upon repayment of
any DSR Loans after the delivery by the Issuing Bank of a Termination Notice.
(e) The Agent shall, solely for informational purposes,
deliver to the Borrower a copy of any termination notice given to the
beneficiary under the Debt Service Reserve Letter of Credit, PROVIDED, HOWEVER,
that the Banks' ability to terminate the Debt Service Reserve Letter of Credit
shall not be contingent upon the Agent's delivery to the Borrower of such notice
and that neither the Agent nor the Banks shall incur any liability whatsoever as
a result of the Agent's failure to deliver such notice to the Borrower.
SECTION 2.3 PARTICIPATIONS IN DEBT SERVICE RESERVE LETTER OF
CREDIT. Immediately upon the issuance of the Debt Service Reserve Letter of
Credit, the Issuing Bank shall be deemed to have sold and transferred to each
Bank, and each Bank shall be deemed to have purchased and received from the
Issuing Bank, in each case irrevocably and without any further action by any
party, an undivided interest and participation in the Debt Service Reserve
Letter of Credit, each Drawing and the other Obligations in respect thereof in
an amount equal to the product of (a) a fraction the numerator of which is the
amount of the Commitment of such Bank and the denominator of which is the
aggregate amount of all of the Commitments (the "RATABLE SHARE") and (b) the
maximum amount available to be drawn under the Debt Service Reserve Letter of
Credit plus the amount of all outstanding DSR Loans. The Agent shall promptly
advise each Bank of any change in the Outstanding Amount or the Expiration Date
in respect of the Debt Service Reserve Letter of Credit, the cancellation or
other termination of the Debt Service Reserve Letter of Credit and any Drawing,
PROVIDED, HOWEVER, that failure to provide such notice shall not limit or impair
the rights of the Agent hereunder or under the Financing Documents.
SECTION 2.4 DRAWING AND REIMBURSEMENT. The payment by the
Issuing Bank of a Drawing shall constitute the making by the Issuing Bank of a
loan in the amount of such payment. In the event that a Drawing is not repaid by
the Borrower by 12:00 noon, New York City time, on the day of such Drawing, the
Agent shall promptly
8
notify each other Bank. Each such Bank shall deliver to the Agent for the
Issuing Bank's account, on the day of such notification and in immediately
available funds, an amount equal to such Bank's Ratable Share of the payment
made by the Issuing Bank and not reimbursed or paid by the Borrower pursuant to
this SECTION 2.4. In the event that any Bank fails to make available to the
Agent for the account of the Issuing Bank the amount of such loan, the Issuing
Bank shall be entitled to recover such amount on demand from such Bank together
with interest thereon at (i) for the first three (3) days of nonpayment, the
Federal Funds Rate and (ii) thereafter, the Federal Funds Rate plus 2.50%. Each
payment by a Bank pursuant to this SECTION 2.4 shall constitute a "DSR Loan"
under this Agreement.
SECTION 2.5 FEES. The Borrower shall pay the following fees to
the Agent for the respective accounts of the Persons specified below:
(a) if there is more than one (1) Bank, for the account of
the Agent, an annual administration fee of the Owner Lessor's percentage of
$50,000, payable on the Monthly Transfer Date next succeeding the first date
on which there is more than one Bank; and
(a) for the account of the Issuing Bank, such additional
administrative fees and charges (including cable charges) as are generally
associated with letters of credit, in accordance with the Issuing Bank's
standard internal charge guidelines, payable on the next Monthly Transfer
Date.
SECTION 2.6 INTEREST. (a) The Borrower shall pay interest
on the unpaid principal amount of each DSR Loan resulting from a Drawing on
each applicable Interest Payment Date, from the date of such DSR Loan until
such principal amount has been repaid in full. Such interest shall be paid at
a rate PER ANNUM equal to (i) so long as no Event of Default has occurred and
is continuing, either (x) with respect to Adjusted Base Rate Loans, the sum
of the Adjusted Base Rate in effect from time to time plus 1.50% PER ANNUM or
(y) with respect to LIBOR Rate Loans, the sum of the LIBOR Rate in effect
from time to time plus 2.50% PER ANNUM, and (ii) so long as an Event of
Default has occurred and is continuing, the Adjusted Base Rate plus 4.00% PER
ANNUM.
(b) Each Drawing and each DSR Loan made pursuant to SECTION
2.4 shall initially bear interest based on the Adjusted Base Rate as in effect
from time to time plus 1.50% PER ANNUM; PROVIDED, HOWEVER, that prior to the
making of any DSR Loan, the Borrower may give the Agent written notice of the
Borrower's election that such DSR Loan shall bear interest based on the LIBOR
Rate. Such notice shall be irrevocable and shall be effective only if received
by the Agent not later than 12:00 noon, New York City time, three (3) Business
Days prior to the occurrence of the Drawing giving rise to such DSR Loan. The
Agent shall promptly notify the Banks of the contents of each such notice.
Subject to SECTIONS 2.6(D), 2.19 and 2.23, such DSR Loan shall then bear
interest based on the LIBOR Rate from the date of such DSR Loan.
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(c) Subject to SECTIONS 2.6(D), 2.19 and 2.23, unless an Event
of Default shall have occurred, the Borrower may at any time, upon three
Business Days' irrevocable written notice to the Agent, (x) convert (i) any
Adjusted Base Rate Loan to a LIBOR Rate Loan or (ii) any LIBOR Rate Loan to an
Adjusted Base Rate Loan, PROVIDED that a LIBOR Rate Loan may be converted only
on the last day of the applicable Interest Period or (y) continue any LIBOR Rate
Loan as a LIBOR Rate Loan with the same or a different Interest Period on the
last day of the applicable Interest Period. The Agent shall promptly notify the
Banks of the contents of each such notice. In the event the Borrower fails to
select the applicable interest rate, within the time period and otherwise as
provided in this SECTION 2.6(C), such DSR Loan (if outstanding as a LIBOR Rate
Loan) will be automatically converted into an Adjusted Base Rate Loan on the
last day of the then current Interest Period for such DSR Loan or (if
outstanding as an Adjusted Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, an Adjusted Base Rate Loan.
(d) The Borrower shall pay to the Agent for the account of
each Bank, upon the request of such Bank through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense which such Bank determines is
attributable to any failure for any reason (i) of any LIBOR Rate Loan, pursuant
to a notice given under SECTION 2.6(B), to occur or (ii) of the Borrower to
convert an Adjusted Base Rate Loan from such Bank to a LIBOR Rate Loan, or to
continue a LIBOR Rate Loan, as and when specified in the relevant notice given
pursuant to SECTION 2.6(B) or 2.6(C).
SECTION 2.7 REPAYMENT. (a) The Borrower shall repay the
principal amount of the DSR Loans in full on the Expiration Date.
(b) Subject to SECTION 2.7(C), the Issuing Bank shall reduce
the Outstanding Amount by the outstanding principal amount of each DSR Loan.
(c) Subject to SECTIONS 2.2 and 6.1, the Issuing Bank shall,
upon receipt of written notice from the Borrower, reinstate the Outstanding
Amount to the extent of any repayment or prepayment of the principal amount of
any DSR Loan.
SECTION 2.8 PREPAYMENTS. (a) The Borrower may, at any time and
from time to time on any Business Day, irrevocably notify the Agent in writing
that the Borrower intends to prepay all or any portion (and so stating the
aggregate principal amount to be prepaid) of the DSR Loans then outstanding on a
day which is at least three (3) Business Days after the date of such notice. If
the Borrower delivers any such notice, the Borrower shall, not later than 12:00
noon, New York City time, on the prepayment date set forth in such notice,
prepay without premium or penalty the outstanding principal amount of the DSR
Loans so indicated in such notice, together with accrued interest to the date of
such prepayment on the principal amount so prepaid.
(b) The Borrower agrees to indemnify each Bank and hold each
Bank harmless from any direct loss (but excluding any indirect, consequential or
incidental loss
10
or damage), cost or reasonable out-of-pocket expense which such Bank incurs as a
result of a prepayment of any DSR Loan bearing interest at the LIBOR Rate on a
date which is not the last day of an Interest Period applicable thereto.
(c) All prepayments made hereunder shall be applied by the
Agent and the Banks against the principal amount of outstanding DSR Loans (i) as
long as no Event of Default has occurred and is continuing, in the order as
specified by Borrower or, in the absence of such specification, in the order
such DSR Loans were made, and (ii) if an Event of Default has occurred and is
continuing, in the order as specified by the Agent or, in the absence of such
specification, in the order such DSR Loans were made.
SECTION 2.9 SECURITY. The Obligations shall be secured by the
Security Documents, the rights and remedies in respect of which shall be
exercised pursuant to the Lease Indenture.
SECTION 2.10 PAYMENTS. (a) The Borrower shall make each
payment hereunder and under the DSR Notes not later than 12:00 noon, New York
City time, on the day when due in United States dollars to the Agent at its
address set forth in SECTION 9.2, in immediately available funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal (including reimbursement of Drawings), interest or fees ratably
(other than amounts payable for the account of the Agent or the Issuing Bank
pursuant to SECTION 2.5(A), (C) or (D) or payable pursuant to SECTION 9.4) to
the Banks and like funds relating to the payment of any other amount payable to
any Bank to such Bank, in each case to be applied in accordance with the terms
of this Agreement.
(b) Unless the Agent receives notice from the Borrower before
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date, and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due to such Bank. If and to the extent
that the Borrower has not so made such payment in full to the Agent, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date on which such Bank repays such amount to
the Agent (i) for the first three (3) days of non-repayment, at the Federal
Funds Rate and (ii) thereafter, at the Federal Funds Rate plus 2.50%.
SECTION 2.11 COMPUTATION OF INTEREST AND FEES. All
computations of interest and fees hereunder shall be made on the basis of a year
of three hundred sixty (360) days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each calculation and each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
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SECTION 2.12 PAYMENTS ON NON-BUSINESS DAYS. Whenever any
payment hereunder or under any DSR Note is stated to be due on a day other than
a Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be. If no due date is specified for
the payment of any amount payable by the Borrower hereunder, such amount shall
be due and payable not later than ten (10) Business Days after receipt by the
Borrower of written demand from the Agent for the payment thereof. In connection
with a LIBOR Rate Loan, if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would otherwise
expire on a day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day.
SECTION 2.13 SHARING OF PAYMENTS, ETC. If any Bank obtains any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of its Commitment or the DSR Loans made by it
(other than pursuant to SECTION 9.4) in excess of its ratable share of such
payments obtained by all of the Banks, then such Bank shall be deemed to have
received such payment as agent for and on behalf of all the Banks and shall
immediately advise the Agent of the receipt of such funds and promptly transmit
the entire amount thereof to the Agent for prompt distribution among the Banks
as provided for in this Agreement and such funds transmitted to the Agent shall
be credited as a payment by the Borrower under this Agreement; PROVIDED that
such Bank so transmitting funds to the Agent shall not be deemed to have
received, and the Borrower shall be deemed not to have made to such Bank (to the
extent funds are transmitted to the Agent) any payment transmitted to the Agent
by such Bank pursuant to this SECTION 2.13.
SECTION 2.14 EVIDENCE OF DEBT. (a) The indebtedness of the
Borrower resulting from all DSR Loans made by each Bank from time to time shall
be evidenced by an appropriate notation on the schedule, or a continuation
thereof, to the Debt Service Reserve Letter of Credit Promissory Note
substantially in the form of EXHIBIT B (each a "DSR NOTE"), delivered by the
Borrower to such Bank.
(b) The books and accounts of the Agent shall be conclusive
evidence, absent manifest error, of the amounts of all Drawings, DSR Loans,
fees, interest and other amounts advanced, due, outstanding, payable or paid
pursuant to this Agreement or any DSR Note.
SECTION 2.15 INCREASED DEBT SERVICE RESERVE LETTER OF CREDIT
COSTS. If, after the date hereof, any introduction of or change in any
Applicable Law (including for purposes hereof, any directive, guideline or
requirement of any Governmental Authority (whether or not having the force of
law)) or in the interpretation thereof by any Governmental Authority charged
with the administration thereof either (a) imposes, modifies or makes applicable
any reserve, special deposit or similar requirement against letters of credit
issued by, or assets held by, or deposits or other liabilities in or for the
12
account of, the Agent or any Bank or (b) imposes on the Agent or any Bank any
other condition regarding this Agreement, the Agent, such Bank, the Debt Service
Reserve Letter of Credit or the DSR Loans, and the result of any event referred
to in the preceding clause (a) or (b) is to increase the cost to the Agent or
such Bank of issuing or maintaining the Debt Service Reserve Letter of Credit or
the DSR Loans, reduce the amount of any payment receivable by the Agent or such
Bank hereunder or reduce the rate of return on any Bank's capital as a
consequence of its obligations hereunder below that which such Bank would have
achieved but for such circumstance, then, in each such case, upon demand by the
Agent or such Bank, the Borrower shall pay to the Agent or such Bank, from time
to time as specified thereby on the Monthly Transfer Date, additional amounts
sufficient to compensate the Agent or such Bank for such increased costs,
reduction in payments receivable or reduction in rate of return. A certificate
as to any such additional amount or amounts submitted by a Bank, through the
Agent, to the Borrower and the other Banks shall certify that similar demands
have been made to other customers of such Bank which are subject to similar
provisions and shall, in the absence of manifest error, be final and conclusive.
In determining such amount, a Bank may use any reasonable averaging and
attribution methods. Notwithstanding the foregoing, the Borrower shall only be
obligated to compensate any Bank or Agent for any amount described in this
SECTION 2.15 arising or occurring during (i) any time period commencing not more
than 90 days prior to the date on which such Bank notifies the Agent and the
Borrower that such Bank or the Agent proposes to demand such compensation and
(ii) any time period during which, because of the unannounced retroactive
application of such statute, regulation or other basis, such Bank could not have
known that such amount might arise or accrue.
SECTION 2.16 CAPITAL ADEQUACY. If the Agent or any Bank
reasonably determines that compliance with any Applicable Law (including for
purposes hereof, any directive, guideline or requirement of any Governmental
Authority (whether or not having the force of law)) affects or would affect the
amount of capital required or expected to be maintained by the Agent or such
Bank or any Person controlling the Agent or such Bank and that the amount of
such capital is increased by or based upon the existence of such Bank's
Commitment or the issuance of the Debt Service Reserve Letter of Credit or
outstanding DSR Loans, then, upon demand by the Agent or such Bank, the Borrower
shall pay to the Agent or such Bank, from time to time as specified thereby,
additional amounts sufficient to compensate the Agent or such Bank in light of
such circumstances, to the extent that the Agent or such Bank reasonably
determines such increase in capital to be allocable to the existence of such
Bank's Commitment or the issuance of the Debt Service Reserve Letter of Credit
or such DSR Loans. A certificate as to any such additional amount or amounts
submitted by a Bank, through the Agent, to the Borrower and the other Banks
shall certify that similar demands have been made to other customers of such
Bank which are subject to similar provisions and shall, in the absence of
manifest error, be final and conclusive. In determining such amount, a Bank may
use any reasonable averaging and attribution methods. Notwithstanding the
foregoing, the Borrower shall only be obligated to compensate any Bank or the
Agent for any amount described in this SECTION 2.16 arising or occurring during
(i) any time period commencing not more than 90 days prior to the date on which
such Bank notifies the Agent and the
13
Borrower that such Bank or the Agent proposes to demand such compensation and
(ii) any time period during which, because of the unannounced retroactive
application of such statute, regulation or other basis, such Bank could not have
known that such amount might arise or accrue.
SECTION 2.17 TAXES. (a) All payments, except as otherwise
provided in SECTION 2.17(C), by the Borrower of principal of, and interest on,
the DSR Notes and all other amounts payable hereunder shall be made free and
clear of and without deduction for any present or future income, excise, stamp
or franchise taxes and other taxes, fees, duties, withholdings or other charges
of any nature whatsoever imposed by any taxing authority, but excluding
franchise taxes and taxes imposed on or measured by any Bank's net income, in
each case, imposed as a result of a connection between the Bank and the
jurisdiction imposing the tax (other than a connection arising solely from the
Bank having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement) (such non-excluded items being
called "TAXES"). In the event that any withholding or deduction from any payment
to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) within 30 days after such payment forward to the Agent an
official receipt or other documentation satisfactory to the Agent
evidencing such payment to such authority; and
(iii) pay to the Agent for the account of the Banks such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Bank will equal the full amount such
Bank would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Agent or any Bank with
respect to any payment received by the Agent or such Bank hereunder, the Agent
or such Bank may pay such Taxes and, upon receipt of notice from such Bank
within 30 days after such payment, the Borrower will promptly pay such
additional amounts (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any Taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted.
(b) If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for the account of
the respective Banks, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Banks for any incremental Taxes,
interest or penalties that may become payable by any Bank as a result of any
such failure.
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(c) Each Bank that is not a United States person as defined in
Section 7701(a)(3) of the Code (a "NON-U.S. BANK") shall deliver to the Borrower
and the Agent two copies of either U.S. Internal Revenue Service Form W-8 BEN or
Form W-8 ECI, or any subsequent versions thereof or successors thereto properly
completed and duly executed by such Non-U.S. Bank claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the DSR Notes. Such forms shall be delivered
by each Non-U.S. Bank on or before the date it becomes a party to this
Agreement. In addition, each Non-U.S. Bank shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Bank. Each Non-U.S. Bank shall promptly notify the Borrower at any time
it determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). The Borrower shall not
be required to increase any such amounts payable to any Non-U.S. Bank with
respect to any Taxes (i) that are attributable to such Non-U.S. Bank's failure
to comply with the requirements of this Section 2.17(c) or (ii) that are United
States withholding taxes imposed on amounts payable to such Bank at the time the
Bank becomes a party to this Agreement, except to the extent that such Bank's
assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to such Taxes pursuant to Section
2.17(a). Notwithstanding any other provision of this Section 2.17(c), a Non-U.S.
Bank shall not be required to deliver any form pursuant to this Section 2.17(c)
that such Non-U.S. Bank is not legally able to deliver.
SECTION 2.18 CHANGE OF LAW. (a) Notwithstanding any other
provision of this Agreement, if any Regulatory Change, or compliance by any Bank
with any Regulatory Change, makes it unlawful or impossible for any Bank to
make, maintain or continue its proportionate interest in any Debt Service
Reserve Letter of Credit or DSR Loan (or commitments therefor), then such Bank
shall promptly give notice together with evidence thereof to the Borrower and
the Agent, and the Borrower shall pay forthwith all amounts outstanding, accrued
or payable under this Agreement to such Bank and cause such Bank to be released
from all obligations of such Bank under this Agreement.
(b) A Bank shall (consistent with legal and regulatory
restrictions) designate a different lending office for the DSR Loans (or
commitments therefor) or its participation in the Debt Service Reserve Letter of
Credit affected pursuant to this SECTION 2.18 before giving any notice to the
Borrower and the Agent pursuant to this SECTION 2.18 if such designation will
avoid the need for giving such notice and will not, in the sole opinion of such
Bank, be disadvantageous to such Bank, except that such Bank shall have no
obligation to designate a lending office located in the United States of
America. If Borrower so requests within ten (10) days of receipt of the notice
referred to above (which notice is based on circumstances not generally
applicable to United States or foreign lenders making loans of the types
contemplated hereunder), such Bank shall (consistent with legal and regulatory
restrictions) comply with SECTION 2.20 hereof.
SECTION 2.19 NON-AVAILABILITY. (a) If at any time dollar
deposits in the principal amount of any Bank's proportionate interest in, or
obligation under, any DSR
15
Loan bearing interest at the LIBOR Rate are not available to such Bank in the
London interbank market for the next Interest Period, such Bank shall so notify
the Agent, who shall so notify the Borrower, and the obligation of such affected
Bank to make or continue or to convert DSR Loans into DSR Loans bearing interest
based on the LIBOR Rate shall be immediately suspended and during such
suspension be converted into an obligation to do the same with respect to DSR
Loans bearing interest at the Adjusted Base Rate; PROVIDED, HOWEVER, that
outstanding DSR Loans bearing interest at the LIBOR Rate shall be converted into
DSR Loans bearing interest at the Adjusted Base Rate on the last day of the then
current Interest Period applicable to such DSR Loans.
(b) If at any time the Interest Rate then in effect based on
the LIBOR Rate does not adequately and fairly reflect, in the reasonable
judgment of any Bank, the cost for such Bank of advancing or maintaining its
respective proportionate interest in any DSR Loan bearing interest at the LIBOR
Rate during any Interest Period, then such Bank shall notify the Agent, who
shall so notify the Borrower, and interest on such Bank's proportionate share of
the DSR Loans shall for any subsequent Interest Period accrue at the Adjusted
Base Rate.
(c) If the Borrower so requests after the suspension of a
Bank's obligation to make DSR Loans bearing interest at the LIBOR Rate under
this SECTION 2.19 for at least ten (10) consecutive Business Days based on
circumstances not generally applicable to United States or foreign lenders
making loans of the types contemplated hereunder, such Bank shall (consistent
with legal and regulatory restrictions) comply with SECTION 2.20 hereof.
SECTION 2.20 ASSIGNMENTS BY BANKS. (a) If (i) a Bank is
required to comply with this SECTION 2.20 after a request from the Borrower
pursuant to SECTION 2.17, 2.18 or 2.19 or (ii) the Borrower requests that the
provisions of this SECTION 2.20 apply to a Bank within ten (10) days after it
receives a notice from the Agent that (A) such Bank has failed to make available
to the Agent its portion of any DSR Loan on the date required to be made
available to the Agent pursuant to this Agreement after the Agent has made
written demand upon such Bank for such payment or (B) such Bank has provided the
Agent with notice that such Bank shall not make available to the Agent such
portion of any DSR Loan required to be made available to the Agent pursuant to
this Agreement or (C) such Bank has failed to reimburse the Agent pursuant to
the terms of this Agreement, such Bank shall assign all or a part of its
proportionate share of the DSR Loans and its commitment to make DSR Loans to a
replacement Bank (which may be, but is not required to be, one of the other
Banks) designated by the Borrower; PROVIDED that any assignment or transfer made
by a Bank to a replacement Bank shall satisfy the following conditions: (i) the
Borrower shall promptly pay when due all reasonable fees and expenses which such
Bank incurs in connection with such transfer or assignment and (ii) any
assignment of all or part of the DSR Loans or obligations shall be made without
recourse, representation or warranty, and the Borrower shall cause the
replacement Bank to pay to the Agent for the account of the assigning Bank in
immediately available funds all amounts outstanding or payable under this
Agreement to each Bank assigning its interest in the DSR Loans.
16
(b) Each Bank agrees that as promptly as practicable after it
has made a determination to make a claim for amounts under SECTION 2.8(B), 2.15,
2.16 or 2.17 with respect to events or conditions arising after the date hereof,
it shall notify the Borrower of the same and use commercially reasonable efforts
(consistent with legal and regulatory restrictions and such Bank's internal
policies) to mitigate the effect of such provisions on the Borrower, including
(i) in the case of SECTION 2.15, 2.16 or 2.17, efforts to make, fund, issue or
maintain its DSR Loans or the Debt Service Reserve Letter of Credit, as
relevant, through another office of such Bank and (ii) in the case of SECTION
2.8(B), efforts to reemploy amounts held by such Bank, (x) if as a result
thereof the additional moneys which would otherwise be required to be paid to
such Bank pursuant to any of such provisions of this Agreement would be reduced,
or the illegality or other adverse circumstances which would otherwise require a
prepayment of such DSR Loans or the suspension of the issuance of, or of
drawings under, the Debt Service Reserve Letter of Credit pursuant to any of
such provisions would cease to exist, and (y) if, as determined by such Bank in
good faith, the making, funding, issuing or maintaining of such DSR Loan or the
Debt Service Reserve Letter of Credit, or the making of drawings under the Debt
Service Reserve Letter of Credit through such other office would not otherwise
adversely affect such Bank.
SECTION 2.21 REDUCTION IN COMMITMENTS/DSR LOANS. The Borrower
shall have the right to refinance all Commitments and all of the outstanding DSR
Loans, if any, in whole but not in part, without premium or penalty upon at
least ten (10) days' prior written notice to the Agent; PROVIDED, HOWEVER, that
the Borrower agrees to indemnify each Bank and hold each Bank harmless from any
direct loss (but excluding any indirect, consequential or incidental loss or
damage), cost or reasonable out-of-pocket expense which such Bank incurs as a
result of a refinancing pursuant to this SECTION 2.21 of any DSR Loan bearing
interest at the LIBOR Rate on a date which is not the last day of an Interest
Period applicable thereto. In any refinancing of such Commitments, the Borrower
shall cause the Debt Service Reserve Letter of Credit to be released and
returned to the Issuing Bank.
SECTION 2.22 RIGHT OF SET-OFF. The Borrower hereby authorizes
each Bank, upon the occurrence and during the continuance of any Event of
Default, at any time and from time to time, without notice to the Borrower or
any Person other than the Lease Indenture Trustee (any such notice being hereby
expressly waived by the Borrower to the extent it may legally do so) to set off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held, and other indebtedness at any
time owing, by such Bank in any of its offices, wherever located (whether such
deposits or indebtedness be in dollars or in any other currency), to or for the
credit or the account of the Borrower against any and all of the Obligations and
liabilities of the Borrower now or hereafter existing under this Agreement,
irrespective of whether or not the Agent shall have made any demand hereunder or
thereunder and although such Obligations may be contingent or unmatured. The
Banks agree to promptly notify the Borrower of such set-off and application.
17
SECTION 2.23 MINIMUM AMOUNTS. (a) Anything in this Agreement
to the contrary notwithstanding, the aggregate principal amount of DSR Loans
bearing interest based on the LIBOR Rate shall be in an amount at least equal to
$1,000,000 or in multiples of $1,000,000 in excess thereof and, if any DSR Loans
bearing interest based on the LIBOR Rate would otherwise be in a lesser
principal amount for any period, such DSR Loans shall bear interest based on the
Adjusted Base Rate during such period.
(b) Not more than six (6) DSR Loans bearing interest at the
LIBOR Rate may be outstanding at one time.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS PRECEDENT TO ISSUANCE OF DEBT SERVICE
RESERVE LETTER OF CREDIT. The obligation of the Issuing Bank to issue the Debt
Service Reserve Letter of Credit is subject to the follow conditions precedent:
(a) the Agent shall have received the following, each dated on
or before the Closing Date unless otherwise specified below, in form and
substance satisfactory to the Agent and in the number of originals or
photostatic copies reasonably required by the Agent:
(i) this Agreement and the DSR Notes duly executed by the
Borrower; and
(ii) a certificate of the Security Agent as to the incumbency
and specimen signatures of the officers of the Security Agent
authorized to make drawings, to execute and present certificates under
the Debt Service Reserve Letter of Credit, and otherwise to communicate
with the Agent with respect thereto;
(b) concurrently with the issuance of the Debt Service Reserve
Letter of Credit, the Lease Indenture and the Security Documents shall be in
full force and effect;
(c) the Borrower shall have paid all accrued fees and expenses
(as provided in SECTIONS 2.5 and 9.4) of the Agent and the Banks (including the
reasonable accrued fees and disbursements of counsel to the Agent and the
Banks), to the extent that one or more statements for such fees and expenses
have been presented for payment;
(d) the Agent shall have received such other approvals,
opinions, evidence and documents (including financial statements of the
Borrower) as it may reasonably request and which are customary for transactions
of the type contemplated by this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
(a) The Borrower hereby makes for the benefit of the Agent and
the Banks all of the representations and warranties of the Borrower made in
Section 3.2 of the Participation Agreement (unless stated to be given as of an
earlier date, in which case such representation and warranty shall be true and
correct only as of such earlier date), in the form of such representations and
warranties as they exist on the date of this Agreement and as they may hereafter
be amended from time to time, but only to the extent that the incorporation of
any such amendments into this Agreement has been consented to in accordance with
SECTION 9.1. Such representations and warranties are incorporated herein by
reference as if set forth at length in this Agreement; PROVIDED that each
reference to the term "Agreement" therein shall be deemed to be a reference to
this Agreement; and with any other appropriate substitutions designed to bestow
upon the Agent and the Banks the benefit of such representations and warranties
in the same manner and to the same extent bestowed upon the other parties under
the Credit Agreement.
(b) FINANCIAL INFORMATION.
(i) The balance sheet of the Borrower as at _______,
and the related statements of income and cash flows of the Borrower,
copies of which have been furnished to the Agent and the Banks, present
fairly the consolidated financial condition of the Borrower as at the
dates thereof and the results of their operations for the periods
then ended.
(c) REGULATIONS T, U AND X. No Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Debt Service Reserve Letter of Credit will be used
for a purpose which violates, or would be inconsistent with, F.R.S. Board
Regulation T, U or X. Terms for which meanings are provided in F.R.S. Board
Regulation T, U or X or any regulations substituted therefor, as from time to
time in effect, are used in this Section with such meanings.
(d) INVESTMENT COMPANY ACT. (a) The Borrower is not subject
to any regulation as an "investment company" subject to the Investment
Company Act of 1940, as amended
(d) THE OBLIGATIONS. The Obligations are senior secured
Indebtedness of the Borrower ranking at least PARI PASSU with all other secured
Indebtedness of the Borrower.
(e) PENSION AND WELFARE PLANS. The Borrower has no Pension
Plans.
19
(f) SUBSIDIARIES. The Borrower has no Subsidiaries or
investments in other Persons (other than the Lessor Estate).
ARTICLE V
COVENANTS
So long as any Commitment is in effect, the Debt Service
Reserve Letter of Credit is outstanding or the Obligations remain unpaid, unless
compliance has been waived in accordance with SECTION 9.1:
(a) all of the covenants of the Borrower contained in ARTICLE
VII of the Participation Agreement and ARTICLE V and ARTICLE VI of the Lease
Indenture, in the form of such covenants as they exist as of the date of this
Agreement and as they may hereafter be amended from time to time, but only to
the extent that the incorporation of any such amendments into this Agreement has
been consented to in accordance with SECTION 9.1, are hereby incorporated and
made applicable by reference as if set forth at length in this Agreement;
PROVIDED that each reference to the term "Participation Agreement" or "Lease
Indenture" therein shall be deemed to be a reference to this Agreement; each
reference to the Lease Indenture Trustee or Security Agent therein shall be
deemed to be a reference to the Agent and the Banks; and with any other
appropriate substitutions designed to bestow upon the Agent and the Banks the
benefit of such covenants in the same manner and to the same extent as in the
Participation Agreement and the Lease Indenture, and the Borrower shall observe
and perform all of such incorporated covenants; and
(b) the Borrower will not, without the prior written approval
of the Required Banks, terminate, amend or otherwise modify any provision of any
Operative Document if such termination, amendment or other modification would
affect the priority of payments from the Revenue Account under the Amended and
Restated Security Deposit Agreement in a manner adverse to the Agent or any
Bank, amend the Rent Payment Dates in a manner adverse to the Agent or any Bank,
or change the voting requirements under the Lease Indenture in a manner adverse
to the Agent or any Bank.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Each of the following shall
constitute an "Event of Default" hereunder:
(a) any amount in respect of costs and expenses shall not be
paid in full within thirty (30) Business Days following delivery of notice
thereof to the Borrower
20
(b) any amount in respect of fees due by the Borrower under
this Agreement shall not be paid in full within five (5) Business Days following
delivery of notice thereof to the Borrower; or
(c) any amount due by the Borrower in respect of interest on
any DSR Loan shall not be paid in full within five (5) Business Days after its
due date; or
(d) any amount due by the Borrower in respect of principal of
any DSR Loan shall not be paid to the Agent in full within five (5) Business
Days after its due date; or
(e) any representation or warranty made by or on behalf of the
Borrower in this Agreement (including by incorporation by reference) or in any
certificate furnished to the Agent or the Banks shall prove to have been false
or misleading in any respect as of the time made, confirmed or furnished and the
inaccuracy has had or is reasonably expected to have a Material Adverse Effect
and such misrepresentation shall continue uncured for thirty (30) or more days
from the date an Authorized Officer of the Borrower obtains actual knowledge
thereof;
(f) the Borrower shall fail to perform or observe any covenant
or agreement contained in (i) SECTION 7.2, 7.4, 7.6 or 7.11 of the Participation
Agreement and Section 6.1 of the Lease Indenture (as incorporated into paragraph
(a) of ARTICLE V of this Agreement) or (ii) paragraph (b) of ARTICLE V of this
Agreement, and such failure shall continue uncured for thirty (30) or more days
after an Authorized Officer of the Borrower has actual knowledge of such
failure; or
(g) the Borrower shall fail to perform or observe any of its
covenants contained (including by incorporation by reference) in any other
provision of this Agreement (other than those referred to in paragraphs (a),
(b), (c) and (e), above) and such failure shall continue uncured for sixty (60)
or more days after an Authorized Officer of the Borrower has actual knowledge of
such failure; PROVIDED that if the Borrower commences and diligently pursues
efforts to cure such default within such sixty (60) day period, the Borrower may
continue to effect such cure of the default (and such default shall not be
deemed as "Event of Default" hereunder) for an additional thirty (30) days so
long as the Borrower is diligently pursuing such cure; or
(h) an "Event of Default" under any of paragraphs (a), (b),
(c), (d) or (g) of SECTION 7.1 of the Lease Indenture shall occur and be
continuing; or
(i) an "Event of Default" under any of paragraphs (e) or (f)
of SECTION 7.1 of the Lease Indenture shall occur and be continuing.
SECTION 6.2 REMEDIES. If any Event of Default (other than an
Event of Default specified in SECTION 6.1(H)) hereof shall have occurred and be
continuing, then the Agent shall at the request of the Required Banks take one
or more of the following actions: (i) by notice to the Borrower and the Security
Agent, declare the Commitments to
21
be terminated, whereupon the same shall forthwith terminate, and, after giving
thirty (30) days' written notice to the beneficiary of the outstanding Debt
Service Reserve Letter of Credit, terminate the Debt Service Reserve Letter of
Credit; or (ii) declare the Obligations and all other amounts payable under this
Agreement and the DSR Notes to be immediately due and payable, whereupon the
Obligations, all such interest and all such amounts shall become and be
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower; or
(iii) terminate the ability of the Borrower to cause reinstatement of the
Outstanding Amount through the reimbursement of Drawings, as contemplated by the
terms hereof. If any Event of Default specified in SECTION 6.1(H) hereof shall
have occurred and be continuing, the Commitments shall terminate automatically,
the full unpaid amount of any outstanding Obligations and any other amounts
payable under this Agreement and the DSR Notes shall be immediately due and
payable, and the ability of the Borrower to cause reinstatement of the
Outstanding Amount through reimbursement of Drawings shall terminate
automatically, in each case without any further action, notice, demand or
presentment.
ARTICLE VII
CHARACTER OF OBLIGATIONS
SECTION 7.1 OBLIGATIONS ABSOLUTE. The Obligations shall be
absolute, unconditional and irrevocable and shall not be affected or impaired
under any circumstances whatsoever, including the following circumstances:
(a) any lack of validity or enforceability of any provision of
any Operative Document;
(b) any amendment or waiver of, or any consent to departure
from, any provision of any Operative Document;
(c) the existence of any claim, setoff, defense or other right
that the Borrower may have at any time against the Security Agent, any other
beneficiary of the Debt Service Reserve Letter of Credit (or any Person for whom
the Lease Indenture Trustee or any such beneficiary may be acting), any Bank,
the Agent or any other Person, whether in connection with any Financing
Document, the transactions contemplated thereby or any unrelated transaction;
(d) any statement or signature in any certificate or other
document presented under the Debt Service Reserve Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect, or any such
statement being untrue or inaccurate in any respect whatsoever;
22
(e) any exchange, release or nonperfection of any Collateral
or other collateral, or any release, amendment or waiver of or consent to
departure from any Financing Document or any guaranty for any of the
Obligations;
(f) payment by a Bank under the Debt Service Reserve Letter of
Credit against presentation of a draft or certificate that does not comply with
the terms of the Debt Service Reserve Letter of Credit;
(g) any issuance of additional Permitted Indebtedness; and
(h) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
SECTION 7.2 NO PERSONAL LIABILITY; TERMINATION Except as
may otherwise specifically be provided in the Lease Indenture or in the
Participation Agreement, all payments to be made in respect of the Debt
Service Reserve Letter of Credit, the DSR Notes or under this Agreement shall
be made only from the Indenture Estate, and the Owner Lessor shall have no
obligation for the payment thereof except to the extent that there shall be
sufficient income or proceeds from the Indenture Estate to make such payments
in accordance with the terms of Section 3 of the Lease Indenture, and the
Owner Participant shall not have any obligation for payments in respect of
the Debt Service Letter of Credit, the DSR Notes or under this Agreement. The
Issuing Bank, the Agent, and each Bank hereby each agree that it will look
solely to the income and proceeds from the Indenture Estate to the extent
available for distribution to the Issuing Bank, the Agent or such Bank, as
the case may be, as herein provided and that, except as expressly provided in
the Lease Indenture or the Participation Agreement, (x) none of the Owner
Participant, the Trust Company, the Security Agent, or the Lease Indenture
Trustee, or any Affiliate of any thereof, shall be personally liable to the
Issuing Bank, the Agent or such Bank for any amounts payable hereunder, under
such DSR Note or for any performance to be rendered under this Agreement, any
DSR Note or any Indenture Estate Document or for any liability under this
Agreement, any DSR Note or any Indenture Estate Document, and (y) such
amounts shall be non-recourse to the assets of each of the Owner Participant,
the Security Agent, the Trust Company or the Lease Indenture Trustee, or any
Affiliate of any thereof. Nothing contained in this SECTION 7.2 limiting the
liability of the Owner Lessor shall derogate from the right of the Issuing
Bank, the Agent or the Banks to proceed against the Indenture Estate in
accordance with the Lease Indenture to secure and enforce all payments and
obligations due hereunder and under DSR Notes.
In furtherance of the foregoing, to the fullest extent
permitted by law, the Issuing Bank, the Agent and each Bank (and each assignee
of such Person), by their acceptance thereof agrees, as a condition to its being
secured under the Lease Indenture, that neither they nor the Lease Indenture
Trustee will exercise any statutory right to negate the agreements set forth in
this SECTION 7.2.
23
Nothing herein contained shall be interpreted as affecting the
representations, warranties or agreements of the Owner Lessor expressly made set
forth in the Participation Agreement or the Lessor LLC Agreement.
The Issuing Bank, the Agent and each Bank acknowledge and
agree that this Agreement (and the DSR Notes) shall terminate and shall be of no
further force or effect upon the termination of the Lease Indenture in
accordance with the proviso to Section 12.1 thereof (including, without
limitation, upon any sale or other final disposition by the Security Agent of
all property constituting part of the Indenture Estate and the final
distribution by the Security Agent of all moneys or other property or proceeds
constituting part of the Indenture Estate in accordance with the terms
thereof).
SECTION 7.3 LIMITED LIABILITY OF AGENT AND BANKS. As among
the Borrower, the Agent and the Banks, the Borrower assumes all risks of the
acts or omissions of the beneficiaries of the Debt Service Reserve Letter of
Credit with respect to the use of the Debt Service Reserve Letter of Credit.
Neither the Agent nor any Bank nor any of their respective officers,
directors, employees or agents shall be liable or responsible for: (a) the
use that may be made of the Debt Service Reserve Letter of Credit or any acts
or omissions of any beneficiaries of the Debt Service Reserve Letter of
Credit in connection with the Debt Service Reserve Letter of Credit; (b) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted in connection with the Debt Service Reserve Letter of
Credit or of any endorsement thereon, even if such document or endorsement
should prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
any document that does not comply with the terms of the Debt Service Reserve
Letter of Credit, including failure of any document to bear any reference or
adequate reference to the Debt Service Reserve Letter of Credit; or (d) any
other circumstance whatsoever in making, delaying to make or failing to make
payment under the Debt Service Reserve Letter of Credit; PROVIDED, HOWEVER,
that the Borrower shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Borrower, to the extent of any direct, as
opposed to consequential, damages suffered by the Borrower that the Borrower
proves were the result of the Issuing Bank's willful misconduct or gross
negligence in paying under the Debt Service Reserve Letter of Credit or the
Issuing Bank's willful or grossly negligent failure to pay under the Debt
Service Reserve Letter of Credit after the presentation to it by the
beneficiary of a draft and certificate strictly complying with the terms and
conditions of the Debt Service Reserve Letter of Credit (unless the Issuing
Bank in good faith believed itself (based upon an opinion of counsel) to be
prohibited by law or legal authority from making such payment). In
furtherance and not in limitation of the foregoing, the Issuing Bank may
accept any document that appears on its face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
24
ARTICLE VIII
THE AGENT
SECTION 8.1 AUTHORIZATION AND ACTION. Each Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by the Letter of Credit
Documents (including enforcement of and collection under any Letter of Credit
Document), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks and
all holders of DSR Notes; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to any Letter of Credit Document or Applicable Law. In performing
its function and duties hereunder, Agent shall act solely as the agent of the
Banks and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower or any other
party to any Financing Document.
SECTION 8.2 AGENT'S RELIANCE, ETC. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with any
Letter of Credit Document, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Agent (a) may treat any Bank that has signed a Commitment Transfer Supplement as
the holder of the applicable portion of the Obligations; (b) may consult with
legal counsel (including counsel for the Borrower or any Affiliate thereof),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Bank and shall not be responsible to any Bank
for any statements, warranties or representations made in or in connection with
any Financing Document; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any Financing Document on the part of the Borrower or any Affiliate or to
inspect the property (including the books and records) of the Borrower or any
Affiliate thereof; (e) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Financing Document or any other instrument or document furnished pursuant
hereto or thereto; and (f) shall incur no liability under or in respect of any
Financing Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier or otherwise) believed by it
to be genuine and signed or sent by the proper party or parties.
SECTION 8.3 ISSUING BANK AND AFFILIATES. With respect to its
Commitment and participation in the Debt Service Reserve Letter of Credit, the
Issuing Bank shall have the same rights and powers under this Agreement as any
other Bank and
25
may exercise the same as though it were not the Issuing Bank or the Agent; and
the term "Bank" or "Banks" shall, unless otherwise expressly indicated, include
the Issuing Bank in its individual capacity. The Issuing Bank and the Agent and
their Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any Affiliate thereof and any Person that may do business with or own securities
of the Borrower or any Affiliate thereof, all as if the Issuing Bank and the
Agent were not the Issuing Bank and the Agent and without any duty to account
therefor to the Banks.
SECTION 8.4 BANK CREDIT DECISION. Each Bank acknowledges that
it has, independently and without reliance on the Agent or any other Bank or the
Issuing Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance on the Agent or any other Bank or the Issuing Bank and based on such
documents and information as it deems appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Agreement.
SECTION 8.5 INDEMNIFICATION. The Banks agree to indemnify the
Agent (to the extent not promptly reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to the
respective principal amounts of the Obligations then held by each of them and/or
the respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever that may at
any time (including without limitation at any time following the payment of any
Obligations or termination of this Agreement) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of any
Financing Document or any action taken or omitted by the Agent under any
Financing Document; PROVIDED, HOWEVER, that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to reimburse the Agent promptly upon demand for its
ratable share of any costs and expenses payable by the Borrower under SECTION
9.4, to the extent that the Agent is not reimbursed for such costs and expenses
by the Borrower.
SECTION 8.6 SUCCESSOR AGENT. The Agent may resign at any time
by giving written notice thereof to the Banks and the Borrower and may be
removed at any time with or without cause with the written approval of the
Required Banks. Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent with the consent of the Borrower,
which shall not be unreasonably withheld. If no successor Agent has been so
appointed by the Required Banks, and has accepted such appointment, within
thirty (30) days after the retiring Agent's giving of notice of resignation or
the Required Banks' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent with the consent of the
Borrower (which shall not be unreasonably withheld), which successor Agent shall
be
26
a commercial bank organized under the laws of the United States of America or
of any state thereof and having a combined capital and surplus of at least five
hundred million dollars ($500,000,000). Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Financing Documents. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
ARTICLE VIII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
SECTION 8.7 COLLATERAL. (a) Except as expressly provided
herein, the Agent shall have no duty to take any affirmative steps with respect
to the collection of amounts payable in respect of the Collateral. The Agent
shall incur no liability as a result of any private sale of the Collateral.
(b) The Banks hereby consent, and agree upon written request
by the Agent to execute and deliver such instruments and other documents as the
Agent may deem desirable to confirm such consent, to the release of the Lien of
the Lease Indenture, including any release in connection with any sale, transfer
or other disposition of the Collateral or any part thereof, in accordance with
the Financing Documents.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or any DSR Note, or consent to any departure by the
Borrower therefrom, shall be effective unless in writing and signed or consented
to (in writing) by the Required Banks (and, in the case of amendments, the
Borrower), and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; PROVIDED,
HOWEVER, that no amendment, waiver or consent shall, unless in writing and
signed or consented to (in writing) by all of the Banks, do any of the
following: (a) waive any of the conditions specified in ARTICLE III; (b)
increase the Commitments of the Banks or subject the Banks to any additional
obligations; (c) reduce the principal of, or interest on, the DSR Loans or any
fees or other amounts payable hereunder; (d) postpone any date fixed for (i)
payment of principal of, or interest on, the DSR Loans, (ii) reimbursement of
Drawings under the Debt Service Reserve Letter of Credit or (iii) payment of
fees or other amounts payable hereunder; (e) change the percentage of the
Commitments or of the DSR Loans outstanding, or the number of Banks, required
for the Banks or any of them to take any action hereunder or (f) amend this
SECTION 9.1; and PROVIDED FURTHER, HOWEVER, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Persons
required above
27
to take such action, affect the rights or duties of the Agent under this
Agreement or any other Letter of Credit Document.
SECTION 9.2 NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including by telecopier) and shall
be mailed, telecopied or delivered, if to the Borrower, to it c/o Wells Fargo
Bank Northwest, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Services, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy (860)
704-6219 with a copy to: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Corporate Trust Services, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy
(▇▇▇) ▇▇▇-▇▇▇▇; if to Westdeutsche Landesbank Girozentrale, New York Branch, in
its capacity as the Agent, the Issuing Bank or a Bank, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy (212)
597-8388, Attention: Structural Finance/Energy; if to Credit Suisse First
Boston, New York Branch, in its capacity as a Bank, to it at Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy (212)
325-8321, Attention: ▇▇▇▇▇ ▇▇▇▇; if to any other Bank, to it at the address or
telecopy number set forth below its name in the Commitment Transfer Supplement
by which it became a party hereto; or, as to each party, to it at such other
address or telecopy number as designated by such party in a written notice to
the other parties. All such notices and communications shall be deemed received,
(a) if personally delivered, upon delivery, (b) if sent by first-class mail, on
the third Business Day following deposit into the mails and (c) if sent by
telecopier, upon acknowledgment of receipt thereof by the recipient, except that
notices and communications to the Agent pursuant to ARTICLE II or VIII shall not
be effective until received by the Agent.
SECTION 9.3 NO WAIVER; REMEDIES. No failure on the part of any
Bank or the Agent to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, and no single or partial exercise of any such
right shall preclude any other or further exercise thereof or the exercise of
any other right. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law.
SECTION 9.4 COSTS AND EXPENSES. The Borrower agrees to pay on
demand on the Monthly Transfer Date immediately following such demand (provided
such demand is made at least five (5) Business Days thereto, if not, on the next
Monthly Transfer Date) (a) all reasonable costs and expenses of the Agent and
the Banks in connection with the preparation, execution, delivery, syndication,
administration, modification and amendment of this Agreement, the DSR Notes and
the other documents to be delivered hereunder, including (i) the reasonable fees
and out-of-pocket expenses of one counsel for the Banks with respect thereto and
with respect to advising the Agent and the Banks as to their rights and
responsibilities, or the perfection, protection or reservation of rights or
interests, under this Agreement, the other Financing Documents and the other
documents to be delivered hereunder and (ii) the reasonable fees and expenses of
any consultants, auditors or accountants engaged by the Agent with the written
consent (which shall not be unreasonably withheld) of the Borrower pursuant
hereto and (b) all reasonable costs and expenses of the Agent and the Banks
(including reasonable counsel fees and
28
expenses of the Agent and the Banks) in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement, the
other Financing Documents and the other documents to be delivered hereunder,
whether in any action, suit or litigation, any bankruptcy, insolvency or similar
proceeding or otherwise. In addition, the Borrower shall pay any and all stamp
and other taxes and fees payable or determined to be payable in connection with
the execution, delivery, filing and recording of the aforementioned documents,
and the Borrower agrees to indemnify and hold the Agent and the Banks harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay any of the foregoing to the extent the
Borrower had notice thereof.
SECTION 9.5 APPLICATION OF MONEYS. If any sum paid or
recovered in respect of the Obligations is less than the amount then due, the
Agent may apply that sum to principal, interest, fees or any other amount due
under this Agreement in such proportions and order and generally in such manner
as the Agent shall reasonably determine.
SECTION 9.6 SEVERABILITY. Any provision of this Agreement that
is prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
SECTION 9.7 LIMITATION OF LIABILITY. (a) Notwithstanding
anything to the contrary contained in this Agreement and the Financing
Documents, the liability and obligation of the Borrower to perform and observe
and make good the obligations contained in this Agreement and the Security
Documents shall not be enforced by any action or proceeding wherein damages or
any money judgment or any deficiency judgment or any judgment establishing any
personal obligation or liability shall be so sought, collected or otherwise
obtained, in each such case, against any officer, director, member, or
shareholder or related Person of the Borrower or any Secured Party, and the
Agent, for itself and its successors and assigns, and on behalf of the Banks,
irrevocably waives any and all right to ▇▇▇ for, seek or demand any such
damages, money judgment, deficiency judgment or personal judgment against any
officer, director, member, or shareholder or related Person of the Borrower
under or by reason of or in connection with this Agreement and agrees to look
solely to the Indenture Estate (as provided in SECTION 7.2) for the enforcement
of such liability and obligation of the Borrower.
(b) Further, no director, officer, employee, incorporator,
member, shareholder or Affiliate of the Owner Lessor, as such, shall have any
liability for any obligations of the Owner Lessor under the Debt Service Letter
of Credit, the DSR Notes, this Agreement or for any claim based on, in respect
of, or by reason of, such obligations or their creation. The Issuing Bank, the
Agent and each Bank hereby waives and releases all such liability. The waiver
and release are part of the consideration for the Owner
29
Lessor entering into this Agreement. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
(c) The Owner Manager is executing this Agreement and each DSR
Note on behalf of the Owner Lessor solely in its capacity as Owner Manager under
the Lessor LLC Agreement and not in its individual capacity and in no case shall
the Trust Company (or any successor entity acting as Owner Manager under the
Lessor LLC Agreement) be personally liable for or on account of any of the
statements, representations, warranties, covenants or obligations stated to be
those of the Owner Lessor or the Owner Manager hereunder, all such liability, if
any, being expressly waived by the parties hereto and any Person claiming by,
through, or under such party; PROVIDED, HOWEVER, that the Trust Company (or any
such successor Owner Manager) shall be personally liable hereunder for its own
gross negligence or willful misconduct or for its breach of its covenants,
representations and warranties contained herein, to the extent covenanted or
made in its individual capacity.
SECTION 9.8 BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Agent and the Banks and their
respective successors and assigns, except that the Borrower shall not have the
right to assign any of its rights and obligations hereunder without the prior
written consent of the Required Banks, and, except as provided in SECTION 9.9,
no Bank other than the Issuing Bank shall have the right to assign any of its
rights and obligations hereunder.
SECTION 9.9 ASSIGNMENTS AND PARTICIPATIONS. (a) Any Bank may
at any time (with the consent of the Agent, such consent not to be unreasonably
withheld or delayed, and the consent of the Issuing Bank, such consent not to be
unreasonably withheld or delayed) sell to one or more banks or other entities (a
"PURCHASING BANK") all or any part of its rights and obligations under this
Agreement and the DSR Notes (which, except in the case of an assignment to a
Person that, immediately before such assignment, was a Bank, shall be equal to
at least $1,000,000) pursuant to a Commitment Transfer Supplement executed by
such Purchasing Bank, such transferor Bank, the Agent and the Issuing Bank. Upon
(x) such execution of such Commitment Transfer Supplement, and (y) delivery of a
copy thereof to the Borrower and payment of the amount of its participation to
the Agent or such transferor Bank, such Purchasing Bank shall for all purposes
be a Bank party to this Agreement and shall have all the rights and obligations
of a Bank under this Agreement, to the same extent as if it were an original
party hereto with the commitment percentage as set forth in such Commitment
Transfer Supplement, which shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of commitment percentages arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the DSR Notes. Upon
the consummation of any transfer pursuant to this SECTION 9.9, the transferor
Bank, the Agent and the Borrower shall make appropriate arrangements so that, if
required, replacement DSR Notes are issued to such transferor Bank and new DSR
30
Notes or, as appropriate, replacement DSR Notes, are issued to such Purchasing
Bank, in each case, in principal amounts reflecting their Commitments.
(b) Any Bank may, from time to time, sell or offer to sell
participating interests in any DSR Loans owing to such Bank, any DSR Notes held
by such Bank, any Commitment of such Bank or any other interests and obligations
of such Bank hereunder, to one or more banks or other entities (each, a
"PARTICIPANT"), on such terms and conditions as may be determined by the selling
Bank, without the consent of or notice to the Borrower, and the grant of such
participation shall not relieve any Bank of its obligations, or impair the
rights of any Bank, hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank shall remain solely
responsible for the performance of such Bank's obligations under this Agreement,
such Bank shall remain the holder of any such DSR Notes for all purposes under
this Agreement, the Borrower, the Agent and the Issuing Bank will continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement and such Bank shall retain the sole right
and responsibility to exercise the rights of such Bank, and enforce the
obligations of the Borrower, including, without limitation, the right to approve
any amendment, modification, supplement or waiver of any provision of any Letter
of Credit Document and the right to take action under ARTICLE VI hereof, and
such Bank shall not grant any such Participant any voting rights or veto power
over any such action by such Bank under this Agreement (PROVIDED that such Bank
may agree not to consent to any modification, amendment or waiver of this
Agreement, without the consent of the Participant, that would alter the
principal of or interest on the DSR Loans, postpone the date fixed for any
payment of principal of or interest thereon or extend the term of any
Commitment; PROVIDED FURTHER that if any Participant refuses to consent to any
such modification, amendment or waiver of this Agreement, such Bank may purchase
the participating interests from such non-consenting Participant). No
Participant shall have any rights under this Agreement to receive payment of
principal of or interest on any DSR Loan except through a Bank and as provided
in this SECTION 9.9. The Borrower agrees that, upon the occurrence and during
the continuance of any Event of Default, each Participant shall have the right
of set-off in respect of its participating interest in amounts owing under this
Agreement and any DSR Notes as set forth in SECTION 2.22 hereof to the same
extent as if the amount of its participating interest was owing directly to it
as a Bank under this Agreement or any DSR Notes. The Borrower also agrees that
each Participant shall be entitled to the benefits of SECTIONS 2.15, 2.16 and
2.17 hereof with respect to its participation granted hereunder; PROVIDED that
no Participant shall be entitled to receive any greater amount pursuant to such
Sections than the Bank transferring such participation would have been entitled
to receive in respect of the amount of the participation transferred to such
Participant had no such transfer occurred.
(c) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this SECTION
9.9, disclose to the Purchasing Bank or Participant or proposed Purchasing Bank
or Participant any information relating to the Borrower furnished to such Bank
by or on behalf of the Borrower; PROVIDED, HOWEVER, that prior to any such
disclosure, the Person receiving such
31
disclosure shall sign such confidentiality agreements as is customary for
financings of this kind.
SECTION 9.10 INDEMNIFICATION. The Borrower agrees to indemnify
and hold harmless the Agent and each Bank and, in their capacity as such, each
of their respective officers, directors, shareholders, controlling persons,
employees, agents and servants (each an "INDEMNIFIED PARTY") from and against
any and all claims, damages, losses, liabilities, obligations, penalties,
actions, causes of action, judgments, suits, costs, expenses or disbursements
(including, without limitation, reasonable attorneys' and consultants' fees and
expenses) (collectively, "DAMAGES") whatsoever that such Indemnified Party may
incur (or that may be claimed against such Indemnified Party by any Person) by
reason of (a) any untrue statement or alleged untrue statement of any material
fact concerning the Borrower or the Collateral, or the omission or alleged
omission to state any fact concerning the Borrower or the Collateral necessary
to make any such statement, in light of the circumstances under which it was
made, not misleading; (b) the issuance and delivery of the DSR Notes; (c) the
use of the proceeds of any Drawing; (d) any reasonable action taken by such
Indemnified Party in protecting and enforcing the rights and remedies of the
Agent and the Banks under the Financing Documents; (e) subject to SECTION 7.3,
the execution, delivery or transfer of, or payment or failure to pay under, the
Debt Service Reserve Letter of Credit; (f) any claim of any Person with respect
to any finder's fee, brokerage commission or other similar sum due in connection
with any Financing Document; or (g) any failure by the Borrower to comply with
any environmental laws; PROVIDED, HOWEVER, that the Borrower shall not be
required to indemnify an Indemnified Party for any Damages to the extent caused
by such Indemnified Party's willful misconduct or gross negligence or breach of
such Indemnified Party's obligations under any of the Letter of Credit
Documents. If any action, suit or proceeding arising from any of the foregoing
is brought against any Indemnified Party, such Indemnified Party shall promptly
notify the Borrower in writing, enclosing a copy of all papers served, but the
omission so to notify the Borrower of any such action shall not relieve the
Borrower of any liability that it may have to any Indemnified Party otherwise
than under this SECTION 9.10 PROVIDED, HOWEVER, that the Borrower shall not be
liable for any settlement of any such action effected without the Borrower's
prior written consent. In case any such action shall be brought against any
Indemnified Party and it shall notify the Borrower of the commencement thereof,
the Borrower shall be entitled to participate in and, to the extent that it
shall wish, to assume the defense thereof with counsel reasonably satisfactory
to such Indemnified Party, and after notice from the Borrower to such
Indemnified Party of the Borrower's election so to assume the defense thereof.
The Borrower shall not be liable to such Indemnified Party for any subsequent
legal or other expenses attributable to such defense, except as provided below,
other than reasonable costs of investigation subsequently incurred by such
Indemnified Party in connection with the defense thereof. The Indemnified Party
shall have the right to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the employment of counsel by such Indemnified Party has been
authorized by the Borrower, (ii) the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest between the Borrower and the
32
Indemnified Party in the conduct of the defense of such action (in which case
the Borrower shall not have the right to direct the defense of such action on
behalf of the Indemnified Party) or (iii) the Borrower shall not in fact have
employed counsel reasonably satisfactory to the Indemnified Party to assume the
defense of such action.
SECTION 9.11 FURTHER ASSURANCES. The Borrower agrees to take
all actions as the Agent shall reasonably request in order to enable the Issuing
Bank, the Banks and the Agent to be entitled to all of the benefits as Lease
Indenture Secured Parties under the Lease Indenture and the Mortgage.
SECTION 9.12 GOVERNING LAW. THIS AGREEMENT AND THE DSR NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 9.13 CONSENT TO JURISDICTION AND VENUE. Each of the
parties hereto irrevocably (i) agrees that any suit, action or other legal
proceeding arising out of or relating to this Agreement may be brought in any
court of the State of New York or any court of the United States of America
located in the State of New York, (ii) consents, for itself and in respect of
its property, to the jurisdiction of each such court in any such suit, action or
proceeding and (iii) waives any objection which it may have to the laying of
venue of any such suit, action or proceeding in any of such courts and any claim
that any such suit, action or proceeding has been brought in an inconvenient
forum. Each of the parties agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
SECTION 9.13 shall affect the right of any party hereto to serve legal process
in any other manner permitted by law.
SECTION 9.14 HEADINGS. The section and subsection headings
used herein have been inserted for convenience of reference only and do not
constitute matters to be considered in interpreting this Agreement.
SECTION 9.15 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 9.16 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT THE
ISSUING BANK AND THE BANKS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF
THE CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
33
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
▇▇▇▇▇ CITY OL1 LLC
By:
--------------------------------------
Name:
Title:
COMMITMENT
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
________ as Agent, Issuing Bank and as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
________ CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
A-1
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
▇▇▇▇▇ CITY OL1 LLC
By:
--------------------------------------
Name:
Title:
COMMITMENT
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
________ as Agent, Issuing Bank and as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
________ CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
A-2
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
▇▇▇▇▇ CITY OL1 LLC
By:
--------------------------------------
Name:
Title:
COMMITMENT
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
________ as Agent, Issuing Bank and as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
________ CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
A-3
EXHIBIT A
FORM OF DEBT SERVICE RESERVE LETTER OF CREDIT
Westdeutsche Landesbank Letter of Credit No. ___________WLB
Girozentrale, New York Branch Irrevocable Standby Credit
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date and Place of Issue: Date and Place of Expiry:
New York, New York Westdeutsche Landesbank
December __, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
___________ __, 2002
Applicant:
▇▇▇▇▇ City OL1 LLC
[ ]
Beneficiary: Amount: Up to an aggregate of _______-
The Bank of New York, as successor to United States Dollars
The United States Trust Company of (US$ 10,605,180)
New York, as Collateral
Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Credit Available With:
Westdeutsche Landesbank Girozentrale,
New York Branch
By: Against Presentation of the
Documents Detailed Herein Drawn
on Westdeutsche Landesbank
Girozentrale, New York Branch
A-4
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of
the Applicant in any amount up to an aggregate amount not to exceed
________________ UNITED STATES DOLLARS (US$________) (as reduced or reinstated
from time to time as set forth in this Letter of Credit, the "OUTSTANDING
AMOUNT") available against presentation of a dated drawing request drawn on
Westdeutsche Landesbank Girozentrale, New York Branch, manually signed by an
authorized officer of the Beneficiary (who is identified or purported to be as
such) appropriately completed in the form of ANNEX I hereto and sent by such
authorized officer.
The above drawing request and all communications with respect
to this Letter of Credit shall be in writing, addressed to us at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy (212)
597-8388, Attention: Structured Finance/Energy, referencing this Letter of
Credit No. ____________WLB and presented to us by tested telex, delivery in
person or facsimile transmission at such address, PROVIDED that the original of
the above drawing request or such communications, as the case may be, shall be
sent to us at such address by overnight courier for receipt by us within three
(3) Business Days of the date of any such facsimile transmission.
If the drawing request is presented in compliance with the
terms of this Letter of Credit to us at such address by 12:00 noon, New York
City time, on any Business Day, payment will be made not later than 3:00 p.m.,
New York City time, on such day, and if such drawing request is so presented to
us after 12:00 noon, New York City time, on any Business Day, payment will be
made on the following Business Day not later than 1:00 p.m., New York City time.
Payment under this Letter of Credit shall be made in immediately available funds
by wire transfer to such account as may be designated by the Beneficiary in the
applicable drawing request.
As used in this Letter of Credit, "Business Day" means any day
on which commercial banks located in New York, New York are not required or
authorized to remain closed.
This Letter of Credit shall expire on the date of expiry set
forth above (the "STATED EXPIRATION DATE").
Notwithstanding the foregoing, we may at any time, subject to
the provisions of the Debt Service Reserve Letter of Credit and Reimbursement
Agreement, dated as of December __, 2001, among the Applicant, the Banks party
thereto and Westdeutsche Landesbank Girozentrale, New York Branch, as the Agent
and the Issuing Bank (the "REIMBURSEMENT AGREEMENT"), terminate this Letter of
Credit by giving The Bank of New York, as successor to the United States Trust
Company of New York, as Lease Indenture Trustee (in such capacity, the "LEASE
INDENTURE TRUSTEE") under the Lease Indenture referred to in the Reimbursement
Agreement, written notice thereof in the form of ANNEX 2 hereto by delivery in
person or facsimile transmission (with written confirmation by overnight courier
for receipt by the Beneficiary within two (2) Business Days) addressed to The
Bank of New York, as successor to the United States Trust Company of New York,
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
A-5
10036, Attn: Corporate Trust Department, 25th Floor, telephone (▇▇▇) ▇▇▇-▇▇▇▇,
telecopy (▇▇▇) ▇▇▇-▇▇▇▇, at least thirty (30) days prior to termination,
whereupon the Beneficiary is authorized to draw on us prior to such termination
the Outstanding Amount of this Letter of Credit by presentation to us, in the
manner and at the address specified in the fourth preceding paragraph, of a
drawing request appropriately completed in the form of ANNEX I hereto and sent
and signed by the Beneficiary's authorized officer.
This Letter of Credit is effective immediately.
In the event that a drawing request fails to comply with the
terms of this Letter of Credit we shall provide the Beneficiary prompt notice of
same stating the reasons therefor and shall upon your instructions hold any
non-conforming drawing request and other documents at your disposal or return
any non-conforming drawing request and other documents to the Beneficiary at the
address set forth above. Upon being notified that the drawing was not effected
in compliance with this Letter of Credit, the Beneficiary may attempt to correct
such noncomplying drawing request in accordance with the terms of this Letter of
Credit.
This Letter of Credit sets forth in full the terms of our
undertaking and this undertaking shall not in any way be modified, amended,
limited or amplified by reference to any document, instrument or agreement
referred to herein, except for the drawing requests and certificates referred to
herein.
This Letter of Credit may be transferred upon presentation to
us of a signed transfer certificate in the form of ANNEX 3 accompanied by this
Letter of Credit, in which the Beneficiary irrevocably transfers to such
transferee all of its rights hereunder, whereupon we agree to either issue a
substitute letter of credit to such successor or endorse the reverse of this
Letter of Credit.
Partial drawings under this Letter of Credit are allowed and
each such partial drawing shall reduce the amount thereafter available hereunder
for drawings under this Letter of Credit. This Letter of Credit shall be
reinstated as provided in SECTIONS 2.2(B) and 2.7(B) of the Reimbursement
Agreement and we shall so advise the Beneficiary in a certificate in the form of
ANNEX 4 hereto. The Outstanding Amount shall be reduced or increased as provided
in SECTIONS 2.7(B) and 2.7(C) of the Reimbursement Agreement, subject to
reinstatement as provided in the Reimbursement Agreement. In addition, the
Outstanding Amount shall be reduced increased as provided in SECTIONS 2.2(B) and
2.2(C) of the Reimbursement Agreement to the extent that we so advise the
Beneficiary pursuant to a certificate in the form of ANNEX 5 hereto.
All banking charges, including any advising and negotiating
bank charges, are for the account of the Applicant.
All drawing requests under this Letter of Credit must bear the
clause:
"Drawn under Westdeutsche Landesbank Girozentrale, New York Branch,
Letter of Credit Number ___________WLB dated December __, 2001."
A-6
This Letter of Credit shall not be amended except with the
written concurrence of Westdeutsche Landesbank Girozentrale, New York Branch,
the Applicant and the Beneficiary.
We hereby engage with you that a drawing request drawn
strictly in compliance with the terms of this Letter of Credit and amendments
thereto shall meet with due honor upon presentation.
This Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication Number 500 (the "UNIFORM CUSTOMS"). This Letter of Credit
shall be deemed to be a contract made under the laws of the State of New York
and shall, as to matters not governed by the Uniform Customs, be governed by and
construed in accordance with the laws of such State.
We irrevocably agree with you that any legal action or
proceeding with respect to this Letter of Credit shall be brought in the courts
of the State of New York in the County of New York or of the United States of
America in the Southern District of New York. By signing this Letter of Credit,
we irrevocably submit to the jurisdiction of such courts solely for the purposes
of this Letter of Credit. We hereby waive, to the fullest extent permitted by
law, any objection we may now or hereafter have to the laying of venue in any
such action or proceeding in any such court.
A-7
[SIGNATURE PAGE TO LETTER OF CREDIT]
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
------------------------------
Authorized signature
------------------------------
Authorized signature
A-8
ANNEX I
Drawn under Westdeutsche Landesbank Girozentrale, New York Branch
Letter of Credit Number ______________WLB
dated December __, 2001
DRAWING REQUEST
[Date]
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ____________
Ladies and Gentlemen:
The undersigned hereby draws on Westdeutsche Landesbank
Girozentrale, New York Branch, Letter of Credit No. ____________WLB Irrevocable
Standby Letter of Credit (the "LETTER OF CREDIT") dated December __, 2001,
issued by you in favor of us in connection with that certain Lease Indenture,
dated as of December __, 2001 (as amended, supplemented or modified from time to
time, the "LEASE INDENTURE"), among ▇▇▇▇▇ City OL1 LLC and The Bank of New York,
as successor to the United States Trust Company of New York, as the Lease
Indenture Trustee. Any capitalized term used herein and not defined herein shall
have its respective meaning as set forth in the Letter of Credit or the Lease
Indenture, as applicable.
In connection with this drawing, we hereby certify that:
A) This drawing in the amount of US$__________ is being made pursuant to
Westdeutsche Landesbank Girozentrale, New York Branch, Letter of Credit
No. ____________ Irrevocable Standby Letter of Credit issued to the
Lease Indenture Trustee pursuant to the Reimbursement Agreement;
[Use at least one or more of the following forms of paragraph B, as
applicable]
B) After the transfer of monies on deposit in the Debt Service Reserve
Account in respect of the Lessor Notes and the application of funds
pursuant to Section 3.1 of the Lease Indenture, there are insufficient
monies to pay the [interest] [and] [principal] due on the
A-9
Lessor Notes pursuant to the Lease Indenture on such date (whether due
at stated maturity, at acceleration or otherwise);
or
B) The long-term debt rating of Westdeutsche Landesbank Girozentrale, New
York Branch, has fallen below "A" as determined by Standard & Poor's
Ratings Group or "A2' as determined by ▇▇▇▇▇'▇ Investor Services, Inc.
and ▇▇▇▇▇ City OL1 LLC has failed to provide us with a substitute
letter of credit from another Acceptable Credit Provider or other
Acceptable Credit Support within thirty (30) days of such downgrade.
or
B) We have received a Notice of Action and an Event of Default exists and
is continuing (as each such term is defined in the Lease Indenture),
and such notice remains in effect on the date of this drawing and we
have been directed by the Required Lease Indenture Secured Parties to
draw on this Letter of Credit;
or
B) The Stated Expiration Date will occur within thirty (30) days of the
date hereof and ▇▇▇▇▇ City OL1 LLC has failed to deliver a replacement
or renewal letter of credit letter of from another Acceptable Credit
Provider or other Acceptable Credit Support and security is still
required under the terms of the Lease Indenture.
or
B) You have delivered to us a Notice of Termination of Letter of Credit in
the form of Annex 2 to the Letter of Credit stating that the Letter of
Credit will terminate prior to the Stated Expiration Date and ▇▇▇▇▇
City OL1 LLC has failed to deliver a replacement or renewal letter of
credit from another Acceptable Credit Provider or other Acceptable
Credit Support prior to such termination date and security is still
required under the terms of the Lease Indenture.
C) The amount requested to be drawn does not exceed the Outstanding
Amount; and
D) You are directed to make payment of the requested drawing to account
no. _______ at ____________________ [insert bank name, address and
account number].
A-10
IN WITNESS WHEREOF, the undersigned has executed and delivered
this request on this __ day of_______________, ____.
THE BANK OF NEW YORK, as successor to the
UNITED STATES TRUST COMPANY OF NEW YORK,
as Lease Indenture Trustee
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
▇-▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ OF LETTER OF CREDIT
[Date]
The Bank of New York, as successor to
The United States Trust Company
of New York, as Lease Indenture Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Ladies and Gentlemen:
Reference is made to Westdeutsche Landesbank Girozentrale, New
York Branch, Letter of Credit No. _________WLB Irrevocable Standby Letter of
Credit (the "LETTER OF CREDIT") dated December 7, 2001, issued by us in your
favor.
This constitutes our notice to you pursuant to the Letter of
Credit that the Letter of Credit shall terminate on ____________, ____ [insert a
date which is 30 or more days after the date of this notice of termination] (the
"TERMINATION DATE").
Pursuant to the terms of the Letter of Credit, you are
authorized to draw (pursuant to one or more drawings), prior to the Termination
Date, on the Letter of Credit in an aggregate amount that does not exceed the
Outstanding Amount (as defined in the Letter of Credit).
Very truly yours,
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
----------------------------
By:
----------------------------
▇-▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ OF CREDIT
[Date]
Westdeutsche Landesbank Girozentrale.
New York Branch
1211 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _____________
Ladies and Gentlemen:
Reference is made to Westdeutsche Landesbank Girozentrale, New York Branch,
Letter of Credit No. ______WLB Irrevocable Standby Letter of Credit dated
December 7, 2001 originally issued by you in favor of The Bank of New York, as
successor to the United States Trust Company of New York, as Lease Indenture
Trustee (the "LETTER OF CREDIT") in connection with that certain Lease
Indenture, dated as of December __, 2001 (as amended, supplemented or modified
from time to time, the "LEASE INDENTURE"), among ▇▇▇▇▇ City OL1 LLC, The Bank of
New York, as successor to the United States Trust Company of New York, as
Security Agent and The Bank of New York, as successor to the United States Trust
Company of New York, as Lease Indenture Trustee. Any capitalized term used
herein and not defined shall have its respective meaning as set forth in the
Letter of Credit or in the Lease Indenture, as applicable.
For value received, the undersigned, as beneficiary under the Letter of Credit,
hereby irrevocably transfers to ___________ (the "TRANSFEREE") all rights of the
undersigned to draw under the Letter of Credit in their entirety.
By this transfer, all rights of the undersigned, as beneficiary under the Letter
of Credit, are transferred to the Transferee, and the Transferee shall have the
sole rights with respect to the Letter of Credit relating to any amendments
thereof and any notices thereunder. All amendments to the Letter of Credit are
to be consented to by the Transferee without necessity of any consent of or
notice to the undersigned.
Simultaneously with the delivery of this notice to you, copies of this notice
are being transmitted to the Transferee.
The Letter of Credit is returned herewith, and we ask you to either issue a
substitute letter of credit for the benefit of the Transferee or endorse the
transfer on the reverse thereof, and forward it directly to the Transferee with
your customary notice of transfer.
Very truly yours,
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as successor
to the UNITED STATES TRUST COMPANY
OF NEW YORK, as Lease Indenture
Trustee
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
CONSENTED AND ACKNOWLEDGED BY:
[TRANSFEREE]
By:
-------------------------------
Name:
Title:
▇-▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[Date]
The Bank of New York, as successor to
the United States Trust Company
of New York, as Lease Indenture Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Ladies and Gentlemen:
Reference is made to Westdeutsche Landesbank Girozentrale, New
York Branch, Letter of Credit No. _______WLB Irrevocable Standby Letter of
Credit (the "LETTER OF CREDIT") dated December 7, 2001, issued by us in your
favor. Any capitalized term used herein and not defined shall have its
respective meaning as set forth in the Letter of Credit.
This constitutes our notice to you pursuant to the Letter of
Credit that:
We have received repayment of a DSR Loan in accordance with
the provisions of the Reimbursement Agreement in the amount of
$__________, and, pursuant to SECTION 2.7(C) of the
Reimbursement Agreement, the Outstanding Amount is therefore
increased by such amount to $___________.
A-15
Very truly yours,
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
---------------------------------
By:
---------------------------------
▇-▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[Date]
The Bank of New York, as successor to
the United States Trust Company
of New York, as Lease Indenture Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Ladies and Gentlemen:
Reference is made to Westdeutsche Landesbank Girozentrale, New
York Branch, Letter of Credit No. _________WLB Irrevocable Standby Letter of
Credit (the "LETTER OF CREDIT") dated December __, 2001 issued by us in your
favor in connection with that certain Lease Indenture, dated as of December __,
2001 (as amended, supplemented or modified from time to time, the "LEASE
INDENTURE"), among ▇▇▇▇▇ City OL1 LLC and The Bank of New York, as successor to
the United States Trust Company of New York, as the Lease Indenture Trustee. Any
capitalized term used herein and not defined shall have its respective meaning
as set forth in the Letter of Credit or the Lease Indenture, as applicable.
This constitutes our notice to you pursuant to the Letter of
Credit that we have been advised by the Applicant that:
The Debt Service Reserve Requirement has been
[reduced/increased] by the amount of $________. Accordingly,
pursuant to SECTION 2.2(B) of the Reimbursement Agreement, the
Outstanding Amount is [reduced/increased] by $________ to
$________.
Very truly yours,
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
----------------------------
By:
----------------------------
A-17
EXHIBIT B
DEBT SERVICE RESERVE LETTER OF CREDIT PROMISSORY NOTE
$__________ New York, New York
December __, 2001
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇ CITY OL[1], a
Delaware corporation (the "BORROWER"), hereby unconditionally promises to pay to
the order of [_____] (the "BANK") the lesser of (i) the principal sum of
______________ ($______________) and (ii) the aggregate unpaid principal amount
of the DSR Loans made by the Bank to the Borrower under the Reimbursement
Agreement referred to below, on the dates and in the amounts specified therein.
The Borrower further promises to pay interest on the unpaid
principal amount hereof from time to time outstanding on the dates and at the
rates specified in the Reimbursement Agreement (as herein defined). This DSR
Note is hereby expressly limited so that in no contingency or event, whether by
reason of acceleration of the maturity of any indebtedness evidenced hereby or
otherwise, shall the interest contracted for or charged or received by the Bank
exceed the maximum amount permissible under Applicable Law. If, due to any
circumstance whatsoever, interest would otherwise be payable to the Bank in
excess of the maximum lawful amount, the interest payable to the Bank shall be
reduced to the maximum amount permitted under Applicable Llaw, and the amount of
interest for any subsequent period, to the extent less than that permitted by
Applicable Law, shall to that extent be increased by the amount of such
reduction.
Each holder hereof is irrevocably authorized to endorse on the
schedule attached hereto, or on a continuation thereof, the date each such
interest payment is due and the amount of each such interest payment determined
in accordance with the Reimbursement Agreement. All such notations shall
constitute PRIMA FACIE evidence of the accuracy of the information so recorded
and be enforceable against the Borrower with the same force and effect as if
such amounts were each set forth in a separate note executed by the Borrower.
All payments due hereunder shall be made without setoff,
counterclaim or deduction of any nature to Westdeutsche Landesbank Girozentrale,
New York Branch, as the Agent, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States of America and in immediately
available funds, or at such other place and in such other manner as may be
specified by the Agent pursuant to the Reimbursement Agreement.
Each holder hereof is irrevocably authorized to endorse on the
schedule attached hereto, or on a continuation thereof, the date and amount of
each DSR Loan made to the Borrower and each payment or prepayment of principal
thereof, PROVIDED that the failure of such holder to make, or any error in
making, any such recordation or
B-1
endorsement shall not affect the obligations of the Borrower hereunder or under
the Reimbursement Agreement. All such notations shall constitute PRIMA FACIE
evidence of the accuracy of the information so recorded and be enforceable
against the Borrower with the same force and effect as if such amounts were each
set forth in a separate note executed by the Borrower.
This DSR Note is one of the "DSR Notes" of the Borrower to the
Bank referred to in, evidences each DSR. Loan made by the Bank to the Borrower
under, is subject to the provisions of, and entities its holder to the benefits
of, the Debt Service Reserve Letter of Credit and Reimbursement Agreement, dated
as of December __, 2001 (the "REIMBURSEMENT AGREEMENT"), among the Borrower, the
Bank and the other banks party thereto, and Westdeutsche Landesbank
Girozentrale, New York Branch, as the Issuing Bank and as the Agent for the Bank
and such other banks, as the same may be amended, supplemented or otherwise
modified from time to time and to which reference is hereby made for a more
complete statement of the terms and conditions under which each DSR Loan
evidenced hereby is to be made and repaid. Capitalized terms in this DSR Note
that are not specifically defined herein shall have the meanings ascribed to
them in the Reimbursement Agreement.
The Reimbursement Agreement provides for, among other things,
the acceleration of the maturity of the unpaid principal amount hereof upon the
occurrence of certain stated events and for voluntary prepayments in certain
circumstances and upon certain terms and conditions. The obligations of the
Borrower under the Reimbursement Agreement and this DSR Note are secured by, and
the holder hereof is entitled to the benefit of, the Collateral as provided in
the Security Documents.
In addition to any and all costs, fees and expenses for which
the Borrower is liable under the Reimbursement Agreement, the Borrower promises
to pay all reasonable costs and expenses, including reasonable attorneys' fees
and disbursements, incurred in the collection and enforcement hereof or any
appeal of any judgment rendered hereon.
The Borrower hereby expressly waives presentment, protest,
demand and dishonor to the fullest extent permitted by applicable law. No
failure or delay by any holder of this DSR Note to exercise any right or remedy
under this DSR Note or any other document or instrument entered into pursuant to
the Reimbursement Agreement shall operate or be construed as a waiver or
modification hereof or thereof.
This DSR Note shall be binding upon the successors and assigns
of the Borrower and shall inure to the Bank and its successors, endorsees and
assigns. If any term or provision of this DSR Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions hereof
shall in no way be affected thereby.
Except as may otherwise specifically be provided in the Lease
Indenture of the Participation Agreement, the Borrower's obligation to make
payments in respect of the DSR Notes shall be limited as set forth in SECTION
7.2 and SECTION 9.7 (B) and (C) of the Reimbursement Agreement.
B-2
All payments of principal and interest and all other
amounts to be made by the Owner Lessor hereunder or under the Reimbursement
Agreement (or the Lease Indenture) shall be made only from the income and
proceeds from the Indenture Estate and the Owner Lessor and Lease Indenture
Trustee shall have no obligation for the payment thereof except to the extent
that the Lease Indenture Trustee shall have sufficient income or proceeds
from the Indenture Estate to enable such payments to be made in accordance
with the terms of the Lease Indenture. Each holder hereof, by its acceptance
of this DSR Note, agrees that (a) it will look solely to the income and
proceeds from the Indenture Estate to the extent available for distribution
to the holder hereof as above provided, (b) none of the Lease Indenture
Trustee, Owner Participant, any OP Guarantor, the Owner Manager or the Trust
Company, or any Affiliate of any thereof, is, or shall be, personally liable
to the holder hereof for any amounts payable under this DSR Note or under the
Reimbursement Agreement (or the Lease Indenture) or for any liability under
the Reimbursement Agreement (or the Lease Indenture), except as expressly
provided in the Lease Indenture and (c) any such amounts shall be
non-recourse to the assets of each of the Lease Indenture Trustee, the Owner
Participant, any OP Guarantor, the Owner Manager or the Trust Company, or any
Affiliate of any thereof.
By its acceptance hereof, the holder of this DSR Note
agrees that the Owner Manager is executing this DSR Note on behalf of the
Owner Lessor solely in its capacity as Owner Manager under the Lessor LLC
Agreement and not in its individual capacity and in no case shall the Trust
Company (or any entity acting as Owner Manager under the Lessor LLC
Agreement) be personally liable in respect of the obligations stated to be
those of the Owner Lessor or the Owner Participant hereunder.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICTS OF
LAW PRINCIPLES THEREOF.
The Borrower hereby expressly and irrevocably agrees and
consents that any suit, action or proceeding arising out of or related to this
DSR Note may be instituted in any state or federal court (at the Bank's option)
sitting in the County of New York, State of New York, and, by the execution and
delivery of this DSR Note, the Borrower expressly waives any objection which it
may have now or hereafter to the venue or to the jurisdiction of any such suit,
action or proceeding, and irrevocably submits generally and unconditionally to
the jurisdiction of any such court in any such suit, action or proceeding.
▇▇▇▇▇ CITY OL1 LLC
By:
------------------------
Name:
Title:
B-3
SCHEDULE
AMOUNT AND TOTAL
DATE OF DATE PRINCIPAL
PRINCIPAL PRINCIPAL UNPAID INTEREST AMOUNT OF NOTATION
AMOUNT OF PAID PRINCIPAL PAYMENT IS AMOUNT OF DSR LOANS MADE
DATE DSR LOAN OR PREPAID BALANCE DUE INTEREST DUE OUTSTANDING BY
---- -------- ---------- ------- --- ------------ ----------- --
B-4
EXHIBIT C
FORM OF COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth
in ITEM I of SCHEDULE I hereto, among each Transferor Bank set forth in ITEM 2
of SCHEDULE I hereto (each, a "TRANSFEROR BANK"), each Purchasing Bank set forth
in ITEM 3 of SCHEDULE I hereto (each a "PURCHASING BANK"), and Westdeutsche
Landesbank Girozentrale, New York Branch, as the Issuing Bank and as the Agent
under the Reimbursement Agreement described below.
WITNESSETH
WHEREAS, this Commitment Transfer Supplement is being executed
and delivered in accordance with SECTION 9.9 of the Reimbursement Agreement,
dated as of December __, 2001, by and among (i) ▇▇▇▇▇ City OL1 LLC, a Delaware
limited liability corporation (the "BORROWER"), (ii) Westdeutsche Landesbank
Girozentrale, New York Branch, in its capacity as Issuing Bank (the "ISSUING
BANK") and as a Bank (as defined below), (iii) Credit Suisse First Boston, New
York Branch, as a Bank (as defined below), (iv) each bank or other entity that
is, or becomes pursuant to SECTION 9.9 of the Reimbursement Agreement, a party
thereto (collectively, the "BANKS") and (v) Westdeutsche Landesbank
Girozentrale, New York Branch, as agent (in such capacity, together with its
successors in such capacity, the "AGENT") (as amended, supplemented or otherwise
modified in accordance with the terms thereof from time to time, the
"REIMBURSEMENT AGREEMENT"; terms defined therein being used herein as therein
defined); and
WHEREAS, each Purchasing Bank (if it is not already a Bank
party to the Reimbursement Agreement) desires to become a Bank party to the
Reimbursement Agreement; and
WHEREAS, each Transferor Bank is selling and assigning to its
respective Purchasing Bank, certain rights, obligations and commitments under
the Reimbursement Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of [ ] ([ ]) fully executed
originals of this Commitment Transfer Supplement, to each of which is attached a
fully completed SCHEDULE I, SCHEDULE II and SCHEDULE III, and each of which has
been executed by each Transferor Bank, each Purchasing Bank and any other Person
required by the Reimbursement Agreement to execute this Commitment Transfer
Supplement, the Agent will transmit to the Borrower, each Transferor Bank and
each Purchasing Bank a Transfer Effective Notice, substantially in the form of
SCHEDULE IV hereto (a "TRANSFER EFFECTIVE
C-1
NOTICE"). Such Transfer Effective Notice shall set forth, INTER ALIA, the date
on which the transfer effected by this Commitment Transfer Supplement shall
become effective (the "TRANSFER EFFECTIVE DATE"), which date shall be the date
hereof. From and after the Transfer Effective Date, each Purchasing Bank shall
be a Bank party to the Reimbursement Agreement for all purposes thereof.
2. Each Purchasing Bank shall pay to each of its respective
Transferor Banks an amount equal to the purchase price, as agreed between such
Transferor Bank and each such Purchasing Bank and as set forth on SCHEDULE II
hereto (the "PURCHASE PRICE"), of the portion being purchased (such Purchasing
Bank's "PURCHASED PERCENTAGE") by such Purchasing Bank of the outstanding DSR
Loans and other amounts owing to the respective Transferor Bank under the
Reimbursement Agreement and the DSR Notes (the "OUTSTANDING OBLIGATIONS"). Each
Purchasing Bank shall pay the appropriate Purchase Price to each of its
respective Transferor Banks, in immediately available funds, at or before 12:00
noon, local time of the appropriate Transferor Bank, on the first Business Day
of the month in which the Transfer Effective Date occurs. Effective upon the
Transfer Effective Date, each Transferor Bank hereby irrevocably sells, assigns
and transfers to each of its respective Purchasing Banks, without recourse,
representation or warranty other than as set forth in SECTION 8 hereof, and each
such Purchasing Bank hereby irrevocably purchases, takes and assumes from each
of its respective Transferor Banks, such Purchasing Bank's Purchased Percentage
of the Commitment, presently outstanding DSR Loans and other amounts owing to
each such Transferor Bank under the Reimbursement Agreement and the DSR Notes,
together with all instruments, documents and collateral security pertaining
thereto.
3. Each Transferor Bank has made arrangements with each of its
respective Purchasing Banks with respect to (a) the portion, if any, to be paid,
and the date or dates for payment, by such Transferor Bank to each of its
respective Purchasing Banks of any fees heretofore received by such Transferor
Bank pursuant to the Reimbursement Agreement prior to the Transfer Effective
Date and (b) the portion, if any, to be paid, and the date or dates for payment,
by each such Purchasing Bank to each Transferor Bank, or by each such Transferor
Bank to each Purchasing Bank, of fees or interest received by each such
Purchasing Bank or each such Transferor Bank, as the case may be, pursuant to
the Reimbursement Agreement from and after the Transfer Effective Date . Any
interest, accrued from and after the Transfer Effective Date, with respect to
principal of the DSR Loans for which the Purchase Price has yet to be paid under
SECTION 2 above, shall accrue for the benefit of the appropriate Transferor Bank
to the extent of the Adjusted Base Rate and shall accrue for the benefit of the
appropriate Purchasing Bank to the extent of the applicable interest rate less
the Adjusted Base Rate.
4. (a) All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of any
Transferor Bank pursuant to the Reimbursement Agreement and the DSR Notes shall,
instead, be payable to or for the account of the appropriate Transferor Banks
and the appropriate Purchasing Banks, as the case may be, in accordance with
their respective interests as reflected in this Commitment Transfer Supplement.
C-2
(b) Except as otherwise agreed as set forth in SECTION 3
hereof, all interest, fees and other amounts that would otherwise accrue for the
account of any Transferor Bank from and after the Transfer Effective Date
pursuant to the Reimbursement Agreement and the DSR Notes shall, instead, accrue
for the account of, and be payable to, the appropriate Transferor Banks and the
appropriate Purchasing Banks, as the case may be, in accordance with their
respective interests as reflected in this Commitment Transfer Supplement. In the
event that any amount of interest, fees, or other amounts accruing prior to the
Transfer Effective Date was included in the Purchase Price paid by any
Purchasing Bank, the appropriate Transferor Bank and such Purchasing Bank will
make appropriate arrangements for payment by such Transferor Bank to such
Purchasing Bank of such amount upon receipt thereof from the Borrower.
5. On or prior to the Transfer Effective Date, each Transferor
Bank will deliver to the Agent its DSR Note[s] . On or prior to the Transfer
Effective Date, the Borrower will deliver to the Agent new DSR Notes for each
Purchasing Bank and each Transferor Bank, in each case in principal amounts
reflecting, in accordance with the Reimbursement Agreement, their respective
"Revised Commitment Percentage" or "New Commitment Percentage," as the case may
be and as set forth in SCHEDULE III hereto, of the Commitment or, as
appropriate, their then outstanding shares of the Outstanding Obligations (as
adjusted pursuant to this Commitment Transfer Supplement) . Promptly after the
Transfer Effective Date, the Agent will send to each Transferor Bank and
Purchasing Bank its new DSR Notes[s) with the superseded DSR Note[s] of each
Transferor Bank attached to the new DSR Note[s] (or if more than one new DSR
Note, the superseded DSR Note[s] attached to one of such new DSR Note(s) and
copies thereof attached to all other new DSR Note).
6. Concurrently with the execution and delivery hereof, the
Transferor Banks will provide to each Purchasing Bank (if it is not already a
Bank party to the Reimbursement Agreement) copies of all documents delivered to
the Transferor Banks evidencing satisfaction of the conditions precedent set
forth in the Reimbursement Agreement.
7. Each of the parties to this Commitment Transfer Supplement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, each Transferor Bank and each of its respective Purchasing Banks
confirm to and agree with each other, the Agent, the Issuing Bank and the Banks
as follows: (a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, each such Transferor Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Reimbursement Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Reimbursement Agreement, the DSR Notes or any other instrument or
C-3
document furnished pursuant thereto, (b) each such Transferor Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Reimbursement Agreement, the DSR
Notes or any other instrument or document furnished pursuant hereto, (c) each
such Purchasing Bank confirms that it has received a copy of the Reimbursement
Agreement, together with copies of such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Commitment Transfer Supplement, (d) each such Purchasing Bank will,
independently and without reliance upon the Agent, its respective Transferor
Banks or any other Bank or the Issuing Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Reimbursement
Agreement, (e) each such Purchasing Bank appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Reimbursement Agreement as are delegated to the Agent by the terms thereof
together with such powers as are reasonably incidental thereto and (f) each such
Purchasing Bank agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Reimbursement Agreement are
required to be performed by it as a Bank and that it will be bound by the
terms and provisions thereof as a Bank.
9. SCHEDULE ILL hereto sets forth for each Transferor Bank and
each Purchasing Bank the revised Commitment, and/or Commitment Percentage, as
the case may be, of each Transferor Bank and each Purchasing Bank, as well as
certain administrative information with respect to each Purchasing Bank.
10. Notwithstanding anything to the contrary in this
Commitment Transfer Supplement, if the long-term debt rating of any Purchasing
Bank shall, at any time, be less than a rating of A or the equivalent thereof by
S&P or A2 or the equivalent thereof by ▇▇▇▇▇'▇, then the Issuing Bank may, in
its sole and absolute discretion, purchase all or any part (as designated by the
Issuing Bank) of such Purchasing Bank's participating interest hereunder (the
"PURCHASED INTERESTS") (which, if in part, may be limited to the Purchasing
Bank's participating interest in the rights and obligations of the Issuing Bank
under, and in connection with, one or more Debt Service Reserve Letters of
Credit, including, without limitation, the obligations to pay the Issuing Bank
if it is not reimbursed by the Borrower in immediately available funds for any
drawings under such Debt Service Reserve Letter of Credit and to make certain
loans, if any, provided to be made under the Reimbursement Agreement in the
event of certain drawings under such Debt Service Reserve Letter of Credit, all
in accordance with the Reimbursement Agreement) by providing such Purchasing
Bank with at least two Banking Days' prior notice of such purchase and making a
payment to such Purchasing Bank for all outstanding amounts owing to it
hereunder or pursuant to the Reimbursement Agreement in respect of the Purchased
Interests on the date of such purchase as set forth in such notice . Upon any
such purchase of all of a Purchasing Bank's participating interest hereunder,
such Purchasing Bank shall no longer have any rights or obligations as a
Purchasing Bank hereunder or as a Bank under the Reimbursement Agreement or
under any other instruments or documents furnished pursuant thereto. The
Issuing Bank may,
C-4
in its sole and absolute discretion, retain for its own account and/or sell its
interest in all or any portion of the Purchased Interests.
11. THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
12. This Commitment Transfer Supplement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
13. Execution of this Commitment Transfer Supplement by the
Agent as set forth below shall constitute the consent of such Person required
pursuant to SECTION 9.9 of the Reimbursement Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Transfer Supplement to be executed by their respective duly
authorized officers on SCHEDULE I hereto as of the date set forth in ITEM I of
SCHEDULE I hereto.
C-5
SCHEDULE I TO COMMITMENT
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Re:
Debt Service Reserve Letter of Credit and Reimbursement
Agreement, dated as of December __, 2001, with ▇▇▇▇▇ CITY
OL1 LLC, as the Borrower.
Item 1 Date of Commitment Transfer [Insert date of Commitment
Supplement: Transfer Supplement]
Item 2 Transferor: [Insert names of Transferor
Banks]
Item 3 Purchasing Banks: [Insert names of Purchasing
Banks]
Item 4 Signatures of Parties to Commitment
Transfer Supplement:
--------------------------------,
as a Transferor Bank
By:
-----------------------------
Name:
Title:
--------------------------------,
as a Purchasing Bank
By:
------------------------------
Name:
Title:
Westdeutsche Landesbank Girozentrale,
New York Branch, as the Issuing Bank
and the Agent
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
C-6
SCHEDULE II TO COMMITMENT
TRANSFER SUPPLEMENT
PURCHASE PRICES
Names of
Transfer Banks
--------------
-----------------------------------------------------------------------------------------------------------
Names of [Insert name of [Insert name of [Insert name of
Purchaser Banks Transferor Bank] Transferor Bank] Transferor Banks ]
--------------- --------------- --------------- ----------------
-----------------------------------------------------------------------------------------------------------
[Insert name of Purchasing $[Insert Purchase Price] $[Insert Purchase Price] $[Insert Purchase Price]
Bank]
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
C-7
SCHEDULE III TO COMMITMENT
TRANSFER SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES FOR NOTICES,
COMMITMENT AMOUNTS, AND PROPORTIONATE SHARES
--------------------------------------------
-----------------------------------------------------------------------------------------------------------
Names of Transferor Banks Revised Maximum Commitment
------------------------- --------------------------
-----------------------------------------------------------------------------------------------------------
[ ] $
-----------------------------------------------------------------------------------------------------------
[ ] $
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Names of Transferor Banks Revised Commitment Percentage
------------------------- -----------------------------
-----------------------------------------------------------------------------------------------------------
[ ] %
-----------------------------------------------------------------------------------------------------------
[ ] %
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Names of Purchasing Banks New Maximum Commitment
------------------------- ----------------------
-----------------------------------------------------------------------------------------------------------
[ ] %
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Names of Purchasing Banks Commitment Percentage
------------------------- ---------------------
-----------------------------------------------------------------------------------------------------------
[ ] %
-----------------------------------------------------------------------------------------------------------
C-8
[NAME OF PURCHASING BANK(S)]
Address for Notices:
Attention:
Telex:
Answerback:
Telephone:
Telecopier:
Clearing Account:
[Insert Acct. #1]
Eurodollar Lending Office:
[Insert Address]
Domestic Lending Office:
[Insert Address]
C-9
SCHEDULE IV TO COMMITMENT
TRANSFER SUPPLEMENT
TRANSFER EFFECTIVE NOTICE
----------, ----
Transferor Banks: [ ]
Purchasing Banks: [ ]
Borrower: ▇▇▇▇▇ CITY OL1 LLC
The undersigned, as the Agent under the
Debt Service Reserve
Letter of Credit and Reimbursement Agreement, dated as of December __, 2001 by
and among (i) ▇▇▇▇▇ City OL1 LLC, a Delaware limited liability corporation (the
"BORROWER"), (ii) Westdeutsche Landesbank Girozentrale, New York Branch, as
Issuing Bank (the "ISSUING BANK"), and the other Banks named therein
(collectively, the "BANKS"), and (iii) Westdeutsche Landesbank Girozentrale, New
York Branch, as agent for the Banks (the "AGENT") (as amended, supplemented or
otherwise modified in accordance with the terms thereof from time to time, the
"REIMBURSEMENT AGREEMENT") acknowledge receipt of [ ] ([ ]) copies of the
Commitment Transfer Supplement as described in ANNEX I hereto, each fully
executed. Terms defined in such Commitment Transfer Supplement are used herein
as therein defined.
1. Pursuant to such Commitment Transfer Supplement, you are
advised that the Transfer Effective Date will be the date hereof.
2. Pursuant to such Commitment Transfer Supplement, each
Transferor Bank is required to deliver to the Agent on or before the Transfer
Effective Date its DSR Note[s].
3. Pursuant to such Commitment Transfer Supplement, the
Borrower is required to deliver to the Agent on or before the Transfer Effective
Date the following DSR Notes:
[Describe each new DSR Note for Transferor Bank and Purchasing
Bank as to principal amount and payee.]
4. Pursuant to such Commitment Transfer Supplement, each
Purchasing Bank is required to pay its Purchase Price, in immediately available
funds, to the appropriate Transferor Bank at or before 12:00 noon, local time of
the appropriate Transferor Bank, on [the first Business Day of the month in
which the Transfer Effective Date occurs]).
C-10
Very truly yours,
Westdeutsche Landesbank Girozentrale,
New York Branch, as the Agent:
By:
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Name:
Title:
By:
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Name:
Title:
C-11
ANNEX I
INFORMATION FOR
COMMITMENT TRANSFER SUPPLEMENT
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Re:
Debt Service Reserve Letter of Credit and Reimbursement
Agreement, dated as of December __ 2001, with ▇▇▇▇▇
City OL1 LLC, as the Borrower
Item 1 Date of Commitment Transfer ___________, ____
Supplement:
Item 2 Transferor: [ ]
Item 3 Purchasing Banks: [ ]
C-12
Schedule I
▇▇▇▇▇ City OL1 LLC Filings with the Securities and Exchange Commission
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