Exhibit B-4(f)
RIVER FUEL COMPANY #2, INC.
$55,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 19, 1999
with
THE BANK OF NEW YORK
and
THE VARIOUS LENDERS
TABLE OF CONTENTS
PAGE
I. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms 1
SECTION 1.02. Accounting Terms 8
II. COMMERCIAL PAPER OPERATIONS
SECTION 2.01. Form and Maturity of Commercial Paper
Notes 8
SECTION 2.02. Issuance of Commercial Paper Notes 8
SECTION 2.03. Commercial Paper Account 9
SECTION 2.04. Letter of Credit 10
SECTION 2.05. Payments Under Letter of Credit 10
SECTION 2.06. Termination Date; Termination of
Agreement 11
SECTION 2.07. Modification or Termination of Letter of
Credit Facility in Certain Events 12
SECTION 2.08. Letter of Credit Fee 13
SECTION 2.09. Commitment Fee 13
SECTION 2.10. Other Fees 14
SECTION 2.11. Optional Reduction or Termination of
Commitments 14
III. PARTICIPATION IN LETTER OF CREDIT PAYMENTS
SECTION 3.01. Participations 14
SECTION 3.02. Repudiation of Obligation to
Participate 15
IV. REVOLVING CREDIT LOANS
SECTION 4.01. Loans; Interest on the Loans 16
SECTION 4.02. B Notes 19
SECTION 4.03. Payments and Prepayments 20
SECTION 4.04. Manner of Payments; Sharing
Among Lenders 21
SECTION 4.05. Taxes, Reserves, Etc. 22
V. REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Organization, Powers, Etc. 25
SECTION 5.02. Authority, Etc. 25
SECTION 5.03. Litigation 26
SECTION 5.04. Title to Properties 26
SECTION 5.05. Consents, Etc. 26
SECTION 5.06. Investment Company Status 27
SECTION 5.07. Ownership of Company, Etc . 27
SECTION 5.08. Lessee's Financial Statements . 27
SECTION 5.09. First Perfected Security Interest . 28
SECTION 5.10. Absence of Certain Events 28
VI. CONDITIONS PRECEDENT
SECTION 6.01. Conditions to Effectiveness 28
SECTION 6.02. Conditions to Certain Credit Events 29
SECTION 6.03. Conditions to Each Credit Event 29
SECTION 6.04. Conditions to Issuance of Commercial
Paper Notes 30
VII. AFFIRMATIVE COVENANTS
SECTION 7.01. Corporate Existence, Etc. 30
SECTION 7.02. Obligations and Taxes 30
SECTION 7.03. Financial Statements and Certificates 30
SECTION 7.04. Further Assurances 31
SECTION 7.05. Litigation Notice 32
SECTION 7.06. Access to Books and Records 32
SECTION 7.07. Use of Proceeds 32
SECTION 7.08. Compliance with Laws 32
SECTION 7.09. Year 2000 32
SECTION 7.10. Indemnification 32
VIII. NEGATIVE COVENANTS
SECTION 8.01. Indebtedness 34
SECTION 8.02. Liens 34
SECTION 8.03. Activities 34
SECTION 8.04. Sales, Etc. 35
SECTION 8.05. Amendments, Etc. 35
SECTION 8.06. Investments 35
SECTION 8.07. Dividends 35
SECTION 8.08. Compliance with Securities Act 35
SECTION 8.09. Consolidated Tax Returns 35
IX. DEFAULTS
SECTION 9.01. Events of Default 36
SECTION 9.02. Rights of Bank and Lenders
Upon Default 38
X. THE BANK AS AGENT
SECTION 10.01. The Agency 39
SECTION 10.02. The Bank's Duties 39
SECTION 10.03. Limitation of Liabilities. 40
SECTION 10.04. The Bank as a Lender 40
SECTION 10.05. Lender Credit Decision 40
SECTION 10.06. Indemnification 41
XI. MISCELLANEOUS
SECTION 11.01. Notices 42
SECTION 11.02. Survival of Agreement 42
SECTION 11.03. Expenses of the Bank, Etc. 43
SECTION 11.04. Applicable Law 44
SECTION 11.05. Amendments, Modifications and Waivers 44
SECTION 11.06. Extension of Maturity 45
SECTION 11.07. No Recourse 45
SECTION 11.08. Severability 46
SECTION 11.09. Table of Contents and Captions 46
SECTION 11.10. Counterparts 46
SECTION 11.11. LIBOR Lending Office 46
SECTION 11.12. Authorization of Collateral Agent 46
SECTION 11.13. Waiver of Jury . 47
SECTION 11.14. Effect of this Agreement . 47
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
November 19, 1999 between RIVER FUEL COMPANY #2, INC., a
Delaware corporation (the "Company"), each of the Lenders
from time to time parties to this Agreement (the "Lenders")
and THE BANK OF NEW YORK, as letter of credit issuer and as
agent for the Lenders (the "Bank").
A. The Company and the Bank are parties to a
Credit Agreement, dated as of January 31, 1989(the "Existing
Agreement") pursuant to which the Bank has issued to the
Depositary (as therein defined) a letter of credit for the
benefit of holders of the Commercial Paper Notes and has
agreed from time to time to make revolving credit loans to
the Company.
B. The Lenders wish to participate in such
letter of credit and revolving credit loans and the Bank and
the Lenders wish to extend the term of such letter of credit
and revolving credit loans, and accordingly the Company, the
Lenders and the Bank have agreed to amend and restate the
Existing Agreement as hereinafter provided.
Therefore, the parties hereto hereby agree as
follows:
I. DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. Unless the context
otherwise requires, each term defined in this Section 1.01
has when used in this Agreement the meaning indicated:
(a) "B Notes" means the Prime Rate Notes and the
LIBOR Rate Notes.
(b) "Base Rate" means, for any day, the higher of
(i) the Prime Rate in effect on such date and (ii) the
sum of 1/2 of 1% per annum and the Federal Funds Rate
in effect on such date.
(c) "Borrowing Date" means any date on which Loans
are made to the Company, which shall be a Business Day.
(d) "Business Day" means any day other than (i) a
Saturday, Sunday or a day on which banking institutions
in New York City are authorized by law to close, or
(ii) with respect to the making of any LIBOR Rate Loan
(including the LIBOR Determination Date therefor), a
day on which commercial banks are not open for domestic
and international business (including dealings in
dollar deposits) in London and New York City.
(e) "Collateral Account" has the meaning specified
in the Security Agreement.
(f) "Collateral Agent" means The Chase Manhattan
Bank, as agent for the Bank and for the respective
holders of Intermediate Term Notes, pursuant to the
Security Agreement.
(g) "Commercial Paper Account" has the meaning
specified in Section 2.03 hereof.
(h) "Commercial Paper Notes" means the short term
promissory notes of the Company to be issued and sold
in the commercial paper market and entitled to the
benefits of the Letter of Credit, all as provided in
the Depositary Agreement.
(i) "Commitment" means, with respect to a Lender,
the amount set forth opposite such Lender's name on
Schedule I, as such amount may be reduced from time to
time pursuant to Sections 2.11 or 3.03.
(j) "Commitment Fee" has the meaning specified in
action 2.09 hereof.
(k) "Consent" means the consent of the Lessee to
this Agreement, substantially in the form of Exhibit E
hereto.
(l) "Credit" means the sum of (i) the outstanding
principal amount of all Loans plus (ii) the outstanding
amount of all unreimbursed LOC payments.
(m) "Credit Documents" means this Agreement, the
Notes, the Depository Agreement, the Letter of Credit
and the Security Agreement.
(n) "Credit Event" means each issuance of
Commercial Paper Notes or making of Loans hereunder.
(o) "Depositary" means The Chase Manhattan Bank
or such other banking institution with a branch office
in New York City as the Company (with the consent of
the Bank) shall appoint as a depositary and as an
issuing agent and a paying agent for the Commercial
Paper Notes and which shall have entered into a
Depositary Agreement with the Company and the Bank.
(p) "Depositary Agreement" means an agreement
substantially in the form of Exhibit A hereto, together
with all amendments and supplements thereto.
(q) "Drawing Deadline" with respect to any
Commercial Paper Note means the 16th day after the
stated maturity date of such Commercial Paper Note, or
if such 16th day is not a Business Day, the next
succeeding Business Day.
(r) "Event of Default" means any one or more of
the events specified in Section 9.01 hereof.
(s) "Face Amount" with respect to any Commercial
Paper Note means the principal amount thereof plus, in
the case of a Commercial Paper Note issued on an
interest-bearing basis, all interest payable on such
Commercial Paper Note to its stated maturity date.
(t) "Federal Funds Rate" means, for any day, the
rate per annum (rounded, if necessary, to the next
greater 1/16 of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, that (i) if such
day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the
next preceding Business Day, and (ii) if no such rate
is so published on such next succeeding Business Day,
then the Federal Funds Rate for such day shall be the
average rate quoted to the Agent on such day on such
transactions, as determined by the Agent.
(u) "Fuel Lease" means the Fuel Lease between the
Company and the Lessee, substantially in the form of
Exhibit G hereto, together with all amendments and
supplements thereto.
(v) "Interest Payment Date" with respect to each
LIBOR Rate Loan means the last day of the Interest
Period for such LIBOR Rate Loan.
(w) "Interest Period" with respect to any LIBOR
Rate Loan means the term of such LIBOR Rate Loan;
provided, however, that if any Interest Period would
otherwise end on a day which is not a Business Day,
that Interest Period shall be extended to the next
succeeding Business Day unless the result of such
extension would be to carry such Interest Period into
another calendar month in which event such Interest
Period shall end on the immediately preceding Business
Day; any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termina
tion Date; and any Interest Period that begins on the
last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
(x) "Intermediate Term Notes" means the Company's
Intermediate Term Secured Notes issued pursuant to one
or more Note Purchase Agreements.
(y) "Investment Grade" as to the Lessee's Senior
Debt means that it has a rating from Standard & Poor's
Ratings Services of BBB- or better or a rating from
▇▇▇▇▇'▇ Investors Service, Inc. of Baa3 or better, or
the equivalent of such ratings if such rating agencies
change their terminology for such ratings.
(z) "Lessee" means Entergy Louisiana, Inc.
(formerly Louisiana Power & Light Company), a Louisiana
corporation.
(aa) "Letter of Credit" means the letter of credit
issued by the Bank, substantially in the form of
Exhibit B hereto, together with all amendments thereto,
or any other letter of credit, together with all amend
ments thereto, issued by the Bank in substitution
therefor.
(bb) "Letter of Credit Fee" has the meaning
specified in Section 2.08 hereof.
(cc) "LIBOR Determination Date" with respect to
any LIBOR Rate Loan means two Business Days prior to
the Borrowing Date for such LIBOR Rate Loan.
(dd) "LIBOR Rate" with respect to a LIBOR Rate
Loan made on a Borrowing Date, means the rate (rounded
upward to the nearest 1/8 of 1%), as determined by the
Bank, at which deposits of U.S. Dollars are offered to
the Bank in the London interbank market as of
11:00 A.M., London time, on the LIBOR Determination
Date for such Loan, in an amount equal to the principal
amount of the LIBOR Rate Loan to be made on such
Borrowing Date and for a period equal to the Interest
Period for such Loan, plus 1% per annum.
(ee) "LIBOR Rate Loan" means any Loan having a
fixed term of, and maturing in (at the election of the
Company), one, two or three months, but in no event
later than the Termination Date and bearing interest on
the outstanding principal amount thereof until due and
payable (whether by acceleration or otherwise) at a
rate per annum equal to the LIBOR Rate determined on
the LIBOR Determination Date for such Loan.
(ff) "LIBOR Rate Note" means a promissory note of
the Company, substantially in the form of Exhibit C
hereto, payable to the order of each Lender and
evidencing the LIBOR Rate Loans.
(gg) "Loan" means any revolving credit loan made
by the Lenders to the Company pursuant to Article IV
hereof.
(hh) "LOC Payment" means any payment made by the
Bank under the Letter of Credit.
(ii) "Note" means any Commercial Paper Note or B
Note.
(jj) "Note Purchase Agreement" means an agreement
between the Company and the purchasers named therein
with respect to the sale by the Company of Intermediate
Term Notes.
(kk) "Nuclear Fuel" has the meaning specified in
Section 1 of the Fuel Lease.
(ll) "Outstandings" as of any date means the sum
of (x) the principal amount of the Loans outstanding on
such date, (y) the Face Amount of all Commercial Paper
Notes outstanding on such date less the Face Amount of
Commercial Paper Notes which have matured for the
payment of which funds are on deposit in the Note
Redemption Account (as defined in the Depositary
Agreement) and (z) the amount on such date of all
unreimbursed LOC Payments.
(mm) "Prime Rate" means the rate of interest
publicly announced by the Bank from time to time as its
prime rate.
(nn) "Prime Rate Loan" means a Loan maturing on
the Termination Date and bearing interest on the
outstanding principal amount thereof until due and
payable (whether by acceleration or otherwise) at a
rate per annum equal to the Base Rate in effect from
time to time.
(oo) "Prime Rate Note" means a promissory note of
the Company, substantially in the form of Exhibit D
hereto, payable to the order of each Lender and
evidencing the Prime Rate Loans.
(pp) "Pro Rata Share" means with respect to any
Lender at any time the proportion of such Lender's
Commitment then in effect to the Total Commitment then
in effect.
(qq) "Required Lenders" means Lenders (including
the Bank) whose Pro Rata Shares, equal or exceed 50%.
(rr) "River Fuel Trust #2" means the trust created
under the Trust Agreement.
(ss) "Security Agreement" means the Security and
Collateral Agency Agreement dated as of January 31,
1989 between the Company and the Collateral Agent,
substantially in the form of Exhibit F hereto, together
with all amendments and supplements thereto, and the
collateral chattel mortgage, periodic supplements
thereto, collateral chattel mortgage note, pledge
agreement, periodic supplements thereto and notice of
security interest.
(tt) "Senior Debt" means indebtedness of the
Lessee represented by its first mortgage bonds which
are not by their terms junior or subordinate in right
of payment to any other indebtedness of the Lessee for
borrowed money.
(uu) "Special Termination Date" and "Special
Termination Notice" have the meanings specified in
Section 2.07 hereof.
(vv) "Termination Date" has the meaning specified
in Section 2.06 hereof.
(ww) "Total Commitment" means, on any day, the
aggregate Commitments on such day of all the Lenders as
such amount may be reduced from time to time pursuant
to Sections 2.11 and 3.03.
(xx) "Trust Agreement" means the Trust Agreement
dated as of January 27, 1989 among The Chase Manhattan
Bank (originally ▇▇▇▇▇▇ Guaranty Trust Company of
New York), as Trustor, United States Trust Company of
New York, as Trustee, and Entergy Louisiana, Inc.
(formerly Louisiana Power & Light Company), as
Beneficiary.
(yy) "Unused Commitment" as of any date means an
amount (determined on a daily basis as of the end of
each day) equal to the excess of (i) the Total
Commitment in effect on such date over (ii)
Outstandings on such date.
(zz) "Year 2000 Issues" means, in respect of a
person or entity, anticipated costs, problems and
uncertainties associated with the inability of certain
computer applications to effectively handle data
including dates on and after January 1, 2000, as such
inability affects the business, operations and
financial conditions of such person or entity or its
respective customers, vendors and suppliers.
(aaa) "Year 2000 Program" means, in respect of a
person or entity, a program for remediating on a timely
basis any Year 2000 Issues of or relating to such
person or entity that if not remediated on a timely
basis, could reasonably be expected to result in a
material adverse effect on such person or entity.
SECTION I.2. Accounting Terms. Each accounting
term not defined herein shall have the meaning given to it
under generally accepted accounting principles applied on a
consistent basis.
II. COMMERCIAL PAPER OPERATIONS
SECTION II.1. Form and Maturity of Commercial
Paper Notes. Each Commercial Paper Note shall be issued by
the Depositary on behalf of the Company in accordance with
the Depositary Agreement and shall, if an interest-bearing
Commercial Paper Note, specify the amount of interest
applicable thereto. No Commercial Paper Note shall be
issued having a maturity date later than the earlier of (i)
270 days after its date of issuance and (ii) the day which
is 17 days in advance of the Termination Date in effect on
its date of issuance. Each such maturity date shall, in any
event, be a Business Day.
SECTION II.2. Issuance of Commercial Paper Notes.
(a) Each Commercial Paper Note issued by the Company shall
be issued in a Face Amount of at least $100,000 and shall be
duly executed by it and delivered to the Depositary in
accordance with the terms of the Depositary Agreement. No
Commercial Paper Note shall be issued by the Company except
through the Depositary and in accordance with the terms of
this Agreement and the Depositary Agreement. The Company
shall not at any time issue Commercial Paper Notes in an
aggregate Face Amount exceeding the sum of (i) the Unused
Commitment plus (ii) the proceeds of such Commercial Paper
Notes to be deposited, on the same day as the day of such
issuance, in the Commercial Paper Account for the purpose of
reimbursing LOC Payments relating to matured and
concurrently maturing Commercial Paper Notes (whether or not
presented for payment) plus (iii) the proceeds of such
Commercial Paper Notes to be deposited, on the same day as
the day of such issuance, in the Commercial Paper Account
for the purpose of contemporaneously repaying outstanding
Loans; provided, however, that (after giving effect to the
use of such deposits) at no time shall the sum (i) of the
aggregate Face Amount of outstanding Commercial Paper Notes
plus (ii) the aggregate unpaid principal amount of
outstanding Loans plus (iii) the aggregate amount of
unreimbursed LOC Payments exceed the Total Commitment then
in effect.
(b) The Company shall not issue Commercial Paper
Notes unless the Bank shall have consented in writing to
such issuance. The Company shall not, after the receipt of
instructions from the Bank to cease issuing Commercial Paper
Notes, issue Commercial Paper Notes until the Bank shall
have rescinded such instructions and shall have consented in
writing to the issuance of Commercial Paper Notes. Any
instructions by the Bank to cease issuing Commercial Paper
Notes and each notice rescinding (or consenting to the
rescission of) such instructions shall be in writing or by
telephone (confirmed in writing promptly thereafter) or by
facsimile transmission or telex and shall also be given to
the Depositary. The Bank hereby agrees that, unless an
Event of Default (or, in the case of an issuance of
Commercial Paper Notes which would increase the
Outstandings, an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default)
shall have occurred and be continuing, and except as
provided in Section 2.07 hereof, it shall not give or keep
in effect instructions to cease issuing Commercial Paper
Notes so long as each of the conditions precedent specified
in Article VI hereof with respect to the issuance of
Commercial Paper Notes shall have been satisfied.
SECTION II.3. Commercial Paper Account. The
Company shall maintain with the Depositary a special account
for the sole purpose of reimbursing LOC Payments and paying
Loans (the "Commercial Paper Account"). All proceeds from
the sale of Commercial Paper Notes and the proceeds of all
Loans made pursuant to Article IV hereof shall be deposited
in the Commercial Paper Account, the operation of which
shall be governed by the Depositary Agreement. The Company
may also instruct the Collateral Agent to make transfers
from the Collateral Account to the Commercial Paper Account
for the purpose of reimbursing LOC Payments or paying Loans.
If on any Business Day deposits made to the Commercial Paper
Account exceed the amount required to reimburse LOC Payments
with respect to matured and concurrently maturing Commercial
Paper Notes (whether or not presented for payment) and to
pay principal, interest and cost reimbursement, if any,
pursuant to Section 4.03(d) then due and payable (at
maturity, by notice of intention to prepay or otherwise)
with respect to Loans, the Bank shall instruct the
Depositary to withdraw such excess amount and transfer the
same to the Collateral Account.
SECTION II.4. Letter of Credit. (a) Subject to
the terms and conditions hereof, upon the effectiveness of
this Agreement the Bank hereby agrees to issue to the
Depositary a Letter of Credit in the amount of the Total
Commitment (against surrender of the letter of credit issued
under the Existing Agreement). The Letter of Credit shall
be irrevocable except as provided therein.
(b) If the Total Commitment shall be reduced
pursuant to Sections 2.11 or 3.03 hereof, then on the
effective date of such reduction, the Bank shall have the
right to require the Depositary to surrender the Letter of
Credit then held by the Depositary and simultaneously to
accept in substitution therefor a new Letter of Credit which
shall contain the same terms and conditions as the Letter of
Credit for which it is substituted except that such new
Letter of Credit shall be dated the date of issuance thereof
and the maximum amount payable by the Bank thereunder shall
be equal to the amount of the reduced Total Commitment.
(c) If a Termination Date or a Special
Termination Date occurs, then on the earliest to occur of
(x) such Termination Date or Special Termination Date if on
such date there are no outstanding and unpaid Commercial
Paper Notes, (y) the funding of the Note Redemption Account
(as defined in the Depositary Agreement) with amounts equal
to the Face Amount of all theretofore issued Commercial
Paper Notes and (z) the Business Day next succeeding the
Drawing Deadline of the latest to mature of theretofore
issued and outstanding Commercial Paper Notes (and provided
that the Bank is not in default under the Letter of Credit
then held by the Depositary) the Depositary shall surrender
the Letter of Credit to the Bank.
SECTION II.5. Payments Under Letter of Credit.
The Company shall reimburse the Bank before the close of
business on the date of each drawing under the Letter of
Credit for the amount paid by the Bank under the Letter of
Credit, plus interest (computed on the basis of the actual
number of days elapsed in a year of 365 or, as the case may
be, 366 days) on any such amount, from the date of such
drawing until full reimbursement is made, at a rate per
annum equal to 2% plus the Base Rate as in effect from time
to time.
If any drawing under the Letter of Credit shall
not have been reimbursed by the close of business on the
date of such drawing, the Company shall be deemed to have
requested from the Lenders a Prime Rate Loan in an amount
equal to the amount of such drawing for the purpose of
reimbursing the Bank as aforesaid.
The Company's obligation to reimburse the Bank for
payments made by the Bank under the Letter of Credit shall
be absolute and unconditional under any circumstances and
irrespective of any set-off, counterclaim or defense to
payment which the Company may have or have had against the
Bank or any Lender, including, without limitation, any
defense based on the failure of the Company to receive all
or any part of the proceeds from the sale of Commercial
Paper Notes with respect to which such drawing was made or
any non-application or misapplication by the Depositary of
the proceeds of such drawing. No payment made as
contemplated by this paragraph shall be deemed to be a
waiver of any claim the Company may have against any party.
SECTION II.6. Termination Date; Termination of
Agreement. The "Termination Date" in effect from time to
time shall be the date hereinafter provided. The Termina
tion Date shall initially be January 31, 2002 and, at the
request of the Company, may be extended by the Bank and the
Lenders in their discretion for successive additional one-
year periods by giving the Company and the Depositary
written notice of such extension no later than 25 months
prior to the then-current Termination Date. If (i) the Fuel
Lease shall terminate because of the occurrence of any of
the events specified in Section 20(a) thereof or as the
result of an election pursuant to Section 25(b)(i) thereof,
then the Termination Date hereunder shall be the
"Termination Settlement Date" (as defined in the Fuel
Lease), and if (ii) the Total Commitment shall be terminated
entirely pursuant to Section 2.11 hereof or as a result of
the exercise by the Lenders of their rights under Article IX
hereof, then the Termination Date shall be the effective
date of such termination of the Total Commitment. Upon (i)
the payment in full of all obligations of the Company
hereunder and under the Notes, or (ii) the occurrence of a
Termination Date, or (iii) the surrender to the Bank of the
Letter of Credit in accordance with Section 2.04(c) hereof,
whichever shall last occur, this Agreement shall terminate
and the Company and the Bank and the Lenders shall have no
further obligations hereunder or under the Depositary
Agreement or the Security Agreement; provided, however, that
all obligations and indemnities of the Company, the Bank and
the Lenders which are stated herein or in said Agreements to
survive the termination thereof shall remain in full force
and effect. Upon such termination the Bank shall execute
and deliver such agreements, consents or other instruments
as may be required to release any interest the Bank and the
Lenders may have in the Collateral (as defined in the
Security Agreement).
SECTION II.7. Modification or Termination of
Letter of Credit Facility in Certain Events. In the event
any restrictions are imposed upon the Bank or the Company by
any law or regulation (including, without limitation, any
legal limits imposed by state or Federal law or regulation)
which in the sole judgment of the Bank would prevent the
Bank from consenting to the issuance or sale of Commercial
Paper Notes entitled to the benefit of the Letter of Credit
or from honoring demands for payment under the Letter of
Credit with respect to subsequently issued Commercial Paper
Notes, the obligation of the Bank to consent to the issuance
of Commercial Paper Notes and the obligation of the Bank to
issue the Letter of Credit shall terminate, and the Bank
shall promptly thereafter confirm such termination in
writing to the Company (with a copy to the Depositary).
Further, in the event that reserve requirements or any other
similar requirements or any taxes or restrictions are
hereafter imposed upon the Bank at any time or from time to
time which would materially adversely affect the
profitability to the Bank of the arrangements contemplated
by this Article II (other than any change in income tax
rates which affects solely the taxation of the total net
income of the Bank), the Bank shall promptly notify the
Company of such requirement or restriction and as to such
loss and prospective loss of such profitability (specifying
the reasons for such loss and providing calculations showing
the derivation of such loss). A copy of such notice
(herein called a "Special Termination Notice") shall be
given by the Bank to the Depositary and the Lessee.
Thereupon, the Company shall have the option by notice in
writing to the Bank and the Depositary to elect either (i)
promptly to compensate the Bank for its loss of
profitability from time to time as such losses are incurred
or (ii) to borrow from the Lenders as contemplated by
Article IV hereof and terminate the obligation of the Bank
hereunder to issue the Letter of Credit and to consent to
the issuance of Commercial Paper Notes. Unless the Company
exercises option (i) above at least five days prior to the
45th day after the date of the Special Termination Notice,
the Company shall compensate such loss of such profitability
from the date of the Special Termination Notice until the
later of the Special Termination Date (as hereinafter
defined) or the date when no Commercial Paper Notes are
outstanding, and the obligation of the Bank to consent to
the issuance of Commercial Paper Notes and to issue the
Letter of Credit shall automatically terminate on such 45th
day. If the Company gives timely notice that it has
exercised option (i) above, such Special Termination Notice
shall thereupon be deemed to be rescinded. The date of any
termination of the obligations of the Bank to consent to the
issuance of Commercial Paper Notes and to issue the Letter
of Credit as provided in this Section 2.07 is herein called
the "Special Termination Date". The Bank may at any time
after the giving of a Special Termination Notice or the
occurrence of a Special Termination Date, by a written
notice to the Company (with a copy to the Depositary),
reinstate its consent to the issuance of Commercial Paper
Notes and the Bank may issue a Letter of Credit in the
amount of the Total Commitment then in effect. Nothing
contained herein shall relieve the Bank of its obligation to
honor demands under the Letter of Credit with respect to
Commercial Paper Notes outstanding on or before the Special
Termination Date.
SECTION II.8. Letter of Credit Fee. As
consideration for issuance of the Letter of Credit, the
Company shall pay to the Bank for the ratable account of the
Lenders, a fee (the "Letter of Credit Fee") (computed on the
basis of the actual number of days elapsed in a year of 365
or, as the case may be, 366 days) of 3/4 of 1% per annum on
the average aggregate Face Amount of Commercial Paper Notes
outstanding during each calendar quarter so long as the
Lessee's Senior Debt is Investment Grade, and 1 and 3/8% per
annum on the average aggregate Face Amount of Commercial
Paper Notes outstanding during each calendar quarter
whenever the Lessee's Senior Debt is not Investment Grade,
such fee to be paid on the last day of the month following
the end of such calendar quarter.
SECTION II.9. Commitment Fee. The Company shall
pay to the Bank for the ratable account of the Lenders, for
each day that the Total Commitment shall (subject to the
terms and conditions hereof) be in effect, a fee (the
"Commitment Fee") (computed on the basis of the actual
number of days elapsed in a year of 365 or, as the case may
be, 366 days) of 1/4 of 1% per annum of the Unused
Commitment. The Commitment Fee accrued with respect to any
calendar quarter shall be paid on the last day of the month
following the end of such calendar quarter.
SECTION II.10. Other Fees. The Company shall pay
to the Bank such other fees for its services hereunder in
such amounts and at such times as may be agreed upon by the
Bank and the Company.
SECTION II.11. Optional Reduction or Termination
of Commitments. The Company may from time to time reduce
the Total Commitment by $1,000,000 or an integral multiple
thereof or terminate the Total Commitment entirely upon five
Business Days' prior written notice to the Bank (with a copy
to the Depositary), designating the date of such termination
or reduction (which shall be a Business Day). The date
specified in the aforesaid notice shall be the effective
date of any such termination or reduction; provided,
however, that the amount of the Total Commitment as so
reduced shall at no time be less than the sum of (i) the
aggregate unpaid principal amount of all Loans outstanding
on the effective date of such reduction plus (ii) the
aggregate amount of all unreimbursed LOC Payments plus (iii)
the aggregate Face Amount of all Commercial Paper Notes
outstanding on such effective date, other than any such
Commercial Paper Notes which, as of such effective date,
have matured and funds for the payment of which have been
deposited in the Note Redemption Account (as defined in the
Depositary Agreement). Any such reduction or termination of
the Total Commitment shall automatically ratably reduce or
terminate the Commitments of each Lender.
III0 PARTICIPATION IN LETTER OF CREDIT PAYMENTS
SECTION III.1. Participations. Subject to the
terms and conditions hereof, each Lender shall be deemed,
and hereby agrees to, have an undivided percentage interest
in each LOC Payment for which the Bank is not immediately
reimbursed by the Company and in the Bank's rights to
reimbursement with respect to such LOC Payment, equal to its
Pro Rata Share. The aggregate amount of each Lender's Loans
and its participation in LOC Payments shall not exceed the
amount of its Commitment then in effect.
If the Company shall fail to reimburse the Bank in
an amount equal to the amount of any LOC Payment, then the
Bank shall promptly notify each Lender of the unreimbursed
amount of such LOC Payment and of such Lender's
participation therein. Not later than 1:00 P.M., New York
time, on the Business Day after the date notified by the
Bank, each Lender shall make available to the Bank in
immediately available funds at the office of the Bank in
New York City an amount equal to its Pro Rata Share of such
LOC Payment. In the event that any Lender fails to make
available to the Bank on such Business Day the amount of
such Lender's participation in such Letter of Credit as
provided in this Section 3.01, the Bank shall be entitled to
recover such amount on demand from such Lender, together
with interest thereon at a rate per annum equal to (A) from
(and including) such Business Day to (and including) the
third Business Day thereafter, the Federal Funds rate, and
(B) from (but excluding) such third Business Day, the Base
Rate. The Bank shall distribute to each Lender that has
paid all amounts payable by it under this Section 3.01 with
respect to the Letter of Credit such Lender's Pro Rata Share
of all payments received by the Bank from the Company in
reimbursement of drawings honored by the Bank under the
Letter of Credit when such payments are received; provided,
however, that each Lender's share of interest thereon shall
be appropriately adjusted to reflect the date on which the
Lender paid to the Bank its Pro Rata Share of such drawing.
SECTION III.2. Repudiation of Obligation to
Participate. If the Bank shall at any time determine that
any Lender has repudiated, for any reason and howsoever
expressed, or has breached any of its material obligations
under this Agreement (such Lender herein called a
"Defaulting Lender"), the Bank may, in its sole discretion
and notwithstanding anything to the contrary contained in
this Agreement, temporarily or permanently reduce the amount
of the Total Commitment by an amount equal to such
Defaulting Lender's Commitment; provided, however, that (i)
no such reduction shall have the effect of terminating,
reducing, or altering the terms of the Letter of Credit with
respect to Commercial Paper Notes outstanding at the time,
and (ii) no such reduction of the Total Commitment shall be
effective until notice thereof has been given to the Company
and to the Depositary and the Lessee. If the Bank proposes
to reduce the Total Commitment as provided in this Section,
it shall give the Company not less than 90 days' notice of
the amount and the effective date of the proposed reduction.
During the period from the giving of such notice to 45 days
before said effective date the Bank shall use its best
efforts to arrange for the other Lenders or any other bank
or banks to assume the participation of the Defaulting
Lender. Not later than 45 days before the effective date of
such reduction the Bank shall advise the Company either that
it has arranged for such assumption of the Defaulting
Lender's participation therein and that the Total Commitment
will not be reduced or that the Total Commitment will be
reduced pursuant to the notice previously given (specifying
an amount of reduction no greater than the amount specified
in said notice). Thereupon, the Total Commitment shall be
reduced to the extent specified in said notice, but in no
event to an amount less than the sum of (i) the aggregate
Face Amount of outstanding Commercial Paper Notes plus (ii)
the aggregate outstanding principal amount of all Loans plus
(iii) the aggregate amount of all unreimbursed LOC Payments.
Such reduction shall remain in effect until further written
notice from the Bank to the Company and the Depositary.
IV0 REVOLVING CREDIT LOANS
SECTION IV.1. Loans; Interest on the Loans. (a)
Subject to the terms and conditions hereof, each of the
Lenders, severally and not jointly with the other Lenders,
agrees to make Loans to the Company in a principal amount
not exceeding, at any one time outstanding, such Lender's
Pro Rata Share of the Unused Commitment (after giving effect
to the repayment on the same day as such Loan is made of any
other Loans then outstanding and/or the reimbursement on the
same day as such Loan is made of any LOC Payments). The
Lenders shall not be required to make Loans on or after the
Termination Date. The Loans shall be either LIBOR Rate
Loans or Prime Rate Loans, as the Company may from time to
time elect; provided, however, that if on any LIBOR
Determination Date the Lessee's Senior Debt is not
Investment Grade or if on or before any LIBOR Determination
Date the Bank shall determine (which determination shall be
conclusive) that, by reason of any circumstances affecting
the London interbank market, adequate and reasonable means
do not exist for ascertaining the LIBOR Rate and the Bank
shall forthwith give notice of such determination by
telephone, telex or facsimile transmission (confirmed in
each case in writing) to the Company, then so long as either
such circumstance shall exist, the Lenders shall only be
required to make Prime Rate Loans to the Company; provided,
further, that if on or before any LIBOR Determination Date
the Bank shall determine (which determination shall be
conclusive) that (i) by reason of a change since the date of
this Agreement in any applicable law or governmental
regulation or order of any country or jurisdiction or other
circumstances beyond the control of the Lenders, the LIBOR
Rate no longer represents the effective cost to the Lenders
of deposits of U.S. Dollars in the London interbank market
(except for changes with respect to which the Lenders are
compensated pursuant to Section 4.05 hereof), or (ii) for
any reason the Lenders are unable to obtain deposits of U.S.
Dollars in the London interbank market for the relevant
Interest Period in the amount needed to make any LIBOR Rate
Loans, then, in any such case, the Bank shall forthwith give
notice of such determination by telephone, telegraph or
telex (confirmed in each case in writing) to the Company,
and so long as there shall exist any such events, the
Lenders shall only be required to make Prime Rate Loans to
the Company. Any LIBOR Rate Loan which is not paid when due
(whether by acceleration or otherwise) shall bear interest
at a rate per annum equal to 2% in excess of the cost to the
Lenders of making or maintaining such LIBOR Rate Loan as
determined by the Bank, any Prime Rate Loan which is not
paid when due (whether by acceleration or otherwise) shall
bear interest at a rate per annum equal to 2% above the Base
Rate as in effect from time to time, such Rate to change as
and when the Base Rate changes. Except as otherwise
provided herein, interest on the outstanding principal
amount of each Prime Rate Loan shall accrue at the Base Rate
and shall be payable quarterly on the last Business Day of
each calendar quarter and on the day such Prime Rate Loan is
paid, and interest on the outstanding principal amount of
each LIBOR Rate Loan shall accrue at the LIBOR Rate
determined on the LIBOR Determination Date therefor and
shall be payable on the Interest Payment Date relating
thereto. In computing interest on any Loan, the date of the
making of a Loan shall be included and the date of payment
shall be excluded. Interest on each LIBOR Rate Loan shall
be calculated on the basis of a 360-day year for the actual
number of days elapsed, and interest on each Prime Rate Loan
shall be calculated on the basis of a 365 or, as the case
may be, 366-day year for the actual number of days elapsed.
(b) Except as provided in Section 2.05 hereof,
the Company shall give the Bank not less than two Business
Days' prior notice in writing, by telex or by facsimile
transmission (or telephone notice promptly confirmed in
writing) of any requested Prime Rate Loans and not less than
five business days, prior notice in writing, by telex or by
facsimile transmission (or telephone notice promptly
confirmed in writing) of any requested LIBOR Rate Loans
(including Loans to refund maturing LIBOR Rate Loans), which
notice shall be irrevocable and shall specify the proposed
Borrowing Date for such Loans, the total amount thereof,
whether such Loans are to be a LIBOR Rate Loans or Prime
Rate Loans and, in the case of a request for LIBOR Rate
Loans, the Interest Period of such Loans. If such notice
shall fail to specify whether the Loans are to be a LIBOR
Rate Loans or Prime Rate Loans, the Company shall be deemed
to have requested Prime Rate Loans. If the Company shall
fail to give said notice prior to the Interest Payment Date
for any LIBOR Rate Loans, it shall be deemed to have
requested that on said Interest Payment Date the Lender make
LIBOR Rate Loans to the Company having an Interest Period of
one month and in a principal amount equal to the principal
amount of the LIBOR Rate Loan maturing on such Interest
Payment Date. The amount of each borrowing hereunder from
the Lenders shall be equal to the lesser of (i) the Unused
Commitment or (ii) $100,000 or an integral multiple thereof.
Upon receipt of any borrowing request (or deemed request
pursuant to Section 2.05), the Bank shall promptly give
notice to each Lender of the substance of the borrowing
request. Not later than noon, New York time, on the
Borrowing Date, each Lender shall make available to the Bank
such Lender's Pro Rata Share of the requested Loans in funds
immediately available at the Bank's office. Subject to
satisfaction, or waiver by all of the Lenders, of each of
the applicable conditions precedent contained in Article VI,
on the Borrowing Date the Bank shall make available, in like
funds, to the Company the amounts received by the Bank from
the Lenders, by transferring the proceeds thereof in
immediately available funds to the Commercial Paper Account
not later than 1:00 P.M., New York City time, on the
Borrowing Date. If the funds on deposit in the Commercial
Paper Account (after giving effect to the deposit in the
Commercial Paper Account of the proceeds of Commercial Paper
Notes issued on such date) shall exceed the amount required
to reimburse in full the LOC Payments with respect to
Commercial Paper Notes maturing on or before the Borrowing
Date (whether or not such Commercial Paper Notes are
presented for payment) and to pay principal, interest and
cost reimbursement, if any, pursuant to Section 4.03(d) then
due and payable with respect to Loans, then to the extent of
such excess the proceeds of the Loans made on such date
shall be transferred to the Collateral Account as instructed
by the Bank to the Depositary. Until the Termination Date
the Company may borrow, repay and reborrow hereunder in
accordance with this Section and Section 4.03 hereof.
(c) The failure of any Lender to make any Loan to
be made by it on the Borrowing Date therefor shall not
relieve any other Lender of its obligation to make its Loan
or Loans on such date, but neither any Lender nor the Bank
shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender.
(d) The Bank may, but shall not be required to,
advance on behalf of any Lender the amount of such Lender's
Loan to be made on a Borrowing Date, unless such Lender
shall have notified the Bank prior to such Borrowing Date
that it does not intend to make such Loan on such date. If
the Bank makes any such advance, the Bank shall be entitled
to recover the amount so advanced on demand from the Lender
on whose behalf such advance was made and, if such Lender
does not pay the Bank the amount of such advance on demand,
the Company agrees promptly to repay such amount to the
Bank. Until such amount is repaid to the Bank by such
Lender or the Company, such advance shall be deemed for all
purposes to be a Loan made on such Borrowing Date by the
Bank. The Bank shall be entitled to recover from the Lender
or the Company, as the case may be, interest on the amount
advanced by it for each day from the Borrowing Date therefor
until repaid to the Bank, at a rate per annum equal to the
Federal Funds Rate until the third Business Day after the
date of the advance and, thereafter, at the Base Rate.
SECTION IV.2. B Notes. The Prime Rate Loans
shall be evidenced by Prime Rate Notes payable to the order
of each Lender, and the LIBOR Rate Loans shall be evidenced
by LIBOR Rate Notes payable to the order of each Lender.
Each Lender shall record on the schedule attached to its
Prime Rate Note the date and amount of each Prime Rate Loan
and the date and amount of each repayment and principal of
such Prime Rate Loan, and each Lender shall record on the
schedule attached to its LIBOR Rate Note the date and amount
of each LIBOR Rate Loan, the rate of interest thereon, the
Interest Payment Date thereof and the amount of each
repayment of principal of such LIBOR Rate Loan. The failure
of any Lender to so record shall not relieve the Company of
its obligation to repay outstanding Loans and all interest
thereon in accordance herewith. The unpaid principal
balance of each Prime Rate Note shall be payable on the
Termination Date (as it may be changed from time to time
pursuant to the terms hereof) and shall bear interest until
paid at a rate, and payable on the dates, specified in this
Agreement for the Loans evidenced thereby. The unpaid
principal balance of each LIBOR Rate Loan evidenced by a
LIBOR Rate Note shall be payable on the Interest Payment
Date for such Loan and shall bear interest until paid at a
rate, and payable on the dates, specified in this Agreement
for the LIBOR Rate Loans evidenced thereby.
SECTION IV.3. Payments and Prepayments. (a)
Optional Prepayments. The Company may at its option prepay
the Loans in whole at any time or in part from time to time
without penalty or premium. Each partial prepayment of Loans
pursuant to this Section 4.03(a) shall be in the aggregate
principal of $100,000 or an integral multiple thereof.
Whenever the Company proposes to prepay the Loans in whole
or in part it shall give two Business Days' prior notice
thereof in writing, by telex or by facsimile transmission to
the Bank stating the date of such prepayment, the aggregate
amount thereof and the amount thereof to be applied to LIBOR
Rate Loans and Prime Rate Loans. If such prepayment is to
be made with proceeds from the sale of Commercial Paper
Notes, the Company shall so specify in the aforesaid notice
and shall state the date on which such Commercial Paper
Notes are to be issued and the amount of the proceeds
therefrom proposed to be applied to the prepayment of the
Loans. If a prepayment of Loans is to be made from the
proceeds of Commercial Paper Notes, the Company shall send a
copy of the notice with respect to such prepayment to the
Depositary. Upon receipt of such notice, the Banks shall
promptly give notice thereof to each Lender.
(b) Mandatory Payments and Prepayments Upon
Payments Under Fuel Lease. If the Lessee shall make any
payment pursuant to Section 10(b) of the Fuel Lease, the
proceeds of such payment shall be applied to the
reimbursement of LOC Payments related to matured and
concurrently maturing Commercial Paper Notes or the
prepayment or payment of the Loans or the Intermediate Term
Notes in such order of application as the Company may from
time to time determine, together with all accrued interest
thereon. If the Fuel Lease shall terminate for any reason,
the Company shall prepay the Loans in full within the period
required by Section 20(b) of the Fuel Lease for payments by
the Lessee. All payments by the Lessee under the Fuel Lease
(including all payments of Basic Rent, as therein defined)
shall be deposited in the Collateral Account.
(c) Mandatory Prepayment Upon Changes In Law. If
there shall be any change in any applicable law or regula
tion, or the interpretation thereof by any judicial or
regulatory authority, which, in the determination of the
Bank, makes it unlawful for any Lender to make or maintain
LIBOR Rate Loans, the Bank shall so advise the Company and
thereupon (i) the Lenders shall be deemed to have made, as
of the date of such notice, Prime Rate Loans to the Company
in an amount equal to the aggregate amount of the
outstanding LIBOR Rate Loans, and (ii) the proceeds of said
Prime Rate Loans shall be deemed to have been applied to the
prepayment in full of such outstanding LIBOR Rate Loans.
(d) Reimbursement of Banks' Losses on
Prepayments. In the event that the Company pays or prepays
any LIBOR Rate Loans pursuant to Section 4.03(a) or 4.03(b)
hereof or by reason of the acceleration of the maturity of
the Loans pursuant to Article IX hereof, or LIBOR Rate Loans
are deemed to be converted to Prime Rate Loans pursuant to
Section 4.03(c) hereof, the Company shall pay to each Lender
an amount equal to the excess, if any, of (i) such Lender's
cost of funding each such Loan over (ii) the amount of
interest received by such Lender in redepositing the payment
with respect to such Loan for the remaining portion of such
Loan's Interest Period. Each such payment by the Company
pursuant to this Section 4.03(d) with respect to any LIBOR
Rate Loan shall be made no later than 10 days after the
Lender's request therefor. Such Lender shall furnish to the
Company a statement setting forth its computation of any
amount required to be paid pursuant to this Section 4.03(d).
SECTION IV.4. Manner of Payments; Sharing Among
Lenders. (a) All payments, prepayments and other transfers
of funds under this Agreement shall be made in immediately
available funds at New York, unless the recipient thereof
shall otherwise agree. All payments of principal and
interest on the Loans shall be made to the Bank at its
office at One Wall Street, New York, New York (or at such
other office in New York City as the Bank may designate by
written notice to the Company), no later than 1:00 P.M.
New York City time, of the day when such payments are due.
(b) All funds received by the Bank for the
account of the Lenders in respect of payments made by the
Company under this Agreement shall be distributed forthwith
by the Bank among the Lenders, in like funds, as received,
ratably in proportion to their respective interests therein.
(c) Unless the Bank shall have received notice
from the Company prior to the date on which any payment from
the Company is due that the Company will not make such
payment in full, the Bank may assume that the Company has
made such payment in full to the Bank on such date and the
Bank may, in reliance upon such assumption, but shall not be
obligated to, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender.
If and to the extent that the Company shall not have so made
such payment, each Lender shall repay to the Bank forthwith
on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such
Lender repays such amount to the Bank, at the Federal Funds
Rate.
(d) If any Lender shall receive from the Company
or any other person any amount owing under this Agreement
(whether received pursuant to the exercise of any right of
set-off, banker's lien, realization upon any security held
for or appropriated to such obligation or otherwise) other
than in proportion to such Lender's Pro Rata Share thereof,
then such Lender shall purchase from each other Lender a
participating interest in so much of the other Lenders'
Loans as shall be necessary in order that each Lender shall
share such payment with each of the other Lenders in
proportion to each Lender's Pro Rata Share; provided,
however, that nothing herein contained shall obligate any
Lender to apply any set-off or banker's lien or collateral
security permitted hereby first to the obligations of the
Company hereunder if the Company is obligated to such Lender
pursuant to other loans or notes. If any purchasing Lender
shall be required to return any excess payment received by
it, such participation shall be rescinded and the purchase
price restored to the extent of such return, but without
interest.
SECTION IV.5. Taxes, Reserves, Etc. (a) U.S.
Withholding Taxes. Both principal of and interest on each
Loan, and all other payments provided for herein are payable
net of any present or future taxes (other than taxes on or
measured by total net income of the Bank or any other
Lender), duties or other charges levied or imposed thereon
and required to be withheld by the United States of America
or any political subdivision or taxing authority thereof.
If any such taxes, duties or other charges are levied or
imposed with respect to payments hereunder, the Company will
pay to the Bank and/or the Lenders as additional interest
such additional amounts as may be necessary so that every
net payment of principal of and interest on such Loans and
all other payments to the Bank and/or the Lenders provided
for herein, after withholding or deduction for or on account
of any such present or future taxes, duties or other charges
imposed by the United States of America or any political
subdivision or taxing authority thereof, will not be less
than any amount provided for herein.
(b) Change in Taxation. If at any time during
the term of this Agreement (i) any law, executive order,
regulation or interpretation is enacted or promulgated by
any government or governmental authority (domestic or
foreign) which materially changes the method of collection
of taxes which on the date hereof are required to be
withheld with respect to, or the basis of taxation of
payments to the Bank or any other Lender of principal of or
interest on any LIBOR Rate Loan (except for changes in the
rate of tax based solely on the total net income of the Bank
or such Lender), or (ii) any change in applicable law or
regulation or in the interpretation thereof by the United
States or any political subdivision thereof shall subject
the Bank or any other Lender to any tax of any kind
whatsoever with respect to this Agreement or the Loans, or
change the basis of taxation of payments to any Lender of
principal or interest payable on the Loans (except for
changes in the rate of tax based solely on the total net
income of the Bank or such Lender), or shall impose on the
Bank or any other Lender, directly or indirectly, any other
conditions affecting this Agreement or the Loans which do
not apply equally to banks organized under the laws of the
United States, the States of the United States and the
District of Columbia, and as a result of any of the events
specified in clauses (i) or (ii) above the cost to the Bank
or such Lender of making or maintaining the Loans is
increased by an amount which the Bank or such Lender
considers material or the Bank or such Lender is subject to
any loss, whether by reason of subjecting payments on the
Loans to double taxation or otherwise, the Company will,
upon receipt of the Bank's written request therefor, which
shall show in reasonable detail the computation on which it
is based, promptly indemnify the Bank or such Lender for
such increase in cost or loss.
(c) Increased Costs. If at any time after the
date of this Agreement, any law, executive order, regulation
or interpretation is enacted or promulgated by any
government or governmental authority, or any other
governmental or administrative action is taken, which
imposes, modifies, makes applicable or interprets as being
applicable any reserve requirements against assets held by
the Bank or any other Lender (other than, or in addition to,
those referred to in Section 4.05(d) hereof), or against
deposits in or for the account of, or loans by, the Bank or
any other Lender, or imposes on the Bank or any other Lender
any other conditions or obligations with respect to any
LIBOR Rate Loan, which requirement, condition or obligation
was not applicable or interpreted as being applicable to the
Bank or such Lender on the date hereof, and the result of
any of the foregoing is an increase in the cost to the Bank
or such Lender of maintaining any LIBOR Rate Loan, then the
Company, promptly after receipt of the Bank's written
request therefor which shall show in reasonable detail the
computations upon which it is based, will pay to the Bank or
such Lender as additional interest on such LIBOR Rate Loan
such amount as will compensate the Bank or such Lender for
such additional cost.
(d) Eurocurrency Reserves. If the Bank or any
other Lender shall be required to maintain reserves (includ
ing, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board of
Governors of the Federal Reserve System or other United
States federal governmental authority having jurisdiction
with respect thereto, as now and from time to time hereafter
in effect, dealing with reserves for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board), the Bank or such Lender, as the
case may be, may require the Company, by notice to the
Company at least five days prior to an Interest Payment
Date, to pay additional interest on the LIBOR Rate Loan
maturing on such Interest Payment Date at a rate equal to
the excess of (i)(A) the LIBOR Rate applicable to such LIBOR
Rate Loan divided by (B) one minus the rate (expressed as a
percentage adjusted to the nearest 1/100 of one percent) at
which such reserves were so required to be maintained during
the related Interest Period, over (ii) the LIBOR Rate
applicable to such LIBOR Rate Loan.
(e) Capital Adequacy. In the event that minimum
capital requirements are hereafter imposed upon the Bank or
any other Lender at any time or from time to time which
would materially adversely affect the profitability to, or
return on equity of, the Bank or such Lender, as the case
may be, of the arrangements contemplated by this Agreement,
the Bank shall promptly notify the Company of such
requirement or restriction and as to such loss and
prospective loss of such profitability or reduction in
return (specifying the reasons for such loss or reduction
and providing calculations showing the derivation of such
loss or reduction). Thereupon, the Company shall promptly
compensate the Bank or such Lender for its loss of
profitability or reduction in return from time to time as
such losses or reductions are incurred.
V0 REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank
and the other Lenders that:
SECTION V.1. Organization, Powers, Etc. The
Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware, is duly qualified and in good standing as a
foreign corporation authorized to do business in each other
jurisdiction where, because of the nature of its activities
or properties, such qualification is required, and has the
corporate power and authority to carry on business as the
owner and lessor of the property subject to the Fuel Lease
and to execute, deliver and perform this Agreement, the
Depositary Agreement, the Notes, the Fuel Lease, the
Security Agreement and each other document and agreement
executed and delivered by it pursuant hereto and thereto.
The Company has not engaged in any activities other than
those permitted by Section 8.03 hereof.
SECTION V.2. Authority, Etc. The execution,
delivery and performance by the Company of this Agreement,
the Depositary Agreement, the Notes, the Fuel Lease and the
Security Agreement have been duly authorized by all
requisite corporate action (including any necessary
stockholder action) on the part of the Company and do not
violate any provision of law, any order of any court or
other governmental agency or the Certificate of
Incorporation or By-laws of the Company or any agreement or
other instrument to which the Company is a party, or by
which it or any of its property is bound, or conflict with,
or constitute (with due notice or lapse of time or both) a
default under, any such agreement or other instrument, and
will not result in the creation or imposition of any lien,
charge or encumbrance upon any of its property or assets
(except as provided in this Agreement and the Security
Agreement). This Agreement, the Depositary Agreement, the
Fuel Lease and the Security Agreement are, and the B Notes
(when executed and delivered) will be, legally binding and
enforceable obligations of the Company, subject, however, to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles which may
limit the right to obtain the remedy of specific performance
of obligations.
SECTION V.3. Litigation. There is no action,
suit, proceeding or investigation at law or in equity or by
or before any governmental instrumentality or agency now
pending against the Company or, to the knowledge of the
Company, threatened against the Company or any property or
rights of the Company (or any basis therefor) which
individually or in the aggregate, if adversely determined,
would materially impair the ability of the Company to
perform its obligations under this Agreement, the Depositary
Agreement, the Notes, the Fuel Lease or the Security
Agreement or would materially adversely affect the financial
condition of the Company.
SECTION V.4. Title to Properties. The Company
has good title to all its assets, free and clear of all
mortgages, pledges, liens, charges and encumbrances, except
such as are permitted by Section 8.02 hereof; provided,
however, that the Company (except with respect to its own
actions) is making this representation and warranty only to
the extent of, and entirely in reliance on, representations
and warranties made by the Lessee or any other vendor in the
bills of sale delivered from time to time pursuant to the
Fuel Lease or in other instruments and has made no
independent investigation with respect thereto.
SECTION V.5. Consents, Etc. No consent, license,
order, authorization or approval of, or registration,
declaration or filing with, any governmental or public body
or authority is required in connection with the execution,
delivery and performance by the Company of this Agreement,
the Notes, the Depositary Agreement, the Fuel Lease, the
Security Agreement, the Note Purchase Agreement, the
Consents, the borrowings under this Agreement, the issuance
and sale of the Commercial Paper Notes or the issuance and
sale of the Intermediate Term Notes other than (i) a general
license to own nuclear fuel from the Nuclear Regulatory
Commission (which license has been granted under the
authority of 10 C.F.R. Section 70.20 and is in full force
and effect), (ii) the due and timely filing by the Company
with the Securities and Exchange Commission, pursuant to
clause (d)(6) of Rule 7 promulgated by the Securities and
Exchange Commission under the Public Utility Holding Company
Act of 1935, as amended, of a certificate on Form U-7D, and
(iii) such other consents, licenses, orders, authorizations,
approvals, registrations, declarations or filings as have
been obtained or made.
SECTION V.6. Investment Company Status. The
Company is not an "investment company" or a company "con
trolled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended. The Company
is not a "public-utility company," or a "holding company,"
or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended. The
Security Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and the creation of
the security interest in the Collateral in favor of the
Secured Parties under the Security Agreement does not
require an indenture to be qualified under said Act.
SECTION V.7. Ownership of Company, Etc. River
Fuel Trust #2 is the owner of all of the issued and
outstanding shares of the capital stock of the Company, all
of which shares have been validly issued, are fully paid and
non-assessable and are, and will continue to be, owned by
River Fuel Trust #2, free and clear of all security
interests, pledges, liens, charges, encumbrances, warrants,
options or rights to purchase. The Company owns no shares
of, or other interest in, any other person.
SECTION V.8. Lessee's Financial Statements. The
Company has furnished to the Bank copies of the Lessee's
Annual Report on Form 10-K for the year ended December 31,
1998, its Annual Report to Shareholders for the year 1998,
and its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999 and June 30, 1999.
SECTION V.9. First Perfected Security Interest.
The Security Agreement is effective to create in favor of
the Secured Parties (as defined therein) a legal, valid and
enforceable first lien on and security interest in all of
the collateral purported to be covered thereby, and all
filings, recordings and other actions that are necessary in
order to establish, preserve and perfect the Secured
Parties' lien on, and security interest in, the collateral
as a legal, valid and enforceable first lien and security
interest, shall have been duly effected upon the due filing
of the Uniform Commercial Code financing statements, except
that the foregoing representation shall not be deemed to be
violated as a result of the existence or priority of any
lien permitted under Section 8.02 hereof.
SECTION V.10. Absence of Certain Events. No
event specified in Section 20(a) of the Fuel Lease has
occurred nor has any event occurred which constitutes or,
with the lapse of time or the giving of notice or both,
would constitute an Event of Default under Section 25 of the
Fuel Lease.
VI0 CONDITIONS PRECEDENT
SECTION VI.1. Conditions to Effectiveness. The
effectiveness of this Agreement is subject to the
satisfaction of the following conditions precedent:
(a) Execution. This Agreement shall have been
duly executed and delivered by each of the parties
hereto.
(b) B Notes. Each of the Lenders shall have
received B Notes, duly executed by the Company and
completed in accordance herewith.
(c) Consent. The Bank shall have received the
Consent duly executed by the Lessee.
(d) Lessee Certification. The Bank shall have
received a certificate of the Lessee confirming that
the financial statements contained in the documents
referred to in Section 5.08 fairly present the
financial condition and results of operations of the
Lessee as of the dates and for the periods indicated
therein and have been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis (except as may be otherwise disclosed
in the footnotes thereto).
(e) Opinions. The Bank and the Lenders shall have
received favorable opinions of counsel to the Company
and the Lessee covering such matters as the Bank may
reasonably request.
SECTION VI.2. Conditions to Certain Credit
Events. The obligation of the Bank to consent to the
issuance of Commercial Paper Notes and of the Lenders to
make Loans hereunder, if the effect thereof is to increase
the amount of Outstandings, is further subject to the
conditions precedent that at the time of each Credit Event:
(a) Representations and Warranties. The
representations and warranties of the Company set forth
in Article V hereof, of the Lessee in the Fuel Lease
and of the Company or the Lessee in the certificates
delivered pursuant to Section 6.01(d) hereof shall be
true and correct on and as of the date of such Credit
Event, before and after giving effect to such Credit
Event and to the application of the proceeds, if any,
of such Credit Event, as though such representations
and warranties had been made at and as of such time,
except to the extent that such representations and
warranties expressly relate to an earlier date.
(b) No Default. No Event of Default and no event
which, with the giving of notice or lapse of time, or
both, would constitute an Event of Default shall have
occurred and be continuing on the date of such Credit
Event.
(c) Financial Condition. No material adverse
change shall have occurred in the financial condition,
business or properties of the Company or the Lessee
since June 30, 1999.
(d) Continued Effectiveness of Documents. The
Bank shall have received such documents as the Bank (or
its counsel) shall have requested to confirm the
continued effectiveness of the Trust Agreement, the
Depositary Agreement, the Fuel Lease and the Security
Agreement and any governmental approvals obtained in
connection therewith.
SECTION VI.3. Conditions to Each Credit Event.
The obligation of the Bank to consent to the issuance of
Commercial Paper Notes of the Lenders and to make Loans
hereunder, whether or not the effect thereof is to increase
the amount of Outstandings, is further subject to the
condition precedent that at the time of such Credit Event no
Event of Default shall have occurred and be continuing.
SECTION VI.4. Conditions to Issuance of
Commercial Paper Notes. In addition to the conditions set
forth in Section 6.02 and 6.03 for each Credit Event, on the
date of each proposed issuance of Commercial Paper Notes
hereunder the Commercial Paper Notes shall have received a
rating from each rating organization which rates the
Commercial Paper Notes at least as high as the rating of the
Bank's own short-term debt.
VII0 AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Bank and
the other Lenders that so long as this Agreement shall
remain in effect or any of the Notes or other obligations of
the Company hereunder shall be unpaid, unless the Bank and
the Required Lenders shall otherwise consent in writing, it
will:
SECTION VII.1. Corporate Existence, Etc. Do or
cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights and
franchises and to comply with all laws applicable to it;
maintain, preserve and protect all franchises and preserve
all of its property used or useful in the conduct of its
business; and exercise its rights under the Fuel Lease in
accordance with the Collateral Agent's instructions to cause
the Lessee to perform all its obligations as Lessee
thereunder.
SECTION VII.2. Obligations and Taxes. Pay or
discharge or cause to be paid and discharged promptly all
taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits before the
same shall become in default; provided, however, that the
Company shall not be required to pay and discharge or cause
to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings.
SECTION VII.3. Financial Statements and
Certificates. Furnish or cause to be furnished to the Bank
and, in the case of clause (c) hereof, to each other Lender:
(a) within 30 days after the end of each calendar
quarter, a statement of receipts and disbursements by
the Company during such calendar quarter, certified by
an authorized officer of the Company;
(b together with the statements referred to in
paragraph (a) above, a certificate of said officer (i)
stating whether, to his knowledge, any Event of
Default, or any event which with the giving of notice
or the lapse of time, or both, would be such an Event
of Default, has occurred, and, if so, stating the facts
with respect thereto and (ii) stating that, to his
knowledge, the representations and warranties of the
Company contained in Article V hereof, in the
Depositary Agreement and in the Security Agreement are
true with the same effect as though such represen-
tations and warranties had been made at and as of the
date of such certificate;
(c (i) within 120 days after the end of each
fiscal year of the Lessee, the annual report of the
Lessee, reported on by independent certified public
accountants selected by the Lessee, consisting of the
balance sheet of the Lessee and the related statements
of income, retained earnings and statement of cash
flows for the twelve-month period then ended, (ii)
within 60 days after the end of each quarter of each
fiscal year of the Lessee, an unaudited balance sheet
of the Lessee and unaudited statements of income and
retained earnings for the quarterly period then ended
certified by a financial officer of the Lessee and
(iii) such additional financial information regarding
the Lessee as the Bank may reasonably request; and
(d promptly, from time to time, such other
information regarding the operations, business, affairs
and financial condition of the Company as the Bank may
reasonably request.
SECTION VII.4. Further Assurances. At its own
cost and expense, execute and deliver to the Bank all such
documents and instruments and do all such other acts and
things as may be reasonably required, in the opinion of
counsel for the Bank, to enable the Bank and the other
Lenders to exercise and enforce their rights under this
Agreement, the Notes, the Depositary Agreement and the
Security Agreement and to collect and receive all moneys due
or to become due under the Fuel Lease, to the extent the
Bank is entitled to do so under the Security Agreement.
SECTION VII.5. Litigation Notice. Give the Bank
prompt notice of (i) any action, suit or proceeding known to
the Company at law or in equity or by or before any
governmental instrumentality or other agency which, if
adversely determined, would materially impair the right or
ability of the Company to carry out its obligations under
this Agreement, the Notes, the Depositary Agreement, the
Fuel Lease or the Security Agreement or would materially
affect its business, operations, properties, assets or
condition, financial or otherwise and (ii) receipt of any
notice from the Lessee which the Lessee is required to
provide to the Company pursuant to Sections 18, 19 or 20 of
the Fuel Lease.
SECTION VII.6. Access to Books and Records. Upon
reasonable notice to the Company, permit reasonable access
by the Bank or any other Lender to the books and records of
the Company.
SECTION VII.7. Use of Proceeds. Use the proceeds
of Commercial Paper Notes or Loans solely for the purposes
specified in this Agreement.
SECTION VII.8. Compliance with Laws. Comply in
all material respects with the requirements of all
applicable laws, rules, regulations and orders of any
governmental authority, including, without limitation, any
laws, rules, regulations and orders relating to zoning,
environmental protection (including, without limitation,
hazardous waste disposal), land use, construction and
building restrictions, and employee safety and health
matters relating to business operations.
SECTION VII.9. Year 2000. Take all such actions
as are reasonably necessary to assure that Year 2000 Issues
will not have a material adverse effect on the Company.
SECTION VII.10. Indemnification. The Company
shall pay, and shall protect, indemnify and save harmless
the Bank and each Lender and their respective officers,
directors, incorporators, shareholders, partners, employees,
affiliates, agents and servants from and against, all
Impositions, all liabilities, taxes, losses, obligations,
claims, damages, penalties, causes of action, suits, costs
and expenses (including, without limitation, reasonable
attorneys' fees and expenses) or judgments of any nature
arising from any and all of the following during the term of
the Fuel Lease and thereafter arising in connection with the
Fuel Lease: (a) any injury to or disease, sickness or death
of persons, or loss of or damage to property, occurring
through or resulting from any Nuclear Incident involving or
connected in any way with the Nuclear Fuel or any portion
thereof, or in any manner growing out of or relating to the
acquisition, ownership, possession, disposition, sale, use,
nonuse, misuse, fabrication, design, cycling, recycling,
transportation, containerization, cooling, processing,
reprocessing, storing, condition, operation, construction,
maintenance, management, repair or rebuilding of the Nuclear
Fuel or any portion thereof or resulting from the condition
of the land underlying the Nuclear Fuel, (b) any use, nonuse
or condition of the Generating Facility or the land
underlying the Generating Facility, (c) any violation, or
alleged violation, of the Fuel Lease, or of any contracts or
agreements to which the Lessee is a party or by which it is
bound, or any Legal Requirements, (d) performance of any
labor or services or the furnishing of any materials or
other property in respect of the Nuclear Fuel or any portion
thereof, (e) any infringement or alleged infringement of any
patent, copyright, trade secret or other similar right
relating to the Nuclear Fuel or any portion thereof, and (f)
qualification to do business in any jurisdiction necessary
in connection with its obligations under the Fuel Lease;
provided, that, the Company shall not be required to
indemnify any of the above parties with respect to any of
the above arising out of such party's gross negligence or
wilful misconduct. In the event that any action, suit or
proceeding is brought against any Person indemnified or
intended to be indemnified pursuant to this Section 7.10 by
reason of any such occurrence, the Company will, at the
Company's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by
counsel designated by the Company and reasonably acceptable
to the Person or Persons indemnified or intended to be
indemnified under this Section 7.10. The obligations of the
Company under this Section 7.10 shall survive any
termination of this Agreement or the Fuel Lease, in whole or
in part. Capitalized terms used in this Section 7.10 have
the meanings herein ascribed to such terms in the Fuel
Lease.
VIII. NEGATIVE COVENANTS
The Company covenants and agrees with the Bank and
the other Lenders that so long as this Agreement shall
remain in effect or any of the Notes or other obligations of
the Company hereunder shall be unpaid, unless the Bank and
the Required Lenders shall otherwise consent in writing, it
will not, directly or indirectly:
SECTION VIII.1. Indebtedness. Incur, create,
assume or permit to exist any indebtedness or liability for
borrowed money, or any indebtedness evidenced by notes,
bonds, debentures and similar obligations (including but not
limited to, conditional sales or similar title retention
agreements and guaranties), except indebtedness evidenced by
the Notes and the Intermediate Term Notes not to exceed the
lesser of (i) $160,000,000 and (ii) the sum of the
Stipulated Loss Value (as defined in the Lease) of Nuclear
Fuel owned by the Company and cash and investments held by
the Company.
SECTION VIII.2. Liens. Incur, create or assume
or permit to exist any mortgage, pledge, lien, charge or
other encumbrance of any nature whatsoever on any of its
assets now or hereafter owned, except:
(a liens securing the payment of obligations
permitted under Section 7.02 hereof;
(b liens imposed by law, such as carrier's,
warehousemen's or mechanics' liens, incurred in good
faith in the ordinary course of business;
(c liens granted under this Agreement and the
Security Agreement, and liens, encumbrances,
assignments and subleases permitted by the Fuel Lease;
and
(d the right, title and interest of any
Manufacturer in and to Nuclear Fuel to be delivered
under any Nuclear Fuel Contract (as such terms are
defined in the Fuel Lease) and any deposit made with
any Manufacturers with respect to a Nuclear Fuel
Contract.
SECTION VIII.3. Activities. Engage in any
business or activity other than the business of owning
Nuclear Fuel and leasing the same to the Lessee pursuant to
the Fuel Lease, and making the borrowings under the Notes
and the Intermediate Term Notes and otherwise engaging in
activities contemplated by this Agreement and the Note
Purchase Agreement.
SECTION VIII.4. Sales, Etc. (a) Sell, lease,
transfer or otherwise dispose of any portion of its property
or assets to any person except in the ordinary course of
business or pursuant to the Fuel Lease, this Agreement or
the Security Agreement or (b) consolidate with or merge into
any other corporation, or permit another corporation to
merge into it, or acquire all or a substantial portion of
the properties or assets of any other person.
SECTION VIII.5. Amendments, Etc. Amend, revise,
alter, modify or change, or consent to an amendment,
revision, alteration, modification or change in, or grant
any waiver under, the provisions of the Commercial Paper
Notes, the Depositary Agreement or the Fuel Lease.
SECTION VIII.6. Investments. (a) Make or permit
to exist any loans or advances to, or investments in, any
person, (b) purchase any debt securities, evidences of
indebtedness or obligations of any person other than
purchases permitted by Section 3.4 of the Security Agreement
or (c) purchase any stock or other equity securities of any
person. All losses incurred on any investment permitted by
this Section 8.06 shall be for the account of the Company.
SECTION VIII.7. Dividends. Except as otherwise
expressly provided herein, purchase, redeem or issue any
shares of its capital stock, declare any dividends thereon,
make any distribution to stockholders, or set aside any
funds for any such purpose.
SECTION VIII.8. Compliance with Securities Act.
Sell any Commercial Paper Notes or Intermediate Term Notes
if such sale would violate the Securities Act of 1933, as
amended, or any other applicable federal or state law
relating to the sale of securities.
SECTION VIII.9. Consolidated Tax Returns. File
consolidated tax returns with any person or permit any
consolidated tax returns to be filed with respect to it.
IX. DEFAULTS
SECTION IX.1. Events of Default. Any one or more
of the following events shall constitute an "Event of
Default" under this Agreement:
(a any representation or warranty made by the
Company or the Lessee in connection with this Agree
ment, the Fuel Lease, the Security Agreement, the
Depositary Agreement or any agreement or instrument
related to any of the foregoing, or in any report,
certificate, financial statement or other instrument
furnished in connection with this Agreement, the
execution and delivery of the Notes, the issuance of
the Letter of Credit or the borrowings hereunder shall
prove to be false or misleading in any material respect
when made;
(b default in the payment of the principal of,
or interest on, 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 by
acceleration thereof or otherwise, or any default in
the payment of any amount payable pursuant to
Section 2.08, 2.09 or 2.10 hereof, and, in the case of
default in the payment of interest or fees, such
default shall continue unremedied for five Business
Days;
(c default in the due observance of any
covenant, condition or agreement on the part of the
Company contained in Article VIII hereof (other than
Section 8.02);
(d default in the due observance or performance
of any other covenant, condition or agreement to be
observed or performed by the Company pursuant to the
terms of this Agreement, the Depositary Agreement, the
Fuel Lease or the Security Agreement, and such default
shall continue unremedied for 30 days after written
notice thereof to the Company by the Bank (which notice
shall state that it is a "notice of default");
(e the Company shall (i) apply for, consent to,
or acquiesce in the appointment of a receiver, trustee
or liquidator of itself or any of its property or, in
the absence of such application, consent or acquies
cence, a trustee, receiver or liquidator is appointed
for the Company or for a part of its property and is
not discharged within 30 days, (ii) become insolvent or
admit in writing its inability to pay its debts as they
mature, (iii) make a general assignment for the benefit
of creditors, (iv) be adjudicated a bankrupt or insol
vent or (v) file a voluntary petition in bankruptcy, or
a petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute, or an
answer admitting the material allegations of a petition
filed against it in any proceeding under any such law
or if corporate action shall be taken by the Company
for the purpose of effecting any of the foregoing;
(f an order, judgment or decree shall be
entered, without the application, approval or consent
of the Company by any court of competent jurisdiction,
approving a petition seeking reorganization of the
Company or of all or a substantial part of the assets
of the Company or appointing a receiver, trustee or
liquidator of the Company, and such order, judgment or
decree shall continue unstayed for a period of 60 days;
(g any petition shall be filed against the
Company seeking the adjudication of the Company as
bankrupt or its reorganization or an arrangement of its
debt or its liquidation or dissolution under any
bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute, and
such petition shall not be dismissed within 60 days
after the filing thereof;
(h final judgment or judgments for the payment.
of money in excess of $500,000 in the aggregate shall
be rendered against the Company and the same shall
remain undischarged for a period of 30 consecutive
days, unless execution thereof shall effectively have
been stayed;
(i an Event of Default under Section 25 of the
Fuel Lease shall have occurred and be continuing;
(j an Event of Default under Section 9 of the
Note Purchase Agreement shall have occurred and be
continuing;
(k final and irrevocable payment to the
Commercial Paper Account of the proceeds from the sale
of any Commercial Paper Note shall not have been made
by the end of business of the Business Day immediately
following the day on which such Commercial Paper Note
was sold; or
(l default in the payment when due, or in the
performance or observance of, any material obligation
of, or condition agreed to by, the Company with or to a
Manufacturer (as defined in the Fuel Lease), except
only to the extent that the existence of any such
default is being contested by the Company in good faith
and by appropriate proceedings.
SECTION IX.2. Rights of Bank and Lenders Upon
Default. Upon the happening of any Event of Default and at
any time thereafter during the continuance of such Event of
Default, the Bank may, and upon instructions from the
Required Lenders will, (i) by written notice to the Company,
at the same or different times, take one or more of the
following actions: (x) terminate the obligations of the
Lenders to make further Loans and/or (y) declare any or all
outstanding Loans to be forthwith due and payable, whereupon
such Loans shall become forthwith due and payable, both as
to principal and interest, without presentment, demand,
protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the
B Notes to the contrary notwithstanding, and/or (z) exercise
any rights it may have (or instruct the Collateral Agent to
act) under the Security Agreement, and (ii) by written
notice to the Company (with a copy to the Depositary), at
the same or different time, take one or more of the
following actions: (x) instruct the Company to cease issuing
Commercial Paper Notes and/or (y) terminate the Bank's
obligation to issue the Letter of Credit (but no such action
by the Bank shall affect its obligations under the Letter of
Credit with respect to Commercial Paper Notes then
outstanding) and/or (z) require the Company to immediately
reimburse the Bank for any LOC Payments made or which may
thereafter be made under the Letter of Credit; provided,
however, that upon the happening of any of the events
specified in clauses (e), (f) or (g) of Section 9.01 hereof,
the obligation of the Lenders to make further Loans
hereunder and of the Bank to issue the Letter of Credit
shall terminate (but such termination shall not affect the
Bank's obligations under the Letter of Credit with respect
to Commercial Paper Notes then outstanding), the Company
shall cease issuing Commercial Paper Notes, all amounts of
principal and accrued interest on the Loans shall be
immediately due and payable and the Company shall
immediately reimburse the Bank for any LOC Payments under
the Letter of Credit without declaration or other notice to
the Company. In the case of an Event of Default, the Bank
shall also be entitled to demand, and the Company shall be
required to deposit in the Commercial Paper Account, an
amount equal to the liabilities of the Bank, contingent or
otherwise, under the Letter of Credit. The remedies herein
provided in case of an Event of Default shall not be deemed
to be exclusive but shall be cumulative and shall be in
addition to all other remedies existing at law, in equity or
in bankruptcy.
X. THE BANK AS AGENT
SECTION X.1. The Agency. Each Lender appoints
the Bank as its agent hereunder and irrevocably authorizes
the Bank to take such action on its behalf and to exercise
such powers hereunder and under the other Credit Documents
as are specifically delegated to the Bank by the terms
hereof and thereof, together with such powers as are
reasonably incidental thereto, and the Bank hereby accepts
such appointment subject to the terms hereof. The relation
ship between the Bank and the Lenders shall be that of agent
and principal only and nothing herein shall be construed to
constitute the Bank a trustee or fiduciary for any Lender
nor to impose on the Bank duties or obligations other than
those expressly provided for herein.
Section X.2. The Bank's Duties. The Bank shall
promptly forward to each Lender copies, or notify each
Lender as to the contents, of all notices received from the
Company pursuant to the terms of this Agreement and, in the
event that the Company fails to timely reimburse any LOC
Payment or to pay when due the principal of or interest on
any Loan, the Bank shall promptly give notice thereof to the
Lenders. As to any other matter not expressly provided for
herein, the Bank shall have no duty to act or refrain from
acting with respect to the Company, except upon the
instructions of the Required Lenders. The Bank shall not be
bound by any waiver, amendment, supplement, or modification
of this Agreement which affects its duties hereunder and
thereunder, unless it shall have given its prior written
consent thereto. The Bank shall have no duty to ascertain
or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements binding on the
Company pursuant to this Agreement or any other Credit
Document nor shall the Bank be deemed to have knowledge of
the occurrence of any Default or Event of Default (other
than a failure of the Company to timely reimburse any LOC
Payment or to pay when due the principal or interest on any
Loan), unless it shall have received written notice from the
Company or a Lender specifying such Default or Event of
Default and stating that such notice is a "Notice of
Default".
Section X.3. Limitation of Liabilities. Each of
the Lenders and the Company agree that (i) neither the Bank
nor any of its officers or employees shall be liable for any
action taken or omitted to be taken by any of them hereunder
except for its or their own gross negligence or wilful
misconduct, (ii) neither the Bank nor any of its officers or
employees shall be liable for any action taken or omitted to
be taken by any of them in good faith in reliance upon the
advice of counsel, independent public accountants or other
experts selected by the Bank, and (iii) the Bank shall be
entitled to rely upon any notice, consent, certificate,
statement or other document believed by it to be genuine and
correct and to have been signed and/or sent by the proper
persons.
Section X.4. The Bank as a Lender. The Bank may,
without any liability to account, maintain deposits or
credit balances for, invest in, lend money to and generally
engage in any kind of banking business with the Company or
any affiliate of the Company as if it were any other
borrower and without any duty to account therefor to the
other Lenders.
Section X.5. Lender Credit Decision. Neither the
Bank, nor any of its Affiliates, officers or employees has
any responsibility for, gives any guaranty in respect of,
nor makes any representation to the Lenders as to, (i) the
condition, financial or otherwise, of the Company or the
Lessee or the truth of any representation or warranty given
or made in this Agreement or any other Credit Document, or
in connection herewith or therewith or (ii) the validity,
execution, sufficiency, effectiveness, construction,
adequacy, enforceability or value of this Agreement or any
other Credit Document or other document or instrument
related hereto or thereto. Except as specifically provided
herein, neither the Bank nor any of its officers or
employees shall have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender
with any credit or other information with respect to the
operations, business, property, condition or creditworthi
ness of the Company or the Lessee, whether such information
comes into the Bank's possession on or before the date
hereof or at any time thereafter. Each Lender acknowledges
that (i) it has, independently and without reliance upon the
Bank or any other Lender, based on such documents and
information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement
and (ii) all information reviewed by it in its credit
analysis or otherwise in connection herewith has been
provided solely by or on behalf of the Company or the
Lessee, and the Bank has no responsibility for such
information. Each Lender also acknowledges that it will
independently and without reliance upon the Bank or any
other Lender, based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement.
Section X.6. Indemnification. Each Lender agrees
to indemnify the Bank, to the extent not reimbursed by the
Company, ratably in accordance with its Pro Rata Share (as
of the time of the incurrence of the liability being
indemnified against), from and against any and all
liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Bank in any
way relating to or arising out of any this Agreement or any
other Credit Document, or any action taken or omitted to be
taken by the Bank hereunder or thereunder; provided,
however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of
the Bank or any of its officers or employees. Without
limiting the foregoing, each Lender agrees to reimburse the
Bank promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees and disbursements of
counsel incurred by the Bank in such capacity in connection
with the enforcement of, or legal advice in respect of
rights or responsibilities under, this Agreement or any
other Credit Document or any amendments or supplements
hereto or thereto, to the extent that the Bank is not
reimbursed for such expenses by the Company. Except for
action expressly required of the Bank hereunder, the Bank
shall in all cases by fully justified in failing or refusing
to act hereunder unless it shall receive further assurances
to its satisfaction from the Lenders of their
indemnification obligations under this Section 10.06 hereof
against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any
such action.
XI. MISCELLANEOUS
SECTION XI.1. Notices. Any notice shall be
deemed to have been given to a party hereto (or to the
Depositary) on the day on which delivered to such party at
the address specified below (or at such other address as
such party shall specify to the other party in writing) or,
if sent by registered or certified mail, on the day next
following the day on which mailed, addressed to such party
at such address:
(a if to the Company, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
Company of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, marked for the attention of
▇▇▇▇▇ ▇▇▇▇▇;
(b if to the Bank, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, marked for
the attention of Agency Function Administration;
(c if to any Lender at its address set forth on
the signature pages hereof;
(d if to the Depositary, at its address set
forth in the Depositary Agreement;
(e if to the Lessee, at its address set forth in
the Fuel Lease.
SECTION XI.2. Survival of Agreement. All
covenants, agreements, representations and warranties made
herein, in the Depositary Agreement, in the Security
Agreement and in the certificates delivered pursuant hereto
shall survive (i) the issuance of the Letter of Credit, (ii)
the making by the Lenders of the Loans herein contemplated
and (iii) the execution and delivery to the Lenders of the
B Notes, and shall continue in full force and effect as to
the Bank and the other Lenders so long as the B Notes or any
other obligations of the Company hereunder are outstanding
and unpaid and so long as the Bank or any Lender has any
liability hereunder or under the Letter of Credit. This
Agreement shall be binding upon the Company and the Bank and
the other Lenders and their respective successors and
assigns, and shall inure to the benefit of the Company, the
Bank and the other Lenders and the successors and assigns of
the Company, the Bank and the other Lenders.
SECTION XI.3. Expenses of the Bank, Etc. (a) The
Company will pay all reasonable out-of-pocket expenses
incurred by the Bank (including the reasonable fees and out-
of-pocket expenses of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇) in connection
with the preparation, execution, delivery and administration
of this Agreement (whether or not the transactions hereby or
thereby contemplated shall be consummated), the issuance of
the Letter of Credit and the making of Loans hereunder, and
the Company will pay any costs and expenses of the Bank
(including the reasonable fees of its counsel) in connection
with the enforcement and protection of the rights of the
Bank and the Lenders under this Agreement, the Notes and the
Security Agreement. The Company further agrees to pay, and
to save, indemnify and hold harmless the Bank and each
Lender from and against all liability for, any stamp or
other similar taxes which may be payable in connection with
the execution and delivery of this Agreement, the Notes and
the Security Agreement, the borrowings hereunder or the
issuance of the Notes or of any other instruments or
documents provided for herein or delivered or to be
delivered hereunder or in connection herewith.
(b The Company further agrees to save, indemnify
and hold harmless the Bank and each Lender and their
respective officers, directors, agents or employees from and
against any and all liabilities (including liabilities for
penalties) incurred by the Bank, any Lender or its officers,
directors, agents or employees hereunder, in connection
herewith or as a consequence of its being a Lender or the
Bank hereunder, unless such liability shall be due to gross
negligence or willful misconduct on the part of the Bank,
such Lender or its respective officers, directors, agents or
employees or breach by the Bank or such Lender of its
obligations hereunder or in connection herewith. In any
suit, proceeding or action brought by the Bank and/or the
Lenders (or any of them) with respect to the Fuel Lease for
any sum owing thereunder, or to enforce any provisions
thereof, the Company will save, indemnify and hold harmless
the Bank and the Lenders from and against all expense, loss
or damage suffered by reason of any defense, set-off,
counterclaim, recoupment or reduction of liability
whatsoever of each other person which is obligated thereon,
arising out of a breach by the Company of any obligation
thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor
of such person or its successors from the Company, and all
such obligations of the Company shall be and remain
enforceable against and only against the Company. If the
Company shall fail to do any act or thing which it has
covenanted to do hereunder or under the Depositary Agreement
or the Security Agreement or any representation or warranty
on the part of the Company contained herein or therein shall
be breached, the Bank or any Lender may (but shall not be
obligated to) do the same or cause it to be done or remedy
any such breach, and may expend its funds for such purpose.
Any and all amounts so expended by the Bank or any Lender
shall be repayable to it by the Company upon its demand
therefor, with interest at a rate equal to the Base Rate in
effect from time to time during the period from and
including the date so expended by the Bank or such Lender to
the date of such demand and with interest at a rate equal to
2% over the Base Rate in effect from time to time during the
period after such demand to the date of repayment.
SECTION XI.4. APPLICABLE LAW. THIS AGREEMENT,
THE B NOTES AND THE LETTER OF CREDIT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION XI.5. Amendments, Modifications and
Waivers. No failure or delay on the part of the Bank in
exercising any power or right hereunder or under any other
Credit Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power
preclude any other or further exercise thereof or the
exercise of any other right or power hereunder or
thereunder. No amendment, modification or waiver of any
provision of this Agreement, any Note, the Depositary
Agreement or the Security Agreement and no consent to any
departure by the Company therefrom shall in any event be
effective unless the same shall be in writing and signed by
the Bank and the Required Lenders, provided, however, that
without the prior written consent of all Lenders, no such
amendment, modification or waiver shall (i)postpone any date
fixed for payment of any portion of the principal of, or
interest on, any Loan, or any reimbursement on account of
any LOC Payment, or the Commitment Fees or the Letter of
Credit Fees, (ii) release Collateral (as defined in the
Security Agreement) other than in the ordinary course of
business or (iii) reduce the principal of, or interest on,
any Loan, or the amount of any reimbursement on account of
any LOC Payment, or the Amount of the Commitment Fees or
Letter of Credit Fees. Any such waiver or consent shall be
effective only in the specific instance and for the purpose
for which given. No notice to or demand on the Company in
any case shall, of itself, entitle the Company to any other
or further notice or demand in similar or other
circumstances. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
SECTION XI.6. Extension of Maturity. Should the
principal of or interest on any B Note or any Loan evidenced
thereby, or any mandatory prepayment of the principal
thereof, or any other amount payable hereunder, become due
and payable on other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business
Day and, in the case of principal or reimbursement, interest
shall be payable thereon at the rate per annum herein
specified during such extension.
SECTION XI.7. No Recourse. This Agreement, the
Depositary Agreement, the Notes, the Security Agreement, the
Fuel Lease and any other document executed and delivered by
the Company in connection herewith or therewith is intended
to be a corporate obligation of the Company only, and all of
the statements, representations, covenants and agreements
made by the Company contained herein or therein are made and
intended only for the purpose of binding the Company and
establishing the existence of rights and remedies provided
for herein or therein which can be exercised and enforced
against the Company. Therefore, anything contained in this
Agreement, the Depositary Agreement, the Notes, the Security
Agreement, the Fuel Lease and any other document to the
contrary notwithstanding, no recourse may be made by the
Bank or any Lender against River Fuel Trust #2, United
States Trust Company of New York, as trustee or in its
individual capacity or any incorporator, shareholder (direct
or indirect), affiliate, director, officer, employee or
agent of the Company, River Fuel Trust #2 or United States
Trust Company of New York with respect to claims against the
Company arising under or relating to this Agreement or the
Letter of Credit; provided, however, that nothing in this
Section 11.07 shall relieve the Company from its corporate
obligations under this Agreement.
SECTION XI.8. Severability. In case any one or
more of the provisions contained in this Agreement, the
Depositary Agreement, the Security Agreement, the Letter of
Credit or the Notes should be invalid, illegal or unenforce
able in any respect, the validity, legality and enforceabil
ity of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby.
SECTION XI.9. Table of Contents and Captions.
The table of contents and captions contained in this Agree
ment are for convenience of reference only and shall not
limit or define the provisions of this Agreement or affect
the interpretation or construction thereof.
SECTION XI.10. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall
constitute an original but which, when taken together, shall
constitute but one instrument.
SECTION XI.11. LIBOR Lending Office. LIBOR Rate
Loans shall be made by each Lender from such branch or
affiliate as it may hereafter designate to the Company as
its "LIBOR Lending Office", provided, however, that to the
extent the such Lender can do so, it will designate only a
branch or affiliate which will not cause the Company to
incur additional costs.
SECTION XI.12. Authorization of Collateral Agent.
The Bank and the Lenders hereby authorizes the Collateral
Agent to enter into and to carry out its duties under and
with respect to the Security Agreement and hereby agrees to
accept and be bound by all of the provisions thereof
including without limitation the provisions (a) prohibiting
the enforcement of the Security Agreement without the
direction or consent of the Designated Holders (as that term
is used in the Security Agreement), (b) limiting the duties
of the Collateral Agent thereunder and exonerating it from
certain liabilities, (c) permitting amendments to the
Security Agreement and waivers and releases of Collateral
thereunder and (d) providing that under certain
circumstances the Lenders shall be responsible for its pro
rata share of expenses of the Collateral Agent as set forth
in Section 6.8 of the Security Agreement.
SECTION XI.13. WAIVER OF JURY. THE COMPANY, THE
BANK AND EACH LENDER EACH HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT, ANY OTHER CREDIT DOCUMENT OR THE FUEL LEASE.
SECTION XI.14. Effect of this Agreement. This
Agreement constitutes only an amendment and restatement of
the Existing Agreement and is not new value or intended to
be an accord and satisfaction thereof, and it is the intent
of the parties hereto that the Security Agreement remains in
full force and effect.
IN WITNESS WHEREOF, the Company, the Bank and the
other Lenders have caused this Agreement to be duly executed
as of the day and year first above written.
The Company: RIVER FUEL COMPANY #2, INC.
By__________________________
The Bank and a Lender: THE BANK OF NEW YORK
By__________________________
The Lenders: CIBC, INC.
By__________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Power &
Utilities
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
THE SANWA BANK LIMITED
By__________________________
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _______________
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule I
Commitments
Lender
Commitment
The Bank of New York
$27,307,692
CIBC, INC.
$12,692,308
The Sanwa Bank Limited
$15,000,000
EXHIBIT A
DEPOSITARY AGREEMENT
[to come]
EXHIBIT B
[FORM OF LETTER OF CREDIT]
IRREVOCABLE LETTER OF CREDIT
THE BANK OF NEW YORK
November __, 1999
Letter of Credit No.
To The Chase Manhattan Bank,
as Depositary for the
benefit of holders of Notes
issued by River Fuel Company #2, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
We hereby establish in your favor, in trust for
the holders of the Commercial Paper Notes referred to below,
this irrevocable Letter of Credit for the account of River
Fuel Company #2, Inc. (the "Company"), for an aggregate
amount, available from time to time, equal to the Face
Amount (as hereinafter defined) of certain promissory notes
of the Company (the "Commercial Paper Notes") authenticated
and delivered by you pursuant to and in compliance with a
certain Depositary Agreement dated as of November 19, 1999,
as from time to time amended (the "Depositary Agreement"),
among the Company, The Bank of New York (the "Bank") and
you, not to exceed $55,000,000. The "Face Amount" of a
Commercial Paper Note means the principal amount thereof
plus, in the case of any Commercial Paper Note issued on an
interest-bearing basis, all interest payable on such
Commercial Paper Note to its stated maturity date.
Notwithstanding any other provision of this Letter of
Credit, the aggregate liability of the Bank under this
Letter of Credit shall not exceed $55,000,000, at any one
time.
Drawings hereunder may be made by you in the man
ner hereinafter provided for the payment of matured
Commercial Paper Notes. Such drawings shall be made by your
delivering to the Bank, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, to the attention of: The Manager, Standby
Letter of Credit Department, Floor 8 East, a demand for
payment (in writing or by Telecopy to No. (▇▇▇) ▇▇▇-▇▇▇▇,
with telephonic confirmation of receipt at (▇▇▇ ▇▇▇-▇▇▇▇, or
by any other telecommunication device capable of creating a
record of such demand) in the form of Annex A hereto, with
all blanks appropriately filled in and signed by your
authorized officer.
Provided that such demand is delivered to the Bank
not later than the close of business on such Commercial
Paper Notes' Drawing Deadlines (as hereinafter defined), the
Bank agrees to honor such demand drawn under and in
compliance with this Letter of Credit by transferring to you
for deposit in the Note Redemption Account (as defined in
the Depositary Agreement) immediately available funds equal
to the Face Amount of such Commercial Paper Notes for which
payment is demanded, such funds to be held in the Note
Redemption Account in trust for the holders of the
Commercial Paper Notes for which such demand is made and to
be applied to the payment of such Commercial Paper Notes.
If demand for payment is made by you hereunder at
or prior to 10:00 A.M., New York City time, on a business
day, and provided that such demand for payment conforms to
the terms and conditions hereof, payment shall be made to
you of the amount demanded, in immediately available funds,
not later than 1:00 P.M., New York City time, on the same
business day. If demand for payment is made by you
hereunder after 10:00 A.M. but prior to 2:00 P.M., New York
City time, on a business day, and provided that such demand
for payment and the documents presented in connection
therewith conform to the terms hereof, payment shall be made
to you of the amount demanded, in immediately available
funds, not later than the close of business, New York City
time, on the same business day.
All payments hereunder will be made with the
Bank's own funds and not with funds of the Company.
Except as otherwise expressly provided herein, for
the purposes of this Letter of Credit:
(a) the term "business day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the City of New York are authorized by
law to close; and
(b) the term "Drawing Deadline" with respect to
any Commercial Paper Note shall mean the 16th day after
the stated maturity date of such Commercial Paper Note,
or if such 16th day is not a business day, the next
succeeding business day.
This Letter of Credit is irrevocable with respect
to any issued Commercial Paper Note. This Letter of Credit
shall not be available with respect to each Commercial Paper
Note after the Drawing Deadline thereof, or after full
payment thereof, whichever is earlier; provided, however,
that in no event shall this Letter of Credit remain in
effect after January 31, 2002.
The obligation of the Bank hereunder with respect
to each drawing hereunder shall be fully discharged upon the
payment by the Bank in accordance herewith of the Face
Amount of the Commercial Paper Notes with respect to which
such drawing is made.
This Letter of Credit has been delivered in
New York, New York and shall be deemed to be a contract made
under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles
of conflicts of law.
This credit is not assignable or transferable and,
except as otherwise expressly stated herein, is subject to
the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce,
Publication No. 500.
Very truly yours,
THE BANK OF NEW YORK
By
Annex A
DRAWING CERTIFICATE
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: The Manager, Standby Letter of
Credit Department, Floor 8 East
Re: Drawing Certificate
Gentlemen:
The Chase Manhattan Bank(the "Depositary") hereby
certifies to The Bank of New York (the "Bank") with
reference to Irrevocable Letter of Credit No.________ (the
"Letter of Credit"; the terms "Depositary Agreement", "Face
Amount" and "Commercial Paper Notes" as used herein having
their respective meanings set forth in the Letter of Credit)
that:
1. The Depositary is the Depositary under the
Depositary Agreement.
2. The Depositary is making a demand for payment
under the Letter of Credit of the sum of $ to be
used for the payment of Commercial Paper Notes maturing on
or prior to the date hereof.
3. A schedule showing the serial number, Face
Amount, date of issuance and maturity date of the Commercial
Paper Notes with respect to which such drawing is made is
attached hereto.
4. Each such Commercial Paper Note was
authenticated and delivered by the Depositary pursuant to
and in accordance with the Depositary Agreement.
5. Upon receipt by the Depositary of the amount
demanded hereby, (a) the Depositary will deposit the same in
the Note Redemption Account (as defined in the Depositary
Agreement), (b) no portion of said amount shall be applied
by the Depositary for any other purpose, and (c) no portion
of said amount shall be commingled with other funds held by
the Depositary.
IN WITNESS WHEREOF, the Depositary has executed
and delivered this Certificate as of the ____ day of
____________, ____.
THE CHASE MANHATTAN BANK,
as Depositary
By
EXHIBIT C
PROMISSORY NOTE
(LIBOR Rate Note)
$[Amount of Lender's Commitment] New York, New York
[Insert Date of Note]
FOR VALUE RECEIVED, River Fuel Company #2, Inc., a
Delaware corporation (the "Company") DOES HEREBY PROMISE to
pay to the order of [Name of Lender] (the "Lender") the
principal amount of [Amount of Commitment] ($___________)
or, if less than such principal amount, the aggregate
outstanding principal amount of all LIBOR Rate Loans (as
defined in the Credit Agreement referred to below) made to
the Company by the Lender pursuant to said Credit Agreement,
as set forth on the Schedule attached hereto, and to pay
interest (computed on the actual number of days elapsed in a
year of 360 days) on the outstanding principal amount of
each such LIBOR Rate Loan at the rate of interest specified
therefor in the Schedule hereto. The principal amount of
each LIBOR Rate Loan evidenced by this Note shall be due on
the Maturity Date specified for such Loan in the Schedule
attached hereto. Interest on each LIBOR Rate Loan evidenced
hereby shall be payable on the said Maturity Date and upon
the acceleration of the due date of the aggregate
outstanding principal amount of this Note. Any LIBOR Rate
Loan which is not paid on its Maturity Date (unless renewed
or refunded pursuant to the Credit Agreement) or on the date
when it is otherwise due and payable shall bear interest
until paid at a rate per annum equal to 2% in excess of the
cost to The Bank of New York (the "Bank") of making or
maintaining such LIBOR Rate Loan. The principal of, and
interest on, each LIBOR Rate Loan evidenced hereby shall be
payable at the office of the Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
This Note is one of the LIBOR Rate Notes referred
to in a certain Amended and Restated Credit Agreement dated
as of November 19, 1999 between the Company, the Bank and
various Lenders (including the Lender) (said Credit
Agreement, as from time to time heretofore or hereafter
amended, herein called the "Credit Agreement"), and is
subject to prepayment and the maturity of the LIBOR Rate
Loans evidenced hereby may be accelerated in accordance with
the provisions of the Credit Agreement.
This Note is secured by certain collateral
described in the Credit Agreement and in the Security
Agreement referred to in the Credit Agreement.
RIVER FUEL COMPANY #2, INC.
By
Schedule to
Promissory Note dated [insert Date of Note]
of River Fuel Company #2, Inc.
LIBOR Rate Loans
Date Amount Rate of Maturity Amount of Balance Notation
of Interest Date of Principal Remaining Made By
Loan on Loan Loan Paid Unpaid
EXHIBIT D
PROMISSORY NOTE
(Prime Rate Note)
$[Amount of Lender's Commitment] New York, New York
[Insert Date of Note]
FOR VALUE RECEIVED, River Fuel Company #2, Inc., a
Delaware corporation (the "Company") DOES HEREBY PROMISE to
pay to the order of [Name of Lender] (the "Lender") on the
Termination Date (as defined in the Credit Agreement
referred to below), at the office of The Bank New York (the
"Bank") at One Wall Street, New York, New York, in lawful
money of the United States of America, the principal amount
of [Amount of Commitment] Dollars ($______________) or, if
less than such principal amount, the aggregate outstanding
principal amount of all Prime Rate Loans (as defined in the
Credit Agreement) made to the Company by the Lender pursuant
to said Credit Agreement, as shown on the Schedule attached
to this Note, and to pay interest (computed on the basis of
the actual number of days elapsed in a year of 365 or, as
the case may be, 366 days) on the unpaid principal amount
hereof until paid, in like money at said office of the Bank,
on the last day of March, June, September and December in
each year in respect of the calendar quarter then ending,
and at maturity, at a rate per annum prior to maturity equal
to the Base Rate (as defined in the Credit Agreement) as in
effect from time to time, and after maturity at a rate per
annum equal to 2% above the Base Rate. Each change in the
rate of interest hereon shall be effective as of the opening
of business on the date of any change in the Base Rate.
This Note is one of the Prime Rate Notes referred
to in a certain Amended and Restated Credit Agreement dated
as of November 19, 1999 between the Company and the Bank,
(said Credit Agreement, as from time to time heretofore or
hereinafter amended, herein called the "Credit Agreement"),
and is subject to prepayment and the maturity of the Prime
Rate Loans evidenced hereby may be accelerated in accordance
with the provisions of the Credit Agreement.
This Note is secured by certain collateral
described in the Credit Agreement and in the Security
Agreement referred to in the Credit Agreement.
RIVER FUEL COMPANY #2, INC.
By
Schedule to
Promissory Note dated [insert Date of Note]
of River Fuel Company #2, Inc.
Prime Rate Loans
Date Amount Amount of Balance Notation
of Principal Remaining Made By
Loan Paid Unpaid
EXHIBIT E
ENTERGY LOUISIANA, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
River Fuel Company #2, Inc.
c/o United States Trust Company
of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Pursuant to the requirements of the Fuel Lease,
dated as of January 31, 1989 between River Fuel Company #2,
Inc. and Entergy Louisiana, Inc. (formerly Louisiana Power &
Light Company), Entergy Louisiana, Inc. hereby acknowledges
receipt of a copy of (i) the Amended and Restated Credit
Agreement, dated as of November 19, 1999 between River Fuel
Company #2, Inc., The Bank of New York and the various
Lenders parties thereto and (ii) the Depositary Agreement
among River Fuel Company #2, Inc., The Chase Manhattan Bank
and The Bank of New York, and consents to your entry into
said Amended and Restated Credit Agreement.
Very truly yours,
ENTERGY LOUISIANA, INC.
By________________________________
Vice President and Treasurer