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EXHIBIT 4.3
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LOAN AGREEMENT
Dated as of June 4, 1999
among
NRG NORTHEAST GENERATING LLC,
THE SUBSIDIARY GUARANTORS PARTY HERETO
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
as an Administrative Agent and Collateral Agent
and
CITIBANK, N.A.,
as an Administrative Agent and Paying Agent
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
as Documentation Agent
$686,564,000
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS..........................................................................................1
SECTION 1.01. Defined Terms.............................................................................1
SECTION 1.02. Terms Generally..........................................................................26
SECTION 1.03. Accounting Terms; GAAP...................................................................26
ARTICLE II. THE CREDITS.........................................................................................27
SECTION 2.01. The Commitments..........................................................................27
SECTION 2.02. Loans and Borrowings.....................................................................27
SECTION 2.03. Requests for Borrowings..................................................................28
SECTION 2.04. Funding of Borrowings....................................................................29
SECTION 2.05. Interest Elections.......................................................................29
SECTION 2.06. Termination and Reduction of the Commitments.............................................31
SECTION 2.07. Repayment of Loans; Evidence of Debt.....................................................31
SECTION 2.08. Prepayment of Loans......................................................................33
SECTION 2.09. Fees. 34
SECTION 2.10. Interest.................................................................................35
SECTION 2.11. Alternate Rate of Interest...............................................................36
SECTION 2.12. Increased Costs..........................................................................36
SECTION 2.13. Break Funding Payments...................................................................37
SECTION 2.14. Taxes. 38
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..............................39
SECTION 2.16. Mitigation Obligations; Replacement of Lenders...........................................40
ARTICLE III. GUARANTEE...........................................................................................41
SECTION 3.01. The Guarantee............................................................................41
SECTION 3.02. Obligations Unconditional................................................................42
SECTION 3.03. Reinstatement............................................................................42
SECTION 3.04. Subrogation..............................................................................43
SECTION 3.05. Remedies.................................................................................43
SECTION 3.06. Instrument for the Payment of Money......................................................43
SECTION 3.07. Continuing Guarantee.....................................................................43
SECTION 3.08. Rights of Contribution...................................................................43
SECTION 3.09. General Limitation on Guarantee Obligations..............................................44
SECTION 3.10. Effectiveness............................................................................45
ARTICLE IV. REPRESENTATIONS AND WARRANTIES......................................................................45
SECTION 4.01. Organization; Powers.....................................................................45
SECTION 4.02. Authorization; Enforceability............................................................45
SECTION 4.03. Governmental Approvals; No Conflicts.....................................................45
SECTION 4.04. Financial Condition; No Material Adverse Change..........................................46
SECTION 4.05. Properties...............................................................................47
SECTION 4.06. Litigation and Environmental Matters.....................................................47
SECTION 4.07. Compliance with Laws and Agreements......................................................47
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SECTION 4.08. Investment Company Status................................................................47
SECTION 4.09. Taxes....................................................................................48
SECTION 4.10. ERISA....................................................................................48
SECTION 4.11. Disclosure...............................................................................48
SECTION 4.12. Use of Credit............................................................................48
SECTION 4.13. Material Agreements and Liens............................................................48
SECTION 4.14. Capitalization...........................................................................49
SECTION 4.15. Subsidiaries and Investments.............................................................49
SECTION 4.16. Utility Regulation.......................................................................50
ARTICLE V. CONDITIONS PRECEDENT.................................................................................50
SECTION 5.01. Effective Date...........................................................................50
SECTION 5.02. Conditions Precedent for each Term Loan..................................................53
SECTION 5.03. Conditions Precedent for each Revolving Loan.............................................56
ARTICLE VI. AFFIRMATIVE COVENANTS...............................................................................57
SECTION 6.01. Financial Statements and Other Information...............................................57
SECTION 6.02. Notices of Material Events...............................................................58
SECTION 6.03. Existence; Conduct of Business...........................................................59
SECTION 6.04. Payment of Obligations...................................................................59
SECTION 6.05. Maintenance of Properties; Insurance.....................................................59
SECTION 6.06. Books and Records; Inspection Rights.....................................................60
SECTION 6.07. Compliance with Laws and Contractual Obligations.........................................60
SECTION 6.08. Use of Proceeds..........................................................................60
SECTION 6.09. Rating of Index Debt.....................................................................60
SECTION 6.10. Certain Obligations Respecting Subsidiaries..............................................61
SECTION 6.11. Casualty Events..........................................................................61
SECTION 6.12. EWG Status...............................................................................62
SECTION 6.13. Debt Service Reserve Account.............................................................62
ARTICLE VII. NEGATIVE COVENANTS.................................................................................65
SECTION 7.01. Indebtedness.............................................................................65
SECTION 7.02. Liens....................................................................................66
SECTION 7.03. Fundamental Changes......................................................................66
SECTION 7.04. Investments..............................................................................66
SECTION 7.05. Restricted Payments......................................................................67
SECTION 7.06. Transactions with Affiliates.............................................................67
SECTION 7.07. Restrictive Agreements...................................................................67
SECTION 7.08. [Reserved.]..............................................................................68
SECTION 7.09. Capital Expenditures.....................................................................68
SECTION 7.10. Modifications of Certain Documents.......................................................68
SECTION 7.11. Fuel Agreements..........................................................................69
SECTION 7.12. Power Marketing Agreements...............................................................69
SECTION 7.13. Power Purchase Agreements................................................................69
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ARTICLE VIII. EVENTS OF DEFAULT.................................................................................69
ARTICLE IX. THE AGENTS..........................................................................................72
ARTICLE X. MISCELLANEOUS........................................................................................75
SECTION 10.01. Notices.................................................................................75
SECTION 10.02. Waivers; Amendments.....................................................................76
SECTION 10.03. Expenses; Indemnity; Damage Waiver......................................................76
SECTION 10.04. Successors and Assigns..................................................................78
SECTION 10.05. Survival................................................................................80
SECTION 10.06. Counterparts; Integration; Effectiveness................................................80
SECTION 10.07. Severability............................................................................81
SECTION 10.08. Right of Setoff.........................................................................81
SECTION 10.09. Governing Law; Jurisdiction; Etc........................................................81
SECTION 10.10. Waiver Of Jury Trial....................................................................82
SECTION 10.11. Headings................................................................................82
SECTION 10.12. Treatment of Certain Information; Confidentiality.......................................82
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Subject Governmental Approvals
SCHEDULE IV Litigation
SCHEDULE V - Environmental Matters
SCHEDULE VI - Subsidiaries and Investments
SCHEDULE VII - Governmental Approvals
SCHEDULE VIII - Insurance Requirements
SCHEDULE IX - Permitted Encumbrances
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Security Agreement
EXHIBIT C - Form of Pledge Agreement
EXHIBIT D - Form of Guarantee Assumption Agreement
EXHIBIT E - Form of PMI Security Agreement
EXHIBIT F - [Reserved]
EXHIBIT G - Form of Equity Contribution Agreement
EXHIBIT H - Form of Consent and Agreement
EXHIBIT I - Form of Debt Service Reserve Letter of Credit
EXHIBIT J - Form of Debt Service Reserve Guarantee
EXHIBIT K - Form of Intercompany Note
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LOAN AGREEMENT
LOAN AGREEMENT dated as of June 4, 1999 among NRG NORTHEAST
GENERATING LLC, the SUBSIDIARY GUARANTORS party hereto, the LENDERS party
hereto, THE CHASE MANHATTAN BANK, as an Administrative Agent and as Collateral
Agent and CITIBANK, N.A., as an Administrative Agent and as Paying Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) make loans to it, under the guarantee of the Subsidiary
Guarantors (as so defined), in an aggregate principal amount not exceeding
$686,564,000, to finance four separate acquisitions of electricity generating
assets. These acquisitions include the Dunkirk and ▇▇▇▇▇▇▇ generating facilities
from Niagara Mohawk Power Corporation, the Astoria and ▇▇▇▇▇▇ Kill generating
facilities from Consolidated Edison Company of New York, Inc., the Somerset
generating facilities from Montaup Electric Company and the Oswego generating
facility from Niagara Mohawk Power Corporation. The Lenders are prepared to make
such loans upon the terms and conditions hereof, and, accordingly, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acceptable Bank" means any bank or trust company which (a) is
organized under the laws of the United States of America, any state thereof, any
other member of the Organization for Economic Cooperation and Development or
Japan and has an office in the United States of America, (b) has capital,
surplus and undivided profits of at least $1,000,000,000 and (c) has outstanding
long-term unsecured indebtedness which is rated "A-" or better by S&P and "A3"
or better by ▇▇▇▇▇'▇ (or an equivalent rating by another nationally recognized
statistical rating organization of similar standing if neither such corporation
is in the business of rating long-term unsecured bank indebtedness).
"Acceptable Guarantor" means any Person which (a) is organized
under the laws of any state of the United States of America, (b) has an
aggregate stockholders' equity of at least $250,000,000 and (c) has outstanding
long-term unsecured indebtedness which is rated "BBB-" or better by S&P and
"Baa3" or better by ▇▇▇▇▇'▇.
"Acquisition Documents" means the Dunkirk/▇▇▇▇▇▇▇ Acquisition
Documents, the Somerset Acquisition Documents, the Con Ed Acquisition Documents
or the Oswego Acquisition Documents or any combination thereof (as the context
requires).
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LOAN AGREEMENT
"Acquisitions" means the Con Ed Acquisition, the
Dunkirk/▇▇▇▇▇▇▇ Acquisition, the Somerset Acquisition or the Oswego Acquisition,
or any combination thereof (as the context requires).
"Additional Project Document" means (a) any contract or
agreement entered into by the Borrower or any of its Subsidiaries relating to
the Restoration of Affected Property undertaken in accordance with Section 6.11
or (b) any other contract or agreement (other than any Project Document, any
Permitted Fuel Agreement, any Permitted Power Marketing Agreement or any
Permitted Power Purchase Agreement) entered into by the Borrower or any of its
Subsidiaries in the ordinary course of its business relating to acquisition,
ownership, leasing, occupation, operation, maintenance or use of the Facilities
and under which the Borrower or such Subsidiary, as the case may be, shall have
obligations not in excess of $5,000,000 under any such contract or agreement or
$20,000,000 in the aggregate as to all such agreements.
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agents" means Chase and Citibank acting
jointly, in their respective capacities as administrative agents for the Lenders
hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied to the Lenders by the Administrative Agents.
"Affected Property" means, with respect to any Casualty Event,
the property of the Borrower and its Subsidiaries lost, destroyed, damaged,
condemned or otherwise taken as a result of such Casualty Event.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the Prime Rate in effect on such day. Any change in the Alternate Base
Rate due to a change in the Prime Rate shall be effective from and including the
effective date of such change in the Prime Rate.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments or Loans of all Classes hereunder
represented by the aggregate amount of such Lender's Commitments or Loans of all
Classes hereunder.
"Applicable Rate" means, for any day, with respect to any ABR
Loan or Eurodollar Loan, the applicable rate per annum set forth below under the
caption "ABR Spread" or "Eurodollar Spread" based upon the ratings by ▇▇▇▇▇'▇
and S&P, respectively, applicable on such date to the Index Debt:
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LOAN AGREEMENT
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Index Debt Ratings: ABR Spread Eurodollar Spread
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Category 1 0.125% 1.125%
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Category 2 0.250% 1.250%
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Category 3 1.500% 2.500%
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For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 2; (ii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the Index
Debt shall fall within different Categories, the Applicable Rate shall be based
on the lower of the two ratings; and (iii) if the ratings established or deemed
to have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency. Each change in the Applicable Rate shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"▇▇▇▇▇▇ Kill Facility" means the electrical generating plant
and related property, plant and equipment to be purchased by ▇▇▇▇▇▇ Kill Power
pursuant to, and as more fully described in, the Con Ed Acquisition Documents.
"▇▇▇▇▇▇ Kill Operator" means NRG ▇▇▇▇▇▇ Kill Operations Inc.,
a Delaware corporation.
"▇▇▇▇▇▇ Kill Power" means ▇▇▇▇▇▇ Kill Power LLC, a Delaware
limited liability company.
"Astoria Facility" means the electrical generating plant and
related property, plant and equipment to be purchased by Astoria Power pursuant
to, and as more fully described in, the Con Ed Acquisition Documents.
"Astoria Operator" means NRG Astoria Gas Turbines Operations
Inc., a Delaware corporation.
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LOAN AGREEMENT
"Astoria Power" means Astoria Gas Turbine Power LLC, a
Delaware limited liability company.
"Availability Period" means the period from and including the
Effective Date to and including (a) in the case of Revolving Loans, the date one
Business Day prior to the Maturity Date and (b) in the case of all other Loans,
February 15, 2000.
"Available Revolver Amount" means, as at any date of
determination, the aggregate amount of all Revolver Amounts as at such date.
"Base Case Financial Model" means the financial model and
associated assumptions of the operations of the Facilities as reviewed as to
capital expenditures, operating costs and other related matters by the
Independent Engineer in the form delivered to the Lenders on or before the date
hereof.
"Basic Documents" means, collectively, the Loan Documents and
the Project Documents.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means NRG Northeast Generating LLC, a Delaware
limited liability company.
"Borrower LLC Agreement" means the Limited Liability Company
Agreement dated as of March 11, 1999 by and between NRG Eastern and NRG
Generation as the same shall, subject to Section 7.11, be modified and
supplemented and in effect from time to time.
"Borrowing" means (a) all ABR Loans of the same Class made,
converted or continued on the same date or (b) all Eurodollar Loans of the same
Class that have the same Interest Period. For purposes hereof, the date of a
Borrowing comprising one or more Loans that have been converted or continued
shall be the effective date of the most recent conversion or continuation of
such Loan or Loans.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made by the Borrower or any of its Subsidiaries to acquire or
construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP.
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LOAN AGREEMENT
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" means, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Category 1" means a period during which each of the following
is true (a) the rating most recently published by ▇▇▇▇▇'▇ for the Index Debt
then outstanding is equal to or better than "Baa2" and (b) the rating most
recently published by S&P for the Index Debt then outstanding is equal to or
better than "BBB".
"Category 2" means (a) initially, the period commencing on the
date hereof and ending on the date which is the earlier of (but excluding such
date in the case of clause (i); and including such date in the case of clause
(ii)) (i) the date on which ▇▇▇▇▇'▇ or S&P, as the case may be, shall have
issued a rating on the Index Debt and (ii) the date which is 150 days after the
date hereof or (b) a period (other than a Category 1 period) during which each
of the following is true (i) the rating most recently published by ▇▇▇▇▇'▇ for
the Index Debt then outstanding is equal to or better than "Baa3" and (ii) the
rating most recently published by S&P for the Index Debt then outstanding is
equal to or better than "BBB-".
"Category 3" means (a) in the event that the Index Debt is not
rated by ▇▇▇▇▇'▇ or S&P on or before the 150th Day following the date hereof,
the period commencing on but not including such 150th Day and ending on (but not
including) the day on which ▇▇▇▇▇'▇ or S&P, as the case may be, shall have
issued a rating on the Index Debt or (b) a period during which the ratings on
the Index Debt would not qualify under Category 1 or Category 2.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than the Sponsor, of ownership interests representing more than 50% of the
aggregate ordinary voting power represented by the membership interests of the
Borrower; (b) the acquisition of direct or indirect Control of the Borrower by
any Person or group other than the Sponsor; or (c) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than the Sponsor, of any ownership interest in Power Marketing, or any
ownership interest in NRG Operating Services, Inc.
or any ownership interest in any Operator.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or
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LOAN AGREEMENT
(c) compliance by any Lender (or, for purposes of Section 2.12(b), by any
lending office of such Lender or by such Lender's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank.
"Citibank" means Citibank, N.A.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Revolving Loans, Tranche A Loans, Tranche B Loans, Tranche C Loans or Tranche D
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, Tranche A Commitment, Tranche B
Commitment, Tranche C Commitment or Tranche D Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means a Revolving Commitment, Tranche A
Commitment, Tranche B Commitment, Tranche C Commitment or Tranche D Commitment,
or any combination thereof (as the context requires).
"Con Ed" means Consolidated Edison Company of New York, Inc.
"Con Ed Acquisition" means, collectively, the purchase by
▇▇▇▇▇▇ Kill Power of the ▇▇▇▇▇▇ Kill Facility and the purchase by Astoria Power
of the Astoria Facility, in each case pursuant to the Con Ed Acquisition
Documents and for all purposes of this Agreement (except where otherwise
specifically noted herein), such purchases together shall constitute one
Acquisition.
"Con Ed Acquisition Documents" means the Generating Plant and
Gas Turbine Asset Purchase and Sale Agreement dated as of January 27, 1999
between the Sponsor and Con Ed and each of the other agreements attached as a
form thereto.
"Consent and Agreement" means each Consent and Agreement
substantially in the form of Exhibit H by and between the Collateral Agent and
each Person (other than the Borrower or any Subsidiary of the Borrower) party to
a Corporate Service Agreement, Operations and Maintenance Agreement, Power Sales
Agreement, Transition Agreement or Additional Project Document, as the same
shall be modified and supplemented and in effect from time to time.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Corporate Services Agreement" means (a) the Corporate
Services Agreement to be entered into between the Sponsor and Astoria Power, (b)
the Corporate Services Agreement to be entered into between the Sponsor and
▇▇▇▇▇▇ Kill Power, (c) the Corporate Services
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LOAN AGREEMENT
Agreement to be entered into between the Sponsor and Dunkirk Power, (d) the
Corporate Services Agreement to be entered into between the Sponsor and ▇▇▇▇▇▇▇
Power, (e) the Corporate Services Agreement to be entered into between the
Sponsor and Somerset Power and (f) the Corporate Services Agreement to be
entered into between the Sponsor and Oswego Harbor Power or any combination
thereof (as the context requires).
"Debt Incurrence" means the incurrence by the Borrower or any
of its Subsidiaries after the Effective Date of any Indebtedness.
"Debt Service Reserve Account" has the meaning set forth in
Section 6.13.
"Debt Service Reserve Amount" means a Tranche A DSR Amount,
Tranche B DSR Amount, Tranche C DSR Amount or Tranche D DSR Amount, or any
combination thereof (as the context requires).
"Debt Service Reserve Guarantee" means a guarantee of an
Acceptable Guarantor executed and delivered to the Collateral Agent to support
the obligations of the Borrower hereunder with respect to all or a part of its
obligations to fund the Debt Service Reserve Account and permitting demands for
payment thereunder as contemplated by Section 6.13, in each case:
(i) in substantially the form attached hereto as Exhibit J;
(ii) with a term ending no earlier than the Maturity Date; and
(iii) providing for the amount thereof to be made available in
full to the Collateral Agent in multiple payments upon the demand of
the Collateral Agent.
"Debt Service Reserve Letter of Credit" means one or more
irrevocable direct pay letters of credit available for the purpose of drawing to
satisfy the obligations of the Borrower with respect to all or a part of its
obligations to fund the Debt Service Reserve Account hereunder and permitting
draws thereon as contemplated by Section 6.13, in each case:
(i) issued to the Collateral Agent (for the benefit of the
Lenders) by an Acceptable Bank;
(ii) in substance substantially similar to the form attached
hereto as Exhibit I;
(iii) expiring not earlier than the latest to occur of (a) the
date on which the stated amount is drawn down to zero, (b) the date on
which the Collateral Agent returns the letter of credit to the issuer
for cancellation and (c) the Maturity Date;
(iv) providing for the amount thereof to be made available in
full to the Collateral Agent in multiple drawings conditioned only upon
the presentation of a sight draft accompanied by the applicable
certificate in the form attached to such letter of credit; and
(v) which the Borrower certifies in a certificate of a
Financial Officer does not constitute Indebtedness of the Borrower and
is not secured by a Lien on any of the property of the Borrower.
"Debt Service Reserve Requirement" means, as at any date of
determination, the aggregate amount of all Debt Service Reserve Amounts as at
such date.
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LOAN AGREEMENT
"Debt Service Reserve Shortfall" means, as at any date of
determination, the excess of the Debt Service Reserve Requirement over the
credit balance of the Debt Service Reserve Account as at such date.
"Debt Service Reserve Support Instrument" means one or more
Debt Service Guarantees or one or more Debt Service Letters of Credit or both
(as the context requires).
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule IV and the environmental matters disclosed in Schedule V.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any Person other than the Borrower or any
Subsidiary Guarantor excluding any sale, assignment, transfer or other
disposition of any property sold or disposed of in the ordinary course of
business and on ordinary business terms.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Dunkirk Facility" means, collectively, the electrical
generating plant and related properties, plants and equipment to be purchased by
Dunkirk Power pursuant to, and as more fully described in, the Dunkirk/▇▇▇▇▇▇▇
Acquisition Documents.
"Dunkirk Operator" means NRG Dunkirk Operations Inc., a
Delaware corporation.
"Dunkirk Power" means Dunkirk Power LLC, a Delaware limited
liability company.
"Dunkirk/▇▇▇▇▇▇▇ Acquisition" means, collectively, the
purchase by Dunkirk Power of the Dunkirk Facility and the purchase by ▇▇▇▇▇▇▇
Power of the ▇▇▇▇▇▇▇ Facility, in each case pursuant to the Dunkirk/▇▇▇▇▇▇▇
Acquisition Documents and for all purposes of this Agreement (except as
otherwise specifically noted herein), such purchases together shall constitute
one Acquisition.
"Dunkirk/▇▇▇▇▇▇▇ Acquisition Documents" means the Asset Sales
Agreement between the Sponsor and Niagara Mohawk Power Corporation dated as of
December 23, 1998 and each of the other agreements attached as a form thereto.
"Dunkirk/▇▇▇▇▇▇▇ Distribution" means a distribution by the
Borrower in an aggregate amount not to exceed $221,245,000 made on the date of
initial disbursement of Tranche A Loans.
"Dunkirk/▇▇▇▇▇▇▇ Equity Contribution" means an Equity
Contribution (as defined in the Equity Contribution Agreement) to the Borrower
made by the Sponsor (indirectly through
13
-9-
LOAN AGREEMENT
the Members) prior to the initial disbursement of Tranche A Loans in an
aggregate amount not less than the aggregate purchase price to be paid by
Dunkirk Power and ▇▇▇▇▇▇▇ Power in connection with the Dunkirk/▇▇▇▇▇▇▇
Acquisition.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices, standards
or binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any of its
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Contribution Agreement" means an Equity Contribution
Agreement substantially in the form of Exhibit G among the Sponsor, the Members
and the Administrative Agents, as the same shall be modified and supplemented
and in effect from time to time.
"Equity Issuance" means (a) any issuance or sale by the
Borrower or any of its Subsidiaries after the Effective Date of (i) any of its
membership interests, (ii) any warrants or options exercisable in respect of its
membership interests or (iii) any other security or instrument representing an
equity interest (or the right to obtain any equity interest) in the Borrower or
any of its Subsidiaries or (b) the receipt by the Borrower or any of its
Subsidiaries after the Effective Date of any capital contribution (whether or
not evidenced by any equity security issued by the recipient of such
contribution); provided that Equity Issuance shall not include (x) any such
issuance or sale by any Subsidiary of the Borrower to the Borrower or any wholly
owned Subsidiary of the Borrower, (y) any capital contribution by the Borrower
or any wholly owned Subsidiary of the Borrower to any Subsidiary of the Borrower
or (z) any capital contribution by a Member to the Borrower pursuant to the
Equity Contribution Agreement.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any Members' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
14
-10-
LOAN AGREEMENT
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any material unfunded liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan (other than a voluntary termination by the Plan
administrator with respect to which the Plan would have no material unfunded
liability); (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any Withdrawal Liability which could reasonably be expected to have a Material
Adverse Effect; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability which
could reasonably be expected to have a Material Adverse Effect or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excluded Taxes" means, with respect to the Administrative
Agents, the Paying Agent, the Collateral Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.16(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.14(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.14(a).
"Excluded Waiting Period" means, for each Subject Governmental
Approval, the period commencing upon the issuance of such Subject Governmental
Approval during which any
15
-11-
LOAN AGREEMENT
Person may commence any action or proceeding seeking a rehearing of the merits
on the issuance of such Subject Governmental Approval or appeal the decision of
the relevant Governmental Authority to issue such Subject Governmental Approval.
"Facility" means the ▇▇▇▇▇▇ Kill Facility, the Astoria
Facility, the Dunkirk Facility, the ▇▇▇▇▇▇▇ Facility, the Somerset Facility or
the Oswego Facility, or any combination thereof (as the context requires).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding 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
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Paying Agent from three Federal
funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
treasurer or other Person, acting in such capacity for and on behalf of the
Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Fuel Agreement" means a Fuel Supply Agreement or a Fuel
Transportation Agreement, or any combination thereof (as the context requires).
"Fuel Supply Agreement" means each contract or agreement
entered into by the Borrower or any of its Subsidiaries for the supply of fuel
to one or more Facilities.
"Fuel Transportation Agreement" means each contract or
agreement entered into by the Borrower or any of its Subsidiaries for the
transportation of fuel to one or more Facilities.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Approval" shall mean any authorization, consent,
approval, license, ruling, permit, concession, certification, exemption, filing,
variance, order, judgment, decree, publication, notice to, declaration of or
with or registration by or with any Governmental Authority.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
16
-12-
LOAN AGREEMENT
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit D by an entity that, pursuant to
Section 6.10(a) is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agents.
"Guarantee Effectiveness Certificate" has the meaning set
forth in Section 3.10.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"▇▇▇▇▇▇▇ Facility" means, collectively, the electrical
generating plant and related properties, plants and equipment to be purchased by
▇▇▇▇▇▇▇ Power pursuant to the Dunkirk/▇▇▇▇▇▇▇ Acquisition Documents.
"▇▇▇▇▇▇▇ Operator" means NRG ▇▇▇▇▇▇▇ Operations Inc., a
Delaware corporation.
"▇▇▇▇▇▇▇ Power" means ▇▇▇▇▇▇▇ Power LLC, a Delaware limited
liability company.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course
17
-13-
LOAN AGREEMENT
of business), (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Independent Engineer" means Stone & ▇▇▇▇▇▇▇, and/or such
other Person as the Administrative Agents may engage on behalf of the Lenders
with the consent of the Borrower, so long as Event of Default shall not have
occurred and be continuing, to act as Independent Engineer for the purposes of
this Agreement.
"Independent Insurance Consultant" means Sedgwick of
Tennessee, Inc., and/or such other Person as the Administrative Agents may
engage on behalf of the Lenders with the consent of the Borrower, so long as
Event of Default shall not have occurred and be continuing, to act as
Independent Insurance Consultant for the purposes of this Agreement.
"Independent Market Consultant" means PHB ▇▇▇▇▇▇ ▇▇▇▇▇▇,
and/or such other Person as the Administrative Agents may engage on behalf of
the Lenders with the consent of the Borrower, so long as Event of Default shall
not have occurred and be continuing, to act as Independent Market Consultant for
the purposes of this Agreement.
"Index Debt" means senior, long-term indebtedness for borrowed
money of the Borrower that is not guaranteed by any Person other than the
Subsidiaries or subject to any credit enhancement other than the Borrower's
assets.
"Intercompany Loan" means each intercompany loan made by the
Borrower to a Subsidiary Guarantor with the proceeds of Loans incurred by it
hereunder.
"Intercompany Note" means each promissory note or other
evidence of indebtedness issued by a Subsidiary Guarantor to the Borrower in
respect of an Intercompany Loan each substantially in the form of the attached
Exhibit K.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR
Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last
day of each Interest Period therefor.
"Interest Period" means, for any Eurodollar Loan, the period
commencing on the date of such Loan and ending on the numerically corresponding
day in the calendar month that is
18
-14-
LOAN AGREEMENT
one, two or three months thereafter, as specified in the applicable Borrowing
Request or Interest Election Request; provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Loan initially
shall be the date on which such Loan is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Loan.
"Investment" means, for any Person: (a) the acquisition
(whether for cash, property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such Person), but excluding any such advance, loan or extension
of credit arising in connection with the sale of inventory or supplies by such
Person in the ordinary course of business; (c) the entering into of any
Guarantee of, or other contingent obligation with respect to, Indebtedness or
other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person; or (d) the entering
into of any Hedging Agreement.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets (Telerate)
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Paying Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for the offering
of Dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the LIBO
Rate for such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Paying Agent in immediately available funds
in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any
19
-15-
LOAN AGREEMENT
of the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means, collectively, this Agreement, the
Security Documents and the Equity Contribution Agreement.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Loss Proceeds" means all Net Available Proceeds received by
the Borrower and its Subsidiaries in respect of a Casualty Event.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Obligor to perform any of its obligations under this Agreement or
any of the other Basic Documents to which it is a party or (c) the material
rights of or benefits available to the Lenders, the Administrative Agents, the
Paying Agent or the Collateral Agent under this Agreement or any of the other
Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $5,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of any Person in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Person would be required to pay if such
Hedging Agreement were terminated at such time.
"Maturity Date" means June 2, 2000.
"Member" means NRG Eastern or NRG Generation, or both (as the
context requires).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of reasonable expenses incurred by
20
-16-
LOAN AGREEMENT
the Borrower and its Subsidiaries in connection therewith and any
income and transfer taxes payable by the Borrower or any of its
Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect of
such Equity Issuance net of reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith; and
(iv) in the case of any Debt Incurrence, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect of
such Debt Incurrence net of reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith.
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments, and the fair market value of any
non-cash consideration, received by the Borrower and its Subsidiaries directly
or indirectly in connection with such Disposition; provided that Net Cash
Payments shall be net of the amount of any legal, title and recording tax
expenses, commissions and other fees and expenses paid by the Borrower and its
Subsidiaries in connection with such Disposition.
"NRG Eastern" means NRG Eastern LLC, a Delaware limited
liability company.
"NRG Generation" means Northeast Generation Holding LLC, a
Delaware limited liability company.
"NRG Operations" means NRG Operating Services, Inc., a
Delaware corporation.
"NRG Marketing" means NRG Northeast Power Marketing, Inc., a
Delaware corporation.
"Obligor" means the Borrower and each Subsidiary Guarantor.
"Operating Expenses" means for any period, the sum, computed
without duplication, of all costs and expenses incurred by the Borrower and its
Subsidiaries during such period (or, in the case of any future period, projected
to be paid or payable during such period) in connection with the operation,
maintenance and administration of the Facilities, including, subject to Section
7.09, capital expenditures.
"Operations and Maintenance Agreement" means (a) the
Operations and Maintenance Agreement to be entered into between the Astoria
Operator and Astoria Power, (b) the Operations and Maintenance Agreement to be
entered into between the ▇▇▇▇▇▇ Kill Operator and ▇▇▇▇▇▇ Kill Power, (c) the
Operations and Maintenance Agreement to be entered into between the Dunkirk
Operator and Dunkirk Power, (d) the Operations and Maintenance Agreement to be
entered into between the ▇▇▇▇▇▇▇ Operator and ▇▇▇▇▇▇▇ Power, (e) the Operations
and Maintenance Agreement to be entered into between the Somerset Operator and
Somerset Power and (f) the Operations and Maintenance Agreement to be entered
into between the Oswego Operator and the Oswego Harbor Power, or any combination
thereof (as the context requires).
21
-17-
LOAN AGREEMENT
"Operator" means the ▇▇▇▇▇▇ Kill Operator, the Astoria
Operator, the Dunkirk Operator, the ▇▇▇▇▇▇▇ Operator, the Somerset Operator or
the Oswego Operator, or any combination thereof (as the context requires).
"Oswego Acquisition" means the purchase by Oswego Harbor Power
of the Oswego Facility pursuant to the Oswego Acquisition Documents.
"Oswego Acquisition Documents" means the Asset Sales Agreement
dated as of April 1, 1999 between the Sponsor, Niagara Mohawk Power Corporation,
Rochester Gas and Electric Corporation and Oswego Harbor Power and each of the
other agreements attached as a form thereto.
"Oswego Facility" means the electrical generating plant and
related property, plant and equipment to be purchased by Oswego Harbor Power
pursuant to, and as more fully described in, the Oswego Acquisition Documents.
"Oswego Harbor Power" means Oswego Harbor Power LLC, a
Delaware limited liability company.
"Oswego Operator" means NRG Oswego Harbor Power Operations
Inc., a Delaware corporation.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document, but not including Excluded Taxes.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 45 days or are being contested in compliance with
Section 6.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) cash deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
22
-18-
LOAN AGREEMENT
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VIII;
(f) encumbrances identified on Schedule IX hereto, and other
easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any
Subsidiary; and
(g) Liens created or granted pursuant to the Security
Documents;
provided that, except as provided in the preceding clause (g), the term
"Permitted Encumbrances" shall not include any Lien securing Indebtedness.
"Permitted Fuel Agreement" means any Fuel Agreement with a
term of two years or less.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
▇▇▇▇▇'▇;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 270 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits, as at the date of the most recent financial
statement of such commercial bank issued on or immediately prior to
such acquisition, of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) of this
definition and entered into with a financial institution satisfying the
criteria described in clause (c) of this definition.
"Permitted Power Marketing Agreement" means (a) any Transition
Agreement, (b) any other Power Marketing Agreement with a term of two years or
less, (c) any other Power Marketing Agreement with a term of three years or
less; provided that any given Power Marketing Agreement shall not qualify as a
Permitted Power Marketing Agreement pursuant to this clause (c) if the amount
that the Borrower and its Subsidiaries shall have the right to receive
thereunder during any calendar year, when added to the aggregate amount that the
Borrower and its Subsidiaries shall have the right to receive during such
calendar year under all other Power Marketing Agreements that qualify as
Permitted Power Marketing Agreements pursuant to this
23
-19-
LOAN AGREEMENT
clause (c), would exceed $50,000,000 in the aggregate and (d) each other Power
Marketing Agreement entered into by the Borrower or any of its Subsidiaries with
the consent of the Required Lenders.
"Permitted Power Purchase Agreement" means (a) any Power
Purchase Agreement with a term of two years or less, entered into by the
Borrower or any of its Subsidiaries in the ordinary course of its business and
not for speculation, (b) any other Power Purchasing Agreement with a term of
three years or less; provided that any given Power Purchase Agreement shall not
qualify as a Permitted Power Purchase Agreement pursuant to this clause (b) if
the amount that the Borrower and its Subsidiaries shall be required to pay
thereunder during any calendar year, when added to the aggregate amount that the
Borrower and its Subsidiaries shall be required to pay during such calendar year
under all other Power Purchase Agreements that qualify as Permitted Power
Purchase Agreements pursuant to this clause (b) would exceed $50,000,000 in the
aggregate, in each case, entered into by the Borrower or any of its Subsidiaries
in the ordinary course of its business and not for speculation and (c) each
other Power Purchase Agreement entered into by the Borrower or any of its
Subsidiaries with the consent of the Required Lenders.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means a Pledge Agreement substantially in
the form of Exhibit C between the Members and the Collateral Agent, as the same
shall be modified and supplemented and in effect from time to time.
"PMI Security Agreement" means the Security Agreement
substantially in the form of Exhibit E, between NRG Marketing and the Collateral
Agent, as the same shall be modified and supplemented and in effect from time to
time.
"Power Marketing" means NRG Northeast Power Marketing LLC, a
Delaware limited liability company.
"Power Marketing Agreement" means each Transition Agreement
and each other contract or agreement, other than Power Sales Agreements, entered
into by the Borrower or any of its Subsidiaries for the sale of electrical
generating capacity, electrical energy or both.
"Power Purchase Agreement" means each contract or agreement,
other than Power Sales Agreements, entered into by the Borrower or any of its
Subsidiaries for the purchase of electrical generating capacity, electrical
energy or both.
"Power Sales Agreement" means (a) the Power Sales and Agency
Agreement to be entered into between Power Marketing and Astoria Power, (b) the
Power Sales and Agency
24
-20-
LOAN AGREEMENT
Agreement to be entered into between Power Marketing and ▇▇▇▇▇▇ Kill Power, (c)
the Power Sales and Agency Agreement to be entered into between NRG Marketing
(or, following the assignment thereof by NRG Marketing to Power Marketing, Power
Marketing) and Dunkirk Power, (d) the Power Sales and Agency Agreement to be
entered into between NRG Marketing (or, following the assignment thereof by NRG
Marketing to Power Marketing, Power Marketing) and ▇▇▇▇▇▇▇ Power, (e) the Power
Sales and Agency Agreement to be entered into between Power Marketing and Oswego
Harbor Power and (f) the Power Sales and Agency Agreement to be entered into
between NRG Marketing (or, following the assignment thereof by NRG Marketing to
Power Marketing, Power Marketing) and Somerset Power, or any combination thereof
(as the context requires).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Citibank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Project Documents" means each Acquisition Document, each
Power Sales Agreement, the Borrower LLC Agreement, the limited liability company
agreement of each Subsidiary of the Borrower, each Operations and Maintenance
Agreement, each Transition Agreement, each Intercompany Note, each Consent and
Agreement and each Corporate Services Agreement, or any combination thereof (as
the context requires).
"Quarterly Dates" means the last Business Day of January,
April, July and October in each year, the first of which shall be the first such
day after the date hereof.
"Reduction Certificate" has the meaning set forth in Section
6.13(e).
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, subject to the last
paragraph of Section 10.02(b), Lenders having outstanding Loans and unused
Commitments representing more than 50% of the sum of the total outstanding Loans
and unused Commitments at such time. The "Required Lenders" of a particular
Class of Loans means Lenders having outstanding Loans and unused Commitments of
such Class representing more than 50% of the total outstanding Loans and unused
Commitments of such Class at such time.
"Restore" means, with respect to any Affected Property, to
rebuild, repair, restore or replace such Affected Property. The term
"Restoration" shall have a correlative meaning.
"Restricted Payment" means membership distributions of the
Borrower or any Subsidiary of the Borrower (in cash, property or obligations)
on, or other payments or distributions on account of, or the setting apart of
money for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any portion of any membership interest in
the Borrower or such Subsidiary or of any warrants, options or other
25
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LOAN AGREEMENT
rights to acquire any such membership interest (or to make any payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to fair market or equity value of the Borrower or any Subsidiary)
excluding, to the extent included, the Somerset Distribution.
"Revolver Amount" means a Tranche A Revolver Amount, Tranche B
Revolver Amount, Tranche C Revolver Amount or Tranche D Revolver Amount, or any
combination thereof (as the context requires).
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make one or more Revolving Loans hereunder during
the Availability Period, expressed as an amount representing the maximum
aggregate principal amount of the Revolving Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.06 or 2.08(b) and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Revolving Commitment is set forth on Schedule I, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Revolving Commitment, as applicable.
"Revolving Lender" means a Lender with a Revolving Commitment
or an outstanding Revolving Loan.
"Revolving Loan" means a Loan made pursuant to clause (e) of
Section 2.01 and subject to the conditions precedent in Section 5.03.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Security Agreement" means a Security Agreement substantially
in the form of Exhibit B among the Borrower, the Subsidiary Guarantors and the
Collateral Agent, as the same shall be modified and supplemented and in effect
from time to time.
"Security Documents" means, collectively, the Security
Agreement, the Pledge Agreement, the PMI Security Agreement and all Uniform
Commercial Code financing statements required by the Security Agreement, the
Pledge Agreement or the PMI Security Agreement to be filed with respect to the
security interests in personal property created pursuant thereto.
"Somerset Acquisition" means the purchase by Somerset Power of
the Somerset Facility pursuant to the Somerset Acquisition Documents.
"Somerset Acquisition Documents" means the Asset Purchase
Agreement between the Sponsor and Montaup Electric Company dated as of October
13, 1998 and each of the agreements attached as a form thereto.
"Somerset Distribution" means any distribution in an amount
not to exceed $38,227,000 by Somerset Power to the Borrower on the date of
initial disbursement of Tranche C Loans to the extent that the proceeds of such
distribution are used by the Borrower (FOR ITSELF
26
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LOAN AGREEMENT
AND ON BEHALF OF THE MEMBERS) to prepay all or a part of its outstanding
Indebtedness evidenced by the Somerset Notes.
"Somerset Facility" means the electrical generating plant and
related property, plant and equipment to be purchased by Somerset Power pursuant
to, and as more fully described in, the Somerset Acquisition Documents.
"Somerset Notes" means, collectively, (a) the promissory note
of the Borrower dated June 1, 1999 in the principal amount of $27,101,250 made
in favor of Somerset Generation 1, Inc., (b) the promissory note of NRG Eastern
dated June 1, 1999 in the principal amount of $136,875 made in favor of Somerset
Generation 1, Inc., (c) the promissory note of NRG Generation dated June 1, 1999
in the principal amount of $136,875 made in favor of Somerset Generation 1,
Inc., (d) the promissory note of the Borrower dated June 1, 1999 in the
principal amount of $27,101,250 made in favor of Somerset Generation 2, Inc.,
(e) the promissory note of NRG Eastern dated June 1, 1999 in the principal
amount of $136,875 made in favor of Somerset Generation 2, Inc. and (f) the
promissory note of NRG Generation dated June 1, 1999 in the principal amount of
$136,875 made in favor of Somerset Generation 2, Inc.
"Somerset Operator" means Somerset Operations Inc., a Delaware
corporation.
"Somerset Power" means Somerset Power LLC, a Delaware limited
liability company.
"Sponsor" means NRG Energy, Inc., a Delaware corporation.
"Statutory Reserve Rate" means, for the Interest Period for
any Eurodollar Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which the Paying Agent is subject for eurocurrency funding (currently referred
to as "Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subject Governmental Approval" means each of the Governmental
Approvals identified on Schedule III.
"Subject Person" means the Borrower, each Subsidiary and NRG
Operating Services, Inc.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date,
27
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LOAN AGREEMENT
as well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the PERSONS identified
under the caption "SUBSIDIARY GUARANTORS" on the signature pages hereto and each
Subsidiary of the Borrower that becomes a "Subsidiary Guarantor" after the date
hereof pursuant to Section 6.10(a).
"Tax Payment Amount" means, for any period, an amount not
exceeding in the aggregate the amount of Federal, state and local income taxes
the Borrower would otherwise have paid in the event it were a corporation (other
than an "S corporation" within the meaning of Section 1361 of the Code) for such
period and all prior periods.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tranche A Commitment" means, with respect to each Lender, the
commitment of such Lender to make a Tranche A Loan hereunder during the
Availability Period, expressed as an amount representing the maximum aggregate
principal amount of the Tranche A Loans to be made by such Lender hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.06 or
2.08(b) and (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 10.04. The initial amount of each
Lender's Tranche A Commitment is set forth on Schedule I, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Tranche A
Commitment, as applicable. The initial aggregate amount of the Lenders' Tranche
A Commitments is $221,245,000.
"Tranche A DSR Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche A Loan, $0, and (b) at all times from and after such date, $8,555,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment
or an outstanding Tranche A Loan.
"Tranche A Loan" means a Loan made pursuant to clause (a) of
Section 2.01 and subject to the conditions precedent in Section 5.02.
"Tranche A Revolver Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche A Loan, $0, and (b) at all times from and after such date, $13,687,000.
"Tranche B Commitment" means, with respect to each Lender, the
commitment of such Lender to make a Tranche B Loan hereunder during the
Availability Period, expressed as an amount representing the maximum aggregate
principal amount of the Tranche B Loans to be
28
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LOAN AGREEMENT
made by such Lender hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.06 or 2.08(b) and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender's Tranche B Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche B Commitment, as applicable. The initial
aggregate amount of the Lenders' Tranche B Commitments is $318,652,000.
"Tranche B DSR Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche B Loan, $0, and (b) at all times from and after such date, $12,321,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment
or an outstanding Tranche B Loan.
"Tranche B Loan" means a Loan made pursuant to clause (b) of
Section 2.01 and subject to the conditions precedent in Section 5.02.
"Tranche B Revolver Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche B Loan, $0, and (b) at all times from and after such date, $19,714,000.
"Tranche C Commitment" means, with respect to each Lender, the
commitment of such Lender to make a Tranche C Loan hereunder during the
Availability Period, expressed as an amount representing the maximum aggregate
principal amount of the Tranche C Loans to be made by such Lender hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.06 or
2.08(b) and (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 10.04. The initial amount of each
Lender's Tranche C Commitment is set forth on Schedule I, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Tranche C
Commitment, as applicable. The initial aggregate amount of the Lenders' Tranche
C Commitments is $38,227,000.
"Tranche C DSR Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche C Loan, $0, and (b) at all times from and after such date, $1,478,000.
"Tranche C Lender" means a Lender with a Tranche C Commitment
or an outstanding Tranche C Loan.
"Tranche C Loan" means a Loan made pursuant to clause (c) of
Section 2.01 and subject to the conditions precedent in Section 5.02.
"Tranche C Revolver Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche C Loan, $0, and (b) at all times from and after such date, $2,365,000.
"Tranche D Commitment" means, with respect to each Lender, the
commitment of such Lender to make a Tranche D Loan hereunder during the
Availability Period, expressed as an amount representing the maximum aggregate
principal amount of the Tranche D Loans to be
29
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LOAN AGREEMENT
made by such Lender hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.06 or 2.08(b) and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender's Tranche D Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche D Commitment, as applicable. The initial
aggregate amount of the Lenders' Tranche D Commitments is $68,440,000.
"Tranche D DSR Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche D Loan, $0, and (b) at all times from and after such date, $2,646,000.
"Tranche D Lender" means a Lender with a Tranche D Commitment
or an outstanding Tranche D Loan.
"Tranche D Loan" means a Loan made pursuant to clause (d) of
Section 2.01 and subject to the conditions precedent in Section 5.02.
"Tranche D Revolver Amount" means (a) for the period from and
including the date hereof to but excluding the date of initial Borrowing of the
Tranche D Loan, $0, and (b) at all times from and after such date, $4,234,000.
"Transactions" means the execution, delivery and performance
by each Obligor of this Agreement and the other Basic Documents to which such
Obligor is intended to be a party, the borrowing of Loans and the use of the
proceeds thereof.
"Transition Agreements" means (a) with respect to the ▇▇▇▇▇▇
Kill Facility and the Astoria Facility, the Transition Capacity Agreement to be
entered into between Con Ed and ▇▇▇▇▇▇ Kill Power, the Transition Energy Sales
Agreement dated as of June 1, 1999 between Con Ed and ▇▇▇▇▇▇ Kill Power, the
Transition Energy Sales Agreement dated as of June 1, 1999 between Con Ed and
Astoria Power, the Transition Capacity Agreement to be entered into between Con
Ed and Astoria Power, (b) with respect to the ▇▇▇▇▇▇▇ Facility and the Dunkirk
Facility, the Swap Transaction to be entered into between Niagara Mohawk Power
Corporation and Power Marketing, the Transition Power Purchase Agreement
(▇▇▇▇▇▇▇) dated as of December 23, 1998 between Niagara Mohawk Power Corporation
and the Sponsor, the Transition Power Purchase Agreement (Fossil-Call
Option-PreISO) to be entered into between Niagara Mohawk Power Corporation and
Dunkirk Power and the Transition Power Purchase Agreement (Fossil-Call
Option-Pre ISO) to be entered into between Niagara Mohawk Power Corporation and
▇▇▇▇▇▇▇ Power, (c) with respect to the Somerset Facility, the Wholesale Standard
Offer Service Agreement dated as of October 13, 1998 between Blackstone Valley
Electric Company, Eastern Edison Company, Newport Electric Corporation and NRG
Power Marketing, Inc., as amended by the First Amendment to the Wholesale
Standard Offer Service Agreement dated as of January 15, 1999, and (d) with
respect to the Oswego Facility, the Transition Power Purchase Agreement dated as
of April 1, 1999 between Niagara Mohawk Power Corporation and Oswego Harbor
Power.
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LOAN AGREEMENT
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate or the Alternate Base Rate.
"Withdrawal Certificate" has the meaning set forth in Section
6.13(c).
"Withdrawal Date" has the meaning set forth in Section
6.13(c).
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Year 2000 Problem" means any significant risk that computer
hardware, software or equipment containing embedded microchips essential to the
businesses or operations of the Borrower and its Subsidiaries will not, in the
case of dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that if the Borrower notifies the Administrative Agents that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agents notify the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
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LOAN AGREEMENT
ARTICLE II. THE CREDITS.
SECTION 2.01. The Commitments.
(a) Tranche A Loans. Subject to the terms and conditions set
forth herein, each Lender agrees to make Tranche A Loans to the Borrower during
the Availability Period in a principal amount not exceeding its Tranche A
Commitment. Amounts repaid in respect of Tranche A Loans may not be reborrowed.
(b) Tranche B Loans. Subject to the terms and conditions set
forth herein, each Lender agrees to make Tranche B Loans to the Borrower during
the Availability Period in a principal amount not exceeding its Tranche B
Commitment. Amounts repaid in respect of Tranche B Loans may not be reborrowed.
(c) Tranche C Loans. Subject to the terms and conditions set
forth herein, each Lender agrees to make Tranche C Loans to the Borrower during
the Availability Period in a principal amount not exceeding its Tranche C
Commitment. Amounts repaid in respect of Tranche C Loans may not be reborrowed.
(d) Tranche D Loans. Subject to the terms and conditions set
forth herein, each Lender agrees to make Tranche D Loans to the Borrower during
the Availability Period in a principal amount not exceeding its Tranche D
Commitment. Amounts repaid in respect of Tranche D Loans may not be reborrowed.
(e) Revolving Loans. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount not
exceeding the lesser of (i) its Revolving Commitment and (ii) its ratable share
(in accordance with its respective Revolving Commitment) of the Available
Revolver Amount as at the date such Revolving Loan is made. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of
a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class.
The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.11, each Borrowing
shall be constituted entirely of ABR Loans or Eurodollar Loans as the Borrower
may request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
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LOAN AGREEMENT
(c) Minimum Amounts; Limitation on Number of Borrowings. At
the commencement of the Interest Period for any Eurodollar Borrowing, such
Borrowing shall (except in the case of a Borrowing that utilizes the full amount
of the relevant Commitment) be in an aggregate amount of $5,000,000 or a larger
multiple of $500,000. At the time that each ABR Borrowing is made, such
Borrowing shall (except in the case of a Borrowing that utilizes the full amount
of the relevant Commitment) be in an aggregate amount equal to $500,000 or a
larger multiple of $100,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of twelve Eurodollar Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods.
Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert to or continue as a Eurodollar
Borrowing, any Borrowing if the Interest Period requested therefor would end
after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Paying Agent of such request by telephone (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Paying Agent of a written Borrowing Request in a
form approved by the Paying Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Tranche A
Borrowing, Tranche B Borrowing, Tranche C Borrowing, Tranche D
Borrowing or Revolving Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period";
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.04; and
(vii) in the case of a Revolving Loan Borrowing, a calculation
of the Available Revolver Amount as of the date of such Borrowing.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section,
33
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LOAN AGREEMENT
the Paying Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Paying Agent most recently designated by it for such purpose by notice to
the Lenders. The Paying Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Paying Agent in New York City and designated by the
Borrower in the applicable Borrowing Request.
(b) Presumption by the Paying Agent. Unless the Paying Agent
shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Paying Agent such
Lender's share of such Borrowing, the Paying Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Paying Agent, then the
applicable Lender and the Borrower severally agree to pay to the Paying Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Paying Agent, at (i) in the case of
such Lender, the Federal Funds Effective Rate or (ii) in the case of the
Borrower, the interest rate that applies to the applicable Borrowing. If such
Lender pays such amount to the Paying Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.05. Interest Elections.
(a) Elections by the Borrower for Borrowings. Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have the Interest Period
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a Borrowing of a different Type or to continue such
Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar
Borrowing, may elect the Interest Period therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Paying Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Paying Agent of a written Interest Election
Request in a form approved by the Paying Agent and signed by the Borrower.
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LOAN AGREEMENT
(c) Information in Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Notice by the Paying Agent to Lenders. Promptly following
receipt of an Interest Election Request, the Paying Agent shall advise each
Lender of the details thereof and of such Lender's portion of each resulting
Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agents, at the request of the Required Lenders, so notify the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period therefor.
SECTION 2.06. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, the
Commitments of each Class shall terminate at 5:00 p.m., New York City time, on
the last day of the Availability Period.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments of any Class;
provided that (except in the case of any such termination of the full amount of
the relevant Commitment) each reduction
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LOAN AGREEMENT
of the Commitments of any Class pursuant to this Section shall be in an amount
that is $5,000,000 or a larger multiple of $1,000,000.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Paying Agent of any election to terminate or reduce the
Commitments of any Class under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Paying Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable.
(d) Automatic Termination. Any portion of the Tranche A
Commitment, Tranche B Commitment, Tranche C Commitment or Tranche D Commitment
not utilized on the date of the initial Borrowing with respect to such Class
shall automatically terminate at 5:00 p.m., New York City time, on the date of
such initial Borrowing.
(e) Effect of Termination or Reduction. Any termination or
reduction of the Commitments of any Class shall be permanent. Each reduction of
the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) to the Paying Agent for account of the Tranche A Lenders
the outstanding principal amount of the Tranche A Loans on the Maturity
Date;
(ii) to the Paying Agent for account of the Tranche B Lenders
the outstanding principal amount of the Tranche B Loans on the Maturity
Date;
(iii) to the Paying for account of the Tranche C Lenders the
outstanding principal amount of the Tranche C Loans on the Maturity
Date;
(iv) to the Paying Agent for account of the Tranche D Lenders
the outstanding principal amount of the Tranche D Loans on the Maturity
Date; and
(v) to the Paying Agent for account of the Revolving Lenders
the outstanding principal amount of the Revolving Loans on the Maturity
Date.
(b) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings of any Class hereunder, the Borrower shall select the Borrowing
or Borrowings of the applicable Class to be paid and shall notify the Paying
Agent by telephone (confirmed by telecopy) of such selection not later than
11:00 a.m., New York City time, in the case of any Loan other than a Revolving
Loan, three Business Days before, in the case of a Revolving Loan that is a
Eurodollar Loan, two Business Days before and in the case of a Revolving Loan
that is an ABR Loan, the same day as, the scheduled date of such repayment;
provided that each repayment of Borrowings of any Class shall be applied to
repay any outstanding ABR
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LOAN AGREEMENT
Borrowings of such Class before any other Borrowings of such Class. If the
Borrower fails to make a timely selection of the Borrowing or Borrowings to be
repaid or prepaid, such payment shall be applied, first, to pay any outstanding
ABR Borrowings of the applicable Class and, second, to other Borrowings of such
Class in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first). Each payment of a Borrowing shall be applied ratably to the Loans
included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(d) Maintenance of Loan Accounts by the Paying Agent. The
Paying Agent shall maintain accounts in which it shall record (i) the amount of
each Loan made hereunder, the Class and Type thereof and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Paying Agent hereunder for account of the
Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Paying Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note. In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Paying Agent. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.08. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part, such
prepayment to be effected in each case in the manner specified in clause (c) of
this Section.
(b) Mandatory Prepayments. The Borrower will prepay the Loans,
and/or the Commitments shall be subject to automatic reduction, as follows:
(i) Casualty Events. Not later than the date specified in
Section 6.11 in respect of any Casualty Event affecting any Facility,
the Borrower shall prepay the Loans, and/or the Commitments shall be
subject to automatic reduction, in an aggregate amount, if any, equal
to 100% of the Net Available Proceeds of such Casualty Event, such
prepayment
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LOAN AGREEMENT
and/or reduction to be effected in each case in the manner and to the
extent specified in clause (c) of this Section. Nothing in this
paragraph shall be deemed to limit any obligation of the Borrower or
any of its Subsidiaries pursuant to any of the Security Documents to
remit to a collateral or similar account maintained by the
Administrative Agents pursuant to any of the Security Documents the
proceeds of insurance, condemnation award or other compensation
received in respect of any Casualty Event.
(ii) Equity Issuance. Upon any Equity Issuance, the Borrower
shall prepay the Loans, and/or the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds thereof, such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in
clause (c) of this Section.
(iii) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders pursuant to
Section 7.03 to any Disposition not otherwise permitted hereunder, in
the event that the Net Available Proceeds of any Disposition (herein,
the "Current Disposition"), and of all prior Dispositions, shall exceed
$5,000,000 then, no later than five Business Days prior to the
occurrence of the Current Disposition, the Borrower will deliver to the
Lenders a statement, certified by a Financial Officer of the Borrower,
in form and detail satisfactory to the Administrative Agents, of the
amount of the Net Available Proceeds of the Current Disposition and of
all such prior Dispositions and will prepay the Loans, and/or the
Commitments shall be subject to automatic reduction, in an aggregate
amount equal to 100% of the Net Available Proceeds of the Current
Disposition and such prior Dispositions in excess of $5,000,000, such
prepayment and/or reduction to be effected in each case in the manner
and to the extent specified in clause (c) of this Section.
(iv) Debt Incurrence. Upon any Debt Incurrence, the Borrower
shall prepay the Loans, and/or the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds thereof, such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in
clause (c) of this Section.
(c) Prepayments and/or reductions of the Commitments described
in this clause (b) shall be applied as follows:
first, to prepay the Loans then outstanding ratably among the
Classes of Loans (other than Revolving Loans) in accordance with the
aggregate amount of the outstanding Loans of such Class (if any);
second, after the payment in full of the Loans of all Classes
other than Revolving Loans, the Revolving Commitments shall be
automatically reduced in an amount equal to any excess over the amount
referred to in the foregoing clause "first" (and to the extent that,
after giving effect to such reduction, the aggregate principal amount
of the Revolving Loans would exceed the Revolving Commitments or
Available Revolver Amount, the Borrower will prepay the Revolving Loans
in an aggregate amount equal to such excess); and
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LOAN AGREEMENT
third, after the payment in full of the Loans of all Classes
then outstanding and the reduction of the Revolving Commitment to zero,
to reduce the amount of the unused Commitments of any single Class as
may be specified by the Borrower's notice delivered pursuant to clause
(d) of this Section until the unused Commitment of such Class is
reduced to zero and then to reduce the amount of the unused Commitment
of any other single Class as so specified.
(d) Notices, Etc. The Borrower shall notify the Paying Agent
by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, in the case of any loan other than a Revolving Loan, three Business
Days before the date of prepayment and, in the case of a Revolving Loan, two
Business Days before the date of prepayment or (ii) in the case of prepayment of
an ABR Borrowing, not later than 11:00 a.m., New York City time, in the case of
any loan other than a Revolving Loan, one Business Day before the date of
prepayment and, in the case of a Revolving Loan, the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount to be prepaid, in the case of a reduction of Commitment, the
Class to which such reduction is to be applied and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment.
Promptly following receipt of any such notice, the Paying Agent shall advise the
Lenders of the contents thereof. Each partial prepayment shall be in an amount
that would be permitted in the case of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.10 and shall be made in the manner specified in
Section 2.07(b).
SECTION 2.09. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Paying
Agent for account of each Lender a commitment fee, which shall accrue at a rate
per annum equal to 1/4 of 1% on the average daily unused amount of the
Commitments of such Lender for the period from and including the date hereof to
but not including the earlier of the date such Commitments terminate and the
last day of the Availability Period. Accrued commitment fees shall be payable in
arrears on each Quarterly Date and on the earlier of the date the relevant
Commitment terminates and the last day of the Availability Period, commencing on
the first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) Agents' Fees. The Borrower agrees to pay the Paying Agent
the fees payable to the Paying Agent in the amounts and at the times separately
agreed upon between the Borrower and the Paying Agent. The Borrower agrees to
pay the Collateral Agent the fees payable to the Collateral Agent in the amounts
and at the times separately agreed upon between the Borrower and the Collateral
Agent.
(c) Reserve Fees. In addition to commitment fee under clause
(a) of this Section 2.09, the Borrower agrees to pay to the Paying Agent for
account of each Lender (i) a reserve fee equal to 1/8 of 1% on the sum of (x)
unused amount of the Commitments of such Lender plus (y)
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LOAN AGREEMENT
the aggregate principal amount of the Loans of such Lender outstanding at the
close of business on December 30, 1999 and (ii) a second reserve fee equal to
1/8 of 1% on the sum of (x) unused amount of the Commitments of such Lender plus
(y) the aggregate principal amount of the Loans of such Lender outstanding at
the close of business on February 15, 2000. Accrued reserve fees shall be
payable on December 30, 1999 and February 15, 2000, respectively.
(d) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Paying Agent for
distribution, to the Lenders entitled thereto. Fees paid shall not be refundable
under any circumstances.
SECTION 2.10. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided above or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(d) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan; provided that
(i) interest accrued pursuant to paragraph (c) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Borrowing prior to the end of the Interest Period therefor, accrued
interest on such Borrowing shall be payable on the effective date of such
conversion.
(e) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Paying
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for a Eurodollar Borrowing:
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LOAN AGREEMENT
(a) the Administrative Agents determine (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agents are advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agents shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agents notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by
such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be
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LOAN AGREEMENT
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 30 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than six months prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided, further, that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof; provided, however, that, the Borrower shall have no obligation with
respect to demands made after the Maturity Date.
SECTION 2.13. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto or (d) the
assignment of any Eurodollar Loan other than on the last day of an Interest
Period therefor as a result of a request by the Borrower pursuant to Section
2.16, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of (i) the amount of interest that such Lender would pay for a deposit equal to
the principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)
the amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for Dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.14. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agents or Lender (as the case may be)
receives an amount equal to
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LOAN AGREEMENT
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agents and each Lender, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agents or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agents on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agents the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agents.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agents), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.12, 2.13 or 2.14, or otherwise) or under any other Loan
Document (except to the extent otherwise provided therein) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Paying Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Paying Agent at its offices at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except as otherwise
expressly provided in the relevant Loan Document, and except that payments
pursuant to Sections 2.12, 2.13, 2.14 and 10.03 shall be made directly to the
Persons entitled thereto. The Paying Agent shall distribute any such payments
received by it for account of any other Person to the appropriate recipient
promptly following receipt thereof. If any
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LOAN AGREEMENT
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder or under any other Loan
Document (except to the extent otherwise provided therein) shall be made in
Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Paying Agent to pay
fully all amounts of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, to pay principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Borrowing of a particular Class shall be made from the
relevant Lenders, each payment of fees under Section 2.09 in respect of
Commitments of a particular Class shall be made for account of the relevant
Lenders, and each termination or reduction of the amount of the Commitments of a
particular Class under Section 2.06 shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to the
amounts of their respective Commitments of such Class; (ii) each Borrowing of
any Class shall be allocated pro rata among the relevant Lenders according to
the amounts of their respective Commitments of such Class (in the case of the
making of Loans) or their respective Loans of such Class (in the case of
conversions and continuations of Loans); (iii) each payment or prepayment of
principal of Tranche A Loans, Tranche B Loans, Tranche C Loans, Tranche D Loans
and Revolving Loans by the Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Loans of such Class held by them; and (iv) each payment of interest on
Tranche A Loans, Tranche B Loans, Tranche C Loans, Tranche D Loans and Revolving
Loans by the Borrower shall be made for account of the relevant Lenders pro rata
in accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Loans and accrued interest thereon then due than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Obligor pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this
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LOAN AGREEMENT
paragraph shall apply). Each Obligor consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Obligor rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Obligor
in the amount of such participation.
(e) Presumptions of Payment. Unless the Paying Agent shall
have received notice from the Borrower prior to the date on which any payment is
due to the Paying Agent for account of the Lenders hereunder that the Borrower
will not make such payment, the Paying Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Paying Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Paying Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Paying Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(b) or 2.15(e), then the Paying Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Paying Agent for account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.12, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.14, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.12, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.14, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agents, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agents, which consent shall not
unreasonably be withheld, (ii) such Lender shall
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LOAN AGREEMENT
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder (other than, in the case of the replacement of any Lender that
defaults in its obligation to fund Loans hereunder, amounts payable to such
Lender pursuant to Section 2.13 to the extent such amounts are payable solely as
a result of such replacement), from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III. GUARANTEE.
SECTION 3.01. The Guarantee. Subject to each Subsidiary
Guarantor individually, to Section 3.10, the Subsidiary Guarantors hereby
jointly and severally guarantee to each Lender, the Administrative Agents, the
Paying Agent and the Collateral Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to the Borrower and all other amounts from time to time owing to the
Lenders or the Administrative Agents by the Borrower under this Agreement and by
any Obligor under any of the other Loan Documents, and all obligations of the
Borrower or any of its Subsidiaries to any Lender (or any affiliate of any
Lender) in respect of any Hedging Agreement, in each case strictly in accordance
with the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). Subject to each Subsidiary Guarantor individually, to
Section 3.10, the Subsidiary Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Subsidiary Guarantors will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of
the Subsidiary Guarantors under Section 3.01 are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of the Borrower under this Agreement or any
other agreement or instrument referred to herein, or any substitution, release
or exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section that the obligations of the Subsidiary
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the
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LOAN AGREEMENT
Subsidiary Guarantors hereunder, which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or any other agreement or instrument referred to herein
shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or any other agreement or instrument referred to herein shall
be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in
part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agents or any Lender or Lenders as security for any
of the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agents or any Lender exhaust any right, power or remedy or
proceed against the Borrower under this Agreement or any other agreement or
instrument referred to herein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agents and each Lender on demand for all reasonable costs and
expenses (including fees of counsel) incurred by the Administrative Agents or
such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. The Subsidiary Guarantors hereby
jointly and severally agree that until the payment and satisfaction in full of
all Guaranteed Obligations and the expiration and termination of the Commitments
of the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 3.01,
whether by subrogation or otherwise, against the Borrower or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
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LOAN AGREEMENT
SECTION 3.05. Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the circumstances provided in Article VIII) for
purposes of Section 3.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agents, at their sole option, in the event of a
dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this
Article is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary
Guarantors hereby agree, as between themselves, that if any Subsidiary Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the
payment by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Subsidiary Guarantor under the other provisions of this
Article and such Excess Funding Guarantor shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of
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LOAN AGREEMENT
the Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Borrower and the Subsidiary Guarantors
hereunder and under the other Loan Documents) of all of the Subsidiary
Guarantors, determined (A) with respect to any Subsidiary Guarantor that is a
party hereto on the Effective Date, as of the Effective Date, and (B) with
respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise, taking into account the provisions of Section
3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agents or
any other Person, be automatically limited and reduced to the highest amount
that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
SECTION 3.10. Effectiveness. The respective obligations of
each Subsidiary Guarantor under this Article III shall not be effective unless
and until a Financial Officer of the Borrower shall have delivered a certificate
(each, a "Guarantee Effectiveness Certificate") to each Administrative Agent to
the effect that all Governmental Approvals under Section 204 of the Federal
Power Act as may be necessary for such Subsidiary Guarantor to incur and perform
its obligations under this Article III have been obtained and remain in effect
and that all applicable waiting periods have expired without any action being
taken by any competent authority which restricts, prevents or imposes materially
adverse conditions upon the incurrence or performance of such obligations. The
Borrower shall cause a Guarantee Effectiveness Certificate in respect of Power
Marketing to be delivered to the Administrative Agents within four Business Days
after receipt by Power Marketing of such Governmental Approvals and the
expiration of such applicable waiting periods.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 4.02. Authorization; Enforceability. The Transactions
are within each Obligor's limited liability company and other powers and have
been duly authorized by all necessary limited liability company and other action
and, if required, by all necessary member or
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LOAN AGREEMENT
other action. This Agreement has been duly executed and delivered by each
Obligor and constitutes, and each of the other Basic Documents to which an
Obligor is a party when executed and delivered by such Obligor will constitute,
a legal, valid and binding obligation of such Obligor, enforceable against each
Obligor in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts.
(a) Governmental Approvals. Attached as Schedule VII is a true
and correct list of all Governmental Approvals which are necessary as of the
date of this Agreement for (i) each Obligor to execute, deliver and perform its
obligations under this Agreement and the other Basic Documents and (ii) the
Borrower to consummate the Acquisitions and the Transactions in accordance with
the Project Documents. Each Obligor has received or has the benefit of all
Governmental Approvals which are necessary for the execution, delivery and
performance of its respective obligations under this Agreement and the other
Loan Documents. Each Obligor has received or has the benefit of all Governmental
Approvals which are necessary for the execution, delivery and performance of its
obligations under the Project Documents (and all such Governmental Approvals are
in effect), in each case, other than (x) those identified on Schedule VII as
requiring further action for their procurement and which are not now necessary
and are expected to be obtained in the ordinary course of business by the time
they are necessary and (y) those the absence of which in respect of the Project
Documents could not reasonably be expected to have a Material Adverse Effect on
the Borrower or any of its Subsidiaries or the conduct of its respective
business. All Governmental Approvals which are necessary for the acquisition and
operation of the Facilities have been obtained and are in effect (other than
those which are not now necessary and which are identified in Schedule VII as
requiring further action for their procurement and which are expected to be
obtained in the ordinary course of business by the time they are necessary).
(b) No Conflicts. The Transactions (i) will not violate any
applicable law or regulation or the Borrower LLC Agreement or the charter,
by-laws or other organizational documents (including the limited liability
company operating agreement of each Subsidiary Guarantor) of the Borrower or any
of its Subsidiaries or any order of any Governmental Authority, (ii) will not
result in a default under any indenture, agreement or other instrument binding
upon the Borrower or any of its Subsidiaries or assets, or give rise to a right
thereunder to require any payment to be made by any such Person, and (iii)
except for the Liens created pursuant to the Security Documents, will not result
in the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse
Change.
(a) Financial Condition. The Borrower has heretofore furnished
to the Lenders its opening consolidated balance sheet as at April 30, 1999,
certified by a Financial Officer. Such financial statements present fairly, in
all material respects, the financial position of the Borrower and its
Subsidiaries as at such date in accordance with GAAP.
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LOAN AGREEMENT
(b) No Material Adverse Change. Since the date hereof, there
has been no material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
(c) Year 2000 Issues. On the basis of a comprehensive review
and assessment of the Borrower's and its Subsidiaries' systems and equipment and
inquiry made of the Borrower's and its Subsidiaries' material suppliers, vendors
and customers, including testing and replacements to be completed by the fourth
quarter of 1999, the Borrower has no reason to believe that the Year 2000
Problem, including costs of remediation, will result in a Material Adverse
Effect. The Borrower and its Subsidiaries have developed and are developing
feasible contingency plans which the Borrower believes in good faith to be
adequate to ensure uninterrupted and unimpaired business operation without a
Material Adverse Effect in the event of failure of their own or a third party's
systems or equipment (including those of vendors, customers and suppliers) due
to the Year 2000 Problem.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, subject only to Liens permitted
by Section 7.02 and except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority now
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve this Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
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LOAN AGREEMENT
(c) Disclosed Matters. Since the date of this Agreement, there
has been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 4.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements, organizational documents and other instruments binding
upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 4.08. Investment Company Status. Neither the Borrower
nor any of its Subsidiaries is an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940.
SECTION 4.09. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns, information statements
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Person has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
materially exceed the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, materially exceed the fair market value of
the assets of all such underfunded Plans.
SECTION 4.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Obligors to
the Lender in connection with the negotiation of this Agreement and the other
Loan Documents or delivered hereunder or thereunder (as modified or supplemented
by other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
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SECTION 4.12. Use of Credit. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock, and no part of the
proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
SECTION 4.13. Material Agreements and Liens.
(a) Material Agreements. Part A of Schedule II is a complete
and correct list (other than the Loan Documents) of each credit agreement, loan
agreement, indenture, purchase agreement, guarantee, letter of credit or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guarantee
by, the Borrower or any of its Subsidiaries outstanding on the date hereof the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $100,000, and the aggregate principal or face amount outstanding or that
may become outstanding under each such arrangement is correctly described in
Part A of Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct
list of each Lien securing Indebtedness of any Person outstanding on the date
hereof the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $100,000 and covering any property of the Borrower or any of
its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the property covered by each such Lien is
correctly described in Part B of Schedule II.
SECTION 4.14. Capitalization. The Borrower has heretofore
delivered to the Lenders a true and complete copy of the Borrower LLC Agreement.
The only members of the Borrower on the date hereof are the Members. The only
members of each Subsidiary (other than Power Marketing) of the Borrower on the
date hereof are the Borrower and the Members. The only members of Power
Marketing on the date hereof are the borrower and NRG Marketing. The Sponsor
directly owns 100% of the ownership interests of each Member. As of the date
hereof, (x) there are no outstanding Equity Rights with respect to the Borrower
and (y) there are no outstanding obligations of the Borrower or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any membership or other
equity interests in the Borrower nor are there any outstanding obligations of
the Borrower or any of its Subsidiaries to make payments to any Person, such as
"phantom stock" payments, where the amount thereof is calculated with reference
to the fair market value or equity value of the Borrower or any of its
Subsidiaries.
SECTION 4.15. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule VI is a
complete and correct list of all of the Subsidiaries of the Borrower as of the
date hereof. The Borrower directly owns 99% of the ownership interests of each
Subsidiary. Except as disclosed in Part A of Schedule VI, (x) the Borrower owns,
free and clear of Liens (other than Liens created pursuant to the Security
Documents), and has the unencumbered right to vote, 99% of the ownership
interests in each Person shown to be held by it in Part A of Schedule VI, and
(y) there are no outstanding Equity Rights with respect to such Person.
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(b) Investments. Set forth in Part B of Schedule VI is a
complete and correct list of all Investments (other than Investments disclosed
in Part A of Schedule VI and other than Investments of the types referred to in
clauses (b), (c), (d), (e) and (f) of Section 7.04) held by the Borrower or any
of its Subsidiaries in any Person on the date hereof and, for each such
Investment, (x) the identity of the Person or Persons holding such Investment
and (y) the nature of such Investment. Except as disclosed in Part B of Schedule
VI, each of the Borrower and its Subsidiaries owns, free and clear of all Liens
(other than Liens created pursuant to the Security Documents), all such
Investments.
(c) Restrictions on Subsidiaries. None of the Subsidiaries of
the Borrower is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in Section 7.07.
SECTION 4.16. Utility Regulation.
(a) None of the Members, the Borrower, any Subsidiary nor any
Operator is a "public utility company", an "electric utility company" or a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended ("PUHCA"), nor subject to regulation under PUHCA except
pursuant to Section 9(a)(2) or Section 32 thereof.
(b) Each Subsidiary (other than Power Marketing) is an "exempt
wholesale generator" under Section 32(a) of PUHCA. None of the Affiliates of the
Subject Persons nor any of the Administrative Agents, the Collateral Agent or
Lenders is or will be, solely as a result of the participation by such parties
individually or as a group in the ownership of any of the Subject Persons or the
Subject Persons' use or operation of each Facility and sale of power generated
by any such the Facility, subject to regulation as a "public-utility company,"
an "electric utility company," a "holding company" or a "subsidiary company" or
"affiliate" of any of the foregoing, under PUHCA. The representations in this
clause (b) as they relate to a Subsidiary of the Borrower shall be deemed to be
made with respect to such Subsidiary only on and after the date on which the
Acquisition to which such Subsidiary is to be a party has been consummated.
(c) So long as each Subsidiary is an "exempt wholesale
generator" under Section 32(a) of PUHCA, none of the Administrative Agents, the
Collateral Agent or Lenders will solely by reason of the exercise of remedies
under the Security Documents be subject to regulation as a "public-utility
company," an "electric utility company," or a "holding company," or a
"subsidiary company" or "affiliate" of any of the foregoing, under PUHCA;
provided that (i) each Subsidiary remains the sole owner and operator of each
Facility, within the meaning of Section 2(a)(3) of PUHCA, or (ii) the
Administrative Agents, the Collateral Agent or Lenders assume ownership or
operation of a Facility through a special purpose subsidiary that obtains a
determination of "exempt wholesale generator" status.
ARTICLE V. CONDITIONS PRECEDENT.
SECTION 5.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which the
Administrative Agents shall have received each of the following documents, each
of which shall be satisfactory to the
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Administrative Agents (and to the extent specified below, to each Lender) in
form and substance (or such condition shall have been waived in accordance with
Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agents (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. Favorable written
opinions (addressed to the Administrative Agents and the Lenders and
dated the Effective Date) of ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., General Counsel of,
and ▇▇▇▇▇▇ & Whitney LLP, special counsel for, the Obligors, the
Members and the Sponsor, in form and substance reasonably acceptable to
the Administrative Agents and covering such other matters relating to
the Borrower, this Agreement or the Transactions as the Required
Lenders shall reasonably request (and each Obligor hereby instructs
such counsel to deliver such opinion to the Lenders and the
Administrative Agents).
(c) Opinion of Special New York Counsel to the Lenders. An
opinion, dated the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special New York counsel to the Lenders.
(d) Corporate Documents. Such documents and certificates as
the Administrative Agents or their counsel may reasonably request
relating to the organization, existence and good standing of each
Obligor, each Member and the Sponsor, the authorization of the
Transactions and any other legal matters relating to the Obligors, the
Members and the Sponsor, this Agreement or the Transactions, all in
form and substance satisfactory to the Administrative Agents and their
counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by a Financial Officer of the Borrower confirming
compliance with the conditions set forth in clauses (j) and (k) of
Section 5.02.
(f) Security Agreement. The Security Agreement, duly executed
and delivered by the Borrower, the Subsidiary Guarantors and the
Collateral Agent and the certificates identified under the name of the
Borrower in Annex 1 thereto, in each case accompanied by undated stock
powers executed in blank. In addition, each Obligor shall have taken
such other action (including delivering to the Collateral Agent, for
filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements) as the Collateral Agent shall
have requested in order to perfect the security interests created
pursuant to the Security Agreement.
(g) Pledge Agreement. The Pledge Agreement, duly executed and
delivered by each Member and the Collateral Agent and the certificates
identified under the name of such each such Member in Annex 1 thereto,
in each case, accompanied by undated stock powers executed in blank. In
addition, each Member shall have taken such other action (including
delivering to the Collateral Agent, for filing, appropriately completed
and duly executed copies of Uniform Commercial Code financing
statements) as the Collateral
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Agent shall have requested in order to perfect the security interests
created pursuant to the Pledge Agreement.
(h) Transition Agreements. Certified copies of each Transition
Agreement then in effect, in form and substance satisfactory to the
Collateral Agent.
(i) Independent Engineer's Report. The Independent Engineer
shall have delivered its final report to the Lenders in form and
substance satisfactory in all respects to the Administrative Agents
favorably reviewing (among other matters to be reviewed at the request
of the Lenders as determined in their sole discretion) the technical
feasibility of all engineering, design, capacity and operating
specifications and arrangements and capital expenditure and operating
cost estimates relating to the Facilities and environmental matters
relating to the Facilities. In addition, if requested by the Required
Lenders (through the Administrative Agents), the Borrower shall have
completed (and delivered to each Lender) an environmental risk
questionnaire in a form provided to the Borrower by the Administrative
Agents (and containing such inquiries with respect to environmental
matters as shall have been requested by any Lender, through the
Administrative Agents, to be included in such questionnaire), and the
responses to such questionnaire (and the underlying facts and
circumstances shown thereby) shall be in form and substance
satisfactory to each Lender.
(j) Power Marketing Report. The Independent Market Consultant
shall have delivered its final report to the Lenders in form and
substance satisfactory in all respects to the Administrative Agents.
(k) Insurance Report. The Independent Insurance Consultant
shall have delivered its final report to the Lenders in form and
substance satisfactory in all respects to the Administrative Agents.
(l) Other Information. Reports and documents of regarding
information about litigation, tax, accounting, labor, insurance,
pension liabilities (actual and contingent), real estate, leases,
environmental matters, material contracts, debt agreements, property
ownership, contingent liabilities and management of the Borrower and
its subsidiaries including specific references to the Facilities.
(m) Equity Contribution Agreement. The Equity Contribution
Agreement, duly executed and delivered by the Sponsor, each Member and
the Administrative Agents pursuant to which the Sponsor shall have
agreed to make capital contributions, subject to the terms and
conditions thereof, to the Borrower, either directly or indirectly
through the Members, in an aggregate amount of not less than
$474,376,000.
(n) Fees and Taxes. (i) Evidence that all filing, recordation,
subscription and inscription fees and all recording and other similar
fees, and all recording, stamp and other taxes and other expenses
related to such filings, registrations and recordings necessary for the
consummation of the transactions contemplated by this Agreement and the
other Basic Documents have been paid in full (to the extent the
obligation to make such payment then exists) by or on behalf of the
Borrower and (ii) the Paying Agent shall
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have received all fees and other amounts due and payable on or prior to
the Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrower hereunder.
(o) Debt Service Reserve Account. Evidence of the
establishment of the Debt Service Reserve Account.
(p) PMI Security Agreement. The PMI Security Agreement, duly
executed and delivered by NRG Marketing and the Collateral Agent and
certificates identified under the name of NRG Marketing in Annex 1
thereto, in each case accompanied by undated stock powers executed in
blank. In addition, NRG Marketing shall have taken such other action
(including delivering to the Collateral Agent, for filing,
appropriately completed and duly executed Copies of Uniform Commercial
Code financing statements) as the Collateral Agent shall have requested
in order to perfect the security interests created pursuant to the PMI
Security Agreement.
(q) Base Case. The Base Case Financial Model for the
Facilities prepared by the Borrower as of the Effective Date in form
and substance satisfactory to each Lender (in consultation with the
Independent Engineer) containing, without limitation, estimates of
future operations and costs.
(r) Other Documents. Such other documents as the
Administrative Agents or any Lender or special New York counsel to the
Lenders may reasonably request.
SECTION 5.02. Conditions Precedent for each Term Loan. The
obligation of each Lender to make a Loan of any Class (other than Revolving
Loans to which this Section 5.02 shall not apply) on or after the Effective Date
is subject to the satisfaction of the following conditions precedent:
(a) Governmental Approvals. Evidence that all Governmental
Approvals and third party consents and approvals required in connection
with the relevant Acquisition have been obtained and remain in effect,
and that all applicable waiting periods (other than any Excluded
Waiting Period) have expired without any action being taken by any
competent authority which restricts, prevents or imposes materially
adverse conditions upon such Acquisition.
(b) Acquisition Documents. Evidence that the relevant
Acquisition shall have been (or shall be simultaneously) consummated in
all material respects in accordance with the terms of its respective
Acquisition Documents (except for any modifications, supplements or
material waivers thereof, or written consents or determinations made by
the parties thereto that shall be satisfactory to the Required
Lenders), and the Administrative Agents shall have received a
certificate of a Financial Officer of the Borrower to such effect and
to the effect that attached thereto are true and complete copies of the
documents delivered in connection with the closing of such Acquisition
pursuant to the relevant Acquisition Documents. In addition, the
Administrative Agents shall have received copies of the legal opinions
delivered to the Borrower or its relevant Subsidiary in connection with
such Acquisition.
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(c) Insurance. Certificates of insurance evidencing the
existence of all insurance required to be maintained by the Borrower
and its Subsidiaries pursuant to Section 6.05 in respect of the
Facility that is the subject of the relevant Acquisition, such
certificates to be in such form and contain such information as is
specified in Section 6.05. The Borrower shall have delivered a
certificate of a Financial Officer of the Borrower setting forth the
insurance obtained by it in accordance with the requirements of Section
6.05 and stating that (i) such insurance is in full force and effect
and (ii) all premiums then due and payable thereon have been paid.
(d) Sponsor Credit Rating. The Administrative Agents shall
have received a certificate of a treasurer of the Sponsor to the effect
that, immediately prior to giving effect to such Borrowing, the
long-term unsecured Indebtedness of the Sponsor is rated Baa3 or better
by ▇▇▇▇▇'▇ and BBB- or better by S&P.
(e) Equity Contribution. Evidence that the Sponsor shall have
contributed cash equity to the Borrower indirectly through the Members
in an amount in respect of such Acquisition of not less than the amount
specified therefor in Section 2.01 of the Equity Contribution
Agreement.
(f) Available Funds for Future Acquisitions. Evidence that,
immediately after giving effect to such Acquisition and the borrowing
of Loans hereunder and capital contributions to the Borrower under the
Equity Contribution Agreement, in each case in respect of such
Acquisition, the unutilized Commitments hereunder when added to the
amounts available to the Borrower under the Equity Contribution
Agreement are sufficient to finance (i) the purchase price of all
remaining Acquisitions to be made by the Borrower and its Subsidiaries,
(ii) the projected working capital needs with respect to the operation
and maintenance of the Facilities which are the subject of such
remaining Acquisitions and (iii) the funding of the Debt Service
Reserve Account required to be made in connection with each Borrowing
of a Loan in connection with such remaining Acquisitions.
(g) Tranche C and Tranche D Loans. In the case of a Borrowing
of a Tranche C Loan or Tranche D Loan only, the Borrower shall have (or
contemporaneously with the Borrowing of such Loan, will Borrow)
Borrowed Tranche A Loans and/or Tranche B Loans.
(h) Regulatory Matters. The Administrative Agents shall have
received an Officer's Certificate of the Borrower, in form and
substance acceptable to the Administrative Agents, confirming (i) that
the relevant Subsidiary is an "exempt wholesale generator" under
Section 32(a) of PUHCA, (ii) that none of such Subsidiary's Affiliates
is or will be, solely as a result of the participation by such parties
individually or as a group in the ownership of such Subsidiary and such
Subsidiary's use or operation of the relevant Facility, subject to
regulation as a "public-utility company," an "electric utility
company," a "holding company" or a "subsidiary company" or "affiliate"
of any of the foregoing, under PUHCA (collectively, a "PUHCA Entity"),
(iii) none of the Administrative Agents or the Lenders is or will be,
solely as a result of such Subsidiary's or the relevant OPERATOR'S use
or operation of the relevant Facility, subject to
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regulation as a PUHCA Entity and (iv) none of the Administrative Agents
or the Lenders will, solely by reason of the exercise of the remedies
under the Security Documents, be subject to regulation as a PUHCA
Entity; provided, that (i) such Subsidiary remains the sole owner and
operator of such Facility, within the meaning of Section 2(a)(3) of
PUHCA, or (ii) the Administrative Agents, the Collateral Agent or
Lenders assume ownership or operation of such Facility through a
special purpose subsidiary that obtains a determination of "exempt
wholesale generator" status. In the case of the Con Ed Acquisition and
the Dunkirk/▇▇▇▇▇▇▇ Acquisition respectively, the Borrower will deliver
such a certificate in respect of each Subsidiary party to the relevant
Acquisition as an acquiror.
(i) Opinion of Counsel. A favorable written opinion (addressed
to the Administrative Agents and the Lenders and dated the date of such
Loan) of counsel for the Obligors, in form and substance reasonably
acceptable to the Administrative Agents, and covering such other
matters relating to such Acquisition as the Required Lenders shall
reasonably request (and each Obligor hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agents).
(j) Representations and Warranties. The representations and
warranties of the Borrower set forth in this Agreement, and of each
Obligor in each of the Loan Documents to which such Obligor is a party,
shall be true and correct on and as of the date of such Borrowing.
(k) No Defaults. At the time of and immediately after giving
effect to such Borrowing, no Default shall have occurred and be
continuing.
(l) Debt Service Reserve Account. Evidence that the Borrower
shall have deposited or caused to be deposited in the Debt Service
Reserve Account an amount (including Permitted Investments and amounts
available under Debt Service Support Instruments delivered to the
Collateral Agent) equal to or greater than the Debt Service Reserve
Amount applicable to the relevant Acquisition.
(m) Project Documents. Certified copies of each Project
Document (other than the Acquisition Documents and those Transition
Agreements delivered on the Effective Date) relating to the operation
and maintenance of the Facility that is the subject of such
Acquisition, each in form and substance satisfactory to each Lender.
(n) Pro Formas. A copy of an estimated pro forma balance sheet
of the Borrower, certified by a Financial Officer of the Borrower as of
the date of the relevant Acquisition, giving effect to such
Acquisition, the extension of credit hereunder in respect of such
Acquisition and the other transactions contemplated hereby in respect
of such Acquisition and showing a financial condition of the Borrower
in substance reasonably satisfactory to the Required Lenders.
(o) Solvency Certificates. The Administrative Agents shall
have received a certificate from a Financial Officer of each of the
Borrower, the Subsidiary party to the relevant Acquisition and each
other Subsidiary party to an Acquisition that was (or is to
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LOAN AGREEMENT
be) consummated on or before the date of the relevant Acquisition
certifying that (x) as of the date of such Loan and after giving effect
to such Loan to be made on such date and to the other transactions
contemplated hereby to be consummated on such date (including any
Intercompany Loans to be made by the Borrower to any such Subsidiary
with the proceeds of such Loan), (i) the aggregate value of all
properties of the Borrower or such Subsidiary, as the case may be, at
their present fair saleable value (i.e., the amount that may be
realized within a reasonable time, considered to be six months to one
year, either through collection or sale at the regular market value,
conceiving the latter as the amount that could be obtained for the
property in question within such period by a capable and diligent
businessman from an interested buyer who is willing to purchase under
ordinary selling conditions), exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower or such Subsidiary, as the
case may be, (ii) the Borrower or such Subsidiary, as the case may be,
will not have an unreasonably small capital with which to conduct its
business operations as heretofore conducted and (iii) the Borrower or
such Subsidiary, as the case may be, will have sufficient cash flow to
enable it to pay its debts as they mature and (y) the financial
projections and underlying assumptions contained in such analyses were
at the time made, and on the date of such Loan, are, fair and
reasonable and accurately computed.
(p) Intercompany Notes. The Subsidiary of the Borrower party
to the relevant Acquisition as acquirer shall have executed and
delivered an Intercompany Note to the Borrower evidencing the
Intercompany Loan made by the Borrower with the proceeds of a Loan
hereunder. In addition, the Borrower shall have delivered to the
Collateral Agent such Intercompany Note accompanied by undated note
powers executed in blank.
(q) Guarantee Effectiveness Certificate. A Financial Officer
of the Borrower shall have delivered to each Agent and each Lender a
Guarantee Effectiveness Certificate in respect of the obligations under
Article III of the Subsidiary of the Borrower party to the relevant
Acquisition as acquirer.
(r) Somerset Acquisition. In the case of the borrowing of
Tranche C Loans only, Somerset Power shall be a subsidiary of the
borrower, the borrower shall directly own at least 99% of the ownership
interests in Somerset Power and all requirements under Section 6.10
with respect to the acquisition of Somerset Power by the Borrower shall
have been (or shall be simultaneously) satisfied.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in clauses (j) and
(k) above.
SECTION 5.03. Conditions Precedent for each Revolving Loan.
The obligation of each Lender to make a Revolving Loan on or after the Effective
Date is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties of the Borrower set forth in this Agreement, and of each
Obligor in each of the Loan
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LOAN AGREEMENT
Documents to which such Obligor is a party, shall be true and correct
on and as of the date of such Borrowing.
(b) No Defaults. At the time of and immediately after giving
effect to such Borrowing, no Default shall have occurred and be
continuing.
(c) Available Revolver Amount. Immediately after giving effect
to such Borrowing, the aggregate outstanding principal amount of the
Revolving Loans of all Lenders will be equal to or less than the
Available Revolver Amount (determined as at the date of such
Borrowing).
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in clauses (a), (b)
and (c) above.
ARTICLE VI. AFFIRMATIVE COVENANTS.
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees and expenses payable
hereunder shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agents and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet and related statements
of operations, members' equity and cash flows of the Borrower and its
Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by PriceWaterhouse Coopers or other independent public
accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the
Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, the consolidated
balance sheet and related statements of operations, members' equity and
cash flows of the Borrower and its Subsidiaries as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for
(or, in the case of the balance sheet, as of the end of) the
corresponding period or periods of the previous fiscal year, all
certified by a Financial Officer of the Borrower as presenting fairly
in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of a Financial
Officer of the Borrower (i) certifying as to
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whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 7.01, 7.05 and 7.09
and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 4.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of Defaults under Section 7.01, 7.05 or 7.09 or
under clause (g) or (k) of Article VIII (which certificate may be
limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any of its Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its members
generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement and the other Loan Documents, as the
Administrative Agents or any Lender (through the Administrative Agents)
may reasonably request.
SECTION 6.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agents and each Lender, promptly upon becoming
aware thereof, written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any of its Affiliates or any
Facility that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount that could reasonably be expected to have a
Material Adverse Effect;
(d) the assertion of any environmental matter by any Person
against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations,
other than any environmental matter or alleged violation that, if
adversely
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determined, would not (either individually or in the aggregate) have a
Material Adverse Effect; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 6.03. Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries
to, (i) keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, and (ii)
maintain, with financially sound and reputable insurance companies, insurance
with respect to each Facility in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations. The Borrower will maintain and will
cause its Subsidiaries to maintain in any event insurance with respect to each
Facility the insurance coverage set forth for such Facility on the attached
Schedule VIII.
(b) Subject to Section 7.09, the Borrower will provide funds
to each of its Subsidiaries at such times and in such amounts so as to enable
each of its Subsidiaries to pay all Operating Expenses incurred by each such
Subsidiary on or before the date such Operating Expenses become due and payable.
If, on the last Business Day of each calendar month, the funds available to the
Borrower exceed the amount equal to the aggregate amount of Operating Expenses
of the Borrower and its Subsidiaries then due and payable plus Operating
Expenses of the Borrower and its Subsidiaries reasonably anticipated to become
due and payable during the following calendar month, then, on or before the
third Business Day of such following calendar month, the Borrower shall deposit
into the Debt Service Reserve Account an amount equal to the lesser of (i) the
Debt Service Reserve Shortfall, if any, determined as at the last Business Day
of a calendar month and (ii) the amount of such excess. The Borrower will take
all reasonable steps necessary to ensure that the aggregate amount of funds held
by each Subsidiary, as at any date,
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does not exceed an amount equal to the Operating Expenses of such Subsidiary
then due and payable plus Operating Expenses of such Subsidiary reasonably
anticipated to become due and payable within the next thirty days.
SECTION 6.06. Books and Records; Inspection Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agents, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested, subject to Section 10.12(b) hereof.
SECTION 6.07. Compliance with Laws and Contractual
Obligations. The Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority (including Environmental Laws and ERISA matters), and all contractual
obligations applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.08. Use of Proceeds. The Borrower will use the
proceeds of Loans incurred by it and Equity Contributions made to it under the
Equity Contribution Agreement solely to (i) fund the Debt Service Reserve
Account, (ii) in the case of Revolving Loans only, provide working capital for
the Borrower and its Subsidiaries and (iii) make Intercompany Loans to the
Subsidiary Guarantors. The Borrower will use the proceeds of Loans (other than
Revolving Loans) of each Class to make Intercompany Loans in the following
manner (a) the proceeds of Tranche A Loans will be used solely to make
Intercompany Loans to Dunkirk Power and ▇▇▇▇▇▇▇ Power to be used solely either
(i) if the Dunkirk/▇▇▇▇▇▇▇ Acquisition is completed prior to the date of initial
disbursement of Tranche A Loans and the purchase price thereunder is funded by
the Dunkirk/▇▇▇▇▇▇▇ Equity Contribution, to make a distribution to the Borrower
to fund the Dunkirk/▇▇▇▇▇▇▇ Distribution or (ii) in all other events, to finance
a portion of the acquisition price in respect of the Dunkirk/▇▇▇▇▇▇▇
Acquisition, (b) the proceeds of Tranche B Loans will be used solely to make
Intercompany Loans to Astoria Power and ▇▇▇▇▇▇ Kill Power to be used solely to
finance a portion of the acquisition price in respect of the Con Ed Acquisition,
(c) the proceeds of Tranche C Loans will be used solely to make Intercompany
Loans to Somerset Power to be used solely to make the Somerset Distribution and
(d) the proceeds of Tranche D Loans will be used solely to make Intercompany
Loans to Oswego Harbor Power to be used solely to finance a portion of the
acquisition price in respect of the Oswego Acquisition. Each Subsidiary
Guarantor will use the proceeds of the Intercompany Loans (and of all other
loans and advances received by it from the Borrower) solely to finance the
acquisition price of the Acquisition to which it is a party.
SECTION 6.09. Rating of Index Debt. The Borrower shall take
such actions as may be reasonably necessary to request and pursue the Index Debt
to be rated by each of ▇▇▇▇▇'▇ and S&P within 150 days after the date hereof;
provided that the Borrower's obligation under this Section 6.09 is only to
request and pursue such a rating of the Index Debt and the
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inability of the Borrower to obtain such a rating by such 150th day shall not,
by itself, constitute non-compliance with this Section 6.09.
SECTION 6.10. Certain Obligations Respecting Subsidiaries.
(a) Subsidiary Guarantors. The Borrower will take such action,
and will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all Subsidiaries of the Borrower are
"Subsidiary Guarantors" hereunder. Without limiting the generality of the
foregoing, in the event that the Borrower or any of its Subsidiaries shall form
or acquire any new Subsidiary that shall constitute a Subsidiary hereunder, the
Borrower and its Subsidiaries will cause such new Subsidiary to
(i) become a "Subsidiary Guarantor" hereunder, and an
"Obligor" under the Security Agreement pursuant to a Guarantee
Assumption Agreement;
(ii) cause such Subsidiary to take such action (including
delivering such membership interests or other ownership interests,
executing and delivering such Uniform Commercial Code financing
statements) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the personal
property of such new Subsidiary on which a Lien is required to be
created pursuant to the Security Agreement as collateral security for
the obligations of such new Subsidiary hereunder; and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 5.01 on the
Effective Date or as the Administrative Agents shall have requested.
(b) Ownership of Subsidiaries. The Borrower will, and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that the ownership interest of the Borrower in each of
its Subsidiaries shall not fall below 99%. In the event that any additional
membership interests shall be issued by any Subsidiary, the respective Obligor
agrees forthwith to deliver to the Collateral Agent pursuant to the Security
Agreement the certificates evidencing such membership interests, accompanied by
undated stock powers executed in blank and to take such other action as the
Collateral Agent shall request to perfect the security interest created therein
pursuant to the Security Agreement.
SECTION 6.11. Casualty Events.
(a) The Borrower will, and will cause its Subsidiaries to,
apply all Loss Proceeds to either (i) so long as an Event of Default shall not
have occurred and be continuing, if the aggregate amount of Loss Proceeds for a
single Casualty Event or related series of Casualty Events is equal to or less
than $100,000,000 to Restore the Affected Property in compliance with this
Section 6.11 or (ii) if an Event of Default shall have occurred and is
continuing or the aggregate amount of Loss Proceeds for a single Casualty Event
or related series of Casualty Events is greater than $100,000,000, to prepay the
Loans and/or reduce the Commitments in compliance with Section 2.08(b)(i) within
30 days of receipt of such Loss Proceeds unless the Required Lenders otherwise
agree in writing.
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(b) If the aggregate amount of Loss Proceeds for a single
Casualty Event or related series of Casualty Events is greater than or equal to
$25,000,000 but less than or equal to $100,000,000, the Borrower shall, not
later than 45 days after receipt of all or any portion of such proceeds, deliver
to the Administrative Agents and each Lender a restoration plan setting forth
the sources and uses of funds (including such Loss Proceeds and any other
amounts of committed funds available to the Borrower) which demonstrates the
adequacy of available funds to Restore the Affected Property and to pay all
other expenses under the Loan Documents during the period of time that, in the
opinion of the Independent Engineer, is required to restore the Affected
Property. If within 30 days after receipt of any such restoration plan (which
30-day period may be extended by up to 30 days upon the request of the Required
Lenders prior to the expiration of the initial 30-day period) the Required
Lenders (in consultation with the Independent Engineer) have not approved such
restoration plan, then the Borrower will apply such proceeds to prepay the Loans
and/or reduce the Commitments pursuant to Section 2.08(b)(i) within five days
after the expiration of such period. Without limiting the obligation of the
Borrower under clause (a) of this Section 6.11 to Restore, or cause its
Subsidiaries to Restore, the Affected Property, the requirements of this clause
(b) shall not apply where the amount of Loss Proceeds for a single Casualty
Event or related Series of Casualty Events is less than $25,000,000.
SECTION 6.12. EWG Status. The Borrower will take, or cause to
be taken, all action required to maintain its and its Subsidiaries (other than
Power Marketing), status as an "exempt wholesale generator" under Section 32(a)
of PUHCA. The Borrower will take, or cause to be taken, all action required to
cause each Operator and NRG Operations to maintain its status as an "exempt
wholesale generator" under Section 32(a) of PUHCA.
SECTION 6.13. Debt Service Reserve Account.
(a) Creating the Account. The Collateral Agent hereby
establishes and creates on its own books a special, irrevocable collateral
account (the "Debt Service Reserve Account") which shall be maintained at all
times until the termination of this Agreement. All amounts from time to time
held in the Debt Service Reserve Account shall be held (i) in the name of the
Collateral Agent for the benefit of the Lenders and (ii) under the exclusive
dominion and control of the Collateral Agent. Except as expressly provided in
this Agreement, neither the Borrower nor any other Obligor shall have any right
to withdraw funds from the Debt Service Reserve Account. All amounts on deposit
in the Debt Service Reserve Account and all Permitted Investments held therein
shall constitute a part of the Collateral and shall not constitute payment of
any Senior Debt until applied as provided in this Agreement. The Borrower hereby
irrevocably authorizes the Collateral Agent to withdraw funds from the Debt
Service Reserve Account in accordance with this Section 6.13.
(b) Funding of the Account. The Borrower shall deposit cash,
Permitted Investments, one or more Debt Service Reserve Support Instruments or
any combination thereof into the Debt Service Reserve Account in the amount and
by the time required in connection with the initial Borrowing of Loans of each
Class (other than Revolving Loans) as contemplated in Section 5.02(l) and
otherwise in the amounts and at the times specified in Section 6.05(b). In the
event that at any time the Borrower caused to be delivered to the Collateral
Agent, one or more Debt Service Reserve Guarantees, and thereafter Collateral
Agent is entitled or required to
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make withdrawals from the Debt Service Reserve Account pursuant to clause (i) or
(ii) of this Section 6.13, then the Borrower shall be required to deposit with
the Collateral Agent for credit to the Debt Service Reserve Account, an amount
equal to the lesser of (x) the amount which the Collateral Agent is so entitled
or required to withdraw less any amount of any Debt Service Reserve Letters of
Credit then credited to the Debt Service Reserve Account and (y) the amount of
Guaranteed Obligations (as defined in the Debt Service Reserve Guarantees) then
available to be demanded under all such Debt Service Reserve Guarantees then
held by the Collateral Agent.
(c) Withdrawals from the Account.
(i) The Borrower may direct the withdrawal of funds from the
Debt Service Reserve Account to the extent that no other funds are
available to it to pay principal or interest on the Loans or fees in
respect of the Commitments that are due on the date of such withdrawal
(each, a "Withdrawal Date"). For each withdrawal from the Debt Service
Reserve Account pursuant to this Section 6.13(c), the Borrower shall
deliver to the Administrative Agents and the Collateral Agent, no less
than two Business Days prior to the relevant Withdrawal Date, a
certificate (each, a "Withdrawal Certificate") of a Financial Officer
stating that the funds available to it to pay the aggregate amount of
such principal, interest and fees due and payable on the Withdrawal
Date are insufficient to pay such amounts and setting out the relevant
Withdrawal Date and the amount to be withdrawn. On each Withdrawal
Date, Collateral Agent shall transfer from the Debt Service Reserve
Account, to the extent funds are available therein, to the Lenders
(through the Paying Agent) the amount specified in the relevant
Withdrawal Certificate.
(ii) If on any date on which principal or interest on the
Loans or fees in respect of the Commitments are due and payable the
Paying Agent shall have received from or on behalf of the Borrower
funds that are insufficient to pay the aggregate amount of such
principal, interest and fees in full, then, upon notice thereof by the
Paying Agent to the Collateral Agent specifying the amount of such
insufficiency, the Collateral Agent shall transfer from the Debt
Service Reserve Account, to the extent funds are available therein, to
the Lenders (through the Paying Agent) an amount equal to such
insufficiency.
(iii) If on any date on or prior to the Maturity Date on which
Collateral Agent is required to make withdrawals from the Debt Service
Reserve Account pursuant to the foregoing clauses (i) or (ii) the funds
on deposit in the Debt Service Reserve Account are insufficient to make
such withdrawals, the Collateral Agent shall draw on or demand payment
under any Debt Service Reserve Support Instrument then in its
possession in an amount equal, when added to all amounts paid under
each other Debt Service Reserve Support Instrument on such date, to
such insufficiency.
(iv) Unless the Administrative Agents shall have notified the
Collateral Agent that an Event of Default shall have occurred and is
continuing or would result therefrom, if on the last Business Day of
any calendar month, the credit balance of the Debt Service Reserve
Account exceeds the Debt Service Reserve Requirement, then upon the
written request of the Borrower delivered to the Administrative Agent
and the Collateral Agent no less than two Business Days prior to the
such last Business Day, the Collateral Agent
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shall transfer from the Debt Service Reserve Account to the Borrower an
amount equal to such excess in accordance with the instructions
specified therefor in such request.
(d) Investment of Balance in Account. The cash balance
standing to the credit of the Debt Service Reserve Account shall be invested
from time to time in such Permitted Investments as the Borrower (or, after the
occurrence and during the continuance of a Default, the Collateral Agent) shall
determine, which Permitted Investments shall be held in the name and be under
the control of the Collateral Agent; provided that at any time after the
occurrence and during the continuance of an Event of Default, the Collateral
Agent may (and, if instructed by the Required Lenders, shall) in its (or their)
discretion at any time and from time to time elect to liquidate any such
Permitted Investments (in an amount necessary to cure such Event of Default) and
apply or cause to be applied the proceeds thereof to the payment of the Secured
Obligations in respect of principal and interest on the Loans and fees in
respect of the Commitments in the manner specified in Section 5.09 of the
Security Agreement.
(e) Debt Service Support Instruments.
(i) At any time after the Effective Date, the Borrower may
deliver to the Collateral Agent a Debt Service Support Instrument in an
aggregate amount available to be drawn or demanded thereunder equal to
all or a portion of the Debt Service Reserve Requirement. At any time
upon or after delivery of a Debt Service Reserve Support Instrument,
the Borrower may deliver to the Collateral Agent a certificate (a
"Reduction Certificate") setting out the Borrower's calculation of the
excess of (x) the aggregate amount of cash and Permitted Investments on
deposit in the Debt Service Reserve Account plus the aggregate amount
then available to be drawn under all Debt Service Support Instruments
theretofore delivered to the Collateral Agent over (y) the Debt Service
Reserve Requirement. The Collateral Agent shall, in accordance with the
instructions specified therefor in such request, transfer from the Debt
Service Reserve Account to the Borrower cash or Permitted Investments
or reduce the amount available to be drawn on or demanded under such
Debt Service Support Instrument(s) in an amount equal to such excess.
(ii) In the event that at any time prior to the Maturity Date
the issuing bank in respect of any Debt Service Reserve Letter of
Credit fails to qualify as an Acceptable Bank the Borrower shall cause
all Debt Service Reserve Letters of Credit issued by such issuing bank
to be replaced by another Debt Service Reserve Support Instrument or
cash deposit in an amount at least equal to the available face amount
of the Debt Service Reserve Letter(s) of Credit being replaced. If such
Debt Service Reserve Letter of Credit is not so replaced within fifteen
(15) days of notice by the Collateral Agent to the Borrower of the
failure of such issuing bank to qualify as an Acceptable Bank, then in
each case, the Collateral Agent may (and if so directed by the Required
Lenders shall) draw on the full available face amount of such Debt
Service Reserve Letter of Credit in accordance with the terms thereof
and deposit the proceeds of such draw into the Debt Service Reserve
Account.
(iii) In the event that at any time prior to the Maturity Date
the guarantor under any Debt Service Reserve Guarantee fails to qualify
as an Acceptable Guarantor, the
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Borrower shall cause the Debt Service Reserve Guarantee of such Person
to be replaced by another Debt Service Reserve Support Instrument or
cash deposit in an amount at least equal to the amount guaranteed under
the Debt Service Reserve Guarantee being replaced. If such Debt Service
Reserve Guarantee is not so replaced within fifteen (15) days of notice
by the Collateral Agent to the Borrower of the failure of such Person
to qualify as an Acceptable Guarantor, then in each case, the
Collateral Agent may (and if so directed by the Required Lenders shall)
draw on the full amount guaranteed under such Debt Service Reserve
Guarantee in accordance with the terms thereof and deposit the proceeds
of such draw into the Debt Service Reserve Account.
(f) The amount on deposit in the Debt Service Reserve Account
at any time shall be deemed to be equal to the aggregate amount of cash on
deposit therein at such time, plus the aggregate fair market value of all
Permitted Investments on deposit therein at such time, plus the amount available
to be drawn or demanded under all Debt Service Reserve Instruments held by the
Collateral Agent at such time.
ARTICLE VII. NEGATIVE COVENANTS.
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 7.01. Indebtedness. The Borrower will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness of any Subsidiary to the Borrower (including
Indebtedness of a Subsidiary in respect of Intercompany Loans);
(c) Guarantees by any Subsidiary of Indebtedness of the
Borrower; AND
(d) Until and including the date of the of the initial
borrowing of the Tranche C Loans, unsecured indebtedness of the
Borrower in respect of the Somerset Notes in an aggregate principal
amount at any time outstanding not exceeding $54,202,500 so long as
such indebtedness is expressly made subordinated and subject in right
of payment to the prior payment in full of the principal of and
interest on the loans and all other amounts from time to time owing to
the Lenders hereunder other than payment on such indebtedness funded
with the proceeds of the Somerset distribution or an equity
contribution (as defined in the Equity Contribution Agreement).
SECTION 7.02. Liens. The Borrower will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except Permitted Encumbrances.
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SECTION 7.03. Fundamental Changes.
(a) Mergers, Consolidations, Disposal of Assets, Etc. The
Borrower will not, nor will it permit any of its Subsidiaries to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of its
assets, or all or substantially all of the stock of any of its Subsidiaries (in
each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Subsidiary may merge
into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction
in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary and (iv) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders.
(b) Lines of Business. The Borrower will not, nor will it
permit any of its Subsidiaries to, engage to any material extent in any business
other than (i) in the case of the Borrower, the ownership of the Subsidiaries,
(ii) in the case of the Subsidiaries of the Borrower other than Power Marketing,
the consummation of the Acquisitions and the ownership, operation and use of its
respective Facility as contemplated by the Project Documents to which it is a
party and (iii) in the case of NRG Marketing, such activities to be engaged in
by it as contemplated by the Power Sales Agreement.
SECTION 7.04. Investments. The Borrower will not, nor will it
permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
in Part B of Schedule VI;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Subsidiaries in the
Borrower and its Subsidiaries (including Investments by the Borrower in
Intercompany Loans);
(e) Hedging Agreements entered into in the ordinary course of
the Borrower's financial planning and not for speculative purposes;
(f) Investments consisting of security deposits with utilities
and other like Persons made in the ordinary course of business; and
(g) additional Investments up to but not exceeding $10,000,000
in the aggregate.
For purposes of clause (g) of this Section, the aggregate amount of an
Investment at any time shall be deemed to be equal to (A) the aggregate amount
of cash, together with the aggregate fair market value of property, loaned,
advanced, contributed, transferred or otherwise invested that
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gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment;
the amount of an Investment shall not in any event be reduced by reason of any
write-off of such Investment nor increased by any increase in the amount of
earnings retained in the Person in which such Investment is made that have not
been dividend, distributed or otherwise paid out.
SECTION 7.05. Restricted Payments. The Borrower will not make,
or agree to pay or make, directly or indirectly, any Restricted Payment, except
that the Borrower may make (a) Restricted Payments to its members on or after
April 12 of each fiscal year (the "current year") in an amount equal to the Tax
Payment Amount for the immediately preceding fiscal year (the "prior year"), so
long as at least fifteen days prior to making any such Restricted Payment, the
Borrower shall have delivered to each Lender (x) notification of the amount and
proposed payment date of such Restricted Payment and (y) a statement from the
Borrower's independent certified public accountants setting forth a detailed
calculation of the Tax Payment Amount for the prior year and showing the amount
of such Restricted Payment and all prior Restricted Payments and (b) the
Dunkirk/▇▇▇▇▇▇▇ Distribution if the Borrower shall have received the
Dunkirk/▇▇▇▇▇▇▇ Equity Contribution. Notwithstanding the foregoing the Borrower
shall not make any Restricted Payment pursuant to clause (a) of the preceding
sentence if any Default in respect of clause (b) of Article VIII or if any Event
of Default shall have occurred and be continuing. Nothing herein shall be deemed
to prohibit the payment of dividends by any Subsidiary of the Borrower to the
Borrower.
SECTION 7.06. Transactions with Affiliates. The Borrower will
not, nor will it permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
7.05, (d) transactions that are contemplated by the Project Documents and (e)
payment by the Borrower of Indebtedness of the Borrower evidenced by the
Somerset Notes outstanding on the date of initial disbursement of the Tranche C
Loans.
SECTION 7.07. Restrictive Agreements. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its capital stock or to
make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that:
(i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement; and
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(ii) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment
thereof.
SECTION 7.08. [Reserved.]
SECTION 7.09. Capital Expenditures. The Borrower will not
permit the aggregate amount of Capital Expenditures by the Borrower and its
Subsidiaries to exceed the following respective amounts for the period
commencing on the Effective Date and ending on the Maturity Date:
SUBSIDIARY AMOUNT
---------- ------
Dunkirk Power $ 5,800,000
▇▇▇▇▇▇▇ Power $ 7,300,000
Astoria Power $ 5,100,000
▇▇▇▇▇▇ Kill Power $ 5,200,000
Somerset Power $ 8,900,000
Oswego Harbor Power $ 12,900,000
SECTION 7.10. Modifications of Certain Documents. The Borrower
will not consent, nor allow any Subsidiary to consent, to any material
modification, supplement or waiver of any of the provisions of any Acquisition
Document without the prior consent of the Administrative Agents (with the
approval of the Required Lenders). Without the prior consent of the Required
Lenders, the Borrower will not agree or consent to nor allow any Subsidiary to
agree or consent to any termination, modification, supplement or waiver of any
Project Document (other than an Acquisition Document) unless such termination,
modification, supplement or waiver could not, individually or collectively with
all other such terminations, modifications, supplements and waivers, reasonably
be expected to have a Material Adverse Effect. Without the prior written consent
of the Required Lenders, the Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any contract or agreement relating to the
acquisition, ownership, leasing, occupation, operation, maintenance or use of
the Facilities other than (a) the Project Documents, (b) Hedging Agreements, (c)
any Additional Project Document, (d) any Permitted Fuel Agreement, (e) any
Permitted Power Marketing Agreement and (f) any Permitted Power Purchase
Agreement. Promptly after the execution and delivery thereof, the Borrower will
furnish to the Administrative Agents, the Collateral Agent and the Lenders (a)
certified copies of all such contracts and agreements and (b) a Consent and
Agreement from each Person (other than an Obligor or any Lender) party to any
such Hedging Agreement, any such Additional Project Documents or any such
Permitted Fuel Agreement or Permitted Power Marketing Agreement with a term in
excess of one year.
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SECTION 7.11. Fuel Agreements. The Borrower will not, nor will
it permit any of its Subsidiaries to, enter into any Fuel Agreement other than
any Fuel Agreement entered into by the Borrower or any of its Subsidiaries in
the ordinary course of its business and not for speculation.
SECTION 7.12. Power Marketing Agreements. The Borrower will
not, nor will it permit any of its Subsidiaries to, enter into any Power
Marketing Agreements other than any Power Marketing Agreement entered into by
the Borrower or any of its Subsidiaries in the ordinary course of its business
and not for speculation.
SECTION 7.13. Power Purchase Agreements. The Borrower will
not, nor will it permit any of its Subsidiaries to, enter into any Power
Purchase Agreement other than any Power Purchase Agreement entered into by the
Borrower or any of its Subsidiaries in the ordinary course of its business for
the purpose of balancing the obligations of the Borrower and its Subsidiaries to
sell electrical energy generating capacity and electrical energy under all Power
Marketing Agreements to which the Borrower and its Subsidiaries are party with
the aggregate electrical energy generating capacity and electrical energy to be
generated by the Facilities taken as a whole while operated and maintained in
accordance with prudent utility practice.
ARTICLE VIII. EVENTS OF DEFAULT.
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or under any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three or more
Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries in or in
connection with this Agreement or any other Loan Document or any
amendment or modification hereof or thereof, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with this Agreement or any other Loan Document or
any amendment or modification hereof or thereof, shall prove to have
been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 6.02, 6.03 (with
respect to the Borrower's existence), 6.08, 6.10 (other than clause
(a)(ii) thereof) or 6.12 or in Article VII or any Obligor shall default
in the performance of any of its obligations contained in Section 4.02
or 5.02 of the Security Agreement; or any Member party thereto shall
default in the performance of any of its obligations contained in the
Pledge Agreement;
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(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.01 and such failure shall
continue unremedied for a period of 60 or more days after notice
thereof from the Administrative Agents (given at the request of any
Lender) to the Borrower.
(f) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (d) or (e) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30
or more days after notice thereof from the Administrative Agents (given
at the request of any Lender) to the Borrower;
(g) the Borrower or any of its Subsidiaries shall fail to make
any payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness when due (and any grace period
relating thereto has expired) or any event or condition occurs that
results in any Material Indebtedness becoming due prior to its
scheduled maturity or that enables or permits the holder or holders of
any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower, any of its
Subsidiaries, any Member, any Operator, NRG Marketing or NRG Operations
or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower, any of its Subsidiaries, any Member, any
Operator, NRG Marketing or NRG Operations or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall
continue undismissed for a period of 60 or more days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower, any of its Subsidiaries, any Member, any
Operator, NRG Northeast Marketing or NRG Operations shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for itself or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower, any of its Subsidiaries, any Member, any
Operator, NRG Northeast Marketing or NRG Operations shall become
unable, admit in writing its inability or fail generally to pay its
debts as they become due;
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(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the
Borrower or any of its Subsidiaries or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Borrower or any of its Subsidiaries to enforce any
such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) there shall have been asserted in writing against the
Borrower or any of its Subsidiaries, or any predecessor in interest of
the Borrower or any of its Subsidiaries by a Governmental Authority,
any claims or liabilities, whether accrued, absolute or contingent,
based on or arising from the generation, storage, transport, handling
or disposal of Hazardous Materials by the Borrower or any of its
Subsidiaries or predecessors that, in the judgment of the Required
Lenders, are reasonably expected to be determined adversely to the
Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) could reasonably be expected to have
a Material Adverse Effect (insofar as such amount is payable by the
Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor);
(n) a Change in Control shall occur;
(o) the Borrower shall be terminated, dissolved or liquidated
(as a matter of law or otherwise) or proceedings shall be commenced by
any Person (including the Borrower) seeking the termination,
dissolution or liquidation of the Borrower;
(p) the Liens created by the Security Documents shall at any
time not constitute a valid and perfected Lien on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein)
in favor of the Collateral Agent, free and clear of all other Liens
(other than Liens permitted under Section 7.02 or under the respective
Security Documents), or, except for expiration in accordance with its
terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Obligor or Member;
(q) either (i) this Agreement or any other Loan Document is
declared in a final non-appealable judgment to be unenforceable against
any Obligor or Member party thereto, or any Obligor or Member shall
have expressly repudiated its obligations hereunder or thereunder; or
(ii) any Project Document is declared in a final non-appealable
judgment to be unenforceable against any party thereto, or any such
party shall have expressly repudiated its obligations thereunder and
ceased to perform such obligations, or defaulted in the performance or
observance of any of its material obligations thereunder and such
default has continued unremedied for a period of five
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LOAN AGREEMENT
days or more or any such party is the subject of any proceeding under
the Bankruptcy Code; or
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agents may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Obligor; and in case of any
event with respect to any Obligor described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Obligors accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
ARTICLE IX. THE AGENTS.
Each of the Lenders hereby irrevocably appoints Chase and
Citibank as its agent hereunder and under the other Loan Documents and
authorizes Chase and Citibank to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agents by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. Each of the Lenders hereby irrevocably appoints Citibank as its paying
agent hereunder and under the other Loan Documents and authorizes Citibank to
take such actions on its behalf and to exercise such powers as are delegated to
the Paying Agent by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. Each of the Lenders hereby
irrevocably appoints Chase as its collateral agent hereunder and under the other
Loan Documents and authorizes Chase to take such actions on its behalf and to
exercise such powers as are delegated to the Collateral Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The following provisions of this Article IX shall apply to
the Collateral Agent and the Paying Agent mutatis mutandis.
The Persons serving as the Administrative Agents hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agents, and such Person and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agents hereunder.
The Administrative Agents shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agents shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative
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LOAN AGREEMENT
Agents shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agents are required to exercise in writing by the Required Lenders, and (c)
except as expressly set forth herein and in the other Loan Documents, the
Administrative Agents shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agents or any of its Affiliates in any capacity. The
Administrative Agents shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders or in the absence
of its own gross negligence or willful misconduct. The Administrative Agents
shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agents by the Borrower or a
Lender, and the Administrative Agents shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article V or elsewhere herein or therein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agents.
The Administrative Agents shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agents also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agents may consult
with legal counsel (who may be counsel for an Obligor, Member or the Sponsor),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agents may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agents. The Administrative Agents and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agents and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agents.
Each Administrative Agent may resign at any time by notifying
the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent's
resignation shall nonetheless become effective and (1) the retiring
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LOAN AGREEMENT
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender 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 Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 10.02(b) with respect
to this Agreement, the Administrative Agent and the Collateral Agent may, with
the prior consent of the Required Lenders (but not otherwise), consent to any
modification, supplement or waiver under any of the Loan Documents to which it
is a party; provided that, without the prior consent of each Lender, (a) the
Collateral Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document providing for collateral security, agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Security Document, in which event the Collateral
Agent may consent to such junior Lien provided that it obtains the consent of
the Required Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents,
except that no such consent shall be required, and the Collateral Agent is
hereby authorized, to release any Lien covering property that is the subject of
either a disposition of property permitted hereunder or a disposition to which
the Required Lenders have consented.
ARTICLE X. MISCELLANEOUS.
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
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LOAN AGREEMENT
(a) if to the Borrower or any Subsidiary Guarantor, to it at
c/o NRG Energy, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ (Telecopy No.
▇▇▇-▇▇▇-▇▇▇▇; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Administrative Agents, to The Chase Manhattan
Bank, 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Loan and Agency Services Group (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The
Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇); and Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Zone
24, New York, New York, 10043, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy
No. ▇▇▇-▇▇▇-▇▇▇▇; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇, with a copy to Citibank,
N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Zone 24, New York, New York 10043,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (Telecopy No.(▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇).
(c) if to the Collateral Agent, to The Chase Manhattan Bank,
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to the Paying Agent, to Citibank, N.A., Global Loan
Operations, ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇); or
(e) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agents). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agents, the Paying Agent, the Collateral Agent or
any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agents, the Paying
Agent, the Collateral Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default,
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LOAN AGREEMENT
regardless of whether the Administrative Agents, the Paying Agent, the
Collateral Agent or any Lender may have had notice or knowledge of such Default
at the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agents with the consent of the Required
Lenders; provided that no such agreement shall (i) increase any Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate or amount of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied as among the
Lenders or Types or Classes of Loans, without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition of
the term "Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder, without the written
consent of each Lender, or (vi) release any Subsidiary Guarantor from any of its
guarantee obligations under Article III without the written consent of each
Lender; and provided, further, that (x) no such agreement shall amend, modify or
otherwise affect the rights or duties of the (1) Administrative Agents hereunder
without the prior written consent of each Administrative Agent, (2) Collateral
Agent hereunder without the prior written consent of the Collateral Agent or (3)
Paying Agent hereunder without the prior written consent of the Paying Agent and
(y) that any modification or supplement of Article III shall require the consent
of each Subsidiary Guarantor.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agents, the
Collateral Agent and the Paying Agent and their Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agents, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all out-of-pocket expenses incurred by the Administrative
Agents or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agents, the Collateral Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Loans made hereunder, including in connection
with any workout, restructuring or negotiations in respect thereof and (iii) and
all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
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(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agents, the Collateral Agent, the Paying Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agents,
the Collateral Agent or the Paying Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agents, the
Collateral Agent or the Paying Agent, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agents, the Collateral Agent or the Paying Agent in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, no party hereto shall assert, and each party hereto
hereby waives, any claim against any other party or any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable not later than 20 days after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Obligor may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by any Obligor without such consent shall be null and void). Nothing in
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this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agents, the Collateral Agent, the Paying
Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at the
time owing to it); provided that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender (other than in the case of an assignment to
such an Affiliate that would impose costs on the Borrower pursuant to Section
2.12 or 2.14 in excess of those costs incurred prior to such assignment), each
of the Borrower and each Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment(s), the amount of the Commitment(s) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agents) shall
not be less than $10,000,000 unless each of the Borrower and each Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agents an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agents an
Administrative Questionnaire; provided, further, that any consent of the
Borrower otherwise required under this paragraph shall not be required if an
Event of Default under clause (h) or (i) of Article VIII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.12,
2.13, 2.14 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) Maintenance of Register by the Paying Agent. The Paying
Agent, acting for this purpose as an agent of the Borrower, shall maintain at
one of its offices in New York City a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amount of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agents, the Collateral Agent, the Paying Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of
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this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Administrative Agents, the
Collateral Agent and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon their receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agents
and the Paying Agent shall accept such Assignment and Acceptance and the Paying
Agent record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower or the Administrative Agents, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement and the other Loan Documents (including all
or a portion of its Commitments and the Loans owing to it); provided that (i)
such Lender's obligations under this Agreement and the other Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agents, the Collateral Agent, the Paying Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.12, 2.13 and 2.14 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.12 or 2.14 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.14 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.14(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such
83
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LOAN AGREEMENT
pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such assignee for such Lender as
a party hereto.
(h) No Assignments to the Obligors or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Sponsor or any
of its Affiliates or the Borrower or any of its Affiliates or Subsidiaries
without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that any Administrative Agent, the
Collateral Agent, the Paying Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid and so long
as the Commitments have not expired or terminated. The provisions of Sections
2.12 (except to the extent provided in clause (d) thereof), 2.13, 2.14, 3.03 and
10.03 and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agents, the Collateral Agent and the Paying Agent constitute the
entire contract between and among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
5.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agents and when the Administrative Agents shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest
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LOAN AGREEMENT
extent permitted by law, to set off 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 Lender to or for the credit or the
account of any Obligor against any of and all the obligations of any Obligor now
or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto 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 Agreement shall affect any right that the
Administrative Agents or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Obligor or its properties in
the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
85
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LOAN AGREEMENT
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain Information;
Confidentiality.
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the
Borrower and its Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agents, the
Collateral Agent, the Paying Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (i) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors on a
need-to-know basis (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by regulatory authority having jurisdiction over such Person, (iii) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (iv) to any other party to this Agreement, (v) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this
paragraph, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (vii)
with the prior written consent of the Borrower in its sole discretion or (viii)
to the extent such Information (A) becomes publicly available other than as a
result of a breach of this paragraph or (B) becomes available to the
Administrative Agents, the Collateral Agent, the Paying Agent or any Lender on a
nonconfidential basis from a source other than an Obligor. For the purposes of
this paragraph, "Information" means all information received from any Obligor
relating to any Obligor or its business, other than any such information that is
available to the Administrative Agents, the Collateral Agent, the Paying Agent
or any Lender on a nonconfidential basis prior to disclosure by an Obligor. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has taken reasonable precautions to keep such
86
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LOAN AGREEMENT
Information confidential in accordance with its customary procedures for
handling confidential information of the same nature and in accordance with safe
and sound banking practices. Unless prohibited by law or court order, each
Lender, each Administrative Agent, the Collateral Agent and the Paying Agent
shall, prior to disclosure thereof, notify the Borrower of any request for
disclosure of any Information pursuant to subclause (ii) or (iii) of the first
sentence of this clause (b).
87
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LOAN AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
NRG NORTHEAST GENERATING LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
88
S-2
LOAN AGREEMENT
SUBSIDIARY GUARANTORS
▇▇▇▇▇▇ KILL POWER LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
ASTORIA GAS TURBINE POWER LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
DUNKIRK POWER LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ POWER LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
89
S-3
LOAN AGREEMENT
NRG NORTHEAST POWER
MARKETING LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
OSWEGO HARBOR POWER LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
SOMERSET POWER LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
90
S-4
LOAN AGREEMENT
LENDERS
THE CHASE MANHATTAN BANK,
individually, as an Administrative Agent and
as Collateral Agent
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
91
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LOAN AGREEMENT
CITIBANK, N.A.,
individually, as an Administrative Agent and
as Paying Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
Attorney-in-fact
Global Project Finance
399 Park 5/24
▇▇▇-▇▇▇-▇▇▇▇
92
S-6
LOAN AGREEMENT
ABN AMRO BANK
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice President
By: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Vice President
93
S-7
LOAN AGREEMENT
AUSTRALIAN & NEW ZEALAND
BANKING GROUP LIMITED
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
94
S-8
LOAN AGREEMENT
BANK HAPOALIM B.M.
By: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: First Vice President &
Corporate Manager
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
95
S-9
LOAN AGREEMENT
BANK OF MONTREAL
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇
▇-▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: F.C.H. ▇▇▇▇▇
-------------------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
97
S-11
LOAN AGREEMENT
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
98
S-12
LOAN AGREEMENT
BAYERISCHE HYPO-UND VEREINSBANK AG
- New York Branch
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
99
S-13
LOAN AGREEMENT
CIBC INC.
By: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp. As Agent
100
S-14
LOAN AGREEMENT
COBANK, ACB
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
101
S-15
LOAN AGREEMENT
COMMERZBANK AG
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
102
S-16
LOAN AGREEMENT
CREDIT LOCAL DE FRANCE
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Deputy General Manager
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
103
S-17
LOAN AGREEMENT
DRESDNER KLEINWORT ▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
104
S-18
LOAN AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
105
S-19
LOAN AGREEMENT
ING (U.S.) CAPITAL
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
106
S-20
LOAN AGREEMENT
MEES PIERSON CAPITAL CORP.
By: Hendrik Vreege
------------------------------
Name: Hendrik Vreege
Title: Managing Director
By: ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
107
S-21
LOAN AGREEMENT
ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Project Finance
108
S-22
LOAN AGREEMENT
THE SUMITOMO BANK, LIMITED
By: ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Joint General Manager
109
S-23
LOAN AGREEMENT
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate