Exhibit 10.3
EXECUTION COPY
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LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
among
INDIANTOWN COGENERATION, L.P.,
as Borrower
and
BNP PARIBAS,
as Initial Bank
and
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
AND ENTITIES PARTIES HERETO FROM TIME TO TIME
and
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent
dated as of October 10, 2003
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS; CONSTRUCTION..................................................................... 2
SECTION 1.1. Definitions........................................................................... 2
SECTION 1.2. Construction.......................................................................... 8
ARTICLE II LETTERS OF CREDIT............................................................................ 8
SECTION 2.1. Commitments........................................................................... 8
SECTION 2.2. Amount and Term of Letters of Credit.................................................. 9
SECTION 2.3. Participations in Letter of Credit.................................................... 10
SECTION 2.4. Drawing and Reimbursement............................................................. 10
SECTION 2.5. Fees.................................................................................. 10
SECTION 2.6. Interest.............................................................................. 11
SECTION 2.7. Repayment............................................................................. 12
SECTION 2.8. Prepayments........................................................................... 12
SECTION 2.9. Security.............................................................................. 13
SECTION 2.10. Payments............................................................................. 13
SECTION 2.11. Computation of Interest and Fees..................................................... 13
SECTION 2.12. Payments on Non-Business Days........................................................ 13
SECTION 2.13. Sharing of Payments. Etc............................................................. 14
SECTION 2.14. Evidence of Debt..................................................................... 14
SECTION 2.15. Increased Letter of Credit Costs..................................................... 14
SECTION 2.16. Capital Adequacy..................................................................... 14
SECTION 2.17. Taxes................................................................................ 15
SECTION 2.18. Change of Law........................................................................ 17
SECTION 2.19. Non-Availability..................................................................... 18
SECTION 2.20. Assignments by Banks................................................................. 18
SECTION 2.21. Refinancing Option................................................................... 19
SECTION 2.22. Right of Set-off..................................................................... 19
SECTION 2.23. Minimum Amounts...................................................................... 19
ARTICLE III CONDITIONS PRECEDENT........................................................................ 19
SECTION 3.1. Conditions Precedent to Issuance of the Letters of Credit............................. 19
SECTION 3.2. Additional Conditions Precedent to the Issuance of the FPL QF Letter of Credit........ 22
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................... 23
SECTION 4.1. Representations and Warranties........................................................ 23
ARTICLE V COVENANTS..................................................................................... 23
SECTION 5.1. Covenants............................................................................. 23
ARTICLE VI DEFAULTS AND REMEDIES........................................................................ 26
SECTION 6.1. Defaults and Remedies................................................................. 26
ARTICLE VII CHARACTER OF OBLIGATIONS.................................................................... 28
SECTION 7.1. Obligations Absolute.................................................................. 28
SECTION 7.2. Limited Liability of Agent and Banks.................................................. 29
ARTICLE VIII THE AGENT.................................................................................. 30
SECTION 8.1. Authorization and Action.............................................................. 30
SECTION 8.2. Agent's Reliance, Etc................................................................. 30
SECTION 8.3. Initial Bank and Agent and Their Respective Affiliates................................ 30
SECTION 8.4. Bank Credit Decision.................................................................. 31
SECTION 8.5. Indemnification....................................................................... 31
SECTION 8.6. Successor Agent....................................................................... 32
SECTION 8.7. Collateral............................................................................ 32
ARTICLE IX MISCELLANEOUS................................................................................ 32
SECTION 9.1. Amendments. Etc....................................................................... 32
SECTION 9.2. Notices, Etc.......................................................................... 33
SECTION 9.3. No Waiver; Remedies................................................................... 35
SECTION 9.4. Costs and Expenses.................................................................... 35
SECTION 9.5. Application of Moneys................................................................. 35
SECTION 9.6. Severability.......................................................................... 35
SECTION 9.7. Non-Recourse Liability................................................................ 36
SECTION 9.8. Binding Effect........................................................................ 36
SECTION 9.9. Assignments and Participations........................................................ 36
SECTION 9.10. Indemnification...................................................................... 38
SECTION 9.11. Governing Law........................................................................ 39
SECTION 9.12. Consent to Jurisdiction and Venue.................................................... 39
SECTION 9.13. Headings............................................................................. 39
SECTION 9.14. Execution in Counterparts............................................................ 39
SECTION 9.15. Waiver of Jury Trial................................................................. 40
Schedule 1.1A Commitments
Schedule 1.1B Notices
Schedule 2.2(d)FPL QF Letter of Credit Stated Amount
Exhibit A Letters of Credit
Exhibit B Letter of Credit Promissory Note
Exhibit C Commitment Transfer Supplement
Exhibit D Amortization Formula
Exhibit E Exemption Certificate
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This Letter of Credit and Reimbursement Agreement (this "Agreement" or
"Reimbursement Agreement"), dated as of October 10, 2003, is entered into by and
among (1) INDIANTOWN COGENERATION, L.P., a Delaware limited partnership (the
"Borrower"), (2) BNP PARIBAS (in its individual capacity as issuing bank, the
"Initial Bank") AND the other banks and other financial institutions or entities
from time to time parties to this Agreement (collectively and, together with the
Initial Bank, the "Banks") and (3) CREDIT LYONNAIS NEW YORK BRANCH ("Credit
Lyonnais"), as agent (in such capacity, together with its successors in such
capacity, the "Agent") for the Banks.
A. Pursuant to a Trust Indenture dated as of November 1, 1994
(the "Principal Indenture") among Indiantown Cogeneration Funding Corporation, a
Delaware corporation (the "Company"), the Borrower and NationsBank of Florida,
N.A., as trustee (in such capacity, together with its successors in such
capacity (as described in Recital D below), the "Trustee"), and each Series
Supplemental Indenture (as defined in the Principal Indenture) (the Principal
Indenture and all of the Series Supplemental Indentures herein collectively
called the "Indenture"), the Company and the Borrower authorized the creation of
issues of nonrecourse bonds, debentures, promissory notes and other evidences of
indebtedness to be issued in several series (collectively, the "Securities"),
the sale proceeds of which were advanced to the Borrower pursuant to the
Indenture.
B. In connection with the issuance of the Securities under the
Indenture, the Borrower, several banks party thereto and Credit Suisse, as
initial bank (in such capacity, the "Original Initial Bank") and as agent,
entered into a Letter of Credit and Reimbursement Agreement dated as of November
1, 1994 (the "Original Reimbursement Agreement") pursuant to which the Original
Initial Bank issued, and the banks party thereto agreed to participate in, the
following letters of credit (the "Original Letters of Credit"): (i) the FPL
Completion Letter of Credit in the amount of $9,000,000, which was canceled on
the Commercial Operation Date (as defined in the Indenture) and replaced with
the FPL Termination Fee Letter of Credit described in clause (iii) below; (ii)
the original ESA Letter of Credit in the amount of $10,000,000, which was drawn
on November 14, 2002 (prior to its expiration date of November 22, 2002) by
▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. (the assignee of ▇▇▇▇▇▇▇▇ Indiantown Citrus Co., as
beneficiary thereof) for the full amount thereof; and (iii) the FPL Termination
Fee Letter of Credit in the maximum amount of $50,000,000, which was drawn on
December 16, 2002 (prior to its expiration date of December 22, 2002) by Florida
Power & Light Company (the beneficiary thereof) for $1,700,000 (the full amount
thereof on such date), in each case upon the terms and conditions set forth
therein. Under the Original Reimbursement Agreement, the Original Initial Bank
also agreed to issue on the Commercial Operation Date the FPL QF Letter of
Credit with a maximum amount of $5,000,000. The original FPL QF Letter of Credit
was not issued, and, in lieu thereof, the Borrower made cash deposits into a
dedicated account pursuant to Section 21.2 of the Power Purchase Agreement.
C. The Borrower has requested the Agent and the Banks, and the
Agent and the Banks have agreed, to enter into this Agreement to replace the
Original Reimbursement Agreement and to provide a new ESA Letter of Credit and a
FPL QF Letter of Credit. Pursuant
to this Agreement, the Initial Bank will issue, and the Banks will participate
in, such letters of credit upon the terms and conditions hereinafter set forth.
D. The Bank of New York has succeeded NationsBank of Florida,
N.A. as Trustee, as Tax Exempt Trustee and as Disbursement Agent.
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. Definitions. (a) Terms defined in the Indenture (in the
form of such terms as they exist on the date of this Agreement (including giving
effect to the Third Supplemental Indenture) and as they may hereafter be amended
from time to time, but only to the extent that the incorporation of any such
amendments into this Agreement has been consented to by the Required Banks in
writing) have, unless the same are defined herein or the context otherwise
requires, the same meaning when used herein (with appropriate substitutions
including without limitation the following: (i) the word "Indenture" as it
appears in the definition of Governmental Approvals shall be replaced by the
words "Reimbursement Agreement" and (ii) the word "Trustee" as it appears in the
definition of Officers' Certificate shall be replaced by the word "Agent").
(b) The following terms are used in this Agreement with the following
respective meanings:
"Additional Contract" means any contract (other than a Project
Contract) providing for (i) the transmission or sale by the Borrower of any of
the Facility's electrical or steam output or (ii) the supply and transportation
of coal to the Facility (it being understood and agreed that the ▇▇▇▇▇▇ Coal
Contract shall not be deemed to be an "Additional Contract" for any purpose of
this Agreement).
"Adjusted Base Rate" means the higher of (i) the Federal Funds Rate
plus 1.0% and (ii) the Prime Rate.
"Adjusted Base Rate Loan" means a Loan bearing interest at the Adjusted
Base Rate.
"Aggregate Stated Amount" means $15,000,000, as the same may be
adjusted pursuant to Section 2.7; provided, that from and after the earlier of
(i) the date that the Borrower delivers the FPL QF L/C Termination Notice or
(ii) July 10, 2004, if the FPL QF Letter of Credit has not been issued by such
date, the Aggregate Stated Amount shall be reduced by $5,000,000.
"Applicable LC Fee Rate" means the rate per annum set forth below:
From and including the Closing Date to and excluding the second 2.00%
anniversary of the Closing Date
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From and including the second anniversary of the Closing Date to 2.25%
and excluding the fourth anniversary thereof
From and including the fourth anniversary of the Closing Date to 2.50%
and excluding the fifth anniversary thereof
"Applicable Margin" means the rate per annum set forth under the
relevant column heading below:
Adjusted Base LIBOR Rate
Rate Loan Loan
From and including the Closing Date to and excluding the
second anniversary of the Closing Date 1.00% 2.00%
From and including the second anniversary of the Closing
Date to and excluding the fourth anniversary thereof 1.25% 2.25%
From and including the fourth anniversary of the Closing
Date to and excluding the fifth anniversary thereof 1.50% 2.50%
From and including the fifth anniversary of the Closing
Date to and excluding the seventh anniversary thereof 2.00% 3.00%
Thereafter 2.25% 3.25%
"Closing Date" means the date on which the conditions precedent set
forth in Section 3.1 have been fulfilled.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Cogentrix Eastern America" means Cogentrix Eastern America, Inc., a
Delaware corporation.
"Commitment" has the meaning set forth in Section 2.1.
"Commitment Transfer Supplement" means a Commitment Transfer Supplement
entered into by a Bank and another Person substantially in the form of Exhibit
C.
"Company" has the meaning set forth in Recital A.
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"Credit Documents" means this Agreement, the Notes and the Letters of
Credit.
"Date of Issuance" means the Closing Date.
"Default" means an event that with the giving of any required notice
and/or the lapse of any required period of time would constitute an Event of
Default.
"Dollars" and "$" means dollars in lawful currency of the United
States.
"Drawing" means a drawing under a Letter of Credit.
"Engineering Advisor" means Energy & Environmental Engineering.
"ESA Letter of Credit" means the $10,000,000 letter of credit in favor
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. (as assignee of ▇▇▇▇▇▇▇▇) required by Section 12.6
of the Energy Services Agreement.
"Event of Default" has the meaning set forth in Section 6.1.
"Excluded Taxes" has the meaning set forth in Section 2.17(a).
"Expiration Date" means (i) in respect of the ESA Letter of Credit, the
earliest of (a) satisfaction of the conditions to release of the ESA Letter of
Credit set forth in Section 12.2(a)(5) of the ESA, (b) five (5) years from the
Closing Date or (c) the occurrence of an Event of Default (provided that the
Agent first gives LDC at least 30 days' prior written notice of such
termination); and (ii) in respect of the FPL QF Letter of Credit, the earlier of
(a) five (5) years from the Closing Date or (b) the occurrence of an Event of
Default (provided that the Agent first gives FPL at least 45 days' prior written
notice of such termination); provided, however, that the Expiration Date of any
Letter of Credit may be extended as set forth in Section 2.2(b) of this
Agreement whereupon the Expiration Date of such Letter of Credit shall be such
extended Expiration Date.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"First Amendment to Amended and Restated Authority Loan Agreement"
means that certain First Amendment to Amended and Restated Authority Loan
Agreement, dated on or about the date hereof, among the Borrower and ▇▇▇▇▇▇
County Industrial Development Authority.
"First Amendment to Amended and Restated Management Services Agreement"
means that certain First Amendment to Amended and Restated Management Services
Agreement, dated
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on or about the date hereof, between the Borrower, as Owner, and Power Services
Company (f/k/a U.S. Generating Company), as Manager.
"First Amendment to Amended and Restated Operation and Maintenance
Agreement" means that certain First Amendment to Amended and Restated Operations
and Maintenance Agreement, dated on or about the date hereof, between the
Borrower, as Owner, and PG&E Operating Services Company (f/k/a U.S. Operating
Services Company), as Operator.
"First Amendment to Assignment and Security Agreement" means that
certain First Amendment to Assignment and Security Agreement, dated on or about
the date hereof, among the Borrower, Deutsche Bank Trust Company Americas, as
Collateral Agent, and The Bank of New York, as Disbursement Agent.
"First Amendment to Intercreditor Agreement" means that certain First
Amendment to Collateral Agency and Intercreditor Agreement, dated on or about
the date hereof, among the Borrower and the other parties to the Intercreditor
Agreement.
"First Supplemental Indenture" means the First Supplemental Indenture
to the Tax-Exempt Indenture, dated on or about the date hereof, between the
Authority and the Tax Exempt Trustee.
"FPL QF L/C Termination Notice" has the meaning set forth in Section
2.1.
"FPL QF Letter of Credit" means the letter of credit (the issued amount
of which is not to exceed $5,000,000) in favor of the Borrower permitted under
Section 21.2 of the Power Purchase Agreement.
"Fuel Supply Coverage Event" has the meaning set forth in Section 1.1
of the Disbursement Agreement.
"Fuel Supply Coverage Test Date" has the meaning set forth in Section
1.1 of the Disbursement Agreement.
"Indemnified Party" has the meaning set forth in Section 9.10.
"Indenture" has the meaning set forth in Recital A.
"Indexation Event" has the meaning set forth in Section 1.1 of the
Disbursement Agreement.
"Interest Period" means with respect to any LIBOR Rate Loan, an
interest period of one (1), three (3) or six (6) months; provided that:
(A) if any Interest Period would otherwise end on a day that is
not a Business Day, such 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;
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(B) 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; and
(C) any Interest Period that would otherwise extend beyond the LOC
Note Repayment Date shall end on the LOC Note Repayment Date.
"LDC" means ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc., as beneficiary of the ESA Letter
of Credit, and its successors and permitted assigns.
"Letters of Credit" means, collectively, (i) the ESA Letter of Credit
and (ii) the FPL QF Letter of Credit, in the forms attached hereto as Exhibit A
with such changes thereto as may be consented to by the Agent and the Issuing
Bank, such consent not to be unreasonably withheld.
"LIBOR Rate" means, with respect to each day during each Interest
Period pertaining to any LIBOR Rate Loan, the rate of interest for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate Service (or otherwise on such service), the "LIBOR Rate" shall be
determined by reference to the London Interbank Fixing Rate as published in the
Financial Times, or if normal publication of the Financial Times is suspended
for more than two days at a time that a quotation for a "LIBOR Rate" is sought,
the "LIBOR Rate" shall be determined by reference to the London Interbank
Offered Rate as quoted by National Westminster Bank plc (and displayed by
Reuters). In the event that none of the foregoing is available, the "LIBOR Rate"
shall instead be the rate per annum (rounded upward to the nearest 1/100th of
1%) at which the Agent is offered Dollar deposits (in the approximate amount of
the LIBOR Rate Loan to be made) at or about 11:00 A.M., local time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations in
respect of its LIBOR Rate Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of the LIBOR Rate Loans to be outstanding
during such Interest Period.
"LIBOR Rate Loan" means a Loan bearing interest at the LIBOR Rate.
"Loan" has the meaning set forth in Section 2.4.
"LOC Note Repayment Date" means, in respect of each Loan, seven (7)
years from the date such Loan is advanced to the Borrower pursuant to the terms
of this Agreement.
"▇▇▇▇▇▇ Coal Contract" means that certain Coal Purchase and Sales
Agreement, dated as of February 5, 2003, between the Borrower and ▇▇▇▇▇▇ Coal
Sales Company, Inc., as amended, supplemented or otherwise modified from time to
time.
"Note" has the meaning set forth in Section 2.14(a).
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"Obligations" means all of the obligations of the Borrower to the Banks
and the Agent under this Agreement and the Notes, whether for principal
(including reimbursement of amounts drawn under the Letters of Credit),
interest, fees, expenses, indemnification or otherwise.
"Outstanding Amount" means, as of a specified date, the aggregate
amount available to be drawn on the Letters of Credit on such date.
"Participant" has the meaning set forth in Section 9.9(b).
"Prime Rate" means the variable rate of interest per annum officially
announced or published by the Agent from time to time as its "prime rate," such
rate being set by the Agent as a general reference rate of interest, taking into
account such factors as the Agent may deem appropriate, it being understood that
many of the Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Agent may make various commercial or other loans at rates
of interest having no relationship to such rate. For purposes of this Agreement,
each change in the Prime Rate shall be effective as of the opening of business
on the date announced as the effective date of the change in such "prime rate."
"Principal Indenture" has the meaning set forth in Recital A.
"Purchasing Bank" has the meaning set forth in Section 9.9(a).
"Quarterly Date" has the meaning set forth in Section 2.5(b).
"Register" has the meaning set forth in Section 2.1.
"Regulatory Change" means, subsequent to the date of this Agreement,
any adoption or change in United States Federal, state or municipal or foreign
law or regulations (including without limitation Regulation D) or the adoption
or change or making of any application, interpretation, directive, request or
guideline of or under any United States Federal, state or municipal or foreign
law or regulations by any court, central bank or Governmental Authority.
"Required Banks" means, at any time, Banks (one of which shall be the
Agent) owed at least 66-2/3% of the sum of Obligations then outstanding and/or
the Commitments; provided, however, that, if and so long as there are only two
Banks, then "Required Banks" shall mean both of such Banks.
"Securities" has the meaning set forth in Recital A.
"Taxes" means any and all present or future income, stamp, transfer,
turnover and other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and any and all interest, penalties, claims or
other liabilities arising under or relating thereto, including those on any of
the Banks or on payments to be made to or received by any of them from the
Borrower hereunder. The term "Taxes" specifically includes so-called recurring
and
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nonrecurring intangibles taxes that are imposed under Chapter 199 of the Florida
statutes and documentary stamp taxes that are imposed under Chapter 201 of the
Florida statutes.
"Third Supplemental Indenture" means that certain Third Supplemental
Indenture to the Principal Indenture, dated on or about the date hereof, among
the Borrower, the Company and the Trustee.
"Trustee" has the meaning set forth in Recital A.
SECTION 1.2. Construction. In this Agreement, unless expressly
specified to the contrary: the singular includes the plural and the plural the
singular; words importing any gender include the other genders; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible, visible form; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation;"
references to articles, sections (or subdivisions of sections), recitals,
appendices, exhibits, annexes or schedules are to those of this Agreement;
references to agreements and other instruments shall be deemed to include all
amendments and other modifications to such agreements and instruments, but only
to the extent such amendments and other modifications are not prohibited by the
terms of this Agreement; references to Persons include their respective
permitted successors and assigns and, in the case of Governmental Authorities,
Persons succeeding to their respective functions and capacities; and all
accounting terms used in this Agreement shall be interpreted, all accounting
determinations under this Agreement shall be made and all financial statements
required to be delivered under this Agreement shall be prepared in accordance
with generally accepted accounting principles as in effect from time to time,
on. a basis consistent with the most recent audited financial statements, if
any, of the relevant Person delivered to the Agent, or otherwise reasonably
acceptable to the Agent.
ARTICLE II
LETTERS OF CREDIT
SECTION 2.1. Commitments. Each Bank irrevocably agrees severally, on
the terms and conditions contained in this Agreement, to participate in the
Letters of Credit in an aggregate amount not to exceed at any time outstanding
the amount set forth opposite such Bank's name on the attached Schedule 1.1A or,
if such Bank has entered into one or more Commitment Transfer Supplements, set
forth for such Bank in the register (the "Register") maintained by the Agent
(such agreement by such Bank, as the same may be reduced from time to time
pursuant to the terms of this Agreement, herein called such Bank's
"Commitment"). Notwithstanding the foregoing, at any time prior to July 10,
2004, the Borrower may deliver an irrevocable notice (the "FPL QF L/C
Termination Notice") to the Agent, the Initial Bank and the Banks terminating
the commitment of the Initial Bank to issue the FPL QF Letter of Credit and the
Commitment of the Banks to participate in the FPL QF Letter of Credit. If the
Borrower delivers such notice, the FPL QF Letter of Credit will not be issued
under this Agreement.
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SECTION 2.2. Amount and Term of Letters of Credit. (a) Subject to the
terms and conditions contained in this Agreement, the Initial Bank irrevocably
agrees to issue the Letters of Credit as follows:
(i) on the Closing Date, the Initial Bank shall issue and
deliver to LDC or its agent the ESA Letter of Credit in the amount of
$10,000,000; and
(ii) on or after the Closing Date but prior to July 10,
2004, the Initial Bank shall issue and deliver to the Borrower the FPL
QF Letter of Credit in the initial amount of $3,500,000, or if issued
on or after December 31, 2003, in the initial amount of $4,000,000;
provided, that if the conditions set forth in Section 3.2 are not
satisfied prior to July 10, 2004, the commitment of the Initial Bank to
issue the FPL QF Letter of Credit and the Commitment of the Banks to
participate in the FPL QF Letter of Credit shall terminate without
further action required from any Person.
(b) Upon the Agent's receipt from the Borrower of a written request at
least thirty-three (33) months prior to the original Expiration Date of any
Letter of Credit or any extension thereof pursuant to this Section 2.2(b), the
Banks may, in their sole discretion, extend the original or extended Expiration
Date, as the case may be, of such Letter of Credit for an additional year. If
the Banks agree to extend the Expiration Date, the Agent shall notify the
Borrower of the Banks' decision regarding such extension at least thirty (30)
months prior to the then current Expiration Date of such Letter of Credit. The
Banks shall have no obligation to respond to a request of the Borrower to extend
the Expiration Date of any Letter of Credit pursuant to this Section 2.2(b) and
if the Agent does not respond to such a request at least thirty (30) months
prior to the then current Expiration Date of such Letter of Credit, the Banks
shall be deemed to have rejected such request. If the Banks agree to extend the
then current Expiration Date, the Expiration Date of such Letter of Credit
shall, effective from the date of the Agent's notice to the Borrower, be such
extended date. Any extension of the Expiration Date of any Letter of Credit
shall not extend any LOC Note Repayment Date.
(c) The Agent shall, solely for informational purposes, deliver to the
Borrower a copy of each notice of termination, if any, given to a beneficiary
under any of the Letters of Credit; provided, however, that the Banks' ability
to terminate the Letters of Credit shall not be contingent upon the Agent's
delivery to the Borrower of such notice and that neither the Agent nor the Banks
shall incur any liability whatsoever as a result of the Agent's failure to
deliver such notice to the Borrower.
(d) If the FPL QF Letter of Credit is issued pursuant to Section
2.2(a)(ii), on each date set forth on Schedule 2.2(d), the stated amount of the
FPL QF Letter of Credit shall increase automatically and without any action on
the part of the Borrower, the Initial Bank or any other Person to the amount set
forth opposite such date. The stated amount of the FPL QF Letter of Credit shall
in no event exceed five million Dollars (US$5,000,000.00). The Initial Bank
shall notify the Borrower and the Agent of such increase in stated amount no
more than ten (10) days after the occurrence of such increase; provided,
however, that failure of the Initial Bank to provide such notice shall not
affect the effectiveness of such increase.
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SECTION 2.3. Participations in Letter of Credit. Immediately upon the
issuance of the Letters of Credit or any of them, the Initial Bank shall be
deemed to have sold and transferred to each Bank, and each Bank shall be deemed
to have purchased and received from the Initial Bank, in each case irrevocably
and without any further action by any party, an undivided interest and
participation in the Letters of Credit, each Drawing and the other Obligations
in respect thereof in an amount equal to the product of (a) a fraction the
numerator of which is the amount of the Commitment of such Bank and the
denominator of which is the aggregate amount of all of the Commitments and, (b)
the Outstanding Amount plus outstanding Loans. The Agent shall promptly advise
each Bank of any change in the Aggregate Stated Amount or Expiration Date in
respect of each of the Letters of Credit, the cancellation or other termination
of any of the Letters of Credit and any Drawing; provided, however, that failure
to provide such notice shall not limit or impair the rights of the Agent
hereunder or under the Financing Documents.
SECTION 2.4. Drawing and Reimbursement. The payment by the Initial Bank
of a Drawing shall constitute the making by the Initial Bank of a loan in the
amount of such payment. In the event that any such loan by the Initial Bank
resulting from a Drawing is not repaid by the Borrower by 10:00 a.m., New York
time, on the day of such Drawing, the Agent shall promptly notify each other
Bank. Each such Bank shall, on the day of such notification, make a loan to the
Borrower, which shall be used to repay the applicable portion of the Initial
Bank's loan with respect to such Drawing, in an amount equal to the amount of
such Bank's participation in such Drawing, for application to repay the Initial
Bank, and shall deliver to the Agent for the Initial Bank's account, on the day
of such notification and in immediately available funds, the amount of such
loan. In the event that any Bank fails to make available to the Agent for the
account of the Initial Bank the amount of such loan, the Initial Bank shall be
entitled to recover such amount on demand from such Bank together with interest
thereon at the Federal Funds Rate. Each loan by a Bank pursuant to this Section
shall be deemed a "Loan" under this Agreement.
SECTION 2.5. Fees. The Borrower shall pay the following fees to the
Agent for the respective accounts of the Persons specified below:
(a) if there is more than one (1) Bank on the relevant due date for
payment, for the account of the Agent, an annual administration fee of $50,000,
payable on the Closing Date and on each anniversary thereof until the latest to
occur of the Expiration Date with respect to the ESA Letter of Credit, the
Expiration Date with respect to the FPL QF Letter of Credit, and the date on
which all Loans have been paid in full; provided, that there shall be deducted
from the fee payable under this Section 2.5(a) the amount of any fee paid by the
Borrower under Section 2.5(b) of the Debt Service Reserve LOC Reimbursement
Agreement with respect to such annual period;
(b) for the account of the Initial Bank, an annual letter of credit
fronting fee equal to 0.325% of the Outstanding Amount, payable in arrears on
the first Business Day of each March, June, September and December (each such
Business Day, a "Quarterly Date") following the Closing Date;
(c) for the account of each Bank, an annual letter of credit fee equal
to (i) the sum of (x) the Applicable LC Fee Rate multiplied by such Bank's
ratable share of the difference between the Outstanding Amount minus the daily
average aggregate amount on deposit in the ESA LOC
10
Collateralization Fund and the QF LOC Collateralization Fund (each as defined in
the Disbursement Agreement) during the applicable quarterly period (such average
amount, the "LOC Collateralization Fund Amount"), provided, however, that in the
event that the average Total Debt Service Coverage Ratio for the two semi-annual
payment periods immediately preceding a Quarterly Date shall be less than 1.20
to 1 and, based on projections prepared by the Borrower on a reasonable basis,
the average Total Debt Service Coverage Ratio for the current semi-annual
payment period and the next succeeding semi-annual payment period is projected
to be less than 1.20 to 1, the annual letter of credit fee rate payable on such
Quarterly Date and on any Quarterly Date thereafter during which such event
shall continue or shall reoccur shall be increased by 0.25% per annum, plus (y)
0.50% per annum multiplied by such Bank's ratable share of the LOC
Collateralization Fund Amount; and (ii) during the continuance of an Event of
Default, the rate that would otherwise apply pursuant to clause (i)(x) plus 2.0%
multiplied by such Bank's ratable share of the Outstanding Amount minus the LOC
Collateralization Fund Amount, in each case in clause (i) or (ii) above, payable
in quarterly installments on each Quarterly Date following the Closing Date;
(d) for the account of each Bank, an annual commitment fee equal to
such Bank's ratable share of 0.50% of the difference between the Aggregate
Stated Amount and the daily average Outstanding Amount during the applicable
quarterly period, payable in arrears on each Quarterly Date following the
Closing Date; and
(e) for the account of the Initial Bank, such additional administrative
fees and charges (including cable charges) as are generally associated with
letters of credit, in accordance with the Initial Bank's standard internal
charge guidelines, payable on demand.
SECTION 2.6. Interest. (a) The Borrower shall pay interest on the
unpaid principal amount of each Loan resulting from a Drawing from the date of
such Loan until such principal amount has been repaid in full. Such interest
shall be paid at a rate per annum equal to (i) so long as no Event of Default
has occurred and is continuing, either (x) the sum of the Adjusted Base Rate in
effect from time to time plus the Applicable Margin or (y) the sum of the LIBOR
Rate in effect from time to time plus the Applicable Margin, and (ii) so long as
an Event of Default is continuing, the Adjusted Base Rate plus the Applicable
Margin plus 2.0% per annum.
(b) Each Loan made pursuant to Section 2.4 shall initially bear
interest based on the Adjusted Base Rate as in effect from time to time plus the
Applicable Margin; provided, however, that prior to the making of any Loan, the
Borrower may give the Agent written notice of the Borrower's election that such
Loan shall bear interest based on the LIBOR Rate. Such notice shall be
irrevocable and shall be effective only if received by the Agent not later than
10:00 a.m. (New York time) three (3) Business Days prior to the occurrence of
the Drawing giving rise to such Loan. The Agent shall promptly notify the Banks
of the contents of each such notice. Subject to Sections 2.6(d), 2.19 and 2.23,
such Loan shall then bear interest based on the LIBOR Rate plus the Applicable
Margin from the date of such Loan.
(c) Subject to Sections 2.6(d), 2.19 and 2.23, unless an Event of
Default shall have occurred and be continuing, the Borrower may at any time, (i)
upon three (3) Business Days' irrevocable written notice to the Agent, convert
any Adjusted Base Rate Loan to a LIBOR Rate Loan or (ii) upon two (2) Business
Days' irrevocable written notice to the Agent, convert any
11
LIBOR Rate Loan to an Adjusted Base Rate Loan, provided that a LIBOR Rate Loan
may be converted only on the last day of the applicable Interest Period. The
Agent shall promptly notify the Banks of the contents of each such notice. In
the event that the Borrower fails to select the applicable interest rate, within
the time period and otherwise as provided in this Section 2.6(c), such Loan (if
outstanding as a LIBOR Rate Loan) will be automatically converted into an
Adjusted Base Rate Loan on the last day of the then current Interest Period for
such Loan or (if outstanding as an Adjusted Base Rate Loan) will remain as, or
(if not then outstanding) will be made as, an Adjusted Base Rate Loan.
(d) The Borrower shall pay to the Agent for the account of each Bank,
upon the request of such Bank through the Agent, such amount or amounts as shall
be sufficient (in the reasonable opinion of such Bank) to compensate it for any
loss, cost or expense which such Bank determines is attributable to any failure
for any reason (i) of any LIBOR Rate Loan, pursuant to a notice given under
Section 2.6(b) to occur or (ii) of the Borrower to convert an Adjusted Base Rate
Loan from such Bank to a LIBOR Rate Loan as and when specified in the relevant
notice given pursuant to Section 2.6(b) or 2.6(c). Interest pursuant to Section
2.6 shall be payable monthly in arrears on the first Business Day of each month.
SECTION 2.7. Repayment. (a) The Borrower shall repay the principal
amount of each Loan in accordance with Exhibit D to this Agreement when and to
the extent monies are available for such purpose pursuant to Sections 3.8(d) and
3.10 of the Disbursement Agreement; provided, however, that each Loan shall be
repaid in full on the applicable LOC Note Repayment Date.
(b) The Initial Bank shall reduce the Aggregate Stated Amount by the
outstanding principal amount of each Loan.
(c) Subject to Section 6.1, the Initial Bank shall, upon receipt of
written notice from the Borrower, reinstate the Aggregate Stated Amount to the
extent of any repayment or prepayment of the principal amount of any Loan.
SECTION 2.8. Prepayments. (a) The Borrower may, at any time and from
time to time on any Business Day, upon prior written notice to the Agent not
later than 10:00 a.m., New York time, (i) at least two (2) Business Days before
the day of any prepayment in the case of Adjusted Base Rate Loans and (ii) at
least three (3) Business Days before the day of any prepayment in the case of
LIBOR Rate Loans, such notice stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
without premium or penalty the outstanding principal amounts of the Loans in
whole or in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid.
(b) Notwithstanding Section 2.8(a), each Loan shall be prepaid (i) as
specified in Section 3.10(a)(5A1) of the Disbursement Agreement and (ii) to the
extent of all cash otherwise available for distribution from the Partnership
Distribution Account on Interest Payment Dates, to the extent provided for in
Section 3.8(d) of the Disbursement Agreement. The Borrower shall provide written
notice to the Disbursement Agent of the existence of any Loans for purposes of
Sections 3.8(d) and 3.10(a)(5A1) of the Disbursement Agreement.
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(c) The Borrower agrees to indemnify each Bank and hold each Bank
harmless from any direct loss (but excluding any indirect, consequential or
incidental loss or damage), cost or out-of-pocket expense which such Bank incurs
as a result of a prepayment of any LIBOR Rate Loan on a date which is not the
last day of an Interest Period applicable thereto.
(d) All prepayments made hereunder shall be applied by the Agent and
the Banks against the principal amount of outstanding Loans in the order they
were made.
SECTION 2.9. Security. The Obligations shall be secured by the Security
Documents, the rights and remedies in respect of which shall be exercised
pursuant to the Intercreditor Agreement.
SECTION 2.10. Payments. (a) The Borrower shall make each payment
hereunder and under the Notes not later than 10:00 a.m., New York time, on the
day when due in Dollars to the Agent at its address set forth in Section 9.2, in
immediately available funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal (including
reimbursement of Drawings), interest or fees ratably (other than amounts payable
for the account of the Agent or the Initial Bank pursuant to Section 2.5(a), (b)
or (e) or payable pursuant to Section 9.4) to the Banks and like funds relating
to the payment of any other amount payable to any Bank to such Bank, in each
case to be applied in accordance with the terms of this Agreement.
(b) Unless the Agent receives notice from the Borrower before the date
on which any payment is due to the Banks hereunder that the Borrower will not
make such payment in full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date, and the Agent may, in reliance upon
such assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due to such Bank. If and to the extent that the
Borrower has not so made such payment in full to the Agent, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date on which such Bank repays such amount to
the Agent, at the Federal Funds Rate.
SECTION 2.11. Computation of Interest and Fees. All computations of
interest and fees hereunder shall be made on the basis of a year of three
hundred sixty (360) days (or, in the case of interest on Loans that are based on
the Prime Rate three hundred sixty-five (365) days or three hundred sixty-six
(366) days, as the case may be) for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each calculation and each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.12. Payments on Non-Business Days. Whenever any payment
hereunder or under any Note is stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest or fees, as the case may be. If no due date is specified for the
payment of any amount payable by the Borrower hereunder, such amount shall be
due and payable not later than ten (10) Business Days after receipt by the
Borrower of written demand from the Agent for payment thereof.
13
SECTION 2.13. Sharing of Payments. Etc. If any Bank obtains any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of its Commitment or the Loans made by it (other than
pursuant to Section 9.4) in excess of its ratable share of such payments
obtained by all of the Banks, then such Bank shall be deemed to have received
such payment as agent for and on behalf of all the Banks and shall immediately
advise the Agent of the receipt of such funds and promptly transmit the amount
thereof to the Agent for prompt distribution among the Banks as provided for in
this Agreement and such funds transmitted to the Agent shall be credited as a
payment by the Borrower under this Agreement; provided, that such Bank so
transmitting funds to the Agent shall not be deemed to have received, and the
Borrower shall be deemed not to have made to such Bank (to the extent funds are
transmitted to the Agent) any payment transmitted to the Agent by such Bank
pursuant to this Section 2.13.
SECTION 2.14. Evidence of Debt. (a) The indebtedness of the Borrower
resulting from all Loans made by each Bank from time to time shall be evidenced
by an appropriate notation on the schedule, or a continuation thereof, to the
Letter of Credit Promissory Note substantially in the form of Exhibit B (each a
"Note"), delivered by the Borrower to such Bank.
(b) The books and accounts of the Agent shall be conclusive evidence,
absent manifest error, of the amounts of all Drawings, Loans, fees, interest and
other amounts advanced, due, outstanding, payable or paid pursuant to this
Agreement or any Note.
SECTION 2.15. Increased Letter of Credit Costs. If, after the date
hereof, any introduction of or change in any Law or in the interpretation
thereof by any Governmental Authority charged with the administration thereof
either (a) imposes, modifies or makes applicable any reserve, special deposit or
similar requirement against letters of credit issued by, or assets held by, or
deposits in or for the account of, or credit extended by, the Agent or any Bank
or (b) imposes on the Agent or any Bank any other condition regarding this
Agreement, the Agent, such Bank or the Letters of Credit, and the result of any
event referred to in the preceding clause (a) or (b) is to increase the cost to
the Agent or such Bank of issuing or maintaining the Letters of Credit, reduce
the amount of any payment receivable by the Agent or such Bank hereunder or
reduce the rate of return on any Bank's capital as a consequence of its
obligations hereunder below that which such Bank would have achieved but for
such circumstance, then, in each such case, upon demand by the Agent or such
Bank, the Borrower shall pay to the Agent or such Bank, from time to time as
specified thereby, additional amounts sufficient to compensate the Agent or such
Bank for such increased costs, reduction in payments receivable or reduction in
a rate of return. A certificate as to the amount of such increased cost,
submitted to the Borrower by the Agent or by any Bank through the Agent, shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 2.16. Capital Adequacy. If the Agent or any Bank reasonably
determines that compliance with any Law affects or would affect the amount of
capital required or expected to be maintained by the Agent or such Bank or any
corporation controlling the Agent or such Bank and that the amount of such
capital is increased by or based upon the existence of such Bank's Commitment or
the issuance of the Letters of Credit or outstanding Loans, then, upon demand by
the Agent or such Bank, the Borrower shall pay to the Agent or such Bank, from
time to time as specified thereby, additional amounts sufficient to compensate
the Agent or such Bank
14
in light of such circumstances, to the extent that the Agent or such Bank
reasonably determines such increase in capital to be allocable to the existence
of such Bank's Commitment or the issuance of the Letters of Credit or such
Loans. A certificate as to such amounts submitted to the Borrower by the Agent
or by any Bank through the Agent shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.17. Taxes. (a) Payments by the Borrower to each of the Banks
under this Agreement and the Notes will be made free and clear of and without
deduction for Taxes, other than Taxes based on the net income of such Bank
(including franchise taxes imposed in lieu of net income taxes) imposed by (x)
the United States federal government, (y) the jurisdiction where such Bank is
organized or has its principal office or (z) the jurisdiction of the branch of
such Bank maintaining any Loan or the branch of the Agent through which it
renders its services as Agent ("Excluded Taxes"). If the Borrower is required by
law to deduct Taxes (other than Excluded Taxes) from such a payment, then the
sum payable under the instrument to which the payment relates will be increased
so that there is no diminution in the amount any Bank actually receives on
account of the deduction.
(b) The Borrower hereby indemnifies and holds harmless each Bank from
and against, and agrees to reimburse each Bank on an after-tax basis (computed
taking into account any deductions or other benefits available for federal
income tax purposes for the Bank if it is a United States taxpayer and any
deductions and benefits available for income tax purposes in any jurisdiction in
which such Bank is a taxpayer) on demand for, any and all Taxes paid or incurred
by such Bank in connection with the transactions contemplated by this Agreement;
provided, however, that the foregoing indemnity does not cover Excluded Taxes.
Reimbursement on an "after-tax basis" means on a basis such that the Bank is
made whole after taking into account income taxes that the Bank will owe on the
indemnity or reimbursement payment in any jurisdiction and any related tax
benefits, assuming the Bank is subject to income taxes at the highest marginal
rates. Nothing in this paragraph shall interfere with the right of any Bank to
arrange its tax affairs in whatever manner it thinks fit and, in particular, no
Bank is under any obligation to claim a deduction or other benefit relating to
these transactions ahead of any other claim, relief, credit, deduction or other
benefit to which it is entitled. The applicable Bank shall promptly give written
notice to the Borrower (but in no event later than sixty (60) days) after such
Bank has actual knowledge of the imposition of any Taxes subject to
indemnification hereunder; provided, however, that failure to give such notice
within such sixty (60) day period will not relieve the Borrower of the
obligation to indemnify such Bank in accordance with the terms hereof, except to
the extent of interest that would have been avoided had the notice been given
prior to the end of such sixty (60) day period.
(c) All payments made by the Borrower to each of the Banks under this
Agreement and the Notes will be made without setoff, counterclaim or other
defense.
(d) (i) The Borrower will provide evidence that all Taxes imposed on
payments under this Agreement, any Loan or the Notes, have been fully paid to
the appropriate authorities by delivering official receipts or notarized copies
or confirmations by the Disbursement Agent or the Trustee of payment thereof to
the Agent within thirty (30) days after payment. The Borrower will compensate
any Bank that has to pay any Taxes because the Borrower failed to timely furnish
such evidence; provided, that prior to paying such Taxes, such Bank shall have
given the
15
Borrower notice of its intent to make such payment and a reasonable opportunity
to contest such Taxes as described in the following paragraph.
(ii) If the Borrower so requests promptly in writing after
receipt of any notice under this Section 2.17, such Bank will contest
in good faith the Taxes at the Borrower's expense, keep the Borrower
fully informed about the progress of the contest, consult in good faith
with the Borrower's counsel regarding conduct of the contest, and not
compromise or otherwise settle the contest without the Borrower's
consent (which shall not be unreasonably withheld or delayed); provided
that the Bank may in its sole discretion select the forum for the
contest and determine whether the contest will be by resisting payment
of the Taxes or by paying the Taxes and seeking a refund; provided,
further that the Bank will be under no obligation to contest unless (V)
if the Bank requests, the Borrower has provided the Bank an opinion of
independent tax counsel selected by the Borrower and reasonably
acceptable to the Bank to the effect that there is a reasonable basis
for the contest, (W) the amount in controversy is at least $75,000, (X)
the Bank has received satisfactory indemnification and security for any
liability, loss, cost or expense arising out of the contest (including,
but not limited to, all reasonable legal and accounting fees and
expenses, penalties, interest and additions to tax), (Y) if requested
by the Bank, the Borrower has admitted in writing its duty to indemnify
the Bank for the Taxes if the contest is lost (but such admission shall
not preclude the Borrower from raising a defense to liability if a
court of competent jurisdiction has rendered a decision articulating
the cause of such Taxes, and the cause is not one for which the
Borrower is responsible under this Section 2.17), and (Z) if the
contest is conducted in a manner that requires paying all or part of
the Taxes, the Borrower has paid the amount required.
(iii) If the Borrower so requests within ten (10) days of
notice to the Borrower of the imposition of any Taxes on payments to
any of the Banks of a type not generally imposed on United States or
foreign lenders making loans of the types contemplated hereunder, such
Banks shall (consistent with legal and regulatory restrictions) comply
with Section 2.19 hereof.
(e) Each Bank (or Participant) that is not a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") agrees that it will
deliver to the Agent (or, in the case of a Participant, to the Bank from which
the related participation shall have been purchased) and the Borrower two copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI, or, in the case
of a Non-U.S. Lender claiming exemption from United States federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a statement substantially in the form of Exhibit E and a
Form W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, United States federal withholding tax on all
payments made by the Borrower under this Agreement and the other Credit
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms before the expiration,
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower
16
at any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the United States taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, (A) a Non-U.S. Lender
shall not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver, and (B) in the event that a
Non-U.S. Lender cannot legally deliver any form as of the date such Non-U.S.
Lender becomes a party to this Agreement, the Borrower shall be under no
obligation to pay any additional amount or indemnity pursuant to this Section
2.17 (or otherwise) with respect to any United States withholding taxes that are
in effect and that would apply to a payment under this Agreement or the Notes
made to such Non-U.S. Lender as of such date; provided, however, that this
clause (B) shall not apply to the extent such Non-U.S. Lender's assignor (or the
Bank from whom such participation was purchased) (if any) was entitled, at the
time of the assignment (or sale of participation), to receive additional amounts
or indemnity from the Borrower. The provisions of this Section 2.17(e) shall
apply to any successor holder of a Note. Each Bank that is a "U.S. Person" as
defined in Section 7701(a)(30) of the Code and is not a corporation or other
exempt recipient shall deliver to the Agent(or, in the case of a Participant, to
the Bank from which the related participation shall have been purchased ) and
the Borrower two copies of the United States Internal Revenue Service Form W-9
on or before the date such Bank becomes a party to this Agreement and before the
expiration of any such form previously delivered by such Bank.
(f) Notwithstanding the foregoing, if (A) (i) any Non-U.S. Lender has
previously delivered a Form W-8ECI or a successor applicable form and (ii) by
virtue of any action taken or not taken voluntarily by such Non-U.S. Lender,
such Non-U.S. Lender is not lawfully entitled to deliver a subsequent Form
W-8ECI or applicable successor form solely as a result of such Non-U.S. Lender's
failure to be engaged in the active conduct of a trade or business in the United
States or a determination that all amounts to be paid to such Non-U.S. Lender
hereunder are not effectively connected to such trade or business or (B) any
Non-U.S. Lender fails to comply with the requirements of paragraph (e) of this
Section when such Non-U.S. Lender is qualified to so comply, the Borrower shall
be under no obligation to compensate or indemnify such Non-U.S. Lender under
this Section 2.17 or otherwise with respect to any Tax required to be paid or
withheld under United States federal income tax law that would not have been
required to be paid or withheld had such Non-U.S. Lender so complied.
(g) Notwithstanding anything contained in this Section 2.17, the
Borrower shall not be required to indemnify or reimburse any Bank who has failed
to make available to the Agent its portion of any Loan on the date required to
be made available to the Agent pursuant to this Agreement after the Agent has
made written demand upon such Bank for such payment for any additional
documentary stamp taxes or intangibles taxes incurred by such Bank solely as a
result of such failure.
SECTION 2.18. Change of Law. (a) Notwithstanding any other provision of
this Agreement, if any Regulatory Change, or compliance by any Bank with any
Regulatory Change, makes it unlawful or impossible for any Bank to make,
maintain or continue its proportionate interest in any Letter of Credit or
Loans, then such Bank shall promptly give notice together with evidence thereof
to the Borrower and the Agent, and the Borrower shall pay forthwith all amounts
outstanding, accrued or payable under this Agreement to such Bank and cause such
Bank to be released from all obligations of such Bank under this Agreement.
17
(b) A Bank shall (consistent with legal and regulatory restrictions)
designate a different lending office for the Loans (or commitments therefor) or
its participation in the Letters of Credit affected pursuant to this Section
2.18 before giving any notice to the Borrower and the Agent pursuant to this
Section 2.18 if such designation will avoid the need for giving such notice and
will not, in the sole opinion of such Bank, be disadvantageous to such Bank,
except that such Bank shall have no obligation to designate a lending office
located in the United States of America. If the Borrower so requests within ten
(10) days of receipt of the notice referred to above (which notice is based on
circumstances not generally applicable to United States or foreign lenders
making loans of the types contemplated hereunder), such Bank shall (consistent
with legal and regulatory restrictions) comply with Section 2.19 hereof.
SECTION 2.19. Non-Availability. (a) If at any time Dollar deposits in
the principal amount of any Bank's proportionate interest in, or obligation
under, any LIBOR Rate Loan are not available to such Bank in the London
interbank market for the next Interest Period, such Bank shall so notify the
Agent, who shall so notify the Borrower, and the obligation of such affected
Bank to make or continue, or to convert Loans into LIBOR Rate Loans shall be
immediately suspended and during such suspension be converted into an obligation
to do the same with respect to Adjusted Base Rate Loans; provided, however, that
outstanding LIBOR Rate Loans shall be converted into Adjusted Base Rate Loans on
the last day of the then current Interest Period applicable to such Loans.
(b) If at any time the Interest Rate then in effect based on the LIBOR
Rate does not adequately and fairly reflect, in the reasonable judgment of any
Bank, the cost for such Bank of advancing or maintaining its respective
proportionate interest in any LIBOR Rate Loan during any Interest Period, then
such Bank shall notify the Agent, who shall so notify the Borrower, and interest
on such Bank's proportionate share of the Loans shall for any subsequent
Interest Period accrue at the Adjusted Base Rate.
(c) If the Borrower so requests after the suspension of a Bank's
obligation to make LIBOR Rate Loans under this Section 2.19 for at least thirty
(30) consecutive days on at least two (2) separate occasions based on
circumstances not generally applicable to United States or foreign lenders
making loans of the types contemplated hereunder, such Bank shall (consistent
with legal and regulatory restrictions) comply with Section 2.20 hereof.
SECTION 2.20. Assignments by Banks. If (i) a Bank is required to comply
with this Section 2.20 after a request from the Borrower pursuant to Sections
2.17, 2.18 or 2.19 or (ii) the Borrower requests that the provisions of this
Section 2.20 apply to a Bank within ten (10) days after it receives a notice
from the Agent that (A) such Bank has failed to make available to the Agent its
portion of any Loan on the date required to be made available to the Agent
pursuant to this Agreement after the Agent has made written demand upon such
Bank for such payment or (B) such Bank has provided the Agent with notice that
such Bank shall not make available to Agent such portion of any Loan required to
be made available to the Agent pursuant to this Agreement or (C) such Bank has
failed to reimburse the Agent pursuant to the terms of this Agreement, such Bank
shall assign, all or a part, as specified by the Borrower, of its proportionate
share of the Loans and its Commitment, to a replacement Bank (which may be, but
is not required to be, one of the other Banks) designated by the Borrower;
provided that any assignment or transfer made by a Bank to a replacement Bank
18
shall satisfy the following conditions: (i) the Borrower shall promptly pay when
due all reasonable fees and expenses which such Bank incurs in connection with
such transfer or assignment and (ii) any assignment of all or part of the Loans
or other obligations with respect to any Letter of Credit, shall be made without
recourse, representation or warranty, and the Borrower shall cause the
replacement Bank to pay to the Agent for the account of the assigning Bank in
immediately available funds all amounts outstanding or payable under this
Agreement to each Bank assigning its interest in the Loans or other obligations
with respect to any Letter of Credit.
SECTION 2.21. Refinancing Option. The Borrower shall have the right to
refinance all Commitments and all of the outstanding Loans, if any, in whole but
not in part, without premium or penalty upon at least ten (10) days' prior
written notice to the Agent; provided, however, that the Borrower agrees to
indemnify each Bank and hold each Bank harmless from any direct loss (but
excluding any indirect, consequential or incidental loss or damage), cost or
out-of-pocket expense which such Bank incurs as a result of a refinancing
pursuant to this Section 2.21 of any LIBOR Rate Loan on a date which is not the
last day of an Interest Period applicable thereto.
SECTION 2.22. Right of Set-off. The Borrower hereby authorizes each
Bank (in addition to, and without limitation of, any right of set-off, banker's
lien or counterclaim a Bank may otherwise have), upon the occurrence and during
the continuance of any Event of Default, at any time and from time to time,
without notice to the Borrower or any Person other than the Collateral Agent
(any such notice being hereby expressly waived by the Borrower to the extent it
may legally do so) to set off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held, and
other indebtedness at any time owing, by such Bank in any of its offices,
wherever located (whether such deposits or indebtedness be in Dollars or in any
other currency), to or for the credit or the account of the Borrower against any
and all of the Obligations and liabilities of the Borrower now or hereafter
existing under this Agreement.
SECTION 2.23. Minimum Amounts. (a) Anything in this Agreement to the
contrary notwithstanding, the aggregate principal amount of LIBOR Rate Loans
shall be in an amount at least equal to $3,000,000 or in multiples of $500,000
in excess thereof and, if any LIBOR Rate Loans would otherwise be in a lesser
principal amount for any period, such Loans shall bear interest based on the
Adjusted Base Rate during such period. Payments pursuant to Sections 2.15, 2.16,
2.17 and 2.18 shall not be subject to such minimum amount.
(b) Not more than six (6) LIBOR Rate Loans may be outstanding at one
time.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions Precedent to Issuance of the Letters of Credit.
The initial obligation of the Initial Bank to issue, and of the Banks to
participate in, the Letters of Credit is subject to the following conditions
precedent:
19
(a) Agreements; Notes. The Banks shall have received the following
documents, each dated on the Closing Date, in form and substance satisfactory to
the Banks and in the number of originals or copies reasonably required by the
Banks:
(i) this Agreement and the Notes, each duly executed by
the Borrower;
(ii) the Debt Service Reserve LOC Reimbursement Agreement
and the Working Capital Facility, each duly executed by the parties
thereto;
(iii) the Third Supplemental Indenture, the First
Supplement Indenture, the First Amendment to Amended and Restated
Authority Loan Agreement, the Disbursement Agreement (for the avoidance
of doubt, as amended and restated on or about the date hereof), the
First Amendment to Intercreditor Agreement and the First Amendment to
Assignment and Security Agreement, each duly executed by the parties
thereto; and
(iv) the First Amendment to Amended and Restated Operation
and Maintenance Agreement and the First Amendment to Amended and
Restated Management Services Agreement, each as duly executed by the
parties thereto.
(b) Other Financing Documents and Project Agreements. The Banks shall
have received true and complete copies of all material Financing Documents and
Project Agreements (in each case that remain in effect on the Closing Date),
together with any amendments, supplements and modifications to each thereof as
of the Closing Date, each duly executed by the parties thereto, certified by the
Borrower as such on the Closing Date, in form and substance satisfactory to the
Agent and in the number of copies reasonably required by the Agent.
(c) Full Force and Effect. All agreements referred to in Section 3.1(a)
and (b) shall be in full force and effect on the Closing Date.
(d) Legal Opinions. The Banks shall have received written opinions of
(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower, (ii) Gunster,
Yoakley & ▇▇▇▇▇▇▇, P.A., Florida counsel to the Borrower, and (iii) in-house
counsel to the Borrower, in each case dated the Closing Date and addressed to
the Agent and the Banks, as to such matters as the Agent or any Bank may
reasonably request.
(e) Evidence of Authorization. The Banks shall have received: (i)
copies, certified on the Closing Date, of the partnership action of the Borrower
authorizing the execution, delivery and performance by the Borrower of this
Agreement, the other Credit Documents, the Debt Service Reserve LOC
Reimbursement Agreement, the Working Capital Facility, the Disbursement
Agreement (for the avoidance of doubt, as amended and restated on or about the
date hereof), the First Amendment to Intercreditor Agreement, the Third
Supplemental Indenture, the First Supplemental Indenture, the First Amendment to
Amended and Restated Authority Loan Agreement, the First Amendment to Assignment
and Security Agreement, the First Amendment to Amended and Restated Operation
and Maintenance Agreement, the First Amendment to Amended and Restated
Management Services Agreement and the other agreements to be executed by the
Borrower pursuant to this Article III, (ii) certificates, dated the Closing
Date, as to the incumbency and signature of each individual signing this
Agreement on
20
behalf of the Borrower; (iii) a certified copy of the partnership
agreement of the Borrower; and (iv) evidence of the existence and good standing
of the Borrower in the State of its organization and of the Borrower's
qualification to do business in the State of Florida.
(f) Financial Statements. The Banks shall have received: (i) a copy of
the most recent audited financial statements of the Borrower and (ii) a copy of
the most recent unaudited financial statements of the Borrower, certified by an
Authorized Representative thereof. Such financial statements shall be
satisfactory to the Banks, and no material adverse change shall have occurred in
the business, operations or financial condition of the Borrower, since the date
of such financial statements that could reasonably be expected to have a
Material Adverse Effect.
(g) Financial Projections. The Banks shall have received detailed
financial projections for the Project covering the period from January 1, 2004
through the Final Maturity Date (as defined in the Debt Service Reserve LOC
Reimbursement Agreement), including therein projections of revenues, operating
expenses, cash flow, debt service and other related items for the Project, in
form and substance satisfactory to the Banks and the Independent Engineer and
showing (i) a minimum Total Debt Service Coverage Ratio for each year of at
least 1.20 to 1.0 and (ii) an average Total Debt Service Coverage Ratio during
such period of at least 1.35 to 1.00, in each case, certified as of the Closing
Date by an Authorized Representative of the Borrower, as being based on
reasonable assumptions and prepared in good faith in full consideration of all
information known to such officer.
(h) Disbursement Agent. The Agent shall have received a certificate of
the Disbursement Agent as to the incumbency and specimen signatures of the
officers of the Disbursement Agent authorized to make drawings, to execute and
present certificates under the Letters of Credit, and otherwise to communicate
with the Agent with respect thereto.
(i) Fees and Expenses. The Borrower shall have paid all accrued fees
and expenses (as provided in Sections 2.5 and 9.4) of the Agent and the Banks
(including the reasonable accrued fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP), to the extent that one or more statements for such fees and
expenses have been presented for payment.
(j) Conditions Precedent Under Other Facilities. The conditions
precedent contained in Section 3.1 of the Debt Service Reserve LOC Reimbursement
Agreement and the Working Capital Facility shall have been satisfied.
(k) Tax Exempt Debt Service Reserve Account. The Tax Exempt Debt
Service Reserve Account shall have $12,501,000 on deposit therein on the Closing
Date and the Agent shall have received satisfactory evidence thereof.
(l) Continuation of Title and Priority. The Collateral Agent and the
Agent shall have received from the relevant title companies a continuation
endorsement of the title policies which currently cover the Mortgage, which
title endorsement shall (i) insure that the Mortgage secures all amounts payable
under this Agreement and the other Financing Documents and other Secured
Obligations, and (ii) insure that since the date of any previous such
endorsement (or, if none, since the effective date of said title insurance
policies), there has been no change in the state of title to the Project and
that there are no Liens (other than Permitted Liens) affecting the Project.
21
(m) Recordation; Lien Search. The Agent shall have received:
(i) satisfactory evidence that all filings, recordings,
registrations and other actions necessary to create, perfect and
maintain the first priority security interest of the Collateral Agent
in the Collateral are in full force and effect; and
(ii) the results of a recent lien search in each of the
jurisdictions where assets of the Borrower are located, and such search
shall reveal no Liens on any assets of the Borrower except for Liens in
favor of the Collateral Agent pursuant to the Security Documents and
Permitted Liens.
(n) Insurance Coverage; Additional Insured. The Banks shall have
received and found satisfactory a certificate signed by the Borrower's
independent insurance broker which complies with Section 5.18 of the Principal
Indenture. The Agent shall have received satisfactory evidence that the Agent
and the Banks are named as additional insured on all applicable insurance
policies.
(o) No Default, Event of Eminent Domain or Event of Loss. No Default,
Event of Default, Event of Eminent Domain or Event of Loss shall have occurred
and be continuing.
(p) Representations and Warranties. The Banks shall have received an
Officer's Certificate of the Borrower, dated the Closing Date, stating that the
representations and warranties of the Borrower and each Affiliate thereof
incorporated by reference in this Agreement or contained in any Security
Document are true and correct in all material respects, except to the extent
that such representations and warranties relate solely to an earlier date, in
which case such representations and warranties shall have been true and correct
on and as of such earlier date.
(q) Termination of Original Reimbursement Agreement. The Banks shall
have received satisfactory evidence from the Borrower that all commitments of
the lenders that are parties to the Original Reimbursement Agreement to make
extensions of credit or loans thereunder have been terminated and no letters of
credit or loans remain outstanding thereunder.
(r) Engineering Advisor's Letter Report. The Banks shall have received
a letter report from the Engineering Advisor satisfactory to the Banks with
respect to fuel arrangements for the Project and any other matter reasonably
requested by the Agent or any Bank.
SECTION 3.2. Additional Conditions Precedent to the Issuance of the FPL
QF Letter of Credit. If the FPL QF Letter of Credit is to be issued after the
Closing Date, the initial obligation of the Initial Bank to issue, and of the
Banks to participate in, the FPL QF Letter of Credit is subject to the following
conditions precedent:
(a) Request for Issuance. The Agent, the Initial Bank and the Banks
shall have received not later than 10:00 am New York time three (3) Business
Days prior to the requested date of issuance a written request for issuance of
the FPL QF Letter of Credit in the initial amount set forth in Section
2.2(a)(ii).
22
(b) No Default, Event of Eminent Domain or Event of Loss. As of the
proposed date of issuance of the FPL QF Letter of Credit, no Default, Event of
Default, Event of Eminent Domain or Event of Loss shall have occurred and be
continuing.
(c) Representations and Warranties. The Banks shall have received an
Officer's Certificate of the Borrower, dated the proposed date of issuance of
the FPL QF Letter of Credit, stating that the representations and warranties of
the Borrower and each Affiliate thereof incorporated by reference in this
Agreement or contained in any Security Document are true and correct in all
material respects, except to the extent that such representations and warranties
relate solely to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date.
(d) FPL Acknowledgment. The Agent shall have received satisfactory
evidence that FPL has acknowledged that the issuance of the FPL QF Letter of
Credit constitutes compliance by the Borrower of its obligation under Section
21.2 of the Power Purchase Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. The Borrower hereby makes
on the Closing Date for the benefit of the Agent and the Banks all of the
representations and warranties. of the Borrower and the Company made in the
Principal Indenture (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such representations
and warranties are deemed made as of such earlier date), in the form of such
representations and warranties as they exist on the date of this Agreement and
as they may hereafter be amended from time to time, but only to the extent that
the incorporation of any such amendments into this Agreement has been consented
to in accordance with Section 9.1. Such representations and warranties are
incorporated herein by reference (with appropriate substitutions and
modifications including without limitation the following: (i) the words
"Partnership", "Indenture", "Trustee" and "Holder" as they appear in Article 3
of the Principal Indenture shall be replaced by the words "Borrower",
"Reimbursement Agreement", "Agent" and "Bank", respectively, (ii) the term
"Project Agreements" shall be deemed to include all Financing Documents, and
(iii) the phrase "purchase and ownership of the Securities" as it appears in
line 3 of Section 3.6(b) of the Principal Indenture shall be replaced by the
words "issuing Letters of Credit or making Loans" as if set forth at length in
this Agreement.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants. So long as any Commitment is in effect, any of
the Letters of Credit are outstanding or the Obligations remain unpaid, unless
compliance has been waived in accordance with Section 9.1:
23
(a) Covenants under the Principal Indenture. All of the covenants of
the Borrower contained in Article V of the Principal Indenture (other than in
Section 5.14(a) thereof), together with any schedules referred to therein (in
the form of such covenants and schedules as they exist as of the date of this
Agreement and as they may hereafter be amended from time to time, but only to
the extent that the incorporation of any such amendments into this Agreement has
been consented to in accordance with Section 9.1), are hereby incorporated and
made applicable by reference (with appropriate substitutions and modifications
including without limitation the following: (i) the word "Indenture" as it
appears in Article 5 of the Principle Indenture, except Section 5.13 thereof,
shall be replaced by the words "Reimbursement Agreement"; (ii) the word
"Trustee" as it appears in Article V of the Principal Indenture, except Section
5.21 and 5.22 thereof, shall be replaced by the word "Agent"; (iii) the phrase
"the principal of, and premium, if any, and interest on, all other amounts
payable in respect of, the Securities of each series in accordance with their
terms and the terms of this Indenture and of the related Series Supplemental
Indenture" as it appears in Section 5.1 of the Principal Indenture shall be
replaced by the phrase "all amounts owed under this Reimbursement Agreement in
accordance with the terms of this Reimbursement Agreement"; (iv) the word
"Securities" as it appears in lines 5, 6 and 9 of Section 5.22 of the Principal
Indenture shall be replaced by the word "Loans", (v) the word "Partnership"
shall be replaced by "Borrower" and (vi) the term "Project Agreements" shall be
deemed to include all Financing Documents) as if set forth at length in this
Agreement, and the Borrower shall observe and perform all of such incorporated
covenants.
(b) Termination or Amendment of Other Financing Documents. The Borrower
will not, and will not permit the Company to, terminate, amend or otherwise
modify any provision of the Indenture, the Tax Exempt Indenture, the Authority
Loan Agreement, the Intercreditor Agreement, the Mortgage, the Security
Agreement, the Debt Service Reserve LOC Reimbursement Agreement, the Working
Capital Facility or any Subordinated Loan Agreement if such termination,
amendment or other modification would, in the reasonable opinion of the Required
Banks, be expected to have a material adverse effect on the rights and benefits
of the Banks or the Agent.
(c) Cash Collateralization. The Borrower will provide for cash
collateralization of the Letters of Credit as provided for in Articles III and
IV of the Disbursement Agreement and will comply with its obligations in respect
thereof (including, without limitation, (i) the obligation to provide the notice
set forth in Section 4.2(a) of the Disbursement Agreement following the
occurrence of each event giving rise to the obligation to give such notice and
(ii) the obligation to provide the certificate set forth in Section 4.3(a) of
the Disbursement Agreement; provided, that the conditions required to deliver
such certificate shall have been satisfied).
(d) Amendments to Contracts. The Borrower shall not terminate, amend,
replace or modify (other than immaterial amendments or modifications as
certified by the Borrower) any Project Contract (other than the Power Purchase
Agreement, the Energy Services Agreement, the Coal Purchase Agreement (except
the ▇▇▇▇▇▇ Coal Contract) or any replacement of any of the foregoing, with
respect to which agreements the proviso below in this paragraph (d) shall apply)
as such Project Contract is then in effect on the date of such proposed
termination, amendment, replacement or modification, unless (i) the Borrower
certifies that such termination, amendment, replacement or modification is not
reasonably expected to have a Material Adverse Effect and such termination,
amendment, replacement or modification is not reasonably expected to
24
materially increase the likelihood of the occurrence of a future Material
Adverse Effect and (ii) the Independent Engineer does not within thirty (30)
days of receipt of such certificate disagree in writing with the certification
provided pursuant to clause (i); provided, that the Borrower shall not, without
the prior written consent of the Required Banks, agree to or acquiesce in the
cancellation, suspension, replacement or termination (other than the normal
expiration of an agreement in accordance with its terms) of the Power Purchase
Agreement, the Energy Services Agreement or the Coal Purchase Agreement (except
the ▇▇▇▇▇▇ Coal Contract) or any material amendment, supplement or modification
of, or material consent or waiver with respect to, any of the provisions of the
agreements referred to in this proviso (other than the ▇▇▇▇▇▇ Coal Contract).
(e) Additional Information. In addition to the information required to
be provided to the Agent under Article V of the Principal Indenture (as
incorporated and made applicable in this Agreement by reference), the Borrower
shall furnish to the Agent the following:
(i) notice of the termination, material amendment,
replacement or material modification of any material Project Contract
or the execution and delivery of any material Additional Contract (in
each case, together with a copy thereof if requested by the Agent); and
(ii) a copy of each material notice, document, demand or
waiver delivered by or received by the Borrower pursuant to any
material Project Contract.
(f) Additional Contracts. The Borrower will not enter into any
Additional Contract unless (i) the Borrower certifies that the execution of such
Additional Contract could not reasonably be expected to have a Material Adverse
Effect and (ii) the Independent Engineer does not within thirty (30) days of
receipt of such certificate disagree in writing to the certification provided
pursuant to clause (i).
(g) Fuel Covenants.
(i) The Borrower shall, on the Fuel Supply Coverage Test
Date, perform the test described under clause (i) of the definition of
Fuel Supply Coverage Event. The Borrower shall give to the Agent and
the Engineering Advisor written notice of the results of such test,
together with calculations supporting such results, which notice must
be received by the Agent within twenty (20) Business Days after the
Fuel Supply Coverage Test Date but in no event later than five (5)
Business Days prior to the Interest Payment Date immediately following
the Fuel Supply Coverage Test Date.
(ii) The Borrower shall, ten (10) Business Days prior to
each Interest Payment Date, perform the analyses and calculations
described under clauses (i) and (ii) of the definition of Indexation
Event. The Borrower shall give to the Agent written notice of the
results of such tests and analyses, together with calculations
supporting such results, which must be received by the Agent at least
three (3) Business Days prior to such Interest Payment Date.
(h) Security Interest. The Borrower agrees that (i) the Obligations
constitute "Secured Obligations," the Banks are "Senior Parties," and this
Agreement constitutes a "Financing
25
Document," each as contemplated by and as defined in the Mortgage and the other
Security Documents, and (ii) the Mortgage and the Security Agreement each secure
the payment and performance of the Obligations.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Defaults and Remedies. If any one of the following events
(each an "Event of Default") shall occur and be continuing:
(a) any amount due under this Agreement or any Note shall not be paid
in full within 15 days after its due date;
(b) any representation or warranty made by or on behalf of the Borrower
in this Agreement (including by incorporation by reference), or in any
certificate furnished to the Agent or the Banks shall prove to have been false
or misleading in any respect as of the time made, confirmed or furnished and the
inaccuracy has had or is reasonably expected to have a Material Adverse Effect
and such misrepresentation shall continue uncured for thirty (30) or more days
from the discovery thereof; provided that if the Borrower or the Company
commences efforts to cure the factual situation resulting in such
misrepresentation within such thirty (30) day period, the Borrower or the
Company may continue to effect such cure of the misrepresentation, and such
misrepresentation shall not be deemed an Event of Default, for an additional
sixty (60) days so long as an Authorized Representative of the Borrower or the
Company, as the case may be, provides an Officer's Certificate stating that no
other Event of Default has occurred and is continuing and the Borrower or the
Company is diligently pursuing the cure;
(c) either the Borrower or the Company shall fail to perform or observe
any covenant or agreement contained in Section 5.2 (Insurance) of the Principal
Indenture as incorporated in Section 5.1(a) of this Agreement or under Section
5.1(g) of this Agreement;
(d) either the Borrower or the Company shall fail to perform or observe
any covenant or agreement contained in Sections 5.4 (Maintenance of Existence
and Governmental Approvals), 5.9 (Compliance with Laws), 5.10 (Prohibition on
Fundamental Changes and Disposition of Assets), 5.14 (Amendments to Contracts),
5.19 (Liens), 5.21 (Indebtedness) or 5.24 (Restricted Payments) of the Principal
Indenture as incorporated in Section 5.1(a) of this Agreement or in Section
5.1(b) of this Agreement, and such failure shall continue uncured for thirty
(30) or more days after the Borrower or the Company has actual knowledge of such
failure;
(e) either the Borrower or the Company shall fail to perform or observe
any of its covenants contained (including. by incorporation by reference) in any
other provision of this Agreement (other than those referred to in paragraphs
(a), (b), (c) and (d) above) and such failure shall continue uncured for thirty
(30) or more days after the Borrower or the Company has actual knowledge of such
failure; provided that if the Borrower or the Company commences efforts to cure
such default within such thirty (30) day period, the Borrower or the Company may
continue to effect such cure of the default (and such default shall not be
deemed an "Event of Default"
26
hereunder) for an additional ninety (90) days so long as an Authorized
Representative of the Borrower or the Company, as the case may be, provides an
Officers' Certificate stating that no other Event of Default has occurred and is
continuing and the Borrower or the Company is diligently pursuing the cure;
(f) an acceleration of the principal and interest owing under the
Working Capital Facility shall be declared and the amount so accelerated is not
paid or such acceleration is not rescinded within fifteen (15) days;
(g) an "Event of Default" under the Indenture shall occur and be
continuing until the earlier of the expiration of thirty (30) days or an
acceleration under the Indenture;
(h) an "Event of Default" under the Tax Exempt Indenture shall occur
and be continuing until the earlier of the expiration of thirty (30) days or an
acceleration under the Tax Exempt Indenture;
(i) the Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or substantially all of its property, (ii) admit in writing its
inability, or be generally unable, to pay its debts as such debts become due,
(iii) make a general assignment for the benefit of its creditors, (iv) commence
a voluntary case under the Bankruptcy Code, (v) file a petition seeking to take
advantage of any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts, (vi) fail to controvert in
a timely and appropriate manner, or acquiesce in writing to, any petition filed
against the Borrower in an involuntary case under the Bankruptcy Code, or (vii)
take any partnership action for the purpose of effecting any of the foregoing;
(j) a proceeding or case shall be commenced without the application or
consent of the Borrower in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution, winding-up, or the composition or
readjustment of debts, (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of the Borrower under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or any order, judgment
or decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of ninety (90) or more consecutive
days, or any order for relief against the Borrower shall be entered in an
involuntary case under the Bankruptcy Code;
(k) any grant of a Lien contained in the Security Documents shall cease
to be effective to grant a perfected Lien to the Collateral Agent on the
Collateral described therein with the priority purported to be created thereby
and such cessation has had or could reasonably be expected to have a Material
Adverse Effect; provided, however, that the Borrower shall have ten (10) days
from actual knowledge thereof to cure any such cessation;
(l) PG&E Enterprises and Cogentrix Eastern America, directly or
indirectly through one or more wholly-owned subsidiaries, shall fail to continue
to control the management and operations of the Borrower and to maintain
constituent general partnership interests in the Borrower; provided, however,
that failure to maintain such control shall not constitute a default if the
Borrower provides a letter from each of S&P, ▇▇▇▇▇'▇, and Fitch (except that no
such
27
letter shall be required from any such rating agency not then currently rating
the Securities issued under the Indenture) confirming that such failure will not
in and of itself result in (x) a downgrading of the rating on the Securities to
below Investment Grade if such agency is then rating the Securities as
Investment Grade or (y) any downgrading of the rating on the Securities if the
Securities are then rated as below Investment Grade by such agency;
(m) at any time during the term of the Securities, PG&E Enterprises and
Cogentrix Eastern America, directly or indirectly through one or more wholly
owned subsidiaries, shall fail to maintain partnership interests representing at
least 20% in the aggregate of the partnership interests of the Borrower,
provided that failure to maintain such partnership interests shall not
constitute a default if the Borrower provides a letter from each of S&P,
▇▇▇▇▇'▇, and Fitch (except that no such letter shall be required from any such
rating agency not then currently rating the Securities) confirming that such
failure will not in and of itself result in (x) a downgrading of the rating on
the Securities to below Investment Grade if such agency is then rating the
Securities as Investment Grade or (y) any downgrading of the rating on the
Securities if the Securities are then rated as below Investment Grade by such
agency; or
(n) an "Event of Default" under the Debt Service Reserve LOC
Reimbursement Agreement shall occur and be continuing until the earlier of the
expiration of thirty (30) days or an acceleration under the Debt Service Reserve
LOC Reimbursement Agreement;
then, and in any such event, the Agent shall at the request of the Required
Banks take one or more of the following actions: (i) by notice to the Borrower,
if the Letters of Credit have not yet been issued, declare the Commitments and
the agreement of the Initial Bank to issue the Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, or (ii) by notice to
the Borrower, if one or all of the Letters of Credit have been issued, declare
the Commitments and the agreement of the Initial Bank to issue the Letters of
Credit not yet issued to be terminated, whereupon the same shall forthwith
terminate and after giving any required notice to the beneficiary of such
outstanding Letter of Credit and the lapse of the time period required prior to
termination by such Letter of Credit, terminate each of the Letters of Credit
then outstanding, or (iii) declare the Obligations, all interest thereon and all
other amounts payable under this Agreement and the Notes to be forthwith due and
payable, whereupon the Obligations, all such interest. and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower, or (iv) terminate the ability of the Borrower to cause
reinstatement of the Aggregate Stated Amount through the reimbursement of
Drawings or repayment of Loans, as contemplated by the terms hereof.
ARTICLE VII
CHARACTER OF OBLIGATIONS
SECTION 7.1. Obligations Absolute. The Obligations shall be absolute,
unconditional and irrevocable and shall not be affected or impaired under any
circumstances whatsoever, including the following circumstances:
(a) any lack of validity or enforceability of any provision of any
Project Agreement or Financing Document;
28
(b) any amendment or waiver of, or any consent to departure from, any
provision of any Project Agreement;
(c) the existence of any claim, setoff, defense or other right that the
Borrower may have at any time against any beneficiary of the Letters of Credit
(or any Person for whom any such beneficiary may be acting), any Bank, the Agent
or any other Person, whether in connection with any Project Agreement, the
transactions contemplated thereby or any unrelated transaction;
(d) any statement or signature in any certificate or other document
presented under any of the Letters of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect, or any such statement being untrue or
inaccurate in any respect whatsoever;
(e) any exchange, release or nonperfection of any Collateral or other
collateral, or any release, amendment or waiver of or consent to departure from
any Project Agreement or any guaranty, for any of the Obligations;
(f) payment by a Bank under a Letter of Credit against presentation of
a draft or certificate that does not comply with the terms of the applicable
Letter of Credit; or
(g) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
SECTION 7.2. Limited Liability of Agent and Banks. As among the
Borrower, the Agent and the Banks, the Borrower assumes all risks of the acts or
omissions of the beneficiaries of the Letters of Credit with respect to the use
of the Letters of Credit. Neither the Agent nor any Bank nor any of their
respective officers, directors, employees or agents shall be liable or
responsible for (a) the use that may be made of the Letters of Credit or any
acts or omissions of any beneficiaries of the Letters of Credit in connection
with the Letters of Credit; (b) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted in connection with the
Letters of Credit or of any endorsement thereon, even if such document or
endorsement should prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (c) payment by the Initial Bank against
presentation of any document that does not comply with the terms of the Letters
of Credit, including failure of any document to bear any reference or adequate
reference to the appropriate Letters of Credit; or (d) any other circumstance
whatsoever in making, delaying to make or failing to make payment under the
Letters of Credit provided however, notwithstanding anything in this Agreement
to the contrary, that the Borrower shall have a claim against the Initial Bank,
and the Initial Bank shall be liable to the Borrower, to the extent of any
direct, as opposed to consequential, damages suffered by the Borrower that were
the result of the Initial Bank's willful misconduct or gross negligence in
paying under the Letters of Credit or the Initial Bank's willful or grossly
negligent failure to pay under the Letters of Credit after the presentation to
it by the beneficiary of a draft and certificate strictly complying with the
terms and conditions of the Letters of Credit (unless the Initial Bank in good
faith believed itself (based upon an opinion of counsel) to be prohibited by law
or legal authority from making such payment). In furtherance and not in
limitation of the foregoing, the Initial Bank may accept any document that
appears on its face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
29
ARTICLE VIII
THE AGENT
SECTION 8.1. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Credit Documents (including
enforcement of and collection under any Credit Document or other Project
Agreement), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to any Credit Document or other Project Agreement or applicable law. In
performing its function and duties hereunder, the Agent shall act solely as the
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower or any other party to any Project Agreement.
SECTION 8.2. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Credit
Document or other Project Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent (a) may treat any Bank that has signed a Commitment
Transfer Supplement as the holder of the applicable portion of the Obligations;
(b) may consult with legal counsel (including counsel for the Borrower or any
Affiliate), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations made in or in
connection with any Credit Document or other Project Agreement; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Credit Document or other
Project Agreement on the part of the Borrower or any Affiliate or to inspect the
property (including the books and records) of the Borrower or any Affiliate
thereof; (e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Credit Document or other Project Agreement or any other instrument or document
furnished pursuant hereto or thereto; and (f) shall incur no liability under or
in respect of any Credit Document or other Project Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
facsimile or otherwise) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 8.3. Initial Bank and Agent and Their Respective Affiliates.
With respect to its Commitment and participation in the Letters of Credit, the
Initial Bank shall have the same rights and powers under this Agreement as any
other Bank; and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include the Initial Bank in its individual capacity. The Initial Bank
and its Affiliates may accept deposits from, lend money to, act as trustee under
30
indentures of, and generally engage in any kind of business with, the Borrower,
any Affiliate thereof and any Person that may do business with or own securities
of the Borrower or any Affiliate thereof, without any duty to account therefor
to the Banks. Credit Lyonnais New York Branch and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any Affiliate thereof and any
Person that may do business with or own securities of the Borrower or any
Affiliate thereof, all as if Credit Lyonnais New York Branch were not the Agent
and without any duty to account therefor to the Banks.
SECTION 8.4. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance on the Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance on the Agent or any other Bank
and based on such documents and information as it deems appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 8.5. Indemnification. The Banks agree to indemnify the Agent
(to the extent not promptly reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the respective
principal amounts of the Obligations then held by each of them and/or the
respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever that may at
any time (including without limitation, at any time following the payment of any
Obligations or termination of this Agreement) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of any Credit
Document or other Project Agreement or any action taken or omitted by the Agent
under any Credit Document or other Project Agreement; provided, however, that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Borrower under Section 9.4, to the extent that the Agent is not reimbursed
for such costs and expenses by the Borrower.
31
SECTION 8.6. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be removed
at any time with cause with the written approval of the Required Banks. Upon any
such resignation or removal, the Required Banks shall have the right to appoint
a successor Agent with the consent of the Borrower, which shall not be
unreasonably withheld. If no successor Agent has been so appointed by the
Required Banks, and has accepted such appointment, within thirty (30) days after
the retiring Agent's giving of notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent with the consent of the Borrower. (which shall
not be unreasonably withheld), which successor Agent shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least five hundred million
Dollars ($500,000,000). Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from any further
duties and obligations under the Credit Documents and the other Project
Agreements. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was agent under this
Agreement.
SECTION 8.7. Collateral. (a) Except as expressly provided herein, the
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in respect of the Collateral. The Agent shall
incur no liability as a result of any private sale of the Collateral.
(b) The Banks hereby consent, and agree upon written request by the
Agent to execute and deliver such instruments and other documents as the Agent
may deem desirable to confirm such consent, to the release of the Liens on the
Collateral, including any release in connection with any sale, transfer or other
disposition of the Collateral or any part thereof, in accordance with the
Project Agreements.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any Note, or consent to any departure by the Borrower
therefrom, shall be effective unless in writing and signed or consented to (in
writing) by the Required Banks (and, in the case of amendments, the Borrower),
and then such waiver or consent shall be effective only in the specific.
instance and for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and signed or consented
to (in writing) by all of the Banks do any of the following: (a) waive any of
the conditions specified in Article III; (b) increase the Commitments of the
Banks or subject the Banks to any additional obligations; (c) reduce the
principal of, or interest on, the Loans or any fees or other amounts payable
hereunder; (d) postpone any date fixed for (i) payment of principal of, or
interest on, the Loans, (ii) reimbursement of drawings under any of the Letters
of Credit or (iii) payment of fees or other amounts payable hereunder; (e)
change the percentage of the Commitments or of the Loans
32
outstanding, or the number of Banks, required for the Banks or any of them to
take any action hereunder; or (f) amend this Section 9.1; and provided further,
that no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Persons required above to take such action, affect the
rights or duties of the Agent under this Agreement or any other Credit Document.
SECTION 9.2. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including by facsimile and shall be
mailed, faxed or delivered as follows:
if to the Borrower by overnight delivery, to
Indiantown Cogeneration, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Manager
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower by U.S. Mail, to
Indiantown Cogeneration, L.P.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Manager
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
National Energy & Gas Transmission, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
33
If to the Initial Bank, to
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Project Finance and Utilities Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
BNP Paribas
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Letter of Credit Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent, to
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Project Finance Portfolio Management
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to any Bank, to it at the address or facsimile number set forth opposite its
name on the attached Schedule 1.1B or in the Commitment Transfer Supplement by
which it became a party hereto; or, as to each party, to it at such other
address or facsimile number as designated by such party in a written notice to
the other parties. All such notices and communications shall be deemed received,
(a) if personally delivered, upon delivery, (b) if sent by first-class mail, on
the third Business Day following deposit into the mails and (c) if sent by
facsimile, upon acknowledgment of receipt thereof by the recipient, except that
notices and communications to the Agent pursuant to Article II or VIII shall not
be effective until received by the Agent. Notices and other communications to
the Banks hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Agent; provided that the foregoing shall
not apply to notices pursuant to Article II or VIII unless otherwise agreed by
the Agent and the applicable Bank. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
34
SECTION 9.3. No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, and no single or partial exercise of any such right
shall preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
SECTION 9.4. Costs and Expenses. The Borrower agrees to pay within
fifteen (15) days of receipt of an invoice with respect thereto (a) all
reasonable costs and expenses of the Agent and the Banks in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including (i) the reasonable fees and out-of-pocket expenses of counsel for the
Agent and the Banks with respect thereto and with respect to advising the Agent
and the Banks as to their rights and responsibilities, or the perfection,
protection or reservation of rights or interests, under this Agreement, the
other Project Agreements and the other documents to be delivered hereunder, and
(ii) the reasonable fees and expenses of any consultants, auditors or
accountants engaged by the Agent with the written consent (which shall not be
unreasonably withheld) of the Borrower pursuant hereto and (b) all reasonable
costs and expenses of the Agent and the Banks (including reasonable counsel fees
and expenses of the Agent and the Banks) in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the other Project Agreements and the other documents to be delivered
hereunder, whether in any action, suit or litigation, any bankruptcy, insolvency
or similar proceeding; provided, that all fees payable by the Borrower pursuant
to Section 3.1(i) shall be paid on the Closing Date. In addition, the Borrower
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of the
aforementioned documents, and the Borrower agrees to indemnify and hold the
Agent and the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay on the part of the Borrower in paying or
omission to pay any of the foregoing.
SECTION 9.5. Application of Moneys. If any sum paid or recovered in
respect of the Obligations is less than the amount then due, the Agent shall
apply that sum first to fees then due and owing, second to interest then due and
owing, third to principal then due and owing, and fourth to any other amount
then due and owing, in each case under this Agreement.
SECTION 9.6. Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
35
SECTION 9.7. Non-Recourse Liability. Satisfaction of the Obligations
shall be had solely from the Collateral. The liability of the Partners with
respect to the Obligations is limited to any unpaid capital contributions
required by the Equity Contribution Agreement, and no recourse shall be had in
the event of any nonperformance by the Borrower of the Obligations to (a) any
assets. or properties of the Partners other than their respective interests in
the Collateral and other than with respect to any unpaid capital contributions
required by the Equity Contribution Agreement or (b) any Partner or any
Affiliate of any Partner or the Borrower or any of the officers, directors,
employees, incorporators or stockholders of the Partners or any Affiliate of any
Partner or the Borrower, and no judgment for any deficiency upon the Obligations
shall be obtainable by the Banks or the Agent against any Partner or any
Affiliate of the Borrower or any Partner or any incorporator, stockholder,
officer, employee or director, past, present or future, of any Partner or of any
predecessor or successor of any Partner or any Affiliate of any Partner or the
Borrower.
SECTION 9.8. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Agent and the Banks and their
respective successors and assigns, except that the Borrower shall not have the
right to assign any of its rights and obligations hereunder without the prior
written consent of the Required Banks, and, except as provided in Section 9.9,
no Bank other than the Initial Bank shall have the right to assign any of its
rights and obligations hereunder.
SECTION 9.9. Assignments and Participations. (a) Any Bank may at any
time (with the consent of the Borrower, such consent not to be unreasonably
withheld or delayed, the consent of the Agent, such consent not to be
unreasonably withheld or delayed, and the consent of the Initial Bank) sell to
one or more banks or other entities (a "Purchasing Bank") all or any part of its
rights and obligations under this Agreement and the Notes (which, except in the
case of an assignment to a Person that, immediately before such assignment, was
a Bank, shall be equal to at least $2,000,000) pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Bank, such transferor Bank, the Agent
and the Initial Bank (and, in the case of a Purchasing Bank that is not then a
Bank or an Affiliate thereof, by the Borrower). Upon (x) such execution of such
Commitment Transfer Supplement, and (y) delivery of a copy thereof to the
Borrower and payment of the amount of its participation to the Agent or such
transferor Bank, such Purchasing Bank shall for all purposes be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank under
this Agreement, to the same extent as if it were an original party hereto with
the commitment percentage as set forth in such Commitment Transfer Supplement,
which shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of commitment percentages arising from the purchase by such
Purchasing, Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Notes. Upon the consummation of any
transfer pursuant to this Section 9.9, the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if required, replacement
Notes are issued to such transferor Bank and new Notes or, as appropriate,
replacement Notes, are issued to such Purchasing Bank, in each case, in
principal amounts reflecting their Commitment.
(b) The Agent shall, on behalf of the Borrower, maintain the Register
for the recordation of the names and addresses of the Banks and the Commitment
and the principal amount of any Loans owing to each Bank from time to time. The
entries in the Register shall be conclusive, in
36
the absence of manifest error, and the Borrower, each Bank and the Agent shall
treat each Person whose name is record in the Register as the owner of the
Loans for all purposes of this Agreement. Upon its receipt of a duly completed
Commitment Transfer Supplement executed by the assigning Bank and the Purchasing
Bank, the Purchasing Bank's completed administrative questionnaire (unless the
Purchasing Bank shall already be a Bank hereunder), and the Purchasing Bank's
payment of a processing and recordation fee of $2,500, the Agent shall accept
such Commitment Transfer Supplement and record the information contained therein
in the Register. Notwithstanding anything to the contrary in this Agreement, any
assignment of any Loan shall be effective only upon appropriate entries with
respect thereto being made in the Register.
(c) Any Bank may, from time to time, sell or offer to sell
participating interests in any Loans owing to such Bank, any Notes held by such
Bank, any Commitment of such Bank or any other interests and obligations of such
Bank hereunder, to one or more banks or other entities (each, a "Participant"),
on such terms and conditions as may be determined by the selling Bank, without
the consent of or notice to the Borrower, and the grant of such participation
shall not relieve any Bank of its obligations, or impair the rights of any Bank,
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank shall remain solely responsible for the performance
of such Bank's obligations under this Agreement, such Bank shall remain the
holder of any such Notes for all purposes under this Agreement, the Borrower,
the Agent and the Initial Bank will continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement and such Bank shall retain the sole right and responsibility to
exercise the rights of such Bank, and enforce the obligations of the Borrower,
including, without limitation, the right to approve any amendment, modification,
supplement or waiver of any provision of any Credit Document and the right to
take action under Article VI hereof and such Bank shall not grant any such
Participant any voting rights or veto power over any such action by such Bank
under this Agreement (provided that such Bank may agree not to consent to any
modification, amendment or waiver of this Agreement, without the consent of the
Participant, that would alter the principal of or interest on the Loans,
postpone the date fixed for any payment of principal of or interest thereon,
release all or substantially all of the Collateral or extend the term of any
Commitment). No Participant shall have any rights under this Agreement to
receive payment of principal, interest or any other amount except through a Bank
and as provided in this Section 9.9. The Borrower agrees that, upon the
occurrence and during the continuance of any Event of Default, each Participant
shall have the right of set-off in respect of its participating interest in
amounts owing under this Agreement and any Notes as set forth in Section 2.22
hereof to the same extent as if the amount of its participating interest was
owing directly to it as a Bank under this Agreement or any Notes. The Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 2.18 hereof with respect to its participation granted
hereunder; provided that no Participant shall be entitled to receive any greater
amount pursuant to such Sections than the Bank transferring such participation
would have been entitled to receive in respect of the amount of the
participation transferred to such Participant had no such transfer occurred.
(d) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.9, disclose to
the Purchasing Bank or Participant or proposed Purchasing Bank or
37
Participant any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; provided, however, that prior to any such
disclosure, the Person receiving such disclosure shall sign such confidentiality
agreements as the Borrower may reasonably request. Notwithstanding anything
herein to the contrary, any party to this Agreement (and any employee,
representative, or other agent of any party to this Agreement) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure. However, any such information
relating to the tax treatment or tax structure is required to be kept
confidential to the extent necessary to comply with any applicable federal or
state securities law.
SECTION 9.10. Indemnification. The Borrower agrees to indemnify and
hold harmless the Agent and each Bank and each of their respective officers,
directors, employees, agents and affiliates from and against any and all claims,
damages, losses, liabilities, costs and expenses whatsoever that such
indemnified party may incur (or that may be claimed against such indemnified
party by any Person) by reason of (a) any untrue statement or alleged untrue
statement by the Borrower of any material fact concerning the Borrower or the
Collateral, or the omission or alleged omission to state any fact concerning the
Borrower or the Collateral necessary to make any such statement, in light of the
circumstances under which it was made, not misleading; (b) the issuance, sale or
delivery of the Securities and the Notes; (c) the use of the proceeds of the
Securities or any Drawing; (d) any reasonable action taken by such indemnified
party in protecting and enforcing the rights and remedies of the Agent and the
Banks under the Project Agreements; (e) subject to Section 7.2, the execution,
delivery or transfer of, or payment or failure to pay under, the Letters of
Credit; (f) any claim of any Person with respect to any finder's fee, brokerage
commission or other similar sum due in connection with any Project Agreement; or
(g) any failure by the Borrower to comply with any Environmental Requirement;
provided, however, that the Borrower shall not be required to indemnify the
Initial Bank for any claims, damages, losses, liabilities, costs or expenses to
the extent caused by the Initial Bank's willful misconduct or gross negligence
in paying under the Letters of Credit or the Initial Bank's willful or grossly
negligent failure to pay under the Letters of Credit after the presentation to
it by the applicable beneficiary of a draft and certificate strictly complying
with the terms and conditions of the applicable Letter of Credit (unless the
Initial Bank in good faith believed (based upon an opinion of counsel) itself to
be prohibited by law or legal authority from making such payment). The Borrower,
upon demand by any party indemnified or intended to be indemnified pursuant to
this Section 9.10 at any time, shall also reimburse such party for any
reasonable legal or other expenses incurred in connection with investigating or
defending against any of the foregoing. If any action, suit or proceeding
arising from any of the foregoing is brought against any party indemnified or
intended to be indemnified pursuant to this Section 9.10 (an "Indemnified
Party"), such Indemnified Party shall promptly notify the Borrower in writing,
enclosing a copy of all papers served, but the omission so to notify the
Borrower of any such action shall not relieve it of any liability that it may
have to any Indemnified Party otherwise than under this Section 9.10 unless and
to the extent such omission has materially prejudiced the Borrower's defense of
such action, suit or proceeding; provided, however, that the Borrower shall not
be liable for any settlement of any such action effected without the Borrower's
prior written consent. In case any such action shall be brought against any
38
Indemnified Party and it shall notify the Borrower of the commencement thereof,
the Borrower shall be entitled to participate in and, to the extent that it
shall wish, to assume the defense thereof with counsel reasonably satisfactory
to such Indemnified Party, and after notice from the Borrower to such
Indemnified Party of the Borrower's election so to assume the defense thereof,
the Borrower shall not be liable to such Indemnified Party for any subsequent
legal or other expenses attributable to such defense, except as provided below,
other than reasonable costs of investigation subsequently incurred by such
Indemnified Party in connection with the defense thereof at the request of the
Borrower or the Borrower's counsel. The Indemnified Party shall have the right
to employ its own counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
employment of counsel by such Indemnified Party has been authorized by the
Borrower, (ii) the Indemnified Party shall have reasonably concluded that there
may be a conflict of interest between the Borrower and the Indemnified Party in
the conduct of the defense of such action (in which case the Borrower shall not
have the right to direct the defense of such action on behalf of the Indemnified
Party) or (iii) the Borrower shall not in fact have employed counsel reasonably
satisfactory to the Indemnified Party to assume the defense of such action.
SECTION 9.11. Governing Law. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS THEREOF
THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
SECTION 9.12. Consent to Jurisdiction and Venue. Each of the parties
hereto irrevocably (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in any court of the
State of New York or any court of the United States of America located in the
State of New York, (b) consents, for itself and in respect of its property, to
the jurisdiction of each such court in any such suit, action or proceeding and
(c) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts and any claim that any such
suit, action or proceeding has been brought in an inconvenient forum. Each of
the parties agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Section 9.12 shall
affect the right of any party hereto to serve legal process in any other manner
permitted by law.
SECTION 9.13. Headings. The section and subsection headings used herein
have been inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
SECTION 9.14. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
39
SECTION 9.15. Waiver of Jury Trial. THE BORROWER, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
INDIANTOWN COGENERATION, L.P.
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Letter of Credit and Reimbursement Agreement
CREDIT LYONNAIS NEW YORK BRANCH, as
Agent and as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Letter of Credit and Reimbursement Agreement
BNP PARIBAS, as Initial Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Letter of Credit and Reimbursement Agreement
HSH NORDBANK, AG, NEW YORK BRANCH,
as a Bank
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Letter of Credit and Reimbursement Agreement
SCHEDULE 1.1A
COMMITMENTS
BANK COMMITMENT
---------------------------------------------------------------------------
Credit Lyonnais New York Branch $ 6,751,203.20
BNP Paribas $ 3,338,830.83
HSH Nordbank, AG, New York Branch $ 4,909,965.97
TOTAL COMMITMENTS $15,000,000.00
SCHEDULE 1.1B
NOTICES
INSTITUTION/
MAILING ADDRESS CONTACT
------------------------------------------------------------------------------------------
Credit Lyonnais New York Branch ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
1301 Avenue of the Americas Tel: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Project Finance Portfolio ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Management
BNP Paribas Business:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/2555/2203
▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
Credit/Compliance:
▇▇▇▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
BNP Paribas Operations:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
HSH Nordbank, AG, New York Branch Credit:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇.▇▇▇▇▇@▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇
Operations:
▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇
SCHEDULE 2.2(d)
FPL QF LETTER OF CREDIT STATED AMOUNT
Date Stated Amount
----- ------------
December 31, 2003 $4,000,000
December 21, 2004 $4,500,000
December 21, 2005 $5,000,000
EXHIBIT A
Form of ESA Letter of Credit
BNP Paribas Letter of Credit No. [_________]
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Irrevocable Standby Credit
Attn: Letter of Credit Department
Date and Place of Issue: Date and Place of Expiry:
New York, New York BNP Paribas
October _, 2003 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Attn: Letter of Credit Department
October _, 2008
Applicant:
Indiantown Cogeneration, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Beneficiary: Amount: Up to an aggregate of
▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Dollars
▇▇ ▇▇▇ ▇▇▇ (▇▇▇▇▇,▇▇▇,▇▇▇.▇▇)
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Credit Available With:
BNP Paribas
By: Negotiation, Against Presentation of the
Documents Detailed Herein Drawn on BNP Paribas
Ladies and Gentlemen:
We authorize you to draw on us for the account of Indiantown Cogeneration, L.P.
up to an aggregate amount of TEN MILLION UNITED STATES DOLLARS
(US$10,000,000.00) available against presentation of a dated drawing request
drawn on BNP Paribas, manually signed by a purported authorized officer of ▇▇▇▇▇
▇▇▇▇▇▇▇ Citrus Inc. (who is identified as such) appropriately completed in the
form of Annex 1 hereto and purportedly sent by ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.'s
authorized officer.
The above drawing request and all communications with respect to this Letter of
Credit shall be in writing, addressed to us at BNP Paribas, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Letter of Credit Department, facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇, referencing this Letter of Credit
A-1
No. [ ] and presented to us by delivery in person or facsimile transmission
at such address, provided that the original of the above drawing request or such
communications, as the case may be, shall be sent to us at such address by
overnight courier for receipt by us within two (2) Business Days of the date of
any such facsimile transmission.
If the drawing request is presented in compliance with the terms of this Letter
of Credit to us at such address by 10:00 a.m. New York City time on any Business
Day, payment will be made such day and if such drawing request is so presented
to us after 10:00 a.m. New York City time on any Business Day, payment will be
made on the following Business Day:
As used in this Letter of Credit, "Business Day" means any day other than a
Saturday or Sunday or other day on which commercial banks located in New York,
New York are required or authorized to be closed.
This Letter of Credit shall expire at the close of business on the earlier of
(i) the date of expiry set forth hereinabove or (ii) the date of delivery to us
at the address set forth in the third preceding paragraph of a dated certificate
manually signed by a purported officer of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. (identified
as such) certifying that the conditions to release of this Letter of Credit set
forth in Section 12.2(a)(5) of the Energy Services Agreement, dated as of the
eighth day of September, 1992, by and between ▇▇▇▇▇▇▇▇ Indiantown Citrus Co. and
Indiantown Cogeneration, L.P. (as the same has been and may be assigned,
amended, supplemented or modified from time to time, the "Energy Services
Agreement") have been satisfied.
Notwithstanding the foregoing, BNP Paribas may at any time terminate this Letter
of Credit by giving ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. written notice thereof by delivery
in person or facsimile transmission (with written confirmation by overnight
courier for receipt by beneficiary within two (2) Business Days) addressed to
▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus
Inc., ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Controller,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, or such other addresses which ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus
Inc. may designate to us by written notice, at least thirty (30) days prior to
termination in the form of Annex 2 hereof, whereupon ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.
is authorized to draw on us prior to such termination the then undrawn face
amount of this Letter of Credit by presentation to us, in the manner and at the
address specified in the fourth preceding paragraph, of a drawing request
appropriately completed in the form of Annex 3 hereto and purportedly sent and
signed by ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.'s authorized officer.
In the event that a drawing request fails to comply with the terms of this
Letter of Credit, BNP Paribas shall provide ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. prompt
notice, to the addresses set forth above in the preceding paragraph, of same
stating the reasons therefor.
This Letter of Credit sets forth in full the terms of our undertaking and this
undertaking shall not in any way be modified, amended, limited or amplified by
reference to any document, instrument or agreement referred to herein, except
only the drawing requests and certificates referred to herein; and any such
reference shall not be deemed to incorporate herein by reference any document,
instrument, or agreement except for such drawing requests and certificates.
A-2
This Letter of Credit may be assigned only to a party to which the Energy
Services Agreement may be assigned pursuant to Section 20.2 of such agreement,
provided that all conditions to such an assignment set forth therein have been
satisfied. We shall effect such transfer upon presentation to us of a signed
transfer certificate in the form of Annex 4 accompanied by this Letter of
Credit, in which ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. irrevocably transfers to such
transferee all of its rights hereunder.
Partial drawings under this Letter of Credit are allowed and each such partial
drawing shall reduce the amount thereafter available hereunder for drawings
under this Letter of Credit.
All banking charges, including any advising and negotiating bank charges, are
for the account of Indiantown Cogeneration, L.P.
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under BNP Paribas Letter of Credit Number [ ] dated October
_, 2003."
This Letter of Credit shall not be amended except with the written concurrence
of BNP Paribas, Indiantown Cogeneration, L.P. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.
We hereby engage with you that a drawing request drawn strictly in compliance
with the terms of this Letter of Credit and amendments shall meet with due honor
upon presentation. This Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 revisions), International Chamber of
Commerce Publication Number 500.
BNP PARIBAS
____________________
Authorized signature
____________________
Authorized signature
A-3
ANNEX 1
"Drawn under BNP Paribas Letter of Credit Number
[ ] dated October _, 2003."
DRAWING REQUEST
[Date]
BNP Paribas
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Letter of Credit Department
Ladies and Gentlemen:
The undersigned hereby draws on BNP Paribas Letter of Credit No.
[ ] (the "Letter of Credit") dated October _, 2003, issued by you in favor
of us. Any capitalized term used herein and not defined herein shall have its
respective meaning as set forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
A) "This drawing in the amount of US$__________ is being made pursuant to
BNP Paribas Letter of Credit No. [ ] issued to ▇▇▇▇▇ ▇▇▇▇▇▇▇
Citrus Inc. pursuant to Section 12.6 of the Energy Services Agreement,
dated as of the eighth day of September, 1992, by and between ▇▇▇▇▇▇▇▇
Indiantown Citrus Co. and Indiantown Cogeneration, L.P. (as the same
has been and may be assigned, amended, supplemented or modified from
time to time, the "Energy Services Agreement")";
B) "The conditions to release of BNP Paribas Letter of Credit No. [ ] set
forth in Section 12.2(a)(5) of the Energy Services Agreement have not
been satisfied";
[Use one of the following forms of paragraph C]
C) "Liquidated damages are duly owing to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.
pursuant to Section 12.5(b) of the Energy Services Agreement";
or
C) "A final judgment has been rendered against Indiantown Cogeneration,
L.P. pursuant to Section 8.2.2(iii) of the Construction Funding
Agreement, as defined in the Energy Services Agreement (as the same may
has been and may be assigned, amended, supplemented or modified from
time to time), which judgment has not been satisfied, in an amount
equal to or greater than the amount requested to be drawn";
A-4
or
C) "▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. is making a drawing in the full available
amount of BNP Paribas Letter of Credit No. [ ] (subject to
paragraph D below) because the term of such Letter of Credit will
expire within thirty (30) days of the date of this drawing request and
Indiantown Cogeneration, L.P. has failed to deliver a replacement or
renewal letter of credit or other security reasonably acceptable to
▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc., and security is still required under the
terms of Section 12.6 of the Energy Services Agreement";
D) "The amount requested to be drawn (when added to all previous drawings
under BNP Paribas Letter of Credit No. [ ]) does not in the
aggregate exceed $10,000,000.00";
E) "▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. provided written notification to Indiantown
Cogeneration, L.P. at least ten (10) days prior to the date of this
request of its intention to draw under BNP Paribas Letter of Credit No.
[ ] pursuant to this request"; and
F) "You are directed to make payment of the requested drawing to account
no. __________ at ____________________ [insert bank name, address and
account number for ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. or, in the event of the
third paragraph C, Bank One Trust Company, N.A., c/o Bank One, N.A.
Global Corporate Trust Services at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, [or insert name and address of successor escrow
agent under the Security Escrow Agreement] as escrow agent under the
Security Escrow Agreement dated as of September 30, 1992 among ▇▇▇▇▇▇▇▇
Indiantown Citrus Co., Indiantown Cogeneration, L.P. and Credit
Lyonnais (as the same has been and may be assigned, amended,
supplemented or modified from time to time, the "Security Escrow
Agreement")."
A-5
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this __________ day of __________, _____.
▇▇▇▇▇ ▇▇▇▇▇▇▇ CITRUS INC.
By:_____________________________
Name:
Title:
▇-▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ OF LETTER OF CREDIT
[Date]
▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ] (the
"Letter of Credit") dated October _, 2003, issued by us in your favor.
This constitutes our notice to you pursuant to the Letter of Credit
that the Letter of Credit shall terminate on __________, _____ [insert a date
which is 30 or more days after the date of this notice of termination].
Very truly yours,
BNP Paribas
By:_____________________________
By:_____________________________
cc: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Controller
A-7
ANNEX 3
"Drawn under BNP Paribas Letter of Credit
Number [ ] dated October _, 2003."
DRAWING REQUEST UPON EARLY TERMINATION
OF LETTER OF CREDIT
[Date]
BNP Paribas
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Letter of Credit Department
Ladies and Gentlemen:
The undersigned hereby draws on BNP Paribas Letter of Credit No. [ ]
(the "Letter of Credit") dated October _, 2003, issued by you in favor of us.
Any capitalized term used herein and not defined herein shall have its
respective meaning as set forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
(1) You have delivered to us notice that the Letter of Credit will
terminate prior to its stated expiry date of October _, 2008;
(2) Indiantown Cogeneration, L.P. has failed to deliver a
replacement or renewal letter of credit or other security reasonably acceptable
to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. and security is still required under the terms of
Section 12.6 of the Energy Services Agreement, dated as of the eighth day of
September, 1992, by and between ▇▇▇▇▇▇▇▇ Indiantown Citrus Co. and Indiantown
Cogeneration, L.P. (as the same has been and may be assigned, amended,
supplemented or modified from time to time); and
(3) The amount of this drawing request is $__________, which
amount (when added to all previous drawings under BNP Paribas Letter of Credit
No. [ ]) does not in the aggregate exceed $10,000,000.00.
You are directed to make payment of the requested drawing to account
no. ___________ at Bank One Trust Company, N.A., c/o Bank One, N.A. Global
Corporate Trust Services, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, [or insert name and address of successor escrow agent under the Security
Escrow Agreement] as escrow agent under the Security Escrow Agreement dated as
of September 30, 1992 among ▇▇▇▇▇▇▇▇ Indiantown Citrus Co., Indiantown
Cogeneration, L.P. and Credit Lyonnais (as the same has been and may be
assigned, amended, supplemented or modified from time to time, the "Security
Escrow Agreement").
A-8
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this _____ day of __________, _____.
▇▇▇▇▇ ▇▇▇▇▇▇▇ CITRUS INC.
By:________________________________
Name:
Title:
A-9
ANNEX 4
TRANSFER OF LETTER OF CREDIT
[Date]
BNP Paribas
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Attn: Letter of Credit Department
Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ] dated October _, 2003,
originally issued by you in favor of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Citrus Inc. (the "Letter of
Credit"). Any capitalized term used herein and not defined shall have its
respective meaning as set forth in the Letter of Credit.
For value received, the undersigned, as beneficiary under the Letter of Credit,
hereby irrevocably transfers to _______________ (the "Transferee") all rights of
the undersigned to draw under the Letter of Credit in their entirety.
By this transfer, all rights of the undersigned, as beneficiary under the Letter
of Credit, are transferred to the Transferee, and the Transferee shall have the
sole rights with respect to the Letter of Credit relating to any amendments
thereof and any notices thereunder. All amendments to the Letter of Credit are
to be consented to by the Transferee without necessity of any consent of or
notice to the undersigned.
Simultaneously with the delivery of this notice to you, copies of this notice
are being transmitted to the Transferee.
The Letter of Credit is returned herewith, and we ask you to endorse the
transfer on the reverse thereof, and forward it directly to the Transferee with
your customary notice of transfer.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇ CITRUS INC.
By:________________________________
Name:
Title:
A-10
Form of FPL QF Letter of Credit
BNP Paribas Letter of Credit No. [__________]
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Irrevocable Standby Credit
Attn: Letter of Credit Department
Date and Place of Issue: Date and Place of Expiry:
New York, New York BNP Paribas, New York, New York
__________ __, 200_ __________ __, 200_
Applicant:
Indiantown Cogeneration, L.P.
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Beneficiary: Initial Stated Amount: Up to an
Indiantown Cogeneration, L.P. aggregate of [If issued prior to
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ December 31, 2003: Three Million Five
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Hundred Thousand United States Dollars
(US$3,500,000.00)]
[If issued on or after December, 31,
2003: Four Million United States
Dollars (US$4,000,000)
Credit Available With:
BNP Paribas
By: Negotiation, Against
Presentation of the Documents
Detailed Herein and of Your
Draft(s) at Sight Drawn on
BNP Paribas
Ladies and Gentlemen:
We authorize you to draw on us for the account of Indiantown Cogeneration, L.P.
up to an aggregate amount of _______________________ UNITED STATES DOLLARS
(US$__________) (such amount, as increased from time to time as described below,
the "Stated Amount") available by draft(s) at sight drawn on BNP Paribas,
accompanied by a dated certificate manually signed by a purported authorized
officer of Indiantown Cogeneration, L.P. (who is identified as such) certifying
that:
A) "This drawing in the amount of US$__________ is being made pursuant to
BNP Paribas Letter of Credit No. [ ] issued to Indiantown Cogeneration,
L.P. pursuant to Section 21.2 of the Agreement for the Purchase of Firm
Capacity and Energy, dated as of March 31, 1990, by and between
Indiantown Cogeneration, L.P. and Florida Power & Light
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Company (as the same may be amended, supplemented or modified from time
to time, the "Power Purchase Agreement")";
B) "The Power Purchase Agreement has not been terminated";
[Use one or the other of the following forms of paragraph C]
C) "(i) Indiantown Cogeneration, L.P. has failed to maintain its status as
a "qualifying cogenerator" and the status of the Facility, as defined
in the Power Purchase Agreement, as a "qualifying cogeneration
facility" pursuant to regulations of the Federal Energy Regulatory
Commission and the Florida Public Service Commission, (ii) Florida
Power & Light Company has given BNP Paribas written notice thereof,
(iii) such condition continues to exist sixty (60) or more days after
the giving of such notice and (iv) the amount requested to be drawn
(when added to all previous drawings under BNP Paribas Letter of Credit
No. [ ]) does not in the aggregate exceed the lesser of (x)
Indiantown Cogeneration, L.P.'s good faith estimate of the amount
required to reinstate such "qualifying statuses" minus the aggregate
amount of application of all security and funds available to Indiantown
Cogeneration, L.P. for such reinstatement and (y) the current Stated
Amount";
or
C) "Indiantown Cogeneration, L.P. is making a drawing in the full
available amount of BNP Paribas Letter of Credit No. [ ] because the
term of such Letter of Credit will expire within thirty (30) business
days of the date of this certificate and Indiantown Cogeneration, L.P.
has failed to procure a replacement or renewal letter of credit or
other security reasonably acceptable to Florida Power & Light Company,
and security is still required under the terms of Section 21.2 of the
Power Purchase Agreement"; and
D) "You are directed to make payment of the requested drawing to our
account no. __________ at__________ [insert bank name and address]."
The above certificate and all communications with respect to this Letter of
Credit shall be in writing, addressed to us at BNP Paribas, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Letter of Credit Department, facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇, referencing this Letter of Credit No. [ ] and presented to us
by delivery in person or facsimile transmission at such address, provided that
the original of the above certificate or such communications, as the case may
be, shall be sent to us at such address by overnight courier for receipt by us
within two (2) Business Days of the date of any such facsimile transmission.
If any request for payment hereunder is presented in compliance with the terms
of this Letter of Credit to us at such address by 10:00 a.m. New York City time
on any Business Day, payment will be made on such day and if such request is so
presented to us after 10:00 a.m. New York City time on any Business Day, payment
will be made on the following Business Day.
As used in this Letter of Credit, "Business Day" means any day other than a
Saturday or Sunday or other day on which banks in New York, New York or Fort
Lauderdale, Florida are required or authorized to be closed.
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This Letter of Credit shall expire on the date of expiry set forth hereinabove.
Notwithstanding the foregoing, BNP Paribas may at any time terminate this Letter
of Credit by giving Indiantown Cogeneration, L.P. written notice thereof at
least forty-five (45) days prior to termination in the form of Annex 1 hereto,
whereupon Indiantown Cogeneration, L.P. or the Agent (as defined below) are
authorized to draw on us prior to such termination the then available amount of
this Letter of Credit by presentation to us, in the manner and at the address
specified in the third preceding paragraph of a drawing request appropriately
completed in the form of Annex 2 hereto and purportedly sent and signed by
Indiantown Cogeneration, L.P.'s or the Agent's authorized officer.
The Stated Amount of this Letter of Credit shall increase automatically and
without any action on the part of Indiantown Cogeneration, L.P., BNP Paribas, or
any other person or entity by five hundred thousand Dollars (US$500,000.00) on
December 31, 2003 and on December 21 of each year thereafter through and
including December 31, 2005. The Stated Amount shall in no event exceed five
million Dollars (US$5,000,000.00).
In the event that a drawing fails to comply with the terms of this BNP Paribas
Letter of Credit No. ___, BNP Paribas shall provide Indiantown Cogeneration,
L.P. prompt notice of the same stating the reasons therefor and shall, upon your
instructions, hold any non-confirming drawing request and other documents at
your disposal or return any non-confirming drawing request and other documents
to Indiantown Cogeneration, L.P. at the address set forth above by delivery in
person or facsimile transmission (with originals thereof sent by overnight
courier for receipt within two (2) Business Days). Upon being notified that the
drawing was not effected in compliance with this BNP Paribas Letter of Credit
No. _____ Indiantown Cogeneration, L.P. may attempt to correct such
non-complying drawing request in accordance with the terms of this Letter of
Credit.
This Letter of Credit sets forth in full the terms of our undertaking and this
undertaking shall not in any way be modified, amended, limited or amplified by
reference to any document, instrument or agreement referred to herein, except
only the certificates and drafts referred to herein; and any such reference
shall not be deemed to incorporate herein by reference any document, instrument,
or agreement except for such certificates and drafts.
Only Indiantown Cogeneration, L.P. or the Agent (the "Agent") under the Letter
of Credit and Reimbursement Agreement, dated as of October 10, 2003, among
Indiantown Cogeneration, L.P., as Borrower, BNP Paribas and certain other
financial institutions, as Banks, and Credit Lyonnais New York Branch, as Agent
(as the same may be amended, supplemented or modified from time to time, the
"LOC Agreement"), may make a drawing under this Letter of Credit. This Letter of
Credit is not transferable without BNP Paribas's prior written consent, other
than to the Agent.
Partial drawings under this Letter of Credit are allowed and each such partial
drawing shall reduce the amount thereafter available hereunder for drawings
under this Letter of Credit. The Stated Amount of this Letter of Credit shall be
reinstated as provided in Section 2.7(c) of the LOC Agreement.
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All banking charges, including any advising and negotiating bank charges, are
for the account of Indiantown Cogeneration, L.P.
Drafts drawn under this Letter of Credit must bear the clause:
"Drawn under BNP Paribas Letter of Credit Number [ ] dated _____ _,
20__."
This BNP Paribas Letter of Credit No. ____ shall not be amended except with the
written concurrence of BNP Paribas and Indiantown Cogeneration, L.P.
We hereby engage with you that drafts drawn strictly in compliance with the
terms of this Letter of Credit and amendments shall meet with due honor upon
presentation. This Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 revisions), International Chamber of
Commerce Publication Number 500.
BNP PARIBAS
______________________
Authorized Signature
______________________
Authorized Signature
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▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ OF LETTER OF CREDIT
[Date]
Indiantown Cogeneration, L.P.
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Attention: [ ]
Ladies and Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ] (the
"Letter of Credit") dated _______ _, 20__, issued by us in your favor.
This constitutes our notice to you pursuant to the Letter of Credit
that the Letter of Credit shall terminate on __________, _____ [insert a date
which is 45 or more days after the date of this notice of termination].
Very truly yours,
BNP PARIBAS
By __________________________________
By __________________________________
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Letter of Credit Number [ ]
dated ________ _, 20__."
DRAWING REQUEST UPON EARLY TERMINATION
OF LETTER OF CREDIT
[Date]
BNP Paribas
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Attn: Letter of Credit Department
Ladies and Gentlemen:
The undersigned hereby draws on BNP Paribas Letter of Credit No. [ ]
(the "Letter of Credit") dated ________ _, 20__, issued by you in favor of us.
Capitalized terms used herein without definition have the meaning ascribed
thereto in the Letter of Credit.
In connection with this drawing, we hereby certify that:
(1) You have delivered to us notice that the Letter of Credit will
terminate prior to its stated expiry date of [insert Maturity Date].
(2) The amount of this drawing request is $__________, which
amount (when added to all previous drawings under the Letter of Credit) does not
in the aggregate exceed the current Stated Amount.
You are directed to make payment of the requested drawing to Account
No. _______ at ________________.
IN ,WITNESS WHEREOF, the undersigned has executed and delivered this
request on this _____ day of __________, _____.
INDIANTOWN COGENERATION, L.P.
By __________________________________
Title:
A-16
EXHIBIT B
LETTER OF CREDIT PROMISSORY NOTE
$[__________] New York, New York
October _, 2003
FOR VALUE RECEIVED, the undersigned, INDIANTOWN COGENERATION, L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of [_________________] (the "Bank") the lesser of (i) the
principal sum of [__________________________] Dollars ($[__________]) and (ii)
the aggregate unpaid principal amount of the Loans made by the Bank to the
Borrower under the Letter of Credit Agreement referred to below, on the dates
and in the amounts specified therein.
The Borrower further promises to pay interest on the daily unpaid
principal amount hereof from time to time outstanding on the dates and at the
rates specified in the Letter of Credit Agreement. This Note is hereby expressly
limited so that in no contingency or event, whether by reason of acceleration of
the maturity of any indebtedness evidenced hereby or otherwise, shall the
interest contracted for or charged or received by the Bank exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Bank in excess of the maximum lawful
amount, the interest payable to the Bank shall be reduced to the maximum amount
permitted under applicable law, and the amount of interest for any subsequent
period, to the extent less than that permitted by applicable law, shall to that
extent be increased by the amount of such reduction.
Each holder hereof is irrevocably authorized to endorse on the schedule
attached hereto, or on a continuation thereof, the date each such interest
payment is due and the amount of each such interest payment determined in
accordance with the Credit Agreement. Absent manifest error, all such notations
shall constitute prima facie evidence of the accuracy of the information so
recorded and be enforceable against the Borrower with the same force and effect
as if such amounts were each set forth in a separate note executed by the
Borrower.
All payments due hereunder shall be made without setoff, counterclaim
or deduction of any nature to Credit Lyonnais New York Branch, as Agent, at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, in Dollars and in immediately
available funds, or at such other place and in such other manner as may be
specified by the Agent pursuant to the Letter of Credit Agreement.
Each holder hereof is irrevocably authorized to endorse on the schedule
attached hereto, or on a continuation thereof, the date and amount of each Loan
made to the Borrower and each payment or prepayment of principal thereof,
provided that the failure of such holder to make, or any error in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Letter of Credit Agreement. Absent manifest error, all
such notations shall constitute prima facie evidence of the accuracy of the
information so recorded and be enforceable against the Borrower with the same
force and effect as if such amounts were each set forth in a separate note
executed by the Borrower.
B-1
This Note is the "Note" of the Borrower to the Bank referred to in,
evidences each Loan made by the Bank to the Borrower under, is subject to the
provisions of, and entitles its holder to the benefits of, the Letter of Credit
and Reimbursement Agreement dated as of October 10, 2003 (the "Letter of Credit
Agreement") among the Borrower, the Bank and the other banks party thereto from
time to time, and Credit Lyonnais New York Branch, as agent for the Bank and
such other banks, as the same may be amended, supplemented or otherwise modified
from time to time and to which reference is hereby made for a more complete
statement of the terms and conditions under which each Loan evidenced hereby is
to be made and repaid. Capitalized terms in this Note that are not specifically
defined herein shall have the meanings ascribed to them in the Letter of Credit
Agreement.
The Letter of Credit Agreement provides for, among other things, the
acceleration of the maturity of the unpaid principal amount hereof upon the
occurrence of certain stated events and for voluntary and mandatory prepayments
in certain circumstances and upon certain terms and conditions. The obligations
of the Borrower under the Letter of Credit Agreement and this Note are secured
by, and the holder hereof is entitled to the benefit of, the Security Documents.
In addition to any and all costs, fees and expenses for which the
Borrower is liable under the Letter of Credit Agreement, the Borrower promises
to pay all costs and expenses, including reasonable attorneys' fees and
disbursements, incurred in the collection and enforcement hereof or any appeal
of any judgment rendered hereon.
The Borrower hereby expressly waives diligence, presentment, protest,
demand, dishonor, nonpayment and notice of every kind to the fullest extent
permitted by applicable law. No failure or delay by any holder of this Note to
exercise any right or remedy under this Note or any other document or instrument
entered into pursuant to the Letter of Credit Agreement shall operate or be
construed as a waiver or modification hereof or thereof.
This Note shall be binding upon the successors and assigns of the
Borrower and shall inure to the Bank and its successors, endorsees and assigns.
If any term or provision of this Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof shall in no
way be affected thereby.
Recourse under this Note is limited in accordance with Section 9.7 of
the Letter of Credit Agreement, and the provisions of said Section 9.7 are
incorporated herein by reference.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS
THEREOF THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
The Borrower hereby expressly and irrevocably agrees and consents that
any suit, action or proceeding arising out of or related to this Note may be
instituted in any state or federal court (at Bank's option) sitting in the
County of New York, State of New York, and, by the execution and delivery of
this Note, the Borrower expressly waives any objection which it may have now or
hereafter to the venue or to the jurisdiction of any such suit, action or
proceeding, and irrevocably
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submits generally and unconditionally to the jurisdiction of any such court in
any such suit, action or proceeding.
All excise tax due on this Note has been paid by the Borrower and
proper stamps affixed to the Mortgage securing this Note.
INDIANTOWN COGENERATION, L.P.
By:__________________________________
Name:_____________________________
Title:____________________________
B-3
SCHEDULE
Amount of Date
Principal Principal Unpaid Interest Total Principal
Date Amount of Paid or Principal Payment is Amount of Amount of Loans Notation
Made Loan Prepaid Balance Due Interest Due Outstanding Made By
B-4
EXHIBIT C
Form of Commitment Transfer Supplement
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among each Transferor Bank set forth in Item 2 of
Schedule I hereto (each, a "Transferor Bank"), each Purchasing Bank set forth in
Item 3 of Schedule I hereto (each, a "Purchasing Bank"), BNP PARIBAS, as Initial
Bank, and CREDIT LYONNAIS NEW YORK BRANCH, as Agent under the Letter of Credit
Agreement described below.
W I T N E S S E T H:
WHEREAS, this Commitment Transfer Supplement is being executed and
delivered in accordance with Section 9.9 of the Letter of Credit and
Reimbursement Agreement, dated as of October 10, 2003, by and among (i)
Indiantown Cogeneration, L.P., a Delaware limited partnership (the "Borrower"),
(ii) BNP Paribas, in its individual capacity as initial bank (the "Initial
Bank"), and the other Banks party thereto from time to time (collectively, the
"Banks"), and (iii) Credit Lyonnais New York Branch, as agent for the Banks (the
"Agent") (as from time to time amended, supplemented or otherwise modified in
accordance with the terms thereof, the "Letter of Credit Agreement"; terms
defined therein being used herein as therein defined); and
WHEREAS, each Purchasing Bank (if it is not already a Bank party to the
Letter of Credit Agreement) desires to become a Bank party to the Letter of
Credit Agreement; and
WHEREAS, each Transferor Bank is selling and assigning to its
respective Purchasing Bank, certain rights, obligations and commitments under
the Letter of Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of [ ] ([ ]) fully executed
originals of this Commitment Transfer Supplement, to each of which is attached a
fully completed Schedule I, Schedule II and Schedule III, and each of which has
been executed by each Transferor Bank, each Purchasing Bank and any other Person
required by the Letter of Credit Agreement to execute this Commitment Transfer
Supplement, the Agent will transmit to the Borrower, each Transferor Bank and
each Purchasing Bank a Transfer Effective Notice, substantially in the form of
Schedule IV hereto (a "Transfer Effective Notice"). Such Transfer Effective
Notice shall set forth, inter alia, the date on which the transfer effected by
this Commitment Transfer Supplement shall become effective (the "Transfer
Effective Date"), which date shall be the date hereof. From and after the
Transfer Effective Date each Purchasing Bank shall be a Bank party to the Letter
of Credit Agreement for all purposes thereof.
2. Each Purchasing Bank shall pay to each of its respective
Transferor Banks an amount equal to the purchase price, as agreed between such
Transferor Bank and each such Purchasing Bank and set forth on Schedule II
hereto (the "Purchase Price"), of the portion being purchased (such Purchasing
Bank's "Purchased Percentage") by such Purchasing Bank of the outstanding
Commitments and Loans and other amounts owing to the respective Transferor Bank
under the Letter of Credit Agreement and the Notes (the "Outstanding
Obligations"). Each Purchasing Bank shall pay the appropriate Purchase Price to
each of its respective Transferor
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Banks, in immediately available funds, at or before 12:00 noon, local time of
the appropriate Transferor Bank, on the Transfer Effective Date. Effective upon
the Transfer Effective Date, each Transferor Bank hereby irrevocably sells,
assigns and transfers to each of its respective Purchasing Banks, without
recourse, representation or warranty other than as set forth in Section 8
hereof, and each such Purchasing Bank hereby irrevocably purchases, takes and
assumes from each of its respective Transferor Banks, such Purchasing Bank's
Purchased Percentage of the Commitment, presently outstanding Loans and other
amounts owing to each such Transferor Bank under the Letter of Credit Agreement
and the Notes, together with all instruments, documents and collateral security
pertaining thereto.
3. Each Transferor Bank has made arrangements with each of its
respective Purchasing Banks with respect to (a) the portion, if any, to be paid,
and the date or dates for payment, by such Transferor Bank to each of its
respective Purchasing Banks of any fees heretofore received by such Transferor
Bank pursuant to the Letter of Credit Agreement prior to the Transfer Effective
Date and (b) the portion, if any, to be paid, and the date or dates for payment,
by each such Purchasing Bank to each Transferor Bank of fees or interest
received by each such Purchasing Bank pursuant to the Letter of Credit Agreement
from and after the Transfer Effective Date.
4. (a) All principal payments that would otherwise be
payable from and after the Transfer Effective Date to or for the account of any
Transferor Bank pursuant to the Letter of Credit Agreement and the Notes shall,
instead, be payable to or for the account of the appropriate Transferor Banks
and the appropriate Purchasing Banks, as the case may be, in accordance with
their respective interests as reflected in this Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would
otherwise accrue for the account of any Transferor Bank from and after the
Transfer Effective Date pursuant to the Letter of Credit Agreement and the Notes
shall, instead, accrue for the account of, and be payable to, the appropriate
Transferor Banks and the appropriate Purchasing Banks, as the case may be, in
accordance with their respective interests as reflected in this Commitment
Transfer Supplement. In the event that any amount of interest, fees, or other
amounts accruing prior to the Transfer Effective Date was included in the
Purchase Price paid by any Purchasing Bank, the appropriate Transferor Bank and
such Purchasing Bank will make appropriate arrangements for payment by such
Transferor Bank to such Purchasing Bank of such amount upon receipt thereof from
the Borrower.
5. On or prior to the Transfer Effective Date, each Transferor
Bank will deliver to the Agent its Note[s]. On or prior to the Transfer
Effective Date, if requested by any Transferor Bank or Purchasing Bank, the
Borrower will deliver to the Agent new Notes for such Purchasing Bank or
Transferor Bank, in each case in principal amounts reflecting, in accordance
with the Letter of Credit Agreement, their respective "Revised Commitment
Percentage" or "New Commitment Percentage", as the case may be and as set forth
in Schedule III hereto, of the Commitment or, as appropriate, their then
outstanding shares of the Outstanding Obligations (as adjusted pursuant to this
Commitment Transfer Supplement). Promptly after the Transfer Effective Date, the
Agent will send to each requesting Transferor Bank and Purchasing Bank its new
Notes[s] with the superseded Note[s] of each Transferor Bank attached to the new
Note[s]
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(or if more than one new Note[s], the superseded Note[s] attached to one of such
new Note[s] and copies thereof attached to all other new Note[s]).
6. Concurrently with the execution and delivery hereof, the
Transferor Banks will provide to each Purchasing Bank (if it is not already a
Bank party to the Letter of Credit Agreement) copies of all documents delivered
to the Transferor Banks evidencing satisfaction of the conditions precedent set
forth in the Letter of Credit Agreement.
7. Each of the parties to this Commitment Transfer Supplement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, each Transferor Bank and each of its respective Purchasing Banks
confirm to and agree with each other, the Agent, the Initial Bank and the Banks
as follows: (a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, each such Transferor Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Letter of Credit Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Letter of Credit Agreement, the Notes or any other instrument or
document furnished pursuant thereto, (b) each such Transferor Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Letter of Credit Agreement, the
Notes or any other instrument or document furnished pursuant hereto, (c) each
such Purchasing Bank confirms that it has received a copy of the Letter of
Credit Agreement, together with copies of such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Commitment Transfer Supplement, (d) each such Purchasing Bank
will, independently and without reliance upon the Agent, its respective
Transferor Banks or any other Bank or the Initial Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Letter of
Credit Agreement, (e) each such Purchasing Bank appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Letter of Credit Agreement as are delegated to the Agent by the terms
thereof together with such powers as are reasonably incidental thereto and (f)
each such Purchasing Bank agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Letter of Credit
Agreement are required to be performed by it as a Bank.
9. Schedule III hereto sets forth for each Transferor Bank and
each Purchasing Bank the revised Commitment, and/or Commitment Percentage, as
the case may be, of each Transferor Bank and each Purchasing Bank, as well as
certain administrative information with respect to each Purchasing Bank.
10. Notwithstanding anything to the contrary in this Commitment
Transfer Supplement, if the long-term debt rating of any Purchasing Bank shall,
at any time, be less than a rating of A or the equivalent thereof by S&P or A2
or the equivalent thereof by ▇▇▇▇▇'▇, then
C-3
the Initial Bank may, in its sole and absolute discretion, purchase all or any
part (as designated by the Initial Bank) of such Purchasing Bank's participating
interest hereunder (the "Purchased Interests") (which, if in part, may be
limited to the Purchasing Bank's participating interest in the rights and
obligations of the Initial Bank under, and in connection with, one or more
Letters of Credit, including, without limitation, the obligations to pay the
Initial Bank if it is not reimbursed by the Borrower in immediately available
funds for any drawings under such Letters of Credit and to make certain loans,
if any, provided to be made under the Letter of Credit Agreement in the event of
certain drawings under such Letters of Credit, all in accordance with the Letter
of Credit Agreement) by providing such Purchasing Bank with at least two Banking
Days' prior notice of such purchase and making a payment to such Purchasing Bank
for all outstanding amounts owing to it hereunder or pursuant to the Letter of
Credit Agreement in respect of the Purchased Interests on the date of such
purchase as set forth in such notice. Upon any such purchase of all of a
Purchasing Bank's participating interest hereunder, such Purchasing Bank shall
no longer have any rights or obligations as a Purchasing Bank hereunder or as a
Bank under the Letter of Credit Agreement or under any other instruments or
documents furnished pursuant thereto. The Initial Bank may, in its sole and
absolute discretion, retain for its own account and/or sell its interest in all
or any portion of the Purchased Interests.
11. THIS COMMITMENT TRANSFER SUPPLEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS THEREOF
THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
12. This Commitment Transfer Supplement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
13. Execution of this Commitment Transfer Supplement by the Agent
and the Borrower as set forth below shall constitute any consent of such Person
required pursuant to Section 9.9 of the Letter of Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
C-4
SCHEDULE I
TO COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Re: Letter of Credit and Reimbursement Agreement, dated as
of October 10, 2003, with Indiantown Cogeneration, L.P.,
as Borrower.
Item 1 Date of Commitment [Insert date of Commitment
Transfer Supplement: Transfer Supplement]
Item 2 Transferor Banks: [Insert names of Transferor
Banks]
Item 3 Purchasing Banks: [Insert names of Purchasing
Banks]
Item 4 Signature of Parties to
Commitment Transfer
Supplement
____________________, as a
Transferor Bank
By:______________________
Name:
Title:
____________________, as a
Purchasing Bank
By:______________________
Name:
Title:
C-5
SCHEDULE I
(Continued)
BNP PARIBAS, as the Initial Bank
By:______________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
Agent
By:______________________
Name:
Title:
By:______________________
Name:
Title:
C-6
SCHEDULE I
(Continued)
CONSENTED TO AND ACKNOWLEDGED:
INDIANTOWN COGENERATION, L.P.
By:_________________________
Name:
Title:
ACCEPTED FOR RECORDATION IN REGISTER:
CREDIT LYONNAIS NEW YORK BRANCH, as Agent
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
C-7
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
PURCHASE PRICES
Names of
Transferor Banks
Name of
Purchasing [Insert name of [Insert name of [Insert name of
Banks Transferor Bank] Transferor Bank] Transferor Bank]
--------------------------------------------------------------------------------------------------------------------
[Insert name of Purchasing Bank] $[Insert Purchase Price] $[Insert Purchase Price] $[Insert Purchase Price]
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
C-8
SCHEDULE III
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES FOR NOTICES,
COMMITMENT AMOUNTS. AND PROPORTIONATE SHARES
Names of Transferor Banks Revised Maximum Commitment
----------------------------------------------------------------
[ ] $
----------------------------------------------------------------
[ ] $
----------------------------------------------------------------
----------------------------------------------------------------
Revised
Names of Transferor Banks Commitment Percentage
----------------------------------------------------------------
[ ] %
----------------------------------------------------------------
[ ] %
----------------------------------------------------------------
----------------------------------------------------------------
New Maximum
Names of Purchasing Banks Commitment
----------------------------------------------------------------
[ ] $
----------------------------------------------------------------
----------------------------------------------------------------
Commitment
Names of Purchasing Banks Percentage
----------------------------------------------------------------
[ ] %
----------------------------------------------------------------
C-9
SCHEDULE III
(Continued)
[NAME PURCHASING BANK(S)]
Address for Notices:
Attention:
Telex:
Answerback:
Telephone:
Facsimile:
Clearing Account:
[Insert Acct. #]
Domestic Lending Office:
[Insert Address]
C-10
SCHEDULE III
TO COMMITMENT
TRANSFER
SUPPLEMENT
TRANSFER EFFECTIVE NOTICE
__________, 20__
Transferor Banks: [ ]
Purchasing Banks: [ ]
Borrower: Indiantown Cogeneration, L.P.
The undersigned, as Agent under the Letter of Credit and Reimbursement
Agreement, dated as of October 10, 2003 by and among (i) Indiantown
Cogeneration, L.P., a Delaware limited partnership (the "Borrower"), (ii) BNP
Paribas, as initial bank (the "Initial Bank"), and the other Banks party thereto
from time to time (collectively, the "Banks"), and (iii) Credit Lyonnais New
York Branch, as agent for the Banks ("Agent") (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Letter of Credit Agreement") acknowledges receipt of [ ] ([ ]) copies of the
Commitment Transfer Supplement as described in Annex I hereto, each fully
executed. Terms defined in such Commitment Transfer Supplement are used herein
as therein defined.
1. Pursuant to such Commitment Transfer Supplement, you are
advised that the Transfer Effective Date will be the date hereof.
2. Pursuant to such Commitment Transfer Supplement, each
Transferor Bank is required to deliver to the Agent on or before the Transfer
Effective Date its Note[s].
3. Pursuant to such Commitment Transfer Supplement, the Borrower
is required to deliver to the Agent on or before the Transfer Effective Date the
following Notes:
[Describe each new Note for Transferor Bank and Purchasing Bank as to principal
amount and payee.]
C-11
SCHEDULE III
(Continued)
4. Pursuant to such Commitment Transfer Supplement each
Purchasing Bank is required to pay its Purchase Price, in immediately available
funds, to the appropriate Transferor Bank at or before 12:00 noon, local time of
the appropriate Transferor Bank, on the Transfer Effective Date.
Very truly yours,
CREDIT LYONNAIS NEW YORK BRANCH, as
Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
C-12
ANNEX I
INFORMATION FOR
COMMITMENT TRANSFER SUPPLEMENT
Re: Letter of Credit and Reimbursement Agreement, dated as
of October 10, 2003, with Indiantown Cogeneration, L.P.,
as Borrower
Item 1 Date of Commitment
Transfer Supplement ______________, 20__
Item 2 Transferor Banks: [ ]
Item 3 Purchasing Banks: [ ]
C-13
EXHIBIT D
AMORTIZATION SCHEDULE
The principal amount of each Loan shall be due and payable in fourteen
(14) semiannual installments on consecutive Interest Payment Dates, commencing
on the first such Interest Payment Date to occur after the date on which such
Loan was made. The amount of principal payable on each such Interest Payment
Date shall be equal to the amount of the principal component only of a
mortgage-style amortization schedule based on the foregoing payment schedule and
maturity and assuming (i) a fixed per annum interest rate equal to the interest
rate applicable to such Loan on the date such Loan was made and (ii) levelized
payments of principal and interest.
D-1
EXHIBIT E
EXEMPTION CERTIFICATE
Reference is made to the Letter of Credit and Reimbursement
Agreement dated as of October 10, 2003 among Indiantown Cogeneration, L.P. (the
"Borrower"), the Banks party thereto from time to time and Credit Lyonnais New
York Branch, as Agent (the "Reimbursement Agreement"). Capitalized terms used
herein that are not defined herein shall have the meanings ascribed to them in
the Reimbursement Agreement.
______________________ (the "Non-U.S. Lender") is providing
this certificate pursuant to Section 2.17(e) of the Reimbursement Agreement. The
Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank
for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application
made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
E-1
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the date set forth below.
[NAME OF NON-U.S. LENDER]
By: __________________________________
Name:
Title:
Date: ____________________
E-2