EXHIBIT 10.1.4
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CREDIT AGREEMENT
dated as of
December 31, 2002
among
ORMESA LLC,
as Borrower
UNITED CAPITAL,
a division of ▇▇▇▇▇▇ United Bank,
as Administrative Agent and Collateral Agent
and
The Lenders party to this Agreement
from time to time
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETIVE MATTERS...................................................................1
1.01 Certain Defined Terms..........................................................................1
1.02 Classes and Types of Loans.....................................................................1
1.03 Rules of Interpretation........................................................................1
1.04 Accounting Terms...............................................................................3
ARTICLE II COMMITMENTS...........................................................................................4
2.01 Loans..........................................................................................4
2.02 Borrowings.....................................................................................5
2.03 Reduction of Commitments.......................................................................6
2.04 Fees...........................................................................................6
2.05 Lending Offices................................................................................7
2.06 Several Obligations; Remedies Independent......................................................7
2.07 Notes..........................................................................................7
ARTICLE III PAYMENTS OF PRINCIPAL AND INTEREST...................................................................9
3.01 Repayment of Loans.............................................................................9
3.02 Interest......................................................................................10
3.03 Optional Prepayments..........................................................................12
3.04 Mandatory Prepayments; Etc....................................................................12
3.05 Prepayment Mechanics..........................................................................13
ARTICLE IV PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC......................................................14
4.01 Payments......................................................................................14
4.02 Pro Rata Treatment............................................................................16
4.03 Computations..................................................................................16
4.04 Minimum Amounts...............................................................................16
4.05 Notices.......................................................................................17
4.06 Non-Receipt of Funds by the Administrative Agent..............................................18
4.07 Sharing of Payments; Etc......................................................................18
ARTICLE V YIELD PROTECTION; ETC.................................................................................20
5.01 Additional Costs..............................................................................20
5.02 Limitation on Eurodollar Loans................................................................22
5.03 Illegality....................................................................................23
5.04 Treatment of Affected Loans...................................................................23
5.05 Compensation..................................................................................24
5.06 Taxes.........................................................................................24
5.07 Mitigation Obligations; Prepayments; Replacement of Lenders...................................27
ARTICLE VI CONDITIONS PRECEDENT.................................................................................29
6.01 Initial Term Loans............................................................................29
6.02 Additional Term Loans.........................................................................37
ARTICLE VII REPRESENTATIONS AND WARRANTIES......................................................................39
7.01 Existence.....................................................................................39
7.02 Financial Condition...........................................................................39
7.03 Action........................................................................................40
7.04 No Breach.....................................................................................41
7.05 Government Approvals; Government Rules........................................................41
7.06 Proceedings...................................................................................42
7.07 Environmental Matters.........................................................................43
7.08 Taxes.........................................................................................43
7.09 Tax Status....................................................................................44
7.10 ERISA.........................................................................................44
7.11 Nature of Business............................................................................44
7.12 Title; Security Documents.....................................................................44
7.13 Subsidiaries..................................................................................45
7.14 Utility Regulation............................................................................46
7.15 Financing Documents; Project Documents; Non-Material Project Contracts; Licenses, Etc.........46
7.16 Utility Services..............................................................................48
7.17 Disclosure....................................................................................48
7.18 Use of Proceeds...............................................................................48
7.19 Fees..........................................................................................48
7.20 Indebtedness..................................................................................49
7.21 Investments...................................................................................49
7.22 No Force Majeure..............................................................................49
7.23 Assets........................................................................................49
ARTICLE VIII COVENANTS..........................................................................................49
8.01 Financial Statements and Other Information....................................................49
8.02 Maintenance of Existence; Etc.................................................................51
8.03 Compliance with Government Rules; Etc.........................................................52
8.04 Environmental Compliance......................................................................52
8.05 Insurance; Events of Loss.....................................................................53
8.06 Proceedings...................................................................................57
8.07 Taxes.........................................................................................57
8.08 Books and Records.............................................................................57
8.09 Use of Proceeds...............................................................................57
8.10 Maintenance of Liens..........................................................................57
8.11 [Intentionally Omitted].......................................................................58
8.12 Prohibition of Fundamental Changes............................................................58
8.13 Restricted Payments...........................................................................58
8.14 Liens.........................................................................................59
8.15 Investments...................................................................................59
8.16 Hedging Arrangements..........................................................................59
8.17 Indebtedness..................................................................................60
8.18 Transactions with Affiliates..................................................................60
8.19 Nature of Business............................................................................60
8.20 Maintenance of Properties.....................................................................60
8.21 [Intentionally Omitted].......................................................................61
8.22 Project Documents; Etc........................................................................61
8.23 Annual Operating Plans and Budgets; Operating Statements......................................63
8.24 Speculative Activities........................................................................66
8.25 Status........................................................................................67
8.26 Updated Surveys and Title Policy Following Upgrade Project....................................67
8.27 Accounts......................................................................................68
8.28 No Subsidiaries...............................................................................68
8.29 SCE Consent...................................................................................68
ARTICLE IX EVENTS OF DEFAULT....................................................................................68
9.01 Events of Default.............................................................................68
9.02 Rights upon an Event of Default...............................................................73
ARTICLE X THE AGENTS............................................................................................73
10.01 Appointment, Powers and Immunities............................................................73
10.02 Reliance by Agents............................................................................75
10.03 Defaults......................................................................................75
10.04 Rights as a Lender............................................................................76
10.05 Indemnification...............................................................................76
10.06 Non-Reliance on Agents and Other Lenders......................................................76
10.07 Failure to Act................................................................................77
10.08 Resignation or Removal of Agents..............................................................77
10.09 Consents......................................................................................78
10.10 Collateral Agent..............................................................................78
ARTICLE XI MISCELLANEOUS........................................................................................79
11.01 Waiver........................................................................................79
11.02 Notices.......................................................................................79
11.03 Expenses; Etc.................................................................................79
11.04 Amendments; Etc...............................................................................82
11.05 Successors and Assigns........................................................................83
11.06 Assignments and Participations................................................................83
11.07 Marshalling; Recapture........................................................................85
11.08 Confidentiality...............................................................................85
11.09 Non-Recourse..................................................................................86
11.10 Survival......................................................................................87
11.11 Counterparts; Integration; Effectiveness......................................................87
11.12 NO THIRD PARTY BENEFICIARIES IN RELATION TO DISBURSEMENTS.....................................87
11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION, ETC................................................88
11.14 WAIVER OF JURY TRIAL..........................................................................88
11.15 SPECIAL EXCULPATION...........................................................................88
11.16 Service of Process............................................................................89
11.17 Service of Process............................................................................89
11.18 Severability..................................................................................89
SCHEDULES
SCHEDULE I Definitions
SCHEDULE II Applicable Lending Offices
SCHEDULE III Commitments
SCHEDULE IV Insurance
SCHEDULE V Filing Jurisdictions
SCHEDULE VI Government Approvals
SCHEDULE VII Deferred Government Approvals
SCHEDULE VIII Environmental Claims
SCHEDULE IX Upgrade Acceptance Test Parameters
EXHIBITS
EXHIBIT A-1 Form of Initial Term Loan Note
EXHIBIT A-2 Form of Additional Term Loan Note
EXHIBIT B-1 Form of Borrower Security Agreement
EXHIBIT B-2 Form of Borrower Equity Interest Pledge
EXHIBIT C Form of Depositary Agreement
EXHIBIT D Form of Notice of Borrowing
EXHIBIT E Form of Conversion/Continuation Notice
EXHIBIT F Form of Distribution Certificate
CREDIT AGREEMENT (this "AGREEMENT") dated as of December 31, 2002 among
ORMESA LLC, a limited liability company duly formed and validly existing under
the laws of the State of Delaware (the "BORROWER"), each of the lenders that is
a signatory hereto or which, pursuant to Section 11.06(b), shall become a
"Lender" hereunder (individually, a "LENDER" and, collectively, the "LENDERS"),
UNITED CAPITAL, a division of ▇▇▇▇▇▇ United Bank, a New Jersey banking
corporation ("UNITED"), not in its individual capacity, but solely as
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT"), and UNITED, not in its individual capacity, but solely as collateral
agent for the benefit of the Secured Parties (in such capacity, the "COLLATERAL
AGENT").
WHEREAS, the Borrower directly owns 100% of the assets comprising each
Project and has requested that the Lenders make Loans to it in an aggregate
principal amount not exceeding $27,500,000 in order to enable the Borrower to:
(a) fund the Debt Service Reserve Account as provided herein; (b) fund certain
of its working capital needs in connection with the operation of each Project;
(c) pay costs associated with the transactions contemplated by the Financing
Documents; and (d) make a distribution to the Sponsor;
WHEREAS, the Lenders are prepared to make the Loans upon the terms and
conditions hereof;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETIVE MATTERS
1.01 CERTAIN DEFINED TERMS. Unless otherwise specified herein, capitalized
terms used in this Agreement shall have the meanings assigned to such
terms in Schedule I. Capitalized terms and other terms used in this
Agreement shall be interpreted in accordance with Sections 1.02, 1.03 and
1.04, as applicable.
1.02 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished by "Class"
and by "Type". The "CLASS" of a Loan refers to whether such Loan is an
Initial Term Loan or an Additional Term Loan, each of which constitutes a
Class of Loans. Commitments to make Loans and Notes evidencing Loans may
be correspondingly referred to hereunder by the Class of Loan to which
such Commitment or Note, as applicable, relates. The "TYPE" of a Loan
refers to whether such Loan is a Prime Rate Loan or a Eurodollar Loan,
each of which constitutes a Type of Loan. Loans may be identified by both
Class and Type.
1.03 RULES OF INTERPRETATION. Unless the context of this Agreement otherwise
requires:
(a) words of any gender include each other gender;
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(b) words using the singular or plural form also include the plural or
singular form, respectively;
(c) any reference to any Person in any capacity includes a reference
to its successors and assigns in such capacity to the extent such
succession or assignment is permitted or not prohibited hereunder
and, in the case of any Government Authority, any Person
succeeding to its functions and capacities;
(d) the terms "hereof", "herein", "hereby", "hereto" and similar words
refer to this entire Agreement and not any particular Section,
Schedule, Exhibit or other subdivision of this Agreement;
(e) references to "Section", "Schedule" or "Exhibit" are to such
subdivisions contained in or annexed to this Agreement;
(f) the words "include" and "including" shall be deemed to be followed
by "without limitation" or "but not limited to", whether or not
they are followed by such phrases or words of like import;
(g) references to any statute or statutory provision shall be
construed as a reference to the same as it may have been, or may
from time to time be, amended, modified or re-enacted;
(h) references to any agreement or document (including this Agreement)
shall (unless otherwise expressly provided) be construed as a
reference to such agreement or document as amended, modified,
novated or supplemented (to the extent such amendment,
modification, novation or supplement is permitted or not
prohibited by the terms of such agreement or document, this
Agreement and any other Financing Document) and in effect from
time to time and shall (unless otherwise expressly provided)
include a reference to any document that amends, modifies, novates
or supplements it, or is entered into, made or given pursuant to
or in accordance with its terms;
(i) "this Agreement" and words of similar import shall mean this
Agreement, together with all Schedules and Exhibits;
(j) the headings and table of contents contained in this Agreement are
inserted for convenience of reference only and shall not affect
the interpretation of this Agreement;
(k) references to days shall refer to calendar days, unless Business
Days are expressly specified; references to weeks, months or years
shall be to calendar weeks, months or years, respectively, unless
expressly specified otherwise; and
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(l) to the extent capitalized terms used in this Agreement are defined
by reference to any other Transaction Document (or by reference in
such Transaction Document to any other Transaction Document), for
purposes of this Agreement, such terms shall continue to have
their original definitions notwithstanding any termination or
expiration of such agreements, except to the extent the parties
hereto agree to the contrary.
1.04 ACCOUNTING TERMS.
(a) Accounting Principles, Etc. Except as otherwise expressly provided
in this Agreement, all accounting terms used herein or in any
other Financing Document shall be interpreted, and all financial
statements, certificates and reports as to financial accounting
matters required to be delivered hereunder or thereunder, shall
(unless otherwise notified as provided in Section 1.04(b)) be
prepared or made in accordance with the Accounting Principles of
the relevant Person to which such terms, financial statements,
certificates and/or reports relate, applied on a basis consistent
with those used in the preparation of the latest financial
statements of such Person furnished hereunder or thereunder, as
the case may be, except for such changes as are required by such
Accounting Principles.
(b) Accounting Variations. In respect of any relevant period, the
Borrower shall, except to the extent already required by the
relevant Accounting Principles, deliver (or cause the relevant
other Person to deliver) to the Administrative Agent, at the same
time as the delivery of any financial statement for that period
under Section 8.01, a description in reasonable detail of any
material variation (and the consequence thereof) between the
application of the Accounting Principles employed in the
preparation of such statement and the application of the
Accounting Principles employed in the preparation of the financial
statements for the immediately preceding period.
(c) Fiscal Periods. To enable the ready and consistent determination
of compliance with this Agreement, the Borrower shall not change
the last day of its fiscal year from December 31 of each year, or
the last days of the first three fiscal quarters in each of its
fiscal years from March 31, June 30 and September 30 of each year,
respectively, except to the extent required by any Government
Rule. The Borrower shall notify the Administrative Agent promptly
upon becoming aware of such proposed Government Rule requirement
of the nature and the effective date of such proposed change.
Promptly after the delivery of such notice, the Borrower and the
Administrative Agent (acting at the direction or with the consent
of the Majority Lenders) shall negotiate in good faith any
amendments to the provisions of the Financing Documents that may
be necessary to give fair effect to the intention of such
provisions.
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ARTICLE II
COMMITMENTS
2.01 LOANS.
(a) Initial Term Loan Facility. Each Lender severally agrees, on the
terms and conditions of this Agreement, to make a loan
(collectively, the "INITIAL TERM LOANS") to the Borrower in
Dollars on the Closing Date in an aggregate principal amount equal
to the amount of the Initial Term Loan Commitment of such Lender;
provided that: (i) there shall be no more than one borrowing of
Initial Term Loans; and (ii) in no event shall the aggregate
principal amount of all Initial Term Loans at any one time
outstanding exceed the aggregate amount of the Initial Term Loan
Commitments as in effect from time to time. Amounts prepaid or
repaid in respect of the Initial Term Loans may not be reborrowed.
(b) Additional Term Loan Facility. Each Lender severally agrees, on
the terms and conditions of this Agreement, to make a loan
(collectively, the "ADDITIONAL TERM LOANS") to the Borrower in
Dollars during the Additional Term Loan Availability Period in an
aggregate principal amount at any one time outstanding up to, but
not exceeding, the amount of the Additional Term Loan Commitment
of such Lender as in effect from time to time; provided that: (i)
there shall be no more than one borrowing of Additional Term
Loans; and (ii) in no event shall the aggregate principal amount
of all Additional Term Loans at any one time outstanding exceed
the aggregate amount of the Additional Term Loan Commitments as in
effect from time to time. Amounts prepaid or repaid in respect of
the Additional Term Loans may not be reborrowed.
(c) Terms Applicable to All Loans; Conversions and Continuations.
(i) Borrowings of Loans shall be made and Continued solely in
the form of Eurodollar Loans; provided that the Borrower
may, subject to all other applicable terms and conditions
of this Agreement (including Section 5.04):
(A) Subject to its prior delivery to the Administrative
Agent of a Conversion/Continuation Notice, convert
any Loans that are Eurodollar Loans into Prime Rate
Loans as provided in Sections 5.02 and 5.04;
(B) in any other circumstance where the Borrower and the
Administrative Agent concur that, taking account of
the expected timing of repayment of any such Loan
and the duration of the Interest Periods available
for selection by the Borrower, Converting such Loan
into a Prime Rate
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Loan will enable the Borrower to avoid breakage
costs pursuant to Section 5.05, make such
Conversion; and
(C) borrow Loans initially as Prime Rate Loans with the
consent of the Administrative Agent (not to be
unreasonably withheld or delayed) as and to the
extent necessary to synchronize the Interest Period
of such Loans with other outstanding Loans that are
Eurodollar Loans; provided that the Borrower shall,
subject to its prior delivery to the Administrative
Agent of a Conversion/Continuation Notice, Convert
such Prime Rate Loans to Eurodollar Loans as soon as
possible to achieve synchronization of such Loans.
(ii) Borrowings of Loans may be made initially in the form of
Prime Rate Loans if the Borrower is unable to provide
sufficient advance notice pursuant to Section 4.05 of the
borrowing of such Loans as Eurodollar Loans; provided that
such Loans shall be Converted as soon as practicable after
the initial borrowing thereof into Eurodollar Loans (unless
the Borrower and the Administrative Agent concur that,
taking account of the expected timing of repayment of any
such Loan and the duration of the Interest Periods
available for selection by the Borrower if such Loan were
so Converted, the Conversion of such Loan into a Eurodollar
Loan will likely subject the Borrower to additional costs
pursuant to Section 5.05).
(iii) Following the occurrence of any Default or Event of
Default, the Administrative Agent may suspend the right of
the Borrower to Continue any Loans as, or to Convert any
Loans into, Eurodollar Loans.
(iv) In connection with any Conversion hereunder, and
notwithstanding anything to the contrary contained in this
Agreement, a Lender may (in its sole discretion, subject to
Section 5.07(a)) change its Applicable Lending Office with
respect to the Loan so Converted.
(d) Limit on Eurodollar Loans. Only one Interest Period in respect of
Eurodollar Loans may be outstanding at any one time.
2.02 BORROWINGS. The Borrower shall give the Administrative Agent (which shall
promptly notify the Lenders) notice of each borrowing hereunder as
provided in Section 4.05 pursuant to a Notice of Borrowing. Not later
than 11:00 a.m., New York time, on the date specified for each borrowing
hereunder, each Lender shall make available the amount of the Loan to be
made by it on such date to the Administrative Agent at its
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Principal Office, in immediately available funds, for the account of the
Borrower. The aggregate principal amount of the Initial Term Loan
Commitment shall, subject to the terms and conditions of this Agreement,
be made available to the Borrower by the Administrative Agent's
depositing the same in immediately available funds to such accounts as
agreed between the Borrower and the Administrative Agent; provided that
an amount equal to $724,000 of the proceeds of the Initial Term Loans
shall, pursuant to said agreement between the Borrower and the
Administrative Agent, be deposited to the Revenue Account.
2.03 REDUCTION OF COMMITMENTS.
(a) Optional Reduction of Additional Term Loan Commitments. Subject to
Section 2.03(b), the Borrower may at any time reduce the aggregate
unused amount of the Additional Term Loan Commitments that are
surplus to the needs of the Borrower; provided that: (i) the
Borrower shall give notice of each such reduction as provided in
Section 4.05; and (ii) each partial reduction shall be in an
aggregate amount at least equal to $500,000 and in integral
multiples of $500,000 in excess thereof.
(b) No Reinstatement. Any Commitments reduced pursuant to paragraph
(a) above shall for all purposes hereof be terminated and may not
be reinstated.
(c) Termination of Commitments. Unless previously terminated, the
Commitments of each Class shall terminate at 5:00 p.m., New York
time, on the last day of the Initial Term Loan Availability Period
or Additional Term Loan Availability Period, as the case may be.
2.04 FEES.
(a) Up-Front Fee. On the Closing Date the Borrower shall pay to the
Administrative Agent, for the account of each Lender, an up-front
fee in an amount equal to 2.00% of the sum of such Lender's
Commitments; provided, however, that such fee payable to United,
as Lender, shall be reduced by an amount equal to $50,000.
(b) Commitment Fees. The Borrower shall pay to the Administrative
Agent, for the account of each Lender, a commitment fee on the
daily average unused amount of such Lender's Commitments for the
period from (and including) the Execution Date through (and
including): (i) in the case of the Initial Term Loan Commitments,
the earliest of (A) the Closing Date, (B) the day on which the
Initial Term Loan Commitments are reduced to zero or terminated,
and (C) the last day of the Initial Term Loan Availability Period
and, (ii) in the case of the Additional Term Loan Commitments, the
earliest of (A) the Second Closing Date, (B) the day on which the
Additional Term Loan Commitments are reduced to zero or
terminated, and (C) the last day of the Additional Term Loan
Availability Period, in each case in the amount of 0.375% per
annum.
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(c) Commitment Fees Generally. All accrued commitment fees payable
pursuant to Section 2.04(b) shall be payable in arrears on each
Quarterly Date and, with respect to the Commitments of any Class,
on the earliest to occur of the date on which of the Commitments
of such Class expire, the date the Commitments of such Class are
terminated or reduced to zero, and the Final Maturity Date.
(d) Administrative Agency Fees. Commencing on the first anniversary of
the Closing Date, and annually on each subsequent anniversary
thereafter, the Borrower shall pay to the Administrative Agent,
for the account of the Administrative Agent, an annual agency fee
in an amount equal to $25,000. The Administrative Agent shall not
be required to refund any fee it has already received.
2.05 LENDING OFFICES. The Loans of each Type made by each Lender shall be made
and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
2.06 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The obligations of the Lenders
hereunder are several and not joint. The failure of any Lender to make
any Loan to be made by it, or any payment required to be made by it
hereunder, on the date specified therefor shall not relieve any other
Lender of its obligation to make its Loan, or its payment, on such date.
Neither any Lender nor any Agent shall be responsible for the failure of
any other Lender to make a Loan, or a payment, to be made by such other
Lender.
2.07 NOTES.
(a) Initial Term Loan Notes. The Initial Term Loan of each Lender
shall be evidenced by a single promissory note of the Borrower
(each, an "INITIAL TERM LOAN NOTE") substantially in the form of
Exhibit A-1, dated the Closing Date, payable to such Lender in a
principal amount equal to the amount of its Initial Term Loan
Commitment as in effect on the Closing Date and otherwise duly
completed.
(b) Additional Term Loan Notes. The Additional Term Loan of each
Lender shall be evidenced by a single promissory note of the
Borrower (each, an "ADDITIONAL TERM LOAN NOTE") substantially in
the form of Exhibit A-2, dated the Closing Date, payable to such
Lender in a principal amount equal to the amount of its Additional
Term Loan Commitment as in effect on the Closing Date and
otherwise duly completed.
(c) Loan Records. Each Lender shall maintain in accordance with its
usual practice records evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder. The Administrative
Agent shall maintain records in which it shall record: (i) the
amount of each Loan made hereunder, the Class and Type thereof and
each Interest Period therefor; (ii) the amount of any principal or
interest due and
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payable or to become due and payable from the Borrower to each
Lender hereunder; and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereof. The entries made in the records
maintained pursuant to this paragraph (c) shall be prima facie
evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the
Administrative Agent to maintain such records or any error therein
shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.
(d) Subdivision. No Lender shall be entitled to have any of its Notes
subdivided, by exchange for promissory notes of lesser
denominations or otherwise, except in connection with a permitted
assignment of all or any portion of such Lender's related
Commitment, related Loan and related Notes pursuant to Section
11.06(b).
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ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
3.01 REPAYMENT OF LOANS.
The Borrower hereby promises to pay to the Administrative Agent for the
account of each Lender the outstanding principal of such Lender's Loan in
twenty (20) consecutive quarterly installments payable commencing on the
first Quarterly Date following the Closing Date, on the next eighteen
succeeding Quarterly Dates and on the Final Maturity Date, each such
installment in the amount set forth below (a) if prior to the Second
Closing Date, under the heading "Initial Term Loan Principal Payment" and
(b) if on or after the Second Closing Date, under the heading "Initial
and Additional Term Loan Principal Payment", in each case opposite the
reference to such Quarterly Date, less any portion of any such Initial
Term Loans prepaid in accordance with Sections 3.03 and 3.04:
INITIAL AND
ADDITIONAL TERM
INITIAL TERM LOAN LOAN PRINCIPAL
PAYMENT DATE PRINCIPAL PAYMENT PAYMENT
March 31, 2003 $ 698,000 $ 698,000
June 30, 2003 $ 434,000 $ 434,000
September 30, 2003 $1,696,000 $1,696,000
December 31, 2003 $1,698,700 $1,698,700
March 31, 2004 $ 594,171 $ 869,000
June 30, 2004 $ 369,596 $ 540,550
September 30, 2004 $1,446,369 $2,115,375
December 31, 2004 $1,446,369 $2,115,375
March 31, 2005 $ 649,177 $ 950,000
June 30, 2005 $ 403,856 $ 591,000
September 30, 2005 $1,579,208 $2,311,000
December 31, 2005 $1,579,209 $2,311,000
March 31, 2006 $ 709,544 $1,039,000
June 30, 2006 $ 441,161 $ 646,000
September 30, 2006 $1,726,399 $2,528,000
December 31, 2006 $1,726,399 $2,528,000
March 31, 2007 $ 446,306 $ 683,000
June 30, 2007 $ 277,062 $ 424,000
September 30, 2007 $1,085,379 $1,661,000
December 31, 2007 $ 993,095 $1,661,000
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Notwithstanding anything to the contrary herein, to the extent not
otherwise repaid in full prior to the Final Maturity Date, the Borrower
unconditionally promises to pay to the Administrative Agent for the
account of each Lender the outstanding principal amount of the Loans made
by such Lender, and such Loans shall mature, on the Final Maturity Date.
3.02 INTEREST.
(a) General. The Borrower hereby promises to pay to the Administrative
Agent for the account of each Lender, interest on the unpaid
principal amount of each Loan made by such Lender for the period
from and including the date of such Loan to but excluding the date
such Loan shall be paid in full, at the following rates per annum:
(i) during such periods as such Loan is a Prime Rate Loan, the
Prime Rate (as in effect from time to time) plus the
Applicable Margin; and
(ii) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate
for such Loan for such Interest Period plus the Applicable
Margin.
(b) Default Interest. Notwithstanding the foregoing, the Borrower
hereby promises to pay to the Administrative Agent for the account
of each Lender interest at the applicable Post-Default Rate on any
principal of any Loan made by such Lender, and on any other amount
payable by the Borrower hereunder or under any Note held by such
Lender, to or for the account of such Lender, which shall not be
paid in full when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), for the
period from and including the due date thereof to but excluding
the date the same is paid in full.
(c) Payment. Accrued interest on each Loan shall be payable: (i) in
the case of a Prime Rate Loan, quarterly on the Quarterly Dates;
(ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor; and (iii) in the case of any Loan, upon
the payment or prepayment thereof or the Conversion of such Loan
to a Loan of another Type (but only on the principal amount so
paid, prepaid or Converted).
Interest payable at the Post-Default Rate as provided in Section
3.02(b) shall be payable from time to time on demand (or, if no
demand is made during any month, on the last day of such month).
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(d) Determination of Interest Rate. Promptly after the determination
of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Lenders
to which such interest is payable and to the Borrower.
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3.03 OPTIONAL PREPAYMENTS.
(a) Subject to Section 4.04, the Borrower shall have the right to
prepay any Loans, at any time and from time to time following the
second anniversary of the Closing Date; provided that: (a) the
Borrower shall give the Administrative Agent and the Collateral
Agent notice of each such prepayment, as provided in Section 4.05
(and, upon the date specified in any such notice of prepayment,
the amount to be prepaid shall become due and payable hereunder);
and (b) Eurodollar Loans may be prepaid only on the last day of
the Interest Period for such Loans unless the Borrower pays all
applicable breakage costs pursuant to Section 5.05 at the time of
such prepayment.
(b) Simultaneously with any optional prepayment, in whole or in part,
of the principal of any Loans pursuant to the foregoing clause (a)
(other than any prepayment made pursuant to the final sentence of
Section 5.07(a)) or any mandatory prepayment pursuant to Sections
3.04(b) or 3.04(c), the Borrower agrees to pay to the
Administrative Agent for the account of each Lender a prepayment
commission in respect of each such prepayment in an amount equal
to that percentage of the principal amount of the Loans so prepaid
set forth below opposite the period in which such prepayment
occurs:
Period in Which Prepayment is Made Prepayment Commission
---------------------------------- ---------------------
From and including the second anniversary 2.00%
of the Closing Date through and including the
day prior to the third anniversary of the
Closing Date
From and including the third anniversary 1.00%
of the Closing Date through and including the
day prior to the fourth anniversary of the
Closing Date
From and including the fourth anniversary 0.00%
of the Closing Date through and including the
Final Maturity Date
3.04 MANDATORY PREPAYMENTS; ETC. The Borrower shall make the following
mandatory payments in the amounts and at the times set out below, in each
case, except as otherwise provided in Section 3.03(b), without any
commission, premium or penalty:
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(a) Event of Loss.
(i) If a Project is declared a Total Loss by its insurers, then
on the later of the date of actual receipt of Loss Proceeds
with respect thereto and the date of such declaration; and
(ii) not later than the date specified for prepayment in
accordance with Section 8.05(d) with respect to: (A) any
Event of Loss (or upon such earlier date as the Borrower
shall have determined not to Restore the related Affected
Property); or (B) any period during which any of the
conditions of the Restoration under Section 8.05(d) shall
have ceased to be satisfied,
in each case, the Borrower shall prepay the Loans in an amount
equal to 100% of the Loss Proceeds with respect to such Event of
Loss (less the amount expended on the Restoration of the related
Affected Property as permitted by, and as expended in accordance
with, Section 8.05(d)).
Nothing in this paragraph (a) shall be deemed to limit any
obligation of the Borrower to deposit (or cause to be deposited)
in the Restoration Sub-Account the Loss Proceeds in respect of any
Event of Loss.
(b) Project Documents. If any Project Document at any time is amended
or terminated by any party thereto and in a manner that could
reasonably be expected to result in a Material Adverse Effect and
generate a current cash payment to the Borrower, then the Borrower
shall, promptly upon receipt of such payment, prepay the Loans in
an amount equal to the proceeds of such payment.
(c) Certain Asset Sales. If the Borrower at any time shall transfer,
assign, sell or otherwise dispose of any material asset or
Property pertaining to any Project, other than in accordance with
Section 8.12 hereof, then the Borrower shall, promptly upon
receipt of the proceeds of any payment relating to such
transaction, prepay the Loans in an amount equal to the proceeds
of such payment.
(d) Cash Sweeps. If, as of any Quarterly Date, the Borrower shall fail
to comply with Section 8.13(iii) hereof, the Borrower shall, at
its sole option as provided in Section 4.1(e) of the Depositary
Agreement, prepay the Loans in the amounts set out in, and
otherwise in accordance with, such Section 4.1(e).
3.05 Prepayment Mechanics. All prepayments described in Sections 3.03 and 3.04
(other than any prepayment made pursuant to the final sentence of Section
5.07(a) which prepayment shall be applied in accordance with such Section
5.07(a)) shall be applied to the Initial Term Loans and the Additional
Term Loans pro rata, and in the inverse order of the maturities of the
installments of the Loans then outstanding. Amounts prepaid may
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not be reborrowed. Any prepayment made or required to be made pursuant to
Sections 3.03 or 3.04 shall be made together with all accrued but unpaid
interest thereon and all other amounts (including, without limitation,
any amounts due pursuant to Article V) then due from the Borrower
hereunder.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) General. Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by
the Borrower under this Agreement and the Notes and, except to the
extent otherwise provided therein, all payments to be made by the
Borrower under any other Financing Document, shall be made in
Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent at its
Principal Office, or to such account as the Administrative Agent
may specify in writing to the Borrower, not later than 1:00 p.m.,
New York time, on the date on which such payment shall become due
(each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
(b) Application of Payments. The Borrower shall, at the time of making
each payment under this Agreement or any Note for the account of
any Lender, specify to the Administrative Agent (which shall so
notify the intended recipient(s) thereof) the Loans or other
amounts owing by the Borrower hereunder to which such payment is
to be applied. In the event that the Borrower fails to so specify,
or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders
for application in such manner as the Administrative Agent or the
Majority Lenders, subject to Section 4.02, may reasonably
determine to be appropriate.
(c) Forwarding of Payments by Administrative Agent. Each payment
received by the Administrative Agent under this Agreement or any
Note for the account of any Lender or the Collateral Agent or the
Depositary Bank shall be paid by the Administrative Agent promptly
to such Person, in immediately available funds, for the account of
such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made or for the
account of the Collateral Agent or the Depositary Bank, as
applicable.
(d) Extensions to Next Business Day. If the due date of any payment
under this Agreement or any Note would otherwise fall on a day
that is not a Business Day, such date shall instead be extended to
the first Business Day thereafter, and interest shall be payable
for any principal so extended for the period of such
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extension, unless such Business Day shall fall in a subsequent
calendar month, in which case such payment shall be due on the
immediately preceding Business Day.
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4.02 PRO RATA TREATMENT. Except to the extent otherwise provided herein:
(a) each borrowing of Loans from the Lenders under Section 2.01 shall
be made from the relevant Lenders, each payment of commitment fees
under Section 2.04 in respect of Commitments shall be made for the
account of the relevant Lenders, and each termination or reduction
of the amount of the Commitments under Section 2.03 shall be
applied to the respective Commitments, pro rata according to the
amounts of their respective Commitments;
(b) the making of Loans shall be made pro rata among the relevant
Lenders according to the amounts of their respective Commitments;
(c) except to the extent indicated in Section 4.07(b) and except for
prepayments made pursuant to the final sentence of Section
5.07(a), each payment or prepayment of principal of Loans by the
Borrower shall be made for the account of the relevant Lenders pro
rata in accordance with the respective unpaid principal amounts of
the Loans held by them; provided that if immediately prior to
giving effect to any such payment in respect of any Loan the
outstanding principal amount of the Loans shall not be held by the
Lenders pro rata in accordance with their respective Commitments
in effect at the time such Loans were made (by reason of a failure
of a Lender to make a Loan hereunder in the circumstances
described in the penultimate paragraph of Section 11.04), then
such payment shall be applied to the Loans in such manner as shall
result, as nearly as is practicable, in the outstanding principal
amount of the Loans being held by the Lenders pro rata in
accordance with their respective Commitments; and
(d) each payment of interest on Loans by the Borrower shall be made
for the account of the relevant Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to
the respective Lenders.
4.03 COMPUTATIONS. Interest on Eurodollar Loans and on other obligations of
the Borrower or the Lenders that are computed on the basis of the Federal
Funds Rate shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Interest on Prime Rate Loans,
on other obligations of the Borrower or the Lenders that are computed on
the basis of the Prime Rate and commitment fees payable in accordance
with Section 2.04 shall be computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which
payable.
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments pursuant to Section
3.04 and the borrowing of Additional Term Loans, each borrowing and
partial prepayment of principal of Loans shall be in an amount at least
equal to $500,000 and in multiples of $100,000 in excess thereof.
Borrowings or prepayments of Loans of different Types or, in the case of
Eurodollar Loans, having different Interest Periods, at the same time
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hereunder shall be deemed separate borrowings and prepayments for
purposes of the foregoing, one for each Type or Interest Period.
4.05 NOTICES.
(a) Certain Notices.
(i) Notices by the Borrower to the Administrative Agent (and,
as applicable, the Collateral Agent) of optional
terminations or reductions of the Commitments, borrowings
of Loans, optional prepayments of Loans, Continuations of
Eurodollar Loans and Conversions of Loans shall be
irrevocable and shall be effective only if received by the
Administrative Agent (and, as applicable, the Collateral
Agent) not later than 11:00 a.m., New York time, on the
number of Business Days prior to the date of the relevant
termination, reduction, borrowing, prepayment, Continuation
or Conversion or the first day of such Interest Period
specified below:
Number of
Business Days
Notice Prior
---------------------------------------------------------------- -------------
Optional termination or reduction of the Commitments; optional 5
prepayment of Loans
Borrowing of, Continuation of, or Conversion into Eurodollar Loans 3
Borrowing of or Conversion into, Prime Rate Loans 1
(ii) Each such notice of optional termination or reduction of
Commitments shall specify the amount of such Commitments to
be terminated or reduced.
(iii) Each such notice of borrowing, Conversion, Continuation or
optional prepayment shall specify the Class and Type of
Loans to be borrowed, Converted, Continued or prepaid, the
amount (subject to Section 4.04) of each Loan to be
borrowed, Converted, Continued or prepaid, and the date of
borrowing, Conversion, Continuation or optional prepayment
(which shall be a Business Day).
(iv) Each such notice of Conversion shall contain a
certification of an Authorized Officer of the Borrower that
the requirements of
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Section 2.01(c) have been satisfied with respect to such
Conversion.
(v) The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the
Borrower fails to select the Type of Loan, within the time
period and otherwise as provided in this Section 4.05, such
Loan will be made or Continued, as applicable, as a
Eurodollar Loan having an Interest Period of three months.
4.06 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT(a). Unless the
Administrative Agent shall have been notified by the Borrower prior to
the date on which the Borrower is to make payment to the Administrative
Agent for the account of one or more of the Lenders hereunder (each such
payment being herein called the "REQUIRED PAYMENT"), which notice shall
be effective upon receipt, that the Borrower does not intend to make the
Required Payment to the Administrative Agent, the Administrative Agent
may assume that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date. If the
Borrower has not in fact made the Required Payment to the Administrative
Agent, the recipient(s) of such payment shall, on demand, repay to the
Administrative Agent the amount made available by the Administrative
Agent pursuant to the previous sentence, together with interest thereon
in respect of each day during the period commencing on the date (the
"ADVANCE DATE") such amount was so made available by the Administrative
Agent until the date the Administrative Agent recovers such amount at a
rate per annum equal to the Federal Funds Rate for such day.
4.07 SHARING OF PAYMENTS; ETC.
(a) Right of Set-Off. The Borrower agrees that, in addition to (and
without limitation of) any right of set-off, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be
entitled, at its option, to offset balances held by it for the
account of the Borrower at any of its offices, in Dollars or in
any other currency, against any principal of or interest on any of
such Lender's Loans, or any other amount payable to such Lender
hereunder, that is not paid when due (regardless of whether such
balances are then due to the Borrower), in which case it shall
promptly notify the Borrower and the Administrative Agent thereof;
provided that such Lender's failure to give such notice shall not
affect the validity thereof.
(b) Sharing. If any Lender shall obtain from the Borrower payment of
any principal of or interest on any Loan owing to it or payment of
any other amount under this Agreement or any Note held by it or
any other Financing Document through the exercise of any right of
set-off, banker's lien or counterclaim or similar right or
otherwise (other than: (i) from the Administrative Agent as
provided herein; or (ii) in connection with any reimbursement or
indemnification under Section 11.03
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or any similar provision of any other Financing Document to which
less than all of the Lenders are entitled under the terms hereof
or thereof, as the case may be; or (iii) in connection with any
assignment or participation pursuant to Section 11.06 or any
replacement of any Lender pursuant to Article V) and, as a result
of such payment, such Lender shall have received a greater
percentage of the principal of or interest on the Loans or such
other amounts then due hereunder or thereunder to such Lender than
the percentage received by any other Lender(s) who were also
entitled to receive such payments, it shall promptly purchase from
such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans or such
other amounts, respectively, owing to such other Lenders (or in
interest due thereon, as the case may be) in such amounts, and
make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred
by such Lender in obtaining or preserving such excess payment) pro
rata in accordance with the unpaid principal of and/or interest on
the Loans or such other amounts, respectively, owing to each of
the Lenders; provided that if at the time of such payment, the
outstanding principal amount of the Loans shall not be held by the
Lenders pro rata in accordance with their respective Commitments
in effect at the time such Loans were made (by reason of a failure
of a Lender to make a Loan hereunder in the circumstances
described in the penultimate paragraph of Section 11.04), then
such purchases of participations and/or direct interests shall be
made in such manner as will result, as nearly as is practicable,
in the outstanding principal amount of the Loans being held by the
Lenders pro rata according to the amounts of such Commitments. To
such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if
such payment is rescinded or must otherwise be restored.
(c) Consent by the Borrower. The Borrower agrees that any Lender so
purchasing such a participation (or direct interest) may exercise
all rights of set-off, banker's liens, counterclaims or similar
rights with respect to such participation as fully as if such
Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Rights of Lenders; Bankruptcy. Nothing contained in this Section
4.07 shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower. If, under any
applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a set-off to which this
Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders entitled
under this Section 4.07 to share in the benefits of any recovery
on such secured claim.
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ARTICLE V
YIELD PROTECTION; ETC.
5.01 ADDITIONAL COSTS.
(a) Costs of Making or Maintaining Eurodollar Loans. The Borrower
shall pay directly to each Lender from time to time such amounts
as such Lender may determine to be necessary to compensate it for
any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to
make any Eurodollar Loans hereunder, or any reduction in any
amount receivable by such Lender hereunder in respect of any of
such Loans or such obligation (such increases in costs and
reductions in amounts receivable being herein called "ADDITIONAL
COSTS"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in
respect of such Loans or changes the basis of taxation of
any amounts payable to such Lender under this Agreement or
the Notes in respect of such Loans (other than taxes
imposed on or measured by the overall net income of such
Lender or of its Applicable Lending Office for such Loans
by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized
in the determination of the Eurodollar Rate for any
Interest Period for such Loan) relating to any extensions
of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including any of such Loans or
any deposits referred to in the definition of "Eurodollar
Base Rate"), or any Commitment of such Lender to make any
such Loans hereunder; or
(iii) imposes any other condition affecting this Agreement or the
Notes (or any of such extensions of credit or liabilities)
or its Commitments.
If any Lender requests compensation from the Borrower under this
paragraph (a), the Borrower may, by notice to such Lender (with a
copy to the Administrative Agent), suspend the obligation of such
Lender to make or Continue Eurodollar Loans or to Convert Prime
Rate Loans into Eurodollar Loans, until the Regulatory Change
giving rise to such request ceases to be in effect (in which case
the
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provisions of Section 5.04 shall apply); provided that such
suspension shall not affect the right of such Lender to receive
the compensation so requested.
(b) Election by Lender to Suspend Obligations. Without limiting the
effect of the provisions of paragraph (a) above, in the event
that, by reason of any Regulatory Change, any Lender either:
(i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes
deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this
Agreement or a category of extensions of credit or other
assets of such Lender that includes Eurodollar Loans; or
(ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets that it may hold,
then, if such Lender so elects by notice to the Borrower (with a
copy to the Administrative Agent), the obligation of such Lender
to make or Continue, or Convert Prime Rate Loans into, Eurodollar
Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section
5.04 shall apply).
(c) Capital Costs. Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the
Borrower shall pay directly to each Lender from time to time on
request such amounts as such Lender may determine to be necessary
to compensate such Lender (or, without duplication, the parent
company of such Lender) for any costs that it determines are
attributable to the maintenance by such Lender (or any Applicable
Lending Office or such parent company) of capital in respect of
its Commitments or Loans, pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the
force of law) of any court, Government Authority or monetary
authority:
(i) following any Regulatory Change; or
(ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and
whether or not the failure to comply therewith would be
unlawful) heretofore issued but not implemented, or
hereafter issued, by any Government Authority or
supervisory authority implementing at the national level
the Basle Accord (including the Final Risk-Based Capital
Guidelines of the Board of Governors of the Federal Reserve
System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of
the
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Office of the Comptroller of the Currency (12 C.F.R. Part
3, Appendix A)).
Such compensation shall include an amount equal to any reduction
of the rate of return on assets or equity of such Lender (or any
Applicable Lending Office or such parent company) to a level below
that which such Lender (or any Applicable Lending Office or such
parent company) could have achieved but for such law, regulation,
interpretation, directive or request.
(d) Notification and Certification. Each Lender shall notify the
Borrower of any event occurring after the date of this Agreement
that will entitle such Lender to compensation under paragraph (a)
or (c) above as promptly as practicable after such Lender obtains
actual knowledge thereof. Each Lender will furnish to the Borrower
a certificate setting out in reasonable detail the basis and
amount of each request by such Lender for compensation under
paragraph (a) or (c) above. Determinations and allocations by any
Lender, for purposes of this Section 5.01, of the effect of any
Regulatory Change pursuant to paragraph (a) or (b) above, or of
the effect of capital maintained pursuant to paragraph (c) above,
on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in
respect of Loans, and of the amounts required to compensate such
Lender under this Section 5.01, shall be conclusive absent
manifest error.
(e) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 5.01 shall not
constitute a waiver of such Lender's right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section 5.01 for any
increased costs or reductions incurred more than 60 days prior to
the date that such Lender notifies the Borrower of the Regulatory
Change giving rise to such increased costs or reductions and of
such Lender's intention to claim compensation therefor; provided,
further, that, if the Regulatory Change giving rise to such
increased costs or reductions is retroactive, then the 60-day
period referred to above shall be extended to include the period
of retroactive effect thereof.
5.02 LIMITATION ON EURODOLLAR LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar
Base Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall be
conclusive absent manifest error, that quotations of interest
rates for the relevant deposits referred to in the definition of
"Eurodollar Base Rate" are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining
rates of interest for Eurodollar Loans as provided herein; or
(b) the Majority Lenders determine, which determination shall be
conclusive absent manifest error, and notify the Administrative
Agent that the relevant rates of
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interest referred to in the definition of "Eurodollar Base Rate",
upon the basis of which the rate of interest for Eurodollar Loans
for such Interest Period is to be determined, are not likely to
adequately cover the cost to such Lenders of making or maintaining
such Eurodollar Loans for such Interest Period,
then the Administrative Agent shall give the Borrower and each Lender
prompt notice thereof, and so long as such condition remains in effect,
the obligation of the Lenders to make additional Eurodollar Loans,
Continue existing Eurodollar Loans or Convert Prime Rate Loans into
Eurodollar Loans shall be suspended, in which case the provisions of
Section 5.04 shall be applicable.
5.03 ILLEGALITY. Notwithstanding any other provision of this Agreement, in the
event that it becomes unlawful or any central bank or other Government
Authority asserts that it is unlawful for any Lender or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder, and, in the opinion of such Lender (as stated in
writing), the designation of a different Applicable Lending Office would
either not avoid such unlawfulness or would be disadvantageous to such
Lender, then such Lender shall promptly notify the Borrower thereof in
writing (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Prime Rate Loans into,
Eurodollar Loans shall be suspended until such time as such Lender may
again make and maintain Eurodollar Loans (in which case the provisions of
Section 5.04 shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to make or
Continue, or to Convert Prime Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 5.01, 5.02 or 5.03 (the "AFFECTED LOANS"),
such Lender's Affected Loans shall be automatically Converted into Prime
Rate Loans on the last day(s) of the then-current Interest Period(s) for
the Affected Loans (or, in the case of a Conversion required by Section
5.01(b) or 5.03, on such earlier date as such Lender may certify to the
Borrower with a copy to the Administrative Agent as being the last
permissible date for such Conversion under, or by reason of, the relevant
Regulatory Change or circumstances described under Section 5.03, such
certification to be conclusive absent manifest error) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in Section 5.01, 5.02 or 5.03 which gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be
applied instead to its Prime Rate Loans; and
(b) all Loans that would otherwise be made by such Lender as
Eurodollar Loans shall be made instead as Prime Rate Loans.
If such Lender gives notice to the Borrower with a copy to the
Administrative Agent that the circumstances specified in Section 5.01,
5.02 or 5.03 that gave rise to the Conversion
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of such Lender's Eurodollar Loans of any Class pursuant to this Section
5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist): (i) at a time when Eurodollar Loans made
by other Lenders are outstanding, each of such Lender's Prime Rate Loans
shall be automatically Converted to Eurodollar Loans, on the first day of
the next succeeding Interest Period for, and having the same Interest
Period as, such outstanding Eurodollar Loans and to the extent necessary
so that, after giving effect thereto, all Prime Rate Loans and Eurodollar
Loans are allocated among the Lenders ratably (as to principal amounts,
Types and Interest Periods) as nearly as possible in accordance with
their respective Commitments; and (ii) at any other time, the Borrower
may thereafter provide to the Administrative Agent a notice of
Conversion, in accordance with Section 4.05, of such Lender's Prime Rate
Loans to Eurodollar Loans.
5.05 COMPENSATION. The Borrower shall pay to the Administrative Agent for the
account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in
the reasonable opinion of such Lender) to compensate such Lender for any
loss, cost or expense that such Lender reasonably determines is
attributable to:
(a) any payment, prepayment or Conversion of a Eurodollar Loan made by
such Lender for any reason (including the acceleration of the
Loans pursuant to Section 9.02) on a date other than the last day
of an Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including the failure
of any of the conditions precedent specified in Article VI to be
satisfied) to borrow a Eurodollar Loan from such Lender on the
date for such borrowing specified in the relevant Notice of
Borrowing given pursuant to Section 2.02.
Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of: (i) the amount
of interest that otherwise would have accrued on the principal amount so
paid, prepaid, Converted or not borrowed for the period from the date of
such payment, prepayment, Conversion or failure to borrow to the last day
of the then-current Interest Period for such Loan (or, in the case of a
failure to borrow, the Interest Period for such Loan which would have
commenced on the date specified for such borrowing) at the applicable
rate of interest for such Loan provided for herein; over (ii) the amount
of interest that otherwise would have accrued on such principal amount at
a rate per annum equal to the interest component of the amount such
Lender would have bid in the London interbank market for Dollar deposits
of the Reference Banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by
such Lender).
5.06 TAXES.
(a) General. All payments to be made hereunder and under the Notes and
any other Financing Document by the Borrower shall be made free
and clear of and without
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deduction for or on account of, any Taxes (other than Taxes
imposed on either Agent or any Lender by the jurisdiction in which
such Person is organized or has its principal office or, in the
case of any Lender, by the jurisdiction in which its Applicable
Lending Office is organized or located or, in each case, any
political subdivision or taxing authority thereof or therein or
otherwise imposed by any taxing authority upon, or measured by,
income or assets as a result of the organization or location of
such Lender in such taxing authority's jurisdiction (unless such
organization or location is attributable to the execution of, or
the exercise of any rights or remedies under or in connection
with, the Transaction Documents)) (such Taxes being herein
referred to as the "APPLICABLE TAXES").
If any Applicable Taxes are imposed and required to be withheld
from any amount payable by the Borrower hereunder or under the
Notes or any other Financing Document, the Borrower shall (subject
to the second sentence of Section 5.06(c)) be obligated to: (i)
pay such additional amount so that the Agents and the Lenders, as
applicable, shall receive a net amount (after giving effect to the
payment of such additional amount and to the deduction of all
Applicable Taxes) equal to the amount due hereunder; (ii) pay such
Applicable Taxes to the appropriate taxing authority for the
account of the Administrative Agent, for the benefit of the Agents
and the Lenders, as applicable; and (iii) as promptly as possible
thereafter, send to the Administrative Agent a certified copy of
any original official receipt showing payment thereof, together
with such additional documentary evidence as the Administrative
Agent or such other Agent or Lender (as applicable) may from time
to time reasonably require.
If the Borrower fails to pay any Applicable Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall be obligated to indemnify
each Agent and each Lender for any incremental Taxes, as well as
interest and penalties that may become payable by such Agent or
such Lender as a result of such failure. The obligations of the
Borrower under this Section 5.06(a) shall survive the termination
of the Commitments and the repayment of the Loans.
(b) Evidence of Payment. Within 30 days after paying any amount to
either Agent or any Lender from which it is required by law to
make any deduction or withholding, and within 30 days after it is
required by law to remit such deduction or withholding to any
relevant taxing or other authority, the Borrower shall deliver to
the Administrative Agent, for delivery to such Person, evidence
reasonably satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
(c) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty
to which such jurisdiction is a party, with
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respect to payments by the Borrower under this Agreement, the
Notes or any other Financing Document shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or
times reasonably requested by the Borrower, such properly
completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at
a reduced rate. For any period during which a Foreign Lender has
failed to provide the Borrower with the appropriate documentation
as required by the preceding sentence, the Borrower shall not be
obligated to pay, and such Foreign Lender shall not be entitled to
receive, additional amounts under Section 5.06(a) with respect to
Applicable Taxes imposed by the United States to the extent that
such additional amounts would not have arisen but for such failure
of such Foreign Lender. If a Foreign Lender that is otherwise
exempt from or subject to a reduced rate of withholding tax
becomes subject to Applicable Taxes, or a higher amount thereof,
because of its failure to deliver documentation described in the
first sentence of this paragraph (c), the Borrower shall take such
steps as such Foreign Lender shall reasonably request to assist
such Foreign Lender to recover such Applicable Taxes.
(d) Tax Refunds. If an Agent or a Lender receives a refund of, or in
respect of, any Applicable Taxes with respect to which the
Borrower has paid additional amounts pursuant to Section 5.06(a)
and (i) either: (A) such refund (as received by such Agent or such
Lender) is specifically referable to such Applicable Taxes; or (B)
such Agent or such Lender determines (in its sole discretion) that
such refund is in respect of, such Applicable Taxes; and (ii) such
Agent's or such Lender's (as applicable) tax affairs for its tax
year in respect of which such refund was obtained have been
finally settled, then in each case such Agent or such Lender
shall, to the extent it can do so without prejudice to the
retention of such refund, pay to the Borrower an amount equal to
such refund (but only to the extent of additional amounts paid by
the Borrower under Section 5.06(a) with respect to the Applicable
Taxes giving rise to such refund), net of all out-of-pocket
expenses and Taxes incurred by such Agent or such Lender with
respect thereto and without interest (other than any interest paid
by the relevant Government Authority with respect to such refund).
Any such payment by any Agent or any Lender shall be applied
toward payments of amounts then owed by the Borrower under this
Agreement if, at the time of such payment, an Event of Default has
occurred and is continuing.
The Borrower shall indemnify each Agent and each Lender on an
after-tax basis for any Taxes that are imposed on such Person as a
result of the disallowance, unavailability, recapture or reduction
of any such refund, as to which such Person has already made
payment in full to the Borrower as required by this paragraph (d).
Nothing herein shall oblige any Agent or any Lender to disclose
any of the tax returns, books or other records of such Person, nor
shall anything herein interfere with the right of any Agent or any
Lender to arrange its tax and
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commercial affairs and its dealings with its various customers in
whatever manner it thinks fit. In particular, no Agent or Lender
shall be under any obligation to claim credit, relief, remission
or repayment from or against its corporate profits or similar tax
liability in respect of the amount of any Tax, deduction or
withholding as aforesaid in priority to any other claims, reliefs,
credits or deductions available to it or that it determines in its
sole discretion to be inadvisable.
5.07 MITIGATION OBLIGATIONS; PREPAYMENTS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office; Prepayments. If any
Lender requests compensation under Section 5.01 or 5.06, or if the
Borrower is required to pay any additional amount to any Lender or
any Government Authority for the account of any Lender pursuant to
Section 5.06, then such Lender shall use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office
for the Loans of such Lender affected by such event or to assign
its rights and obligations therein to another of its offices,
branches or Affiliates, if, in the sole opinion of such Lender,
such designation or assignment: (i) would eliminate or reduce
amounts payable pursuant to Section 5.01 or 5.06, as the case may
be, in the future; and (ii) would not be disadvantageous to such
Lender; provided that such Lender shall have no obligation to
designate an Applicable Lending Office located in the United
States if such Lender's Applicable Lending Office is not then
located in the United States. The Borrower shall pay all
reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment. In the event any such
Lender requesting compensation is unable or, for any reason,
declines to so designate a different Applicable Lending Office of
its Loans, the Borrower shall have the right to prepay such Lender
in whole or in part pursuant to the terms of Section 3.03(a) and
Section 3.05, and such prepayment shall be exclusive of the
prepayment commission described in Section 3.03(b).
(b) Replacement of Lenders. If any Lender requests compensation under
Section 5.01 or 5.06, or if the Borrower is required to pay any
additional amount to any Lender or any Government Authority for
the account of any Lender pursuant to Section 5.06, or if any
Lender exercises its rights under Section 5.03, then the Borrower
may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and
delegate (in accordance with and subject to the restrictions
contained in Section 11.06), without recourse and without
compensation or payment of any type other than amounts referred to
in clause (i) below, all its interests, rights and obligations
under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that: (i) such Lender shall
have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case
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of all other amounts); and (ii) such assignment will: (A) result
in a reduction in such compensation or payments; or (B) effect the
availability of Eurodollar Loans, as applicable. A Lender shall
not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
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ARTICLE VI
CONDITIONS PRECEDENT
6.01 INITIAL TERM LOANS. The obligation of any Lender to make its Initial Loan
Term Loan hereunder is subject to the receipt by the Administrative Agent
of each of the documents and the satisfaction of the conditions precedent
set out in this Section 6.01, each of which shall be satisfactory to the
Lenders in form, scope and substance.
(a) Certain Financing Documents. Each of the following Financing
Documents, each such document to be duly executed and delivered by
each of the intended parties thereto:
(i) this Agreement;
(ii) each of the Initial Term Loan Notes; and
(iii) the Consent and Agreement of each of the Operator and
Imperial Irrigation District relating to the Project
Documents to which such Project Party is a party or by
which it is otherwise bound, except as otherwise agreed in
writing by the Administrative Agent on or prior to the
Closing Date.
(b) Security Documents. Each of the following Security Documents, each
such document to be duly executed and delivered by each of the
intended parties thereto:
(i) the Borrower Security Agreement;
(ii) the Borrower Equity Interest Pledge;
(iii) the Deed of Trust; and
(iv) the Depositary Agreement.
(c) Project Documents. A copy (which, in the case of the Project
Documents referred to in clauses (v), (viii), (ix) and (x) below,
may be in electronic, CD-ROM format), certified by an Authorized
Officer of the Borrower to be true, correct and complete, of each
of the following Project Documents, each such document to be duly
executed and delivered by each of the intended parties thereto:
(i) each PPA;
(ii) each Plant Connection Agreement;
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(iii) the O&M Contract;
(iv) each Transmission Services Agreement;
(v) each Real Property Document;
(vi) the Water Supply Agreement;
(vii) the Energy Services Agreement;
(viii) each Acquisition Document;
(ix) each Restructuring Document;
(x) each Merger Document;
(xi) the Funding and Construction Agreement; and
(xii) the Unit Agreement.
(d) Limited Liability Company Documents. A certificate of the
Secretary or Assistant Secretary of the Borrower or of its
managing member, dated as of the Closing Date, certifying: (A)
that attached thereto is a true, correct and complete copy of the
Charter Documents (including the LLC Agreement) of the Borrower as
in effect on the date of such certificate; (B) that attached
thereto is a true, correct and complete copy of resolutions duly
adopted by the managers or member of the Borrower, authorizing the
execution, delivery and performance of the Financing Documents to
which the Borrower is or is intended to be a party, and that such
resolutions have not been modified, rescinded or amended and are
in full force and effect; and (C) as to the incumbency and
specimen signature of each officer of the Borrower executing each
of the Financing Documents, to which the Borrower is or is
intended to be a party and each other document to be delivered by
the Borrower from time to time in connection therewith (and each
Financing Party may conclusively rely on such certificate until it
receives notice in writing to the contrary from the Borrower).
(e) Officers' Certificates. A certificate of an Authorized Officer of
the Borrower, dated as of the Closing Date, certifying that: (A)
the representations and warranties of the Borrower contained in
Article VII and the material representations and warranties of the
Borrower in each other Transaction Document to which it is a party
are true and correct in all material respects as if made on and as
of such date (or, if stated to have been made solely as of an
earlier date, were true and correct as of such date); (B) the
Borrower is in compliance with all of its covenants and
obligations under each of the Financing Documents to which it is a
party, and is in compliance in all material respects with all of
its covenants and obligations under each of the Project Documents
to which it is a
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party; (C) all Transaction Documents are in full force and effect;
and (D) no Default or Event of Default has occurred and is
continuing on such date, in each case, both immediately prior to
the initial extension of credit hereunder and after giving effect
thereto and to the intended use thereof.
(f) Real Property Documents; Title Insurance; Survey.
(i) Title Insurance. A title policy or policies issued by the
relevant Title Company or Title Companies which is in ALTA,
extended coverage, Lender's Fee Policy form 1970 (revised
10/17/84) or such other form approved by the Lenders, or a
binding marked commitment to issue such policy or policies,
in form, scope and substance satisfactory to the Lenders,
insuring the Collateral Agent for the benefit of the
Secured Parties, in an amount satisfactory to the Lenders,
that the Borrower is lawfully seized and possessed of a
valid and subsisting leasehold interest in the Leasehold
Properties and estate or interest in the ROW and the Site
Licenses, as the case may be, in the Project and that such
interests are free and clear of all defects and
encumbrances except those approved by the Lenders.
Each Title Policy shall contain:
(A) full coverage against Mechanics' Liens (filed and
inchoate);
(B) a reference to the relevant Initial Survey with no
survey exceptions except those theretofore approved
by the Lenders; and
(C) such affirmative insurance and endorsements as the
Lenders may require.
(ii) Initial Survey. An as-built survey of the Site current to
within 90 days of the Closing Date (each such survey, an
"INITIAL SURVEY"), which survey shall:
(A) be a current "as-built" metes and bounds survey of
the Site, including easements that benefit such
Site;
(B) be made in accordance with the "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title
Surveys" jointly established and adopted by ALTA,
ACSM and NSPS in 1999 with all measurements made in
accordance with the "Minimum Angle, Distance and
Closure
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Requirements for Survey Measurements Which Control
Land Boundaries for ALTA/ACSM Land Title Surveys";
(C) be prepared by a surveyor satisfactory to the
Lenders;
(D) contain "Optional Survey Responsibilities and
Specifications" 2, 3, 8, 10 and 16 as specified on
Table A to the "Minimum Standard Detail Requirements
for ALTA/ACSM Land Title Surveys"; and
(E) contain a certification from said surveyor
satisfactory to the Lenders.
(iii) Fees. Evidence that the Borrower shall have paid to each
Title Company all of its expenses and premiums in
connection with the issuance of the Title Policy and in
addition shall have paid to each Title Company an amount
equal to the relevant recording and stamp taxes payable in
connection with recording the Deed of Trust in the
appropriate county land offices.
(g) Financial Statements. The most recent unaudited quarterly
financial statements (consolidated as appropriate) of the
Borrower, prepared in accordance with the relevant Accounting
Principles, together with a certificate from an Authorized Officer
of the Borrower stating that: (A) no material adverse change in
its consolidated assets, liabilities and operations or financial
condition has occurred from those set out in such most recent
financial statements; and (B) such financial statements fairly
present in all material respects the financial condition of the
Borrower.
(h) Government Actions.
(i) Government Approvals. Copies, certified by an Authorized
Officer of the Borrower to be true, correct and complete,
of all Government Approvals referred to in Schedule VI
(other than those listed on Schedule VII or otherwise
designated on such Schedule VII as unavailable), all of
which shall be in form and substance satisfactory to the
Lenders, together with a certificate from an Authorized
Officer of the Borrower stating that all such Government
Approvals, other than those listed on Schedule VII, are in
full force and effect.
(ii) Status. Evidence in form and substance satisfactory to the
Lenders that each of the Projects is a QF.
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(i) Independent Engineer's Report and Certificate. A report of the
Independent Engineer, dated as of a recent date and in form, scope
and substance satisfactory to the Lenders addressing (among other
matters reviewed at the request of the Lenders as determined in
their sole discretion): (i) the historical and projected operating
and maintenance costs; (ii) the historic operation of the Project,
including capacity ratings and actual energy production; (iii) the
capability of the Resource, including (A) a review of Resource
temperature, well production and operation and maintenance costs
associated with the production and injection ▇▇▇▇▇; (B) the
historic production and injection volumes and temperature; (C) the
ability of the Resource to continually provide sufficient
temperatures and volumes of geothermal fluid to maintain the
Project's electricity production and costs as set forth in the
Closing Pro Forma; (D) the expected degradation of the Resource
during the period beginning on the Closing Date and ending on the
Final Maturity Date; (E) a review of the Resource management and
well drilling plans, and the capabilities of the Operator to
operate and maintain the Resource; (F) a review of the costs
associated with management, maintenance, and development of the
Resource to maintain temperature and production; and (G) the
expected useful life of the Resource as currently used and as
anticipated to be used following the Upgrade Project; (iv) the
assumptions, formulae, methodologies and structure of the Closing
Pro Forma; (v) the technical and economic ability and feasibility
of the Project to produce and transmit the capacity and energy,
and generate Project Cash Flow, in accordance with the Closing Pro
Forma; (vi) the technical ability and feasibility of the Project
to supply capacity and energy and otherwise fulfill its
obligations under the PPAs; (vii) the projected availability of
the Project; (viii) the Borrower's ability to perform under the
Project Documents; (ix) the adequacy of the Plant Connection
Agreements, the Transmission Services Agreements, and all other
arrangements relating to interconnection; (x) the adequacy of the
O&M Contract and the reasonableness of the costs and expenses of
the Operator for performing services under the O&M Contract; (xi)
the existence of skilled third party operators capable of
performing such services at a comparable cost to the fees paid to
the Operator under the O&M Contract; (xii) any environmental
matters at or in relation to the Site, including (A) the
Borrower's and the Project's compliance with all applicable
Government Rules, including all Environmental Laws and all
applicable Government Rules relating to health and safety; (B)
whether the Borrower or the Project is subject to any federal,
state or local investigation regarding any actual or potential
remedial action or involving any actual or potential expenditure
in excess of $100,000 in the aggregate with respect to any
Environmental Law or in response to any Release; and (C) whether
the Borrower or the Project has any contingent liability in excess
of $100,000 in the aggregate in connection with any Release;
(xiii) the adequacy of the plans relating to the Upgrade Project
and an opinion that the expectations of the Upgrade Project are
obtainable within the cost and time frame anticipated; and (xiv)
any other technical or regulatory issue that may arise in
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connection with the Independent Engineer's review of the Project
on behalf of the Lenders.
(j) Closing Pro Forma. The Closing Pro Forma.
(k) Insurance.
(i) Acceptable Insurance Broker Certificate. A certificate of
an Acceptable Insurance Broker as to the Borrower's
compliance with Section 8.05(a) and Schedule IV, such
certificate to be in form and substance satisfactory to the
Administrative Agent.
(ii) Compliance Certificate. A certificate of an Authorized
Officer of the Borrower, dated as of the Closing Date,
certifying that insurance complying with Section 8.05(a)
and Schedule IV, covering the risks referred to therein,
has been obtained and is in full force and effect and, as
of the date thereof, no notice of cancellation has been
issued thereunder.
(iii) Insurance Advisor's Report. A report of the Insurance
Advisor, dated as of a recent date and satisfactory in
form, scope and substance: (A) addressing (among other
matters reviewed at the request of the Lenders as
determined in their sole discretion): (I) the adequacy of
the insurance required by Section 8.05 and Schedule IV and
confirming that such insurance and reinsurance provides
adequate cover for the Project and adequately protects the
interests of the Agents and the Lenders; and (II) the
comparability of such insurance with insurance maintained
with respect to similar projects by prudent power
producers; and (B) confirming that insurance complying with
Section 8.05 and Schedule IV, covering the risks referred
to therein: (I) is reasonably likely to remain available
through the Final Maturity Date; and (II) has been obtained
and is in full force and effect and as of the date thereof,
no notice of cancellation has been issued thereunder.
(l) Filings, Registrations and Recordings; Fees and Taxes.
(i) Financing Statements. Acknowledgment copies of all
financing statements under the Uniform Commercial Code (and
copies of Uniform Commercial Code search reports and tax
lien, judgment and litigation search reports) with respect
to the Borrower, in each jurisdiction (and, to the extent
applicable, county land offices) listed under the name of
such Person on Schedule V and in each other jurisdiction in
which such financing statements are necessary or, in the
opinion of special counsel to the Lenders, desirable to
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perfect the Liens created by the Security Documents
(including Liens in fixtures created by the Deed of Trust
and all other instruments to be recorded or filed or
delivered in connection with the Security Documents).
(ii) Recordation. Evidence satisfactory to the Administrative
Agent that the Security Documents have been duly recorded
and filed in all places wherein such recording and filing
are necessary to perfect the interests of the
Administrative Agent in and to the Collateral covered
thereby.
(iii) Fees and Taxes. Evidence that all filing, recordation,
subscription and inscription fees and all recording and
other similar fees, and all recording, stamp and other
taxes and other expenses related to such filings,
registrations and recordings necessary for the consummation
of the transactions contemplated by this Agreement and the
other Financing Documents have been paid in full by or on
behalf of the Borrower or otherwise provided for.
(iv) Other Action. Evidence satisfactory to the Administrative
Agent that all other action necessary in order to
effectively establish, create and perfect the Liens,
charges and security interests contemplated by the Security
Documents shall have been duly taken or made and remains in
full force and effect.
(m) No Proceedings.
(i) As of the Closing Date there is no: (I) injunction, writ,
preliminary restraining order or any order of any nature
issued by any Government Authority, arbitral tribunal or
other body directing that any of the transactions provided
for herein or in the other Transaction Documents not be
consummated as herein or therein provided; or (II)
litigation, proceeding or, to the Borrower's knowledge,
investigation, of or before any Government Authority,
arbitral tribunal or other body pending or, to the
Borrower's knowledge, threatened with respect to or
affecting any Project, this Agreement or any other
Transaction Document or any of the transactions
contemplated hereby or thereby.
(ii) A certificate of an Authorized Officer of the Borrower,
dated as of the Closing Date, certifying as to such effect.
(n) No Material Adverse Change.
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(i) As of the Closing Date, there has been no Material Adverse
Effect since November 7, 2002, and no act, event or
circumstance affecting the Borrower has arisen since such
date that could reasonably be expected to result in a
Material Adverse Effect.
(ii) A certificate of an Authorized Officer of the Borrower,
dated as of the Closing Date, certifying as to such effect.
(o) Opinions of Counsel. The following opinions of counsel, each
acceptable in form and substance to the Agents and the Lenders:
(i) An opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as special New York
counsel to the Borrower and the Sponsor, and addressing
certain New York State and Federal law matters;
(ii) An opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special California counsel to
the Borrower; and
(iii) An opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, as special
Delaware counsel to the Borrower and the Sponsor and
addressing certain general Delaware corporate, limited
liability Company, and Uniform Commercial Code matters.
(p) Fees and Expenses. Evidence that the Borrower shall have paid in
full, on or before the Closing Date, all fees and expenses then
due under or pursuant to this Agreement.
(q) Establishment and Funding of the Accounts. Each of the Accounts
shall have been established as of the Closing Date in accordance
with the terms of the Depositary Agreement. The Debt Service
Reserve Account shall have on deposit a credit balance of
immediately available funds in an amount not less than the Debt
Service Reserve Required Amount, provided that the initial funding
of the Debt Service Reserve Account may be made with the proceeds
of the Initial Term Loans.
(r) Borrower's LLC Agreement. The Borrower's LLC Agreement shall be in
form and substance satisfactory to the Administrative Agent.
(s) No Default. Immediately before and after giving effect to such
proposed Loan, no Default or Event of Default shall have occurred
and be continuing and no Default would result therefrom.
(t) Representations and Warranties. Immediately before and after
giving effect to such proposed extension of credit, all
representations of the Borrower and the Sponsor contained in the
Financing Documents shall be true and correct on and as
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of the Closing Date in all material respects as if made on and as
of such date except for any such representations and warranties
that were initially stated to have been made solely as of an
earlier date, in which case such representations shall have been
true and correct in all material respects as of such earlier date.
(u) Absence of Material Adverse Effect. Immediately before and after
giving effect to such proposed extension of credit, no Material
Adverse Effect shall have occurred and be continuing or would
result therefrom.
(v) Government Approvals. All Government Approvals that are necessary
for each Project as of the Closing Date shall have been obtained
on or prior to the Closing Date and shall be in full force and
effect and not subject to appeal. (w) Notice of Borrowing. The
Borrower shall have delivered to the Administrative Agent (with a
copy to the Collateral Agent) a Notice of Borrowing with respect
to Initial Term Loans in an amount equal to the aggregate Initial
Term Loan Commitments.
(x) Payment Instructions. Evidence that the Borrower shall have
irrevocably instructed in writing each of SCE and Imperial
Irrigation District to make all payments owing to the Borrower
under any Project Document to which either SCE or Imperial
Irrigation District is party to the Depositary Bank for deposit
into the Revenue Account.
6.02 ADDITIONAL TERM LOANS. The obligation of any Lender to make its
Additional Term Loan is subject to the receipt by the Administrative
Agent of the documents and the satisfaction of the conditions precedent
set out below on the date of such Loan, each of which shall be in form
and substance satisfactory to the Administrative Agent and the Majority
Lenders.
(a) No Default. Immediately before and after giving effect to such
proposed extension of credit, no Default or Event of Default shall
have occurred and be continuing and no Default would result
therefrom.
(b) Representations and Warranties. Immediately before and after
giving effect to such proposed extension of credit, all
representations of the Borrower and the Sponsor contained in the
Financing Documents shall be true and correct on and as of the
date of such Additional Term Loan in all material respects as if
made on and as of such date except for any such representations
and warranties that were initially stated to have been made solely
as of an earlier date, in which case such representations shall
have been true and correct in all material respects as of such
earlier date.
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(c) Absence of Material Adverse Effect. Immediately before and after
giving effect to such proposed extension of credit, no Material
Adverse Effect shall have occurred and be continuing or would
result therefrom.
(d) Government Approvals. All Government Approvals that are necessary
for the then current stage of the Development of each Project
shall have been obtained on or prior to the date of such extension
of credit and shall be in full force and effect and not subject to
appeal.
(e) Upgrade Acceptance Test. The Project has successfully passed the
Upgrade Acceptance Test on or before December 31, 2003.
(f) Upgrade Pro Forma. The Upgrade Pro Forma, containing assumptions
and otherwise in form and substance satisfactory to the Lenders
and the Independent Engineer, taking into account the effect of
the Upgrade Project on the Projects' performance, and
demonstrating an annual Debt Service Coverage Ratio of at least
1.5:1.
(g) Independent Engineer's Upgrade Report; Defective Tower Repair. An
update to the report of the Independent Engineer that was
delivered on the Closing Date, confirming that the Upgrade
Acceptance Test has been satisfied in all material respects in
form and substance satisfactory to the Lenders, and a certificate
of an Authorized Officer of the Borrower, dated no later than July
1, 2003 certifying that the Tower Repairs have been substantially
completed and that, as a result, the cooling towers subject
thereof are, as of such date, in good working order and condition
in accordance with generally accepted prudent utility practices.
(h) Title Policy Endorsement. An endorsement to the Title Policy to
the date of such extension of credit, in the form approved by the
Administrative Agent and setting out no additional exceptions
(including survey exceptions).
(i) Notice of Borrowing. The Borrower shall have delivered to the
Administrative Agent (with a copy to the Collateral Agent) a
Notice of Borrowing with respect to Additional Term Loans in an
amount not exceeding the present value, as calculated by the
Administrative Agent, discounted at ten percent (10%), of
two-thirds (2/3) of Additional Project Cash Flow, as set forth in
the Upgrade Pro Forma, for the period from the date the Project
passes the Upgrade Acceptance Test to the Final Maturity Date, but
not to exceed the aggregate Additional Term Loan Commitments.
(j) Other. Such other statements, certificates, documents and
information with respect to any Project or matters contemplated by
this Agreement as either Agent or the Majority Lenders may
reasonably request.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders and each Agent that:
7.01 EXISTENCE. The Borrower is duly organized or formed, validly existing and
in good standing under the laws of the State of Delaware. The Borrower is
duly qualified to do business and is in good standing in the State of
California. The Borrower is duly qualified to do business and is in good
standing in all other places where necessary in light of the business it
conducts and the Property it owns and intends to conduct and own and in
light of the transactions contemplated by this Agreement and the other
Transaction Documents, except where the failure to so qualify or be in
good standing could not reasonably be expected to have a Material Adverse
Effect. No filing, recording, publishing or other act that has not been
made or done is necessary in connection with the existence or good
standing of the Borrower or the conduct of its business.
7.02 FINANCIAL CONDITION.
(a) Financial Statements. The financial statements delivered to the
Administrative Agent pursuant to Section 8.01, and any related
statements of income, owner's equity and cash flows: (i) fairly
present, in all material respects, the financial condition of the
Borrower as of the date delivered and the results of its
operations for the period covered thereby (subject, in the case of
any quarterly financial statements to normal year-end audit
adjustments); and (ii) have been prepared in accordance with the
Accounting Principles applicable to such Person.
(b) No Material Contingent Liabilities. As of the date of the relevant
balance sheet included in such financial statements, the Borrower
has no contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated
losses from any unfavorable commitments or any other liabilities
or obligations of a nature required to be reflected in a balance
sheet for the period to which such financial statements relate
that were not disclosed in such balance sheet and, either
individually or in the aggregate would be material to the
Borrower.
(c) No Material Adverse Change. The Borrower knows of no reasonable
basis existing as of the date of its most recent balance sheet in
accordance with Section 8.01 for the assertion against it of any
liability or obligation of a nature required to be reflected in a
balance sheet that is not fully reflected in its most recent
balance sheet. Since the date of delivery of such balance sheet,
there has been no material adverse change in the financial
condition, operations or business of the Borrower from that set
out in such financial statements as at such date.
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7.03 ACTION.
(a) Borrower. The Borrower has full limited liability company power,
authority and legal right to execute and deliver the Transaction
Documents to which it is or is intended to be a party and to
perform its obligations thereunder. The execution, delivery and
performance by the Borrower of each of the Transaction Documents
to which it is or is intended to be a party and the consummation
of the transactions contemplated thereby have been duly authorized
by all necessary limited liability company action on its part.
Each of the Transaction Documents to which the Borrower is a party
has been duly executed and delivered by or on behalf of such
Person and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except as the
enforceability thereof may be limited by: (i) applicable
bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally; and (ii) the
application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in
equity).
(b) Other Major Project Parties.
(i) Each of the other Major Project Parties has full corporate,
limited liability company or partnership power, authority
and legal right to execute and deliver each of the
Transaction Documents to which it is or is intended to be a
party and to perform its obligations thereunder;
(ii) the execution, delivery and performance by each other Major
Project Party of each of the Transaction Documents to which
it is or is intended to be a party and the consummation of
the transactions contemplated thereby have been duly
authorized by all necessary corporate, limited liability
company or partnership action on the part of such other
Major Project Party; and
(iii) each of the Transaction Documents to which any other Major
Project Party is a party has been duly executed and
delivered by such other Major Project Party and constitutes
the legal, valid and binding obligation of such other
Project Party enforceable against such other Major Project
Party in accordance with its terms, except as the
enforceability thereof may be limited by: (A) applicable
bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally;
and (B) the application of general principles of equity
(regardless of whether such enforceability is considered in
a proceeding at law or in equity);
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provided that these representations shall be made only to the
knowledge of the Borrower with respect to any other Major Project
Party that is not an Affiliate of the Borrower.
7.04 NO BREACH.
(a) Execution, Etc. of Transaction Documents. The execution, delivery
and performance by the Borrower of each of the Transaction
Documents to which it is or is intended to be a party and the
consummation of the transactions contemplated thereby do not and
will not: (i) require any consent or approval of any Person that
has not been obtained (except for consents from the BLM, SCE and
for certain consents by third parties to the right of the
Collateral Agent on behalf of the Secured Parties under the
Security Documents to step into, cure defaults under or substitute
a counterparty to, certain Project Documents) and each such
consent and approval that has been obtained is in full force and
effect; (ii) violate any material Government Rule or material
Government Approval applicable to any Project; (iii) conflict
with, result in a breach of or constitute a default under: (A) the
Borrower's Charter Documents or any corporate, limited liability
company action or any resolution of the member of the Borrower; or
(B) any Project Document other than with respect to the Consents
described in clause (i) above that have not been obtained or any
indenture or loan or credit agreement or any other material
agreement, lease or instrument to which the Borrower is a party or
by which it or its Property may be bound or affected in any
material respect; or (iv) result in, or create any Lien (other
than a Permitted Lien) upon or with respect to any of the
properties now owned or hereafter acquired by the Borrower.
(b) No Breach. The Borrower is not in violation of any Government Rule
or Government Approval that could reasonably be expected to result
in a Material Adverse Effect. The Borrower is not in breach of or
default under any indenture, loan or credit agreement or any other
agreement, lease or instrument referred to in paragraph (a)(iii)
above, except such breaches or defaults that, in the aggregate
could not reasonably be expected to result in a Material Adverse
Effect.
7.05 GOVERNMENT APPROVALS; GOVERNMENT RULES.
(a) Borrower. All Government Approvals necessary under Government
Rules to be obtained by or on behalf of the Borrower on or prior
to the Closing Date are set out in Schedules VI and, except for
those Government Approvals set out in Schedule VII which are not
currently required for any Project, have been duly obtained, were
validly issued, are in full force and effect, are not subject to
appeal, are held in the name, or on behalf of, such Person and are
free from conditions or requirements compliance with which could
reasonably be expected to result in a Material Adverse Effect or
which such Person does not reasonably expect to be able to satisfy
on or prior to the time when necessary.
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(b) Other Major Project Parties. To the Borrower's knowledge: (i) each
other Major Project Party has obtained all Government Approvals
necessary under Government Rules that are required to be obtained
on or prior to the Closing Date in order for such other Major
Project Party to perform its obligations under the Transaction
Documents to which it is or is intended to be a party, other than
those Government Approvals not currently required for any Project;
and (ii) such Government Approvals are in full force and effect,
are not subject to appeal, are held in the name of such other
Major Project Party and are free from conditions or requirements
compliance with which could reasonably be expected to result in a
Material Adverse Effect or which the Borrower does not reasonably
expect such other Major Project Party to be able to satisfy on or
prior to the time when necessary.
(c) No Material Omission. The information set out in each application
and all other written materials submitted by the Borrower (and to
the Borrower's knowledge, each other Major Project Party) to the
applicable Government Authority in connection with each of its
Government Approvals is accurate and complete in all material
respects as of the date submitted to such Government Authority and
does not omit to state any material fact necessary to make such
information not misleading.
(d) Future Government Approvals. The Borrower has no reason to believe
that any Government Approvals that have not been obtained by it or
any other Major Project Party as of the date of this Agreement,
but which will be required in the future, will not be obtained in
due course on or prior to the time when necessary and will be free
from any condition or requirement, compliance with which could
reasonably be expected to have a Material Adverse Effect.
(e) Compliance of Upgrade Project. The Upgrade Project, if constructed
in accordance with the Plans and Specifications therefor and
otherwise Developed as contemplated by the Project Documents, will
conform to and comply, in all material respects, with all
covenants, conditions, restrictions and reservations in the
Government Approvals applicable thereto and all Government Rules.
(f) Copies Provided to Administrative Agent. In accordance with
Section 6.01(h), the Administrative Agent has received a certified
copy of each Government Approval heretofore obtained.
7.06 PROCEEDINGS. There is no action, suit or proceeding at law or in equity
or by or before any Government Authority, arbitral tribunal or other body
now pending or, to the knowledge of the Borrower, threatened against or
affecting it, any of its Property (including any Project) or, to the
knowledge of the Borrower, any other Major Project Party, that could
reasonably be expected to result in a Material Adverse Effect. No winding
up, dissolution or similar process is pending or threatened against the
Borrower or (to the knowledge of the Borrower) any other Major Project
Party except, after the
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Closing Date, to the extent such process, if adversely determined, could
not reasonably be expected to result in an Event of Default.
7.07 ENVIRONMENTAL MATTERS.
(a) Environmental Claims. Except as described in Part A of Schedule
VIII, to the knowledge of the Borrower, there are no facts,
circumstances, conditions or occurrences regarding any Project
that could reasonably be expected to form the basis of an
Environmental Claim arising with respect to any Project or against
such Project, the Borrower or, in connection with its involvement
in any Project, any other Environmental Party, that individually
or in the aggregate could reasonably be expected to result in a
Material Adverse Effect.
(b) Threatened Environmental Claims. Except as set out in Part B of
Schedule VIII, there are no pending or, to the knowledge of the
Borrower no past or, threatened Environmental Claims arising with
respect to any Project or against such Project, the Borrower or,
in connection with its involvement in the Development of any
Project, any other Environmental Party, that individually or in
the aggregate could reasonably be expected to result in a Material
Adverse Effect.
(c) Hazardous Materials. Except as set out in Part C of Schedule VIII,
to the Borrower's knowledge no Hazardous Materials have been Used
or Released at, on, under or from any Project in an amount or
concentration that is not otherwise in compliance with applicable
Environmental Law and that individually or in the aggregate could
reasonably be expected to result in a Material Adverse Effect.
(d) Other Materials. There are not now and, to the knowledge of the
Borrower, never have been any underground storage tanks located at
any Project. There is no asbestos contained in, forming part of,
or contaminating any part of any Project, and no polychlorinated
biphenyls are used, stored, located at or contaminate any part of
any Project.
(e) Investigations. There have been no environmental investigations,
studies, audits, reviews or other analyses conducted by or that
are in the possession of the Borrower (or, with respect to such
investigations, studies, audits, reviews and other analysis
conducted prior to April 15, 2002, known by the Borrower to be in
its possession) in relation to any Project that have not been
provided to the Administrative Agent and the Lenders.
7.08 TAXES. The Borrower has filed or caused to be filed all tax returns that
are required by applicable law to be filed, and has paid all Taxes shown
to be due and payable on said returns or on any assessments made against
the Borrower or any of its Property and all other Taxes imposed on the
Borrower by any Government Authority (other than Taxes the payment of
which are not yet due or that are being Contested) except, in each case,
where such failure could not reasonably be expected to have a Material
Adverse Effect.
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No Liens for Taxes (other than Permitted Liens) against the Borrower or
any of its Property exist and no claims are being asserted against the
Borrower or any of its Property with respect to any Taxes. The aggregate
amount of sales, excise or property taxes imposed or reasonably expected
to be imposed on the Borrower or any of its Property does not exceed the
amounts provided therefor in the Closing Pro Forma. The charges, accruals
and reserves on its books in respect of Taxes are, in the opinion of the
Borrower, adequate.
7.09 TAX STATUS.
(a) For Federal and state income tax purposes, the Borrower is
disregarded as an entity separate from its owner.
(b) Neither the execution and delivery of this Agreement, the other
Transaction Documents or the Non-Material Project Contracts nor
the consummation of any of the transactions contemplated hereby or
thereby shall affect the classification of the Borrower as set out
in paragraph (a) above.
7.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected
to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements
reflecting such amounts, materially exceed the fair market value of the
assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the date of the most recent financial statements reflecting such
amounts, materially exceed the fair market value of the assets of all
such underfunded Plans.
7.11 NATURE OF BUSINESS. The Borrower has not engaged in any business other
than the Development of the Projects and with respect to the SIGC Lease.
Neither the business nor any Properties of the Borrower are or have been
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by insurance) that
could reasonably be expected to have a Material Adverse Effect.
7.12 TITLE; SECURITY DOCUMENTS.
(a) Title. The Borrower owns and has good, legal and marketable title
to the Collateral purported to be covered by the Security
Documents to which it is a party, except for that portion of the
Collateral which is Real Property, in which the Borrower has a
valid estate or interest, and all such interests of the Borrower
are free and clear of all Liens other than Permitted Liens.
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(i) The Borrower is lawfully possessed of a valid and
subsisting estate in and to the Real Property and rights to
the Real Property described in the Deed of Trust free and
clear of all Liens other than the Liens granted to the
Collateral Agent for the benefit of the Secured Parties
under the Security Documents and:
(A) as at the Closing Date, exceptions shown on the
Title Policy delivered on the Closing Date in
relation thereto; and
(B) Permitted Liens.
(ii) The Borrower enjoys peaceful and undisturbed possession of,
all of its Properties (subject only to the Permitted Liens
described above) that are necessary for the Projects.
(b) Security Documents. The provisions of the Security Documents are
effective to create, in favor of the Collateral Agent for the
benefit of the Secured Parties, a legal, valid and enforceable
Lien on and security interest in all of the Collateral purported
to be covered thereby in accordance with state law and as
permitted pursuant to the rules and regulations of the BLM. All
necessary and appropriate recordings and filings have been made,
or are being made concurrently herewith, in all necessary and
appropriate public offices (including in the jurisdictions set out
in Schedule V), and all other necessary and appropriate action has
been, or is concurrently herewith being, taken, so that, subject
to the rules and regulations of the BLM, each such Security
Document creates, or as to after-acquired property will create, to
the extent set forth in such Security Document, a perfected Lien
on and security interest in all right, title, estate and interest
in the Collateral covered thereby, prior and superior to all other
Liens other than Permitted Liens. Except as otherwise agreed by
the Lenders, all necessary and appropriate consents to the
creation, perfection and enforcement of such Liens have been
obtained from each of the parties to the Project Documents except
for the BLM and SCE. Subject to the rules and regulations of the
BLM, no mortgage or financing statement or other instrument or
recordation covering all or any part of the Collateral purported
to be covered by the Security Documents is on file in any
recording office, except such as may have been filed in favor of
the Collateral Agent for the benefit of the Secured Parties or in
respect of any Permitted Lien.
7.13 SUBSIDIARIES.
(a) No Subsidiaries. The Borrower has no subsidiaries.
(b) Ownership Interests in Borrower. There are no ownership interests
in the Borrower other than the 100% member interest held by the
Sponsor.
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7.14 UTILITY REGULATION.
(a) Holding Company. The Borrower is not a "public-utility company" or
a "holding company", or an "affiliate" of a "holding company" or
of a "public-utility company", or a "subsidiary company" of a
"holding company", within the meaning of PUHCA nor is Borrower
subject to regulation under PUHCA. None of the Projects is a
"public-utility company" or a "holding company", or an "affiliate"
of a "holding company" or of a "public-utility company", or a
"subsidiary company" of a "holding company" within the meaning of
PUHCA.
(b) Status. Each of the Projects is a QF. The Borrower is not, nor
will any of the Secured Parties (solely as a result of its
execution, delivery or performance of this Agreement or the other
Financing Documents or the transactions contemplated thereby,
other than the exercise of remedies under the Security Documents
except to the extent that, following such exercise of remedies,
the Borrower will remain as the owner of the Projects, and the
Operator will remain as the operator thereof) be, subject to
regulation as a "public-utility company", a "holding company" or a
"subsidiary company" or an "affiliate" of any of the foregoing,
under PUHCA.
(c) Public Utility. Except as set out on Schedule VII and provided in
the Government Approvals identified therein, the Borrower is not,
nor will any of the Secured Parties be (solely as a result of its
execution, delivery or performance of this Agreement or the other
Financing Documents or the transactions contemplated thereby,
other than the exercise of remedies under the Security Documents
except to the extent that, following such exercise of remedies,
the Borrower will remain as the owner of the relevant Projects,
and the Operator will remain as the operator thereof), subject to
regulation: (i) respecting the rates of electric utilities or
material financial and organizational regulation of electric
utilities under the FPA or the applicable Government Rules of the
State of California other than, solely with respect to the Secured
Parties' exercise of remedies under the Security Documents,
Section 203 of the FPA; or (ii) otherwise as a gas or other
regulated utility, however denominated, under applicable
Government Rules of the United States of America or the State of
California.
(d) Investment Company. The Borrower is not an "investment company" or
a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940 or an "investment
advisor" within the meaning of the Investment Company Act of 1940.
7.15 FINANCING DOCUMENTS; PROJECT DOCUMENTS; NON-MATERIAL PROJECT CONTRACTS;
LICENSES, ETC.
(a) Financing Documents; Project Documents; Non-Material Project
Contracts. The Financing Documents, Project Documents and the
Non-Material Project Contracts constitute and include all
contracts and agreements relating to the Projects. As at
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the Closing Date, all Project Documents are set out in the
definition thereof in Schedule I. There are no material services,
materials or rights (other than Government Approvals) required for
any Project other than those granted by, or to be provided to the
Borrower pursuant to, the Project Documents. The Borrower has no
reason to believe that any services, materials or rights (other
than Government Approvals) that have not been obtained as of the
date of this Agreement, but that will be required for a future
stage of the Development of any Project (including, without
limitation, the Upgrade Project), will not be obtained in due
course on or prior to the commencement of the appropriate stage of
Development of such Project and will not contain any condition or
requirement compliance with which could reasonably be expected to
have a Material Adverse Effect.
(b) Copies of Documents. The Administrative Agent has received a copy
(certified by the Borrower) of each Project Document, in
accordance with Section 6.01(c), in each case as in effect on the
date of delivery and each amendment, modification or supplement
thereto.
(c) No Amendment. Since their certification and delivery in accordance
with Section 6.01(c) and except as permitted pursuant to Section
8.22, none of the Project Documents has been amended, modified or
supplemented or has been Impaired and all of the Project Documents
are in full force and effect in all material respects. All
conditions precedent to the obligations of the respective parties
under the Project Documents have been satisfied or waived except
for such conditions precedent that need not and cannot be
satisfied until a later stage of Development of the relevant
Project, and the Borrower has no reason to believe that any such
condition precedent cannot be satisfied on or prior to the
commencement of the appropriate stage of Development of such
Project.
(d) Representations and Warranties. All material representations,
warranties and other factual statements made by the Borrower and,
to the knowledge of the Borrower, made by each other Person in the
Project Documents are true and correct in all material respects
(or, if stated to have been made solely as of an earlier date,
were true and correct as of such date) and do not omit to state
any material fact necessary to make such representations,
warranties and other factual statements not misleading.
(e) No Default. The Borrower is not in default in the performance of
any covenant or obligation set out in any Project Document in a
manner that could reasonably be expected to result in a Material
Adverse Effect. To the knowledge of the Borrower, no other party
to any Project Document is in default in the performance of any
covenant or obligation set out therein in a manner that could
reasonably be expected to result in a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
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(f) Licenses. All material permits, licenses, trademarks, patents or
agreements with respect to the usage of technology or other
property (other than those constituting Government Approvals) that
are necessary for each Project have been obtained, are final and
are in full force and effect in all material respects and any such
permits, licenses, trademarks, patents or agreements not currently
necessary for each Project can reasonably be expected to be
obtained when needed, free from conditions or requirements,
compliance with which could reasonably be expected to result in a
Material Adverse Effect.
7.16 UTILITY SERVICES. All utility services necessary for the Development of
each Project, including, as necessary, water supply, storm and sanitary
sewer, electric and telephone services and facilities, are available to
such Project.
7.17 DISCLOSURE. All factual information in writing (taken as a whole)
furnished by the Borrower or any Affiliate of the Borrower on its behalf,
whether in print or electronic form, to any Financing Party was true and
accurate in all material respects: on the dates as of which such
information was furnished, and was not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided; provided,
however, that, except as otherwise expressly provided in this Agreement,
the Borrower's sole representation with respect to projections, estimates
or other expressions of view as to future circumstances shall be that
such projections, estimates or other expressions of view as to future
circumstances: (i) were prepared in good faith and with due care; (ii)
fairly present in all material respects the Borrower's expectations as to
the matters covered thereby as of their respective date(s) of delivery;
(iii) were based on reasonable assumptions as to all factual and legal
matters material to the estimates therein as of their respective date(s)
of delivery; (iv) were in all material respects consistent with the
provisions of the Transaction Documents as of their respective date(s) of
delivery; and (v) contain no statements or conclusions that are based
upon or include information known to the Borrower to be misleading or
that fail to take into account material information regarding the matters
reported therein as of their respective date(s) of delivery. There are in
existence no documents or agreements that have not been disclosed to the
Lenders that are material in the context of the Transaction Documents or
that have the effect of varying any of the Transaction Documents or the
Projects. There is no fact known to the Borrower that has not been
disclosed in writing to the Lenders and that has had, or that could
reasonably be expected in the future to have, a Material Adverse Effect.
7.18 USE OF PROCEEDS. The proceeds of each Loan will be used solely in
accordance with, and solely for the purposes contemplated by, Section
8.09. No part of the proceeds of any Loan hereunder will be used for the
purpose, whether immediate, incidental or ultimate, of buying or carrying
any Margin Stock or to extend credit to others for such purpose.
7.19 FEES. On the Closing Date, except with respect to the financial advisor
to the Borrower in connection with the transactions contemplated hereby,
the Borrower does not have any
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obligation to any Person in respect of any finder's, broker's, investment
banking, legal or accounting or other similar fee (including any fee
payable to engineers, environmental consultants, fuel consultants or
similar experts) in connection with any of the transactions contemplated
by the Transaction Documents for services rendered more than 60 days
prior to the Closing Date other than fees payable to Lenders or fees
specifically contemplated in the Closing Pro Forma.
7.20 INDEBTEDNESS. The Borrower is not directly or indirectly liable with
respect to any Indebtedness outstanding as of the Closing Date other than
Permitted Indebtedness.
7.21 INVESTMENTS. The Borrower has no Investments except Permitted
Investments.
7.22 NO FORCE MAJEURE. No event, condition or circumstance has occurred on the
basis of which the Borrower has either given a notice of "force majeure"
or received such notice from any other Person that could reasonably be
expected to entitle the Borrower or such notifying Person to excuse,
defer or suspend the performance of any of the material obligations of
the Borrower or such notifying Person under any Transaction Document to
which it is a party on the basis of "force majeure."
7.23 ASSETS. The Borrower owns, leases and otherwise has full legal right to
use all Real Property, subject to the rules and regulations of the BLM,
buildings, machinery, equipment and other assets, whether tangible or
intangible, that are necessary or useful for the conduct of its business
as presently conducted and as proposed to be conducted through the Final
Maturity Date. On and as of the Closing Date, each such asset is, except
for the assets to be repaired and/or upgraded as part of the Upgrade
Project and the Tower Repairs, free from defects (patent and latent), is
in good operating condition and repair (subject to normal wear and tear),
and is suitable for the purposes for which it is presently used and as
proposed to be used through the Final Maturity Date. Since April 15,
2002, each such asset, except for the assets to be repaired and/or
upgraded as part of the Upgrade Project and the Tower Repairs, has been
maintained in accordance with prudent and good industry practice.
ARTICLE VIII
COVENANTS
The Borrower covenants and agrees with the Lenders and the Agents that until the
Termination Date:
8.01 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower shall deliver to
the Administrative Agent (in sufficient copies for distribution to each
of the Lenders):
(a) as soon as available and in any event within 60 days after the end
of each quarterly fiscal period of each fiscal year of the
Borrower, unaudited statements
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of income, owners' equity and cash flows of the Borrower, for such
period and for the period from the beginning of the respective
fiscal year to the end of such period, and the related unaudited
balance sheet as at the end of such period, setting out in each
case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, accompanied by
any material accounting variation report required by Section
1.04(b) and a certificate of a senior financial officer of the
Borrower, which certificate shall state that said financial
statements fairly present in all material respects the financial
condition and results of operations of the Borrower, in accordance
with the Accounting Principles applicable to the Borrower as at
the end of, and for, such period (subject to normal year-end audit
adjustments);
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, audited statements of
income, owners' equity and cash flows of the Borrower for such
year and the related audited balance sheets as at the end of such
year, setting out in each case in comparative form the
corresponding figures for the preceding fiscal year, and
accompanied by any material accounting variation report required
by Section 1.04(b) and an opinion thereon of independent certified
public accountants of recognized standing reasonably acceptable to
the Lenders, which opinion shall state that said financial
statements fairly present in all material respects the financial
condition and results of operations of the Borrower as at the end
of, and for, such fiscal year in accordance with the Accounting
Principles applicable to the Borrower, and a certificate of such
accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default or Event of Default (which certificate may
be limited to the extent required by accounting rules or
guidelines or customary accounting practice);
(c) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, that the Borrower
shall have filed with the Securities and Exchange Commission or
any national securities exchange;
(d) prompt written notice of receipt by the Borrower of written notice
of the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower in an aggregate
amount that could reasonably be expected to result in a Default or
have a Material Adverse Effect;
(e) promptly after the Borrower knows or has reason to believe that
any Default or Event of Default has occurred, a notice of such
event describing the same in reasonable detail and, together with
such notice or as soon thereafter as practicable, a description of
the action that the Borrower has taken or proposes to take with
respect thereto;
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(f) promptly after the Borrower knows or has reason to believe that
any fact, event, circumstance, condition or occurrence has
occurred that results in, or could reasonably be expected to
result in, a Material Adverse Effect, a notice of such fact,
event, circumstance, condition or occurrence describing the same
in reasonable detail and, together with such notice or as soon
thereafter as practicable, a description of the action that the
Borrower has taken or proposes to take with respect thereto;
(g) promptly after the Borrower knows or has reason to believe that
any event, circumstance or condition in the nature of force
majeure has occurred which could reasonably be expected to result
in a materially adverse change from the Closing Pro Forma or, if
the Second Closing Date has occurred, the Upgrade Pro Form, a
notice of such event, describing the same in reasonable detail
and, together with such notice or as soon thereafter as
practicable, a description of the action that the Borrower has
taken or proposes to take with respect thereto;
(h) promptly upon their becoming available, copies of all material
notices or material documents received by the Borrower pursuant to
any Project Document (including any notice or other document
relating to a failure by the Borrower to perform any of its
covenants or obligations under such Project Document);
(i) promptly upon their becoming available, copies of all material
periodic reports received from the Operator and other material
notices relating to any Project received from any Project Party;
(j) the notices required by Section 8.06;
(k) as soon as practicable as they are available, copies of each
insurance policy relating to the Projects, together with a
certificate of an Authorized Officer of the Borrower, dated as of
the date of such delivery, certifying that the policies comply
with Section 8.05(a) and Schedule IV, cover the risks referred to
therein, are in full and effect, as of the date of such delivery,
no notice of cancellation has been issued thereunder, and that all
premiums then due and payable thereon have been paid; and
(l) from time to time such other information regarding the financial
condition, operations, business or prospects of the Borrower
(including any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as any Lender
(through the Administrative Agent) or Agent may reasonably
request.
8.02 MAINTENANCE OF EXISTENCE; ETC.The Borrower shall: (a) preserve and
maintain its legal existence; (b) preserve and maintain its good standing
and all material licenses, rights, privileges and franchises necessary
for the proper operation of each Project and its qualification to do
business; and (c) conduct its business in an orderly, efficient and
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regular manner, unless the failure to so comply could not reasonably be
expected to result in a Material Adverse Effect.
8.03 COMPLIANCE WITH GOVERNMENT RULES; ETC.
(a) Compliance with Government Rules. The Borrower shall comply with
all applicable Government Rules and from time to time obtain,
maintain, comply with and renew all Government Approvals as shall
now or hereafter be necessary under applicable Government Rules
(except any thereof the non-compliance with or non-renewal of
which could not reasonably be expected to result in a Material
Adverse Effect). The Borrower shall promptly upon receipt or
publication furnish a copy (certified by the Borrower or, if
available, the applicable Government Authority) of each such
Government Approval to the Administrative Agent.
(b) No Amendment. Except as provided in Section 8.22(b)(vi), the
Borrower shall not petition, request or take any legal or
administrative action that seeks to amend, supplement or modify
any Government Approval unless: (i) the Borrower theretofore shall
have furnished to the Administrative Agent and the Lenders a
detailed description of the proposed amendment, supplement or
modification and the actions that the Borrower proposes to take
with respect thereto; and (ii) such amendment, supplement or
modification could not reasonably be expected to result in a
Material Adverse Effect. The Borrower shall promptly upon receipt
or publication thereof furnish a copy (certified by the Borrower
or the applicable Government Authority) of each amendment,
supplement or modification to any Government Approval to the
Administrative Agent.
(c) QF Status. The Borrower shall maintain the status of the Projects
as QFs.
8.04 ENVIRONMENTAL COMPLIANCE.
(a) No Use or Release. The Borrower shall not Use or Release, or
permit the Use or Release of, Hazardous Materials at any Project
other than in compliance with all applicable Environmental Laws
and where such Use or Release could not reasonably be expected to
result in a Material Adverse Effect.
(b) Investigation. The Borrower shall conduct and complete any
investigation, study, sampling and testing and undertake any
cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials Released at, on, in, under or
from any Project, to the extent required by and consistent with
the requirements of all applicable Environmental Laws except where
failure to conduct or complete such clean-up, removal, remedial or
other action could not reasonably be expected to result in a
Material Adverse Effect.
(c) Environmental Claim. The Borrower shall deliver to the
Administrative Agent and each Lender:
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(i) promptly upon obtaining knowledge of: (A) any fact,
circumstance, condition or occurrence that could form the
basis of an Environmental Claim arising with respect to any
Project or against such Project, the Borrower or, in
connection with its involvement in any Project, any other
Environmental Party, in each case, which could reasonably
be expected to have a Material Adverse Effect; or (B) any
pending or threatened material Environmental Claim arising
with respect to any Project or against such Project, the
Borrower or, in connection with its involvement in any
Project, any other Environmental Party, a notice thereof
describing the same in reasonable detail and, together with
such notice or as soon thereafter as practicable, a
description of the action that the Borrower has taken or
proposes to take with respect thereto and, thereafter, from
time to time such detailed reports with respect thereto as
the Administrative Agent or any Lender (through the
Administrative Agent) may reasonably request; and
(ii) promptly upon their becoming available, copies of all
material written communications with any Government
Authority relating to any violation or alleged violation of
any Environmental Law or any Environmental Claim relating
to any Project.
8.05 INSURANCE; EVENTS OF LOSS.
(a) Insurance Maintained by the Borrower. The Borrower shall keep its
present and future properties and business insured as required by
and in accordance with the terms and conditions described in
Schedule IV.
(b) Compromise, Adjustment or Settlement. The Administrative Agent
shall be entitled at its option to participate in any compromise,
adjustment or settlement in connection with any Event of Loss
under any policy or policies of insurance or any proceeding with
respect to any condemnation (including a Condemnation) or other
taking of Property of the Borrower in excess of $1,000,000. The
Borrower shall, within five Business Days after request therefor,
reimburse the Administrative Agent for all reasonable
out-of-pocket expenses (including reasonable attorneys' and
experts' fees) incurred by the Administrative Agent in connection
with such participation. The Borrower shall not make any
compromise, adjustment or settlement in connection with any such
claim without the approval of the Administrative Agent, which
approval shall not unreasonably be withheld, conditioned or
delayed. The Borrower shall diligently pursue all claims and
rights to compensation against all relevant insurers and/or
Government Authorities, as applicable, in respect of any Event of
Loss.
(c) Loss Proceeds. In the event that the Borrower receives any amount
of Loss Proceeds in respect of any Event of Loss, the Borrower
shall deposit the amount
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of such Loss Proceeds in the Restoration Sub-Account. In the event
that the Borrower receives any amount of proceeds of business
interruption insurance and other payments received for
interruption of operations in respect of any Event of Loss, the
Borrower shall deposit the amount of such proceeds in the Revenue
Account. In the event that the amount of such Loss Proceeds with
respect to any Event of Loss is $2,500,000 or less, such amounts
shall be made available to the Borrower for the purpose of
Restoring the Affected Property and shall be applied by the
Borrower to the payment of the cost of the Restoration of the
Affected Property. In the event that the amount of such Loss
Proceeds with respect to any Event of Loss is greater than
$2,500,000, such amounts shall be made available to the Borrower
from time to time in accordance with paragraph (d) and shall be
applied by the Borrower to the payment of the cost of the
Restoration of the Affected Property.
In the event that the relevant Event of Loss has caused a Project
to be declared a total loss by its insurers, the Loss Proceeds
with respect to such Event of Loss shall be promptly applied by
the Administrative Agent in accordance with Section 3.04.
(d) Restoration. Amounts to be made available to the Borrower from the
Restoration Sub-Account to be applied to the Restoration of
Affected Property following any Event of Loss ("RESTORATION WORK")
shall be remitted to the Borrower by the Administrative Agent, in
the event that the amount of Loss Proceeds with respect to such
Event of Loss is greater than $2,500,000, subject to the
satisfaction of the following conditions:
(i) in the event that the amount of Loss Proceeds with respect
to such Event of Loss is less than or equal to $5,000,000,
the Borrower has delivered to the Administrative Agent
plans and specifications for the Restoration Work,
including reasonable estimates of the costs and time
required to complete such Restoration Work ("RESTORATION
PLANS") and has certified in writing to the Administrative
Agent that the conditions set out in paragraphs (ii)(B),
(C), (E) and (F) below have been satisfied; and
(ii) in the event that the amount of Loss Proceeds with respect
to such Event of Loss is greater than $5,000,000:
(A) the Borrower shall have delivered the relevant
Restoration Plan to the Administrative Agent and the
Independent Engineer;
(B) the Restoration Plans provide for Restoration Work
that is technically feasible and will, upon
completion thereof, result in the Project being at
least equal in value, general
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utility and levels of performance as the Project
prior to the Event of Loss;
(C) the Restoration Plans provide for the Restoration
Work to be completed within the period covered by
business interruption insurance, plus any additional
period agreed between the Borrower and the
Administrative Agent (after consultation with the
Independent Engineer) for a cost not to exceed the
relevant Loss Proceeds plus any necessary additional
funds ("ADDITIONAL RESTORATION FUNDS") to be
contributed towards such Restoration from: (I)
amounts then on deposit in the Revenue Account that
are distributable in accordance with Section 8.13,
which amounts shall be transferred to the
Restoration Sub-Account; or (II) cash actually
deposited into the Restoration Sub-Account by a
Person other than the Borrower;
(D) the Independent Engineer shall have delivered to the
Administrative Agent and the Lenders a certificate
to the effect that the amount of Loss Proceeds with
respect to such Event of Loss that has been
deposited in the Restoration Sub-Account together
with any Additional Restoration Funds, business
interruption insurance proceeds relating thereto and
any projected revenues from the Project are
sufficient to Restore the Affected Property and to
pay all Operation and Maintenance Expenses and all
maintenance expenditures for such affected Project
and Debt Service, in each case during the period of
time that is required, in the opinion of the
Independent Engineer, to Restore the Affected
Property (the "RECONSTRUCTION PERIOD");
(E) no Event of Default could reasonably be expected to
occur during Restoration as a consequence of
Restoration Work, assuming that Restoration Work on
such Project proceeds in accordance with the
Restoration Plan;
(F) the Property constituting the Restoration Work shall
be subject to the Lien of the Security Documents
(whether by amendment to the Security Documents or
otherwise) free and clear of all Liens other than
Permitted Liens; and
(G) Each request by the Borrower for a disbursement of
funds from the Restoration Sub-Account shall be made
on 10 days' prior written notice to the
Administrative Agent,
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Collateral Agent and the Depositary Bank and shall
be accompanied by: (I) a certificate of each of an
Authorized Officer of the Borrower and the
Independent Engineer that: (1) all of the
Restoration Work completed has been done
substantially in compliance with the Restoration
Plan therefor; (2) the sum requested is required to
pay, or to reimburse the Borrower for, costs
incurred in connection with such Restoration Work
(giving a brief description of the services and
materials provided in connection with such
Restoration Work); (3) the sum requested, when added
to all Loss Proceeds and Additional Restoration
Funds with respect to the relevant Event of Loss
previously paid out by the Depositary Bank, does not
exceed the cost of the Restoration Work done as of
the date of such certificate; and (4) the amount of
Loss Proceeds with respect to the relevant Event of
Loss remaining in the Restoration Sub-Account,
together with any remaining Additional Restoration
Funds, will be sufficient to complete the
Restoration Work (giving an estimate of the cost of
such completion in such reasonable detail as the
Administrative Agent may reasonably request); (II) a
certificate of an Authorized Officer of the Borrower
certifying that no Default or Event of Default shall
have occurred and is continuing at such date; and
(III) partial lien waivers executed by each
contractor and major subcontractor involved in the
Restoration Work that shall cover all labor,
materials (including equipment and fixtures of all
kinds), supplies or services done, performed or
furnished at, for or to the relevant Project in
connection with the Restoration Work performed to
the date of such payment.
Once such Restoration Work is complete (such completion to be
evidenced by a certificate of the Borrower delivered to the
Administrative Agent, the Collateral Agent and the Depositary
Bank), any remaining relevant Loss Proceeds shall be applied as
set out in Section 4.3 of the Depositary Agreement.
If the Borrower shall at any time abandon the Restoration Work or
otherwise fail to pursue the Restoration Work substantially in
accordance with the Restoration Plans, then, to the extent that
such Loss Proceeds shall not otherwise have been remitted as
aforesaid to the Borrower, such Loss Proceeds shall promptly (at
the direction of the Majority Lenders) be applied by the
Administrative Agent in accordance with Section 3.04(a). Anything
to the contrary in this Section 8.05 notwithstanding, if as the
result of such Event of Loss or Restoration Work an Event of
Default shall have occurred and be continuing, the Administrative
Agent
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may instruct the Depositary Bank to apply any amount of such Loss
Proceeds in the Restoration Sub-Account in accordance with Section
3.05.
8.06 PROCEEDINGS. The Borrower shall, promptly upon: (a) obtaining knowledge
of any action, suit or proceeding at law or in equity by or before any
Government Authority, arbitral tribunal or other body pending or
threatened against or otherwise affecting the Borrower or any other Major
Project Party or any of such Person's Property, any Transaction Document,
any Project or the Collateral, in each case that could reasonably be
expected to result in a Material Adverse Effect; or (b) becoming aware of
any other circumstance, act or condition (including the adoption,
amendment or repeal of any Government Rule or the Impairment of any
Government Approval or notice (whether formal or informal, written or
oral) of the failure to comply with the terms and conditions of any
Government Approval) that could reasonably be expected to result in a
Material Adverse Effect, in each case, furnish to the Administrative
Agent a notice of such event describing the same in reasonable detail
and, together with such notice or as soon thereafter as practicable, a
description of the action that the Borrower or such other Major Project
Party has taken and, with respect to the Borrower, proposes to take with
respect thereto.
8.07 TAXES. The Borrower shall pay and discharge all Taxes imposed on it or on
its income or profits or on any of its Property or on any Transaction
Document prior to the date on which penalties attach thereto and prepare
and file Tax returns on or before their due date.
8.08 BOOKS AND RECORDS. The Borrower shall keep proper books of record and
accounts in accordance with Accounting Principles applicable to it and
permit representatives of either Agent, upon reasonable notice, to visit
and inspect its properties, to examine, copy or make excerpts from its
books, records and documents and to discuss its affairs, finances and
accounts with its principal officers during normal business hours and at
such intervals as either Agent may reasonably request. The Borrower shall
notify the Agents of any change in its independent accountants. The
Independent Engineer shall have the right to inspect any Project in order
to perform its obligations under the Financing Documents, including, to
witness and verify any acceptance tests and to discuss the Borrower's
affairs with its principal officers and engineers, all at such reasonable
times and at such intervals as the Independent Engineer may reasonably
request. The Borrower shall at all times maintain and preserve a complete
set of Plans and Specifications for each Project (and any Restoration
Plans with respect to such Project) at such Project's Site, available for
inspection by the Independent Engineer (in order to perform its
obligations under the Financing Documents), the Agents and any Lender.
8.09 USE OF PROCEEDS. The Borrower shall utilize the proceeds of the Loans as
provided in the second paragraph of this Agreement.
8.10 MAINTENANCE OF LIENS. The Borrower shall maintain and preserve the Liens
created by the Security Documents and the priority thereof and shall from
time to time execute or
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cause to be executed any and all further instruments (including financing
statements, continuation statements and similar statements with respect
to any Security Document) reasonably requested by the Collateral Agent
for such purposes. The Borrower shall promptly discharge, at the
Borrower's cost and expense, any Lien (other than Permitted Liens) on the
Collateral.
8.11 [INTENTIONALLY OMITTED].
8.12 PROHIBITION OF FUNDAMENTAL CHANGES.
(a) Merger or Consolidation. The Borrower shall not merge into or
consolidate with, or acquire all or any substantial part of the
assets or any class of stock or other ownership interests of, any
other Person without the prior written consent of the Majority
Lenders. The Borrower shall not convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of
transactions, any assets except sales of (without duplication) (A)
electrical energy or capacity or ancillary services pursuant to a
PPA or otherwise in the ordinary course of its business; (B)
assets in the ordinary course of its business, the proceeds of
which do not in any year exceed the aggregate sum of $250,000 as
to all Projects; and (C) assets made redundant by the Upgrade
Project.
(b) No Acquisition. The Borrower shall not purchase or acquire any
assets other than: (i) the purchase of assets reasonably required
for the repair of the Defective Towers, and the Upgrade Project,
in each case, in accordance with the respective plans therefor;
(ii) the purchase of assets reasonably required in connection with
Restoration of the Project in accordance with Section 8.05(d);
(iii) the purchase of assets in the ordinary course of business as
reasonably required in connection with the Project in accordance
with the Project Documents and the Non-Material Project Contracts
and as contemplated by the Closing Pro Forma or, if the Second
Closing Date has occurred, the Upgrade Pro Forma; and (iv)
Permitted Investments.
8.13 RESTRICTED PAYMENTS(a).
The Borrower shall not, directly or indirectly, declare or make any other
Restricted Payment unless each of the following conditions is satisfied
both immediately before and after the date of payment thereof:
(i) the date of payment of such Restricted Payment shall be on or
within 30 days after a Quarterly Date; provided that, if the
Borrower has been precluded from making any Restricted Payment
within such 30-day period solely as a consequence of the condition
set out in paragraph (ii) below being unsatisfied during such
period and such condition is subsequently satisfied, the Borrower
may make such Restricted Payment on any date (the "EXTENDED
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RESTRICTED PAYMENT DATE") within 10 days after the date such
condition is first satisfied as long as all other conditions of
this Section 8.13 are satisfied on and as of such Extended
Restricted Payment Date;
(ii) no Default (other than any Default that (i) provides a cure period
therefor of not less than 30 days, (ii) is reasonably capable of
being remedied during such 30-day period, (iii) as to which the
Borrower is diligently prosecuting or pursuing such remedy, and
(iv) following the occurrence of which not more than 30 days have
elapsed), or an Event of Default shall have occurred and shall be
continuing or would result from the making of such Restricted
Payment;
(iii) for any Quarterly Date on or prior to March 31, 2004, the
Projected Debt Service Coverage Ratio shall be at least 1.20:1,
and for any corresponding Quarterly Date thereafter, the Debt
Service Coverage Ratio for the relevant Historical Computation
Period shall be at least 1.20:1;
(iv) the balance on deposit in the Debt Service Reserve Account shall,
on the date of payment of such Restricted Payment after giving
effect thereto, be at least equal to the Debt Service Reserve
Required Amount;
(v) the Restricted Payment shall only be made from and to the extent
of Distributable Cash (as defined in the Depositary Agreement);
and
(vi) each of the Administrative Agent and the Depositary Bank has
received: (i) at least 10 days prior to the corresponding
Quarterly Date and, if applicable, Extended Restricted Payment
Date, a Distribution Certificate substantially in the form of
Exhibit G.
If any of the foregoing conditions to distribution are not satisfied, the
relevant monies shall be applied as set out in Section 4.1 of the
Depositary Agreement.
8.14 LIENS. The Borrower shall not create, incur, assume or suffer to exist
any Lien on any of the Collateral or any of the other Property of the
Borrower except Permitted Liens.
8.15 INVESTMENTS. The Borrower shall not make any Investments except Permitted
Investments.
8.16 HEDGING ARRANGEMENTS. The Borrower shall, not later than 30 days
following the Closing Date, enter into and at all times thereafter
maintain in full force and effect one or
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more Interest Rate Cap Agreements providing for the payment to the
Borrower of an amount equal to the excess of the Eurodollar Rate minus
(b) six percent (6%), and otherwise on terms reasonably acceptable to the
Administrative Agent and the Borrower, with one or more hedge providers
reasonably acceptable to the Administrative Agent and the Borrower, and
in a notional equivalent amount at least equal to 60% of the principal
amount of all Loans outstanding on any Quarterly Date prior to the Final
Maturity Date.
8.17 INDEBTEDNESS. The Borrower shall not, directly or indirectly, create,
incur, assume or otherwise be or become liable with respect to any
Indebtedness except Permitted Indebtedness.
8.18 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by this
Agreement, the Borrower shall not, directly or indirectly, enter into any
transaction directly or indirectly with or for the benefit of an
Affiliate other than transactions that: (a) are in the ordinary course of
business, including, without limitation, the Upgrade Project; (b) are on
terms and conditions at least as favorable to the Borrower as would be
obtainable at the time in a comparable "arm's-length" transaction with a
Person other than an Affiliate; (c) would not result in any Default
hereunder; and (d) are not otherwise prohibited hereunder.
8.19 NATURE OF BUSINESS. The Borrower shall not engage in any business other
than the operation of the Projects as contemplated by the applicable
Project Documents and Non-Material Project Contracts and as contemplated
by the SIGC Lease.
8.20 MAINTENANCE OF PROPERTIES.
(a) Properties. The Borrower shall maintain and preserve all of its
Properties necessary or useful in the proper conduct of its
business in good working order and condition, ordinary wear and
tear excepted, and in accordance with generally accepted prudent
utility practices (and all other standards and requirements, to
the extent more stringent, set out in any Project Document).
(b) Restoration. The Borrower shall Restore any of its Property now or
hereafter the subject of an Event of Loss (whether or not insured
against or insurable) except any of its Property that has been the
subject of an Event of Loss that the Borrower determines in good
faith (and, in relation to any Event of Loss for which the amount
of the Loss Proceeds exceeds $2,000,000, with the approval of the
Majority Lenders) not to be necessary to the conduct of its
business.
(c) No Removal. The Borrower shall not permit all or any portion of
any Project to be removed from such Project's Site (except in the
ordinary course of business with respect to maintenance of
components of such Project that is required to be conducted off of
such Project's Site), demolished or materially altered; provided
that spare parts and similar individual items of equipment may be
moved from one Project to another Project as the Borrower may
reasonably believe necessary.
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8.21 [INTENTIONALLY OMITTED]
8.22 PROJECT DOCUMENTS; ETC.
(a) Project Documents. The Borrower shall, unless prior written
consent is obtained from the Majority Lenders: (i) perform and
observe in all material respects all of its material covenants and
obligations contained in each of the Project Documents to which it
is a party; and (ii) except as permitted by Section 8.22(b): (A)
take all reasonable and necessary action to prevent the
termination or cancellation of any Project Documents in accordance
with the terms thereof or otherwise; and (B) enforce against the
relevant Project Party each material covenant or obligation of
such Project Document in accordance with its terms, unless the
failure to so comply could not reasonably be expected to result in
a Material Adverse Effect. Anything in the foregoing to the
contrary notwithstanding, the Borrower shall pay, or cause to be
paid, when due, all claims for labor, material, supplies or
services (under the Project Documents or otherwise) that, if
unpaid, could by law result in a Mechanics' Lien; provided that:
(A) in the event that, in accordance with the provisions of the
relevant Project Document, any such claim may be paid in
installments or may be deferred (whether or not interest shall
accrue on the unpaid balance thereof), the Borrower may pay such
claim in installments (together with accrued interest on the
unpaid balance thereof, if any) as the same become due or prior to
the end of such period of deferral; and (B) the Borrower shall
have the right to contest the validity or amount of such claim.
(b) No Cancellation, Assignment, Etc. The Borrower shall not, without
the prior written consent of the Majority Lenders:
(i) cancel or terminate any Project Document to which it is a
party or consent to or accept any cancellation or
termination thereof;
(ii) sell, assign (other than pursuant to the Security
Documents) or otherwise dispose of (by operation of law or
otherwise) any part of its interest in any Project
Document, except as permitted by Section 8.12;
(iii) waive any default under, or material breach of, any Project
Document or waive, fail to enforce, forgive, compromise,
settle, adjust or release any material right, interest or
entitlement, howsoever arising, under or in respect of any
Project Document or in any way vary, or agree to the
variation of, any material provision of such Project
Document or of the performance of any material covenant or
obligation by any other Person under any Project Document;
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(iv) exercise any "price reopener" or quantity adjustment
provisions or similar contractual adjustment provisions
(whether or not such provisions relate to price or
quantity) under any Project Document or act upon any "price
reopener" or quantity adjustment provisions or any such
similar contractual adjustment provisions under any Project
Document exercised by any other Project Party (except, in
each case, upon instructions of the Majority Lenders (after
Expert Consultation));
(v) petition, request or take any other legal or administrative
action that seeks, or may reasonably be expected, to Impair
any Project Document or amend, modify or supplement any
Project Document; or
(vi) amend, supplement or modify any Project Document (in each
case as in effect on the Closing Date (or if executed
subsequently, its execution date) other than as
contemplated by the Energy Services Agreement and as
thereafter amended, supplemented or modified in accordance
with this paragraph (b)) in any material respect.
(c) Additional Project Documents. The Borrower shall not enter into
any Additional Project Document (other than Interest Rate Cap
Agreements) without the prior approval of the Majority Lenders
(such consent not to be unreasonably withheld or delayed) unless:
(i) the terms of such Additional Project Document are in
accordance with the terms of the then-current Annual Operating
Plan and Budget; (ii) entering into such Additional Project
Document could not reasonably be expected to have a Material
Adverse Effect; (iii) the terms and conditions of such Additional
Project Document are consistent with the Financing Documents; and
(iv) the Borrower shall take (or cause to be taken) all action
necessary to create and perfect the Lien and security interests of
the Secured Parties thereon (including execution of all Ancillary
Documents).
(d) Restrictions. The Borrower shall not enter into any contract or
agreement (other than the Financing Documents and any Project
Document related to the Upgrade Project) or take any other action
that, directly or indirectly, restricts its ability to: (i) enter
into amendments, modifications, supplements or waivers of any of
the Transaction Documents; (ii) sell, transfer or otherwise
dispose of its assets other than in the ordinary course of its
business; (iii) create, incur, assume or suffer to exist any Lien
upon any of its Property other than Permitted Liens; (iv) create,
incur, assume, suffer to exist or otherwise become liable with
respect to any Indebtedness other than Permitted Indebtedness; or
(v) declare or make any Restricted Payment except in accordance
with Section 8.13.
(e) Delivery of Documents. Promptly after the execution and delivery
thereof, the Borrower shall furnish each Agent and the Lenders
with: (i) copies (certified by
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the Borrower) of: (A) all amendments, supplements, change orders
or modifications of any Project Document to which such Person is a
party; and (B) all Additional Project Documents to which it is a
party; and (ii) all Ancillary Documents to which it is a party
relating to any Additional Project Document.
(f) Fees Under O&M Contract. The Borrower and the Operator shall not,
without the prior written consent of the Majority Lenders, permit
"Extraordinary Operation Expenses" under and as defined in the O&M
Contract to exceed $750,000 in any fiscal year of the Borrower.
8.23 ANNUAL OPERATING PLANS AND BUDGETS; OPERATING STATEMENTS.
(a) Annual Operating Plan and Budget.
(i) Scope of Annual Operating Plan and Budget. The Borrower
shall prepare and submit to the Administrative Agent (with
sufficient copies to permit distribution to each Lender and
the Independent Engineer), as and when required by this
Agreement, a consolidated annual operating plan and budget
for the Borrower for the upcoming Operating Year, including
operating and maintenance programs, capital expenditure
programs, and budgeted statements of income and sources and
uses of cash and balance sheets (the "ANNUAL OPERATING PLAN
AND BUDGET"). The Annual Operating Plan and Budget shall be
accompanied by a statement of a financial officer of the
Borrower to the effect that, to the best of such officer's
knowledge, such budget is a reasonable estimate for the
period covered thereby and is in compliance with the
requirements of this Section 8.23(a).
(ii) Contents. Each Annual Operating Plan and Budget shall
contain reasonable estimates of Project Revenues (broken
out by source), Operation and Maintenance Expenses,
Extraordinary Operation Expenses (as defined in the O&M
Contract (including a monthly breakdown thereof), capital
expenditures, projected working capital requirements of the
Borrower and production goals, including detailed
assumptions regarding the dispatch of each Project and
power prices, in each case, for each calendar month covered
by such Annual Operating Plan and Budget, based on the
reasonable projections at such time. Such projections shall
be based on all facts and circumstances then existing and
known to the Borrower and that reflect a reasonable
estimate of its future results for the upcoming Operating
Year and, in the case of its net income, the next
succeeding three (3) Operating Years. Each Annual Operating
Plan and Budget shall also address each Project's interface
requirements in relation to local utilities,
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proposed staffing levels and safety, regulatory and
environmental compliance programs. Each Annual Operating
Plan and Budget shall be prepared in good faith on the
basis of written assumptions stated therein which the
Borrower believes to be reasonable as to all factual and
legal matters material to such estimates.
(iii) Form of Annual Operating Plan and Budget. Unless otherwise
consented to by the Administrative Agent, which consent
shall not be unreasonably withheld, conditioned or delayed,
each Annual Operating Plan and Budget from year to year
shall be based on the same format as the "Data Import"
worksheet that is a part of the Closing Pro Forma and be
maintained on the same basis and provide sufficient detail
to permit a meaningful comparison to previous years.
(iv) At least 45 (but no more than 90) days prior to the end of
each Operating Year, the Borrower shall prepare and submit
to the Administrative Agent a draft Annual Operating Plan
and Budget for the upcoming Operating Year.
(v) Effectiveness and Approval of Annual Operating Plans and
Budgets. Subject to the following sentence, a draft Annual
Operating Plan and Budget shall become effective on the
first day of the relevant Operating Year. In relation to
any draft Annual Operating Plan and Budget delivered
pursuant to paragraph (iv) above in relation to a new
Operating Year, if: (A) expenses for the Operating Year
covered thereby for any Project exceed those set out for
such Project in the then-current Annual Operating Plan and
Budget by more than 10% on a consolidated basis; or (B)
actual expenditures for any Project in respect of Operation
and Maintenance Expenses in the then-current Operating Year
met the conditions set out in paragraph (b)(i)(B) below, in
each case: (I) the Borrower shall notify the Administrative
Agent thereof when submitting the draft Annual Operating
Plan and Budget pursuant to paragraph (a)(iv) above or (b)
below; and (II) Majority Lender approval of such draft
Annual Operating Plan and Budget shall be required, which
approval shall not unreasonably be withheld, conditioned or
delayed. If the Administrative Agent does not inform the
Borrower of the Majority Lenders' disapproval of the
submitted Annual Operating Plan and Budget within 30 days
after submission thereof to the Administrative Agent, such
Annual Operating Plan and Budget shall be deemed approved
by the Majority Lenders. If the Majority Lenders do not
approve an Annual Operating Plan and Budget, the
Administrative Agent shall
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advise the Borrower of the items that are disapproved and
the reason for such disapproval.
If all or any portion of an Annual Operating Plan and
Budget is disapproved, the Borrower shall adhere to all
approved aspects of such Annual Operating Plan and Budget.
With respect to those aspects of any Annual Operating Plan
and Budget that are not approved, the Annual Operating Plan
and Budget for the preceding Operating Year (if
applicable), adjusted (in relation to budgeted
expenditures) for inflation in a manner mutually acceptable
to the Borrower and the Administrative Agent (after Expert
Consultation), shall be applicable thereto (and shall for
all purposes hereof be deemed to be part of the approved
Annual Operating Plan and Budget for such Operating Year)
until such time as such aspects of the Annual Operating
Plan and Budget therefor have been approved by the Majority
Lenders.
(vi) O&M Contract Consistency. The Borrower shall ensure that
any budget or other applicable projection under the O&M
Contract is consistent with the Annual Operating Plan and
Budget hereunder (as modified from time to time hereunder).
(b) Operation and Maintenance Expenses.
(i) The Borrower shall not at any time during any Operating
Year make expenditures for any Project in respect of any
Operation and Maintenance Expenses for such Project in
excess of:
(A) in the case of any line item or category of the
proposed Annual Operating Plan and Budget which is
not approved by the Majority Lenders (and until such
time as such amounts are so approved), the amounts
applicable thereto pursuant to the second paragraph
of paragraph (a)(v) above for the period from the
beginning of such Operating Year to the end of the
current month thereof;
(B) in respect of all other such Operation and
Maintenance Expenses, any amount which would cause
the aggregate amount of such other expenditures to
exceed $250,000; or
(C) solely in respect of the "Compromise Payment" under
and as defined in the Energy Services Agreement, an
aggregate amount exceeding $724,000;
in the case of (A) and (B), without having first proposed
an amendment to the then-current Annual Operating Plan and
Budget and the Majority
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Lenders having approved such amendment in accordance with
paragraph (ii) below; provided, however, that no such
approval shall be required for the "Compromise Payment"
referred to in the foregoing clause (C) or for Emergency
Operating Costs up to $1,000,000 per Project in any
Operating Year (prorated on the basis of a 365-day year for
any Operating Year which is less than a full calendar
year).
(ii) If at any time during any Operating Year: (A) Operation and
Maintenance Expenses to be paid by the Borrower during the
balance of such Operating Year exceed or could reasonably
be expected to exceed the allowance provisions of paragraph
(i) above; or (B) the Borrower believes such costs for the
balance of such year will exceed such allowance provisions,
in each case, the Borrower shall propose an amendment to
the then-current Annual Operating Plan and Budget (with
copies thereof delivered to the Administrative Agent and
the Independent Engineer). Such amendment shall become
effective on the date that such proposal is approved by the
Majority Lenders. At the time the Borrower submits such
proposal, the Borrower shall certify the purpose of such
amendment and that such amendment is reasonably necessary
or desirable for the operation and maintenance of the
Projects. If the Majority Lenders do not approve a proposed
amendment, the Administrative Agent shall advise the
Borrower of the items that are disapproved and the reason
for such disapproval. If all or any portion of a proposed
amendment is disapproved, the Borrower shall adhere to the
Operation and Maintenance Expenses included in the approved
Annual Operating Plan and Budget (subject to the allowance
provisions of paragraph (i) above).
(c) O&M Contract Operating Reports. The Borrower shall furnish to the
Administrative Agent a copy of each Quarterly Operations Reports
received by it pursuant to the terms of the O&M Contract which
include: (i) technical performance of the Projects, including
production, (ii) an accident incident report, (iii) safety and
environmental compliance status, (iv) equipment operational
status, (v) a summary of all major maintenance performed in the
preceding quarter and that planned for the coming quarter,
including a summary of Major Corrective Maintenance Work (as
defined in the O&M Contract) performed in the preceding quarter,
(vi) any other known conditions which may adversely affect the
technical or financial performance of the Projects, and (vii) the
incurrence or payment of any "Extraordinary Operation Expenses"
under and as defined in the O&M Contract.
8.24 SPECULATIVE ACTIVITIES.
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The Borrower shall not engage in any speculative activities. Nothing in
this Section 8.24 shall prohibit the Borrower from entering into the
Interest Rate Cap Agreements.
8.25 STATUS.
(a) The Borrower shall take, or cause to be taken, all action required
to maintain the status of each of the Projects as a QF.
(b) The Borrower shall not take or permit any Affiliate to take, any
action that would cause the Borrower: (i) to become regulated as a
public utility under: (A) the FPA in a manner different than that
contemplated by its Government Approvals set out on Schedule VI or
any of its future Government Approvals regarding the rates of
public utilities granted by FERC, such future Government Approvals
not to be sought without the prior written consent of the Majority
Lenders; or (B) any other material utility regulation under any
Government Rule (excluding the FPA and the Government Rules
promulgated thereunder), other than as set out on Schedule VI; or
(ii) to become subject to any material utility regulation under
any Government Rule, other than as set out on Schedule VI.
(c) Neither the Borrower nor any of its Affiliates shall take, or
permit to be taken, any action that would cause the Borrower to be
an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company
Act of 1940.
8.26 UPDATED SURVEYS AND TITLE POLICY FOLLOWING UPGRADE PROJECT.
(a) Surveys. The Administrative Agent shall have received, no later
than 100 days following completion of the Upgrade Project, a
survey of the Site certified to the Borrower, the relevant Title
Company and the Administrative Agent, updated, with respect to all
relevant requirements and information required for the Initial
Surveys under Section 6.01(f)(ii), to within 60 days of the date
of receipt by the Administrative Agent.
(b) Title Policy. Promptly and in any event within 100 days after
completion of the Upgrade Project, the Borrower shall cause the
relevant Title Company to deliver to the Administrative Agent:
(i) an endorsement of the Title Policy issued in connection
with such Project deleting from the Title Policy: (A) any
exception in connection with pending disbursements; (B) any
exception with respect to unrecorded mechanics' and
materialmen's liens; and (C) any exception with respect to
survey matters; and
(ii) an abstractor's certificate or other title evidence showing
no Liens or other exceptions to the title of the Deed of
Trust Estate, other
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than Permitted Liens and those previously approved in
writing by the Administrative Agent.
8.27 ACCOUNTS. The Borrower shall not establish or maintain any account other
than (a) the Accounts established and maintained pursuant to the
Depositary Agreement and (b) any account that does not hold Project
Revenues.
8.28 NO SUBSIDIARIES. The Borrower shall not form, establish, acquire or
suffer to exist any Subsidiaries of the Borrower.
8.29 SCE CONSENT. The Borrower shall use commercially reasonable efforts to
obtain and deliver to the Administrative Agent, on or prior to the date
60 days following the Closing Date, an agreement among the Borrower, SCE
and the Collateral Agent providing for the consent by SCE to the
collateral assignment by the Borrower to the Collateral Agent of the
Borrower's rights under each PPA.
ARTICLE IX
EVENTS OF DEFAULT
9.01 EVENTS OF DEFAULT. Each of the following events shall be and constitute
an "EVENT OF DEFAULT":
(a) The Borrower shall default in the payment when due hereunder of
any principal of or interest on any Loan and such default shall
continue unremedied for a period of three (3) Business Days after
such amount first became due.
(b) The Borrower shall default in the payment when due of any amount
payable by it hereunder or under any other Financing Document
(other than amounts described in paragraph (a) above) and such
default shall continue unremedied for a period of 30 days after
such amount first became due.
(c) Any material representation, warranty or statement confirmed or
made by the Borrower, the Sponsor or any other Major Project Party
under any Financing Document or contained in any certificate,
statement, notice or other document provided to any Financing
Party under or pursuant to any Financing Document shall have been
incorrect or misleading in any material respect when made or
deemed to be made or (except if stated to have been made solely as
of an earlier date) repeated.
(d) The Borrower shall default in the performance of any of its
obligations under any of:
(i) Section 8.02(a); (solely in relation to the maintenance of
its existence); 8.03(a) (in relation to the first sentence
thereof);
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8.03(b) (solely in relation to the first sentence thereof);
8.03(c); 8.04(a); 8.04(b); 8.04(c); 8.05(a); 8.05(b) (other
than in relation to the provisions of the second sentence
thereof); 8.05(d) (solely in relation to the provisions of
the first and second sentences thereof); 8.07; 8.09; 8.12;
8.13 (and such default shall continue for a period of five
(5) consecutive Business Days); 8.15 (and such default
shall continue for a period of five (5) consecutive
Business Days); 8.16; 8.17; 8.19; 8.22(b); 8.22(c);
8.22(d); 8.24; 8.25; 8.26; 8.27; or 8.28; or any other
provision of any Financing Document and such continues for
more than thirty (30) consecutive days after the Borrower
should reasonably become aware of such default;
(ii) Section 4.01(a), (b),(c) and(g); 4.02 (provided, that
solely if the Borrower has no knowledge of the existence of
any financing statement referred to therein, no Event of
Default shall occur until the date 30 days after the filing
of such financing statement); 4.04(a), 4.09, or 4.15 of the
Borrower Security Agreement;
(iii) Section 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.14 or 1.18 of the
Deed of Trust; or
(iv) Sections 3.1(a), 3.1(b) or 4.3 of the Depositary Agreement.
(e) The Sponsor shall default in the performance of any of its
obligations under Sections 4.01(a), 4.02, 4.03, 4.05, 4.06, 4.07,
4.09 or 4.10 of the Pledge Agreement; or any other provision of
the Pledge Agreement and such continues for more than thirty (30)
consecutive days after the Borrower should reasonably become aware
of such default.
(f) The Borrower or any other Major Project Party shall default in the
performance of any material covenant or undertaking contained in
any Project Document other than any obligation for the payment of
money, which default continues beyond the shorter of the
applicable period of grace specified therefor in such document or
(i) ten (10) days, in the case of a payment default, or (ii) 30
days, in the case of any other default provided that, if such
other default (x) is not capable of being remedied with diligent
effort within such 30-day period, and (y) is reasonably capable of
being remedied and the Borrower is diligently prosecuting or
pursuing such remedy, such other default shall not give rise to an
Event of Default unless such other default shall continue
unremedied for a period of ninety (90) days after an Authorized
Officer of the Borrower becomes aware or reasonably should have
become aware of such other default.
(g) The Borrower or the Sponsor shall: (i) admit in writing its
inability to, or be generally unable to, pay its debts as such
debts become due; (ii) apply for or consent to the appointment of,
or the taking of possession by, a receiver,
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custodian, trustee or liquidator of itself or of all or a
substantial part of its Property; (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 other 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 it in an
involuntary case under the Bankruptcy Code; or (vii) take any
corporate, limited liability company or partnership action for the
purpose of effecting any of the foregoing.
(h) (i) A proceeding or case shall be commenced against the Borrower
or the Sponsor, in each case without the application or consent of
such Person, in any court of competent jurisdiction, seeking: (A)
its liquidation, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts; (B) the appointment of a
trustee, receiver, custodian, liquidator or the like of such
Person or of all or any substantial part of its Property; or (C)
similar relief in respect of such Person under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and, in each case, such proceeding or case
shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 90 or more days;
or (ii) an order for relief against such Person shall be entered
in an involuntary case under the Bankruptcy Code.
(i) Prior to the completion of its duties under all Transaction
Documents to which it is a party, any of SCE, the Operator or
Imperial Irrigation District shall: (i) admit in writing its
inability to, or be generally unable to, pay its debts as such
debts become due; (ii) 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 a substantial part of its
Property; (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 other
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 it in an involuntary case
under the Bankruptcy Code; or (vii) take any corporate or
partnership action for the purpose of effecting any of the
foregoing.
(j) (i) Prior to the completion of its duties under all Transaction
Documents to which it is a party, a proceeding or case shall be
commenced against any of SCE, the Operator or Imperial Irrigation
District, without the application or consent of such Person, in
any court of competent jurisdiction, seeking: (A) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts; (B) the appointment of a trustee,
receiver, custodian, liquidator or the like of such Person or of
all or any substantial part of its Property; or (C) similar relief
in respect of such Person under any law relating to bankruptcy,
insolvency,
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reorganization, winding-up, or composition or adjustment of debts,
and, in each case, such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 90 or more days; or (ii) an order for
relief against such Person shall be entered in an involuntary case
under the Bankruptcy Code.
(k) Any Person referred to in paragraph (g) or (h) above shall be
terminated or dissolved (as a matter of Government Rule or
otherwise), or proceedings shall be commenced by any Person
seeking the termination or dissolution of any Person referred to
in paragraph (g) or (h) above and such proceedings shall continue
undismissed or unstayed for a period of 90 or more days (or such
shorter period of time which such Person has pursuant to
Government Rule to cause the dismissal of such proceeding or stay
the effectiveness of any such order, judgment or decree).
(l) A judgment or judgments for the payment of money is rendered by
one or more Government Authorities against the Borrower in an
aggregate amount (less any amount that applicable insurers have
acknowledged liability for) exceeding $500,000 in the aggregate,
and the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not
be procured, within 45 days from the date of entry thereof, and
such Person shall not, within said period of 45 days, or such
longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal, or any action shall be taken by a
judgment creditor to attach or levy upon any assets of such Person
to enforce any such judgment.
(m) An ERISA Event shall have occurred that, in the opinion of the
Administrative Agent, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result
in a Material Adverse Effect.
(n) (i) Any Environmental Claim arising with respect to the
Development of any Project shall have been asserted against such
Project, the Borrower or the Operator or, in connection with its
involvement with the Development of a Project, any other
Environmental Party which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect; or (ii)
any Release or Use of any Hazardous Materials at, on, under or
from such Project shall have occurred which could reasonably be
expected to have a Material Adverse Effect.
(o) Any Indebtedness of the Borrower in excess of $500,000 is not paid
when due (after giving effect to any grace period applicable
thereto), becomes due and payable by reason of any default or
event of default with respect thereto (howsoever described), or
could under the terms of the documentation evidencing such
Indebtedness (after giving effect to any grace period applicable
thereto)
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become due and payable by reason of any default or event of
default with respect thereto (howsoever described).
(p) (i) The Borrower, the Sponsor, SCE, the Operator or Imperial
Irrigation District shall fail to obtain, renew, maintain or
comply with all Government Approvals as shall now or hereafter be
necessary or desirable; or (ii) any Government Approval related to
any Project shall be Impaired or shall cease to be in full force
and effect; or (iii) any action, suit, proceeding or investigation
shall be commenced by or before any Government Authority that
could reasonably to expected to result in the Impairment of any
such Government Approval and such action, suit, proceeding or
investigation is not dismissed or terminated within 90 days and,
in each such case, such failure, Impairment, cessation or
commencement could reasonably be expected to have a Material
Adverse Effect.
(q) (i) Except as expressly contemplated pursuant to paragraph (u)
below, any material provision of any Transaction Document shall at
any time for any reason cease to be valid and binding or in full
force and effect; or (ii) except as expressly contemplated
pursuant to paragraph (u) below, any Transaction Document shall be
Impaired in whole or part; or (iii) the validity or enforceability
of any Transaction Document shall be contested by any party
thereto (other than either Agent or the Lenders) or any Government
Authority; or (iv) the Borrower, the Sponsor, SCE, the Operator or
Imperial Irrigation District shall deny that it has any or further
liability or obligation under any Transaction Document and, in
each such case, such cessation, Impairment, contest or denial
could reasonably be expected to have a Material Adverse Effect.
(r) Any Security Document shall cease to be in full force and effect
or to be effective to grant a perfected Lien to the Collateral
Agent for the benefit of the Secured Parties, on any part of the
Collateral described therein having value in excess of $100,000 in
the aggregate with the priority purported to be created thereby
subject to the rules and regulations of the BLM.
(s) Any Material Adverse Effect shall occur and be continuing.
(t) One or more judgments or decrees is entered against the Borrower
in the form of an injunction or other similar relief requiring
suspension or abandonment of the Development of any Project (or a
material portion thereof) for a continuous period of at least 90
days, and such judgment or decree is not vacated, discharged or
stayed or bonded pending appeal within 90 days (or any shorter
appeal period as is available under applicable Government Rules
from the date of entry thereof).
(u) The Borrower or the Operator ceases to carry on or suspends all or
substantially all of its activities in connection with the
Development of a Project or otherwise abandons or permits the
abandonment of its Project, in each case for a period of 45 days
or more, other than where the cessation or suspension is for bona
fide
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operational reasons or due to an event of force majeure and the
Borrower is using commercially reasonable efforts to commence or
recommence such construction or operation.
(v) The Tower Repairs fail to be substantially completed on or prior
to July 1, 2003.
9.02 RIGHTS UPON AN EVENT OF DEFAULT. Upon the occurrence and during the
continuation of an Event of Default:
(a) the Administrative Agent may, and, upon request of the Majority
Lenders, shall, by notice to the Borrower and the Collateral
Agent, terminate the Commitments and/or declare the principal
amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Borrower hereunder and under
the Notes (including, without limitation, any amounts payable
under Section 5.05 or 5.06) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Borrower;
and
(b) in the case of the occurrence of an Event of Default referred to
in paragraph (g) or (h) above with respect to the Borrower, the
Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Borrower hereunder and under
the Notes (including any amounts payable under Section 5.05 or
5.06) shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Borrower.
Notwithstanding anything else provided herein, upon the occurrence and
during the continuance of an Event of Default, the Collateral Agent may
exercise any and all remedies available to it under law or equity and
any Lender may exercise any right of set-off available to it. Without
limiting the foregoing, remedies under any Security Document may only
be exercised by the Collateral Agent, although any Secured Party shall
have the right (but not the obligation) to cure any default under a
Security Document subject to the rules and regulations of the BLM.
ARTICLE X
THE AGENTS
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby appoints and
authorizes each of the Administrative Agent and the Collateral Agent to
act as its agent hereunder and under the other Financing Documents to
which such Agent is or becomes a party with such powers as are
specifically delegated to such Agent by the terms of this
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Agreement and of such other Financing Documents, together with such other
powers as are reasonably incidental thereto. Each Agent (which term as
used in this sentence and in Section 10.05 and the first sentence of
Section 10.06 shall include reference to its Affiliates and its own and
its Affiliates' officers, directors, employees, representatives,
attorneys and agents):
(a) shall have no duties or responsibilities except those expressly
set out in this Agreement and in the other Financing Documents to
which such Agent is or becomes a party, and shall not by reason of
this Agreement or any such other Financing Document be a trustee
for any Lender or subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is
continuing;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this
Agreement or in any other Financing Document, or in any
certificate or other document referred to or provided for in, or
received by any of them under, this Agreement or any other
Financing Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or
any other Financing Document or any other document referred to or
provided for herein or therein, or for the validity or sufficiency
of the security afforded hereby or thereby, or for any failure by
the Borrower or any other Person to perform any of its obligations
hereunder or thereunder;
(c) shall not, except (in the case of the Collateral Agent) to the
extent expressly instructed by the Majority Lenders with respect
to collateral security under the Security Documents, be required
to initiate or conduct any litigation or collection proceedings
hereunder or with respect hereto or under, or with respect to, any
other Financing Document;
(d) shall not be liable or responsible for any action taken, suffered
or omitted to be taken by it hereunder or under, or with respect
to, any other Financing Document or under any other document or
instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross
negligence or willful misconduct as finally determined by a court
of competent jurisdiction; and
(e) shall not be required to take any action which is contrary to the
Financing Documents or applicable Government Rules.
Each Agent may employ agents, experts and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents,
experts or attorneys-in-fact selected by it in good faith. The
Administrative Agent may deem and treat the payee of any Note as the
holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the
Administrative
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Agent, together with the consent of the Borrower to such assignment or
transfer (to the extent provided in Section 11.06(b)).
10.02 RELIANCE BY AGENTS. Each Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any certification, notice or
other written communication (including any thereof by telex, telegram or
cable) reasonably believed by it to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and
other experts selected by such Agent. Each Agent may also rely upon any
statement made to it orally or by telephone and believed by it to be made
by the proper Person, and shall not incur any liability for relying
thereon. As to any matters not expressly provided for by this Agreement
or any other Financing Document to which an Agent is intended to be a
party, such Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with
instructions given by the Majority Lenders or all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and
any action taken, suffered or omitted or failure to act pursuant thereto
shall be binding on all of the Lenders.
Without limiting the foregoing, each Agent shall be entitled to advice of
counsel and other professionals concerning all matters of trust and its
duty hereunder, but no Agent shall be answerable or responsible for the
professional malpractice of any attorney-at-law or certified public
accountant or for the acts or omissions of any other professional in
connection with the rendering of professional advice in accordance with
the terms of this Agreement, if such attorney-at-law, certified public
accountant or other professional was selected by such Agent with due
care.
10.03 DEFAULTS. Each Agent shall be deemed not to have knowledge or notice of
the occurrence of a Default (other than, in the case of the
Administrative Agent, the non-payment of principal of or interest on
Loans or of commitment fees payable to the Administrative Agent and, in
the case of each Agent, fees payable to it under Financing Documents)
unless such Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of
Default". In the event that any Agent receives such a notice of the
occurrence of a Default, such Agent shall give prompt notice thereof to
the Lenders (and, in the case of the Administrative Agent, shall give
each Lender prompt notice of each such non-payment) and the other Agent.
Each Agent shall (subject to Section 10.07) take such action with respect
to such Default as shall be directed by the Majority Lenders or, if
provided herein, all of the Lenders, as applicable; provided that, unless
and until such Agent shall have received such directions, such Agent may
(but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in
the best interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with
the consent or upon the authorization of the Majority Lenders or all of
the Lenders, as applicable.
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10.04 RIGHTS AS A LENDER. With respect to its Commitments and the Loans made by
it, United (and any successor acting as Administrative Agent or
Collateral Agent) in its capacity as a Lender hereunder shall have the
same rights and powers hereunder as any other Lender and may exercise the
same as though it were not acting as the Administrative Agent or the
Collateral Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include United in its individual capacity.
United (and any successor acting as Administrative Agent or Collateral
Agent, as applicable) and its Affiliates may (without having to account
therefor to any Lender) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with the Borrower
(and any of its Affiliates) as if it were not acting as the
Administrative Agent or the Collateral Agent, as applicable, and United
(and any successor acting as Administrative Agent or Collateral Agent, as
applicable) and its Affiliates may accept fees and other consideration
from the Borrower (and any of its Affiliates) for services in connection
with this Agreement or otherwise without having to account for the same
to the Lenders.
10.05 INDEMNIFICATION. The Lenders agree to indemnify each Agent (to the extent
not reimbursed under Section 11.03, but without limiting the obligations
of the Borrower under Section 11.03) ratably in accordance with the
aggregate principal amount of the Loans held by the Lenders (or, if no
Loans are at the time outstanding, ratably in accordance with their
respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, fines, claims, demands,
settlements, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted
against such Agent (including by any Lender) arising out of or by reason
of any investigation or in any way relating to or arising out of this
Agreement or any other Transaction Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including the costs and expenses which
the Borrower is obligated to pay under Section 11.03, but excluding,
unless a Default has occurred and is continuing, normal administrative
costs and expenses incident to the performance of its agency duties
hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents; provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross negligence or
willful misconduct (as finally determined by a court of competent
jurisdiction) of the party to be indemnified. The obligations of the
Lenders under this Section 10.05 shall survive the termination of this
Agreement, the repayment of the Loans or the earlier resignation or
removal of either Agent.
10.06 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender agrees that it has,
independently and without reliance on either Agent or any other Lender,
and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and its Affiliates and its
own decision to enter into this Agreement and that it will, independently
and without reliance upon either Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking
action under this Agreement or any other Transaction Document. No Agent
shall be required to
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keep itself informed as to the performance or observance by the Borrower
or any other Person of this Agreement or any other Transaction Document
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Borrower or such other Person.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by an Agent hereunder or under
the Financing Documents, such Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Borrower
(or any Affiliate thereof) which may come into the possession of such
Agent or any of its Affiliates.
10.07 FAILURE TO ACT. Except for action expressly required of an Agent
hereunder and under the other Financing Documents to which such Agent is
or becomes a party, such Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall
receive further assurances to its satisfaction from the Lenders of their
indemnification obligations under Section 10.05 against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. No provision of this Agreement shall
require the Collateral Agent to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it shall
have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it. Each Agent shall be entitled to interest (calculated on a
per annum basis) on all amounts advanced by it hereunder in its
discretion at the Federal Funds Rate. Each Agent shall at any time be
entitled to cease taking any action if it no longer deems any indemnity
or undertaking from the Lenders to be sufficient.
10.08 RESIGNATION OR REMOVAL OF AGENTS. Subject to the appointment and
acceptance of a successor Agent as provided below, an Agent may resign at
any time by giving notice thereof to the Lenders and the Borrower, and an
Agent may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall
have the right to appoint, with the consent of the Borrower (unless a
Default or Event of Default has occurred and is continuing), such consent
not to be unreasonably withheld or delayed, a successor Agent. If no
successor Agent shall have been so appointed by the Majority Lenders and
shall have accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Lenders' removal
of the retiring Agent, then the retiring Agent, at its discretion, may,
on behalf of the Lenders, appoint a successor Agent, which shall be a
bank which has an office in New York, New York with capital, surplus and
undivided profits of at least $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 the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article X and Section 11.03 shall continue in effect
for its benefit in respect of any actions taken,
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suffered or omitted to be taken by it while it was acting as such Agent.
Each Agent agrees not to resign solely as a result of the occurrence and
continuance of a Default or an Event of Default.
10.09 CONSENTS. Except as otherwise provided in Section 11.04, each Agent may,
with the prior written consent of the Majority Lenders (but not
otherwise), consent to any modification, supplement or waiver under any
Transaction Document; provided that, without the prior written consent of
each Lender, the Collateral Agent shall not (except as provided herein or
in the Security Documents) release any Collateral or otherwise terminate
any Lien under any Security Document, or agree to additional obligations
being secured by the Collateral (unless the Lien for such additional
obligations shall be junior to the Lien in favor of the other obligations
secured by such Security Document and is otherwise permitted hereunder)
or alter the relative priorities of the obligations entitled to the
benefits of the Liens created under the Security Documents with respect
to any of the Collateral, except that no such consent shall be required,
and the Collateral Agent is hereby authorized, to release any Lien
covering the Borrower's Property that is the subject of a disposition of
Property permitted under this Agreement or under the relevant Security
Document or to which the Lenders have consented.
10.10 COLLATERAL AGENT. The Collateral Agent shall:
(a) forward promptly after receipt thereof (and use its best efforts
to forward within five Business Days of such receipt): (i) to each
Secured Party a copy of each document furnished to such Agent for
such Secured Party under this Agreement, and any other Financing
Documents to which such Agent is a party; and (ii) to the
Administrative Agent any notice delivered to the Collateral Agent
pursuant to any Consent and Agreement;
(b) have the right, but not the obligation, to: (i) refuse any item
for credit to any Account except as required by the terms of the
Financing Documents; (ii) refuse to honor any request for transfer
in relation to any Account that is not consistent with the
Financing Documents; (iii) charge to any Account all applicable
charges; and (iv) pay fees, interest and other charges owing by
the Borrower as provided herein and in the other Transaction
Documents;
(c) except as otherwise provided herein and in the Depositary
Agreement (including by the provision of standing instructions
therein), and subject to the provisions of Section 10.07, take all
actions and make all determinations with respect to the Collateral
and the Security Documents, including as to the advisability of
taking additional steps to perfect, or cause the perfection of,
any security interest, as directed in writing by the
Administrative Agent; and
(d) have the right at any time to seek clarification and instructions
concerning the administration of the Financing Documents from the
Administrative Agent, legal
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counsel or any court of competent jurisdiction and shall be fully
protected in relying upon such instructions.
ARTICLE XI
MISCELLANEOUS
11.01 WAIVER. No failure on the part of either Agent or any Lender to exercise
and no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under this Agreement, any Note or any other
Financing Document shall operate as a waiver thereof, and no single or
partial exercise of any right, power or privilege under this Agreement,
any Note or any other Financing Document shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law.
11.02 NOTICES. All notices, requests and other communications provided for
herein and under the Financing Documents (including any modifications of,
or waivers or consents under, this Agreement) shall be given or made in
writing (including by telecopy) delivered to the intended recipient at
the "Address for Notices" specified below its name on the signature pages
hereof or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier with confirmation of
receipt received or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid;
provided, however, that if such transmission or delivery does not occur
by 4:00 p.m. recipient's time, then such transmission or delivery shall
be deemed to occur on the next Business Day.
11.03 EXPENSES; ETC.
(a) Expenses. The Borrower shall pay or reimburse each of the Lenders
and each Agent for paying:
(i) all reasonable out-of-pocket costs and expenses of the
Agents (including the reasonable fees and expenses of: (A)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Lenders; (B)
the Independent Engineer; (C) the Insurance Advisor; (D)
such other counsel or experts engaged by the Administrative
Agent at the request of the Majority Lenders (and, except
during the occurrence and continuation of a Default, with
the consent of the Borrower, such consent not to be
unreasonably withheld or delayed) from time to time; and
(E) counsel engaged by the Collateral Agent from time to
time with (except during the occurrence and continuation of
a Default) the consent of the Borrower, such
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consent not to be unreasonably withheld or delayed), in
each case in connection with: (I) the negotiation,
preparation, execution and delivery of this Agreement and
the other Transaction Documents and the extension of credit
hereunder; or (II) any amendment, modification or waiver of
any of the terms of this Agreement or any other Transaction
Document;
(ii) all reasonable costs and expenses of the Lenders and each
Agent (including reasonable counsels' fees and expenses and
reasonable experts' fees and expenses) in connection with:
(A) any Default and any enforcement or collection
proceedings resulting therefrom or in connection with the
negotiation of any restructuring or "work-out" (whether or
not consummated) of the obligations of the Borrower under
this Agreement or the obligations of any Project Party
under any other Transaction Document; and (B) the
enforcement of this Section 11.03;
(iii) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any Government Authority
in respect of this Agreement or any other Transaction
Document or any other document referred to herein or
therein and all costs, expenses, taxes, assessments and
other charges incurred in connection with any filing,
registration, recording or perfection of any Lien
contemplated by this Agreement or any other Financing
Document or any other document referred to herein or
therein; and
(iv) all costs, expenses and other charges in respect of title
insurance procured with respect to the Liens created
pursuant to the Deed of Trust.
In relation to payments referred to under clause (iii) above,
within 30 days after paying such amount, the Borrower shall
deliver to the Administrative Agent, evidence reasonably
satisfactory to the Administrative Agent of such payment.
(b) Indemnity. The Borrower shall indemnify each Agent, each Lender,
their respective Affiliates and their respective shareholders,
officers, directors, employees, representatives, attorneys and
agents (each, an "INDEMNITEE") from, and shall hold each of them
harmless against, any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, fines, demands,
settlements, actions, judgments, suits, costs or disbursements of
any kind or nature whatsoever (including the reasonable fees and
expenses of counsel and consultants for each Indemnitee in
connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto, but excluding any such
losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or
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disbursements incurred solely by reason of the gross negligence or
willful misconduct of such Indemnitee) that may at any time
(including at any time following the Termination Date) be imposed
on, asserted against or incurred by any Indemnitee as a result of,
or arising out of, or in any way related to or by reason of:
(i) any of the transactions contemplated hereby or by any other
Transaction Document or the execution, delivery or
performance of this Agreement or any other Transaction
Document;
(ii) the extensions of credit hereunder or the actual or
proposed use by the Borrower of any of the extensions of
credit hereunder or the grant to the Collateral Agent for
the benefit of, or to any of, the Secured Parties of any
Lien on the Collateral or on any other Property of the
Borrower, the Sponsor or any ownership interest in the
Borrower;
(iii) the exercise by the Collateral Agent or the other Secured
Parties of their rights and remedies (including
foreclosure) under any agreements creating any such Lien;
and
(iv) any Environmental Law (including any Lien filed against any
Project by or in favor of any Government Authority) as a
result of the past, present or future operations of the
Borrower, the Sponsor (as it relates to the Projects) or
the Operator (or any predecessor in interest to any such
person), or the past, present or future condition of any
site or facility owned, operated or leased at any time by
the Borrower, the Sponsor or the Operator (or any such
predecessor in interest to any such person), or any Release
or Use or threatened Release of any Hazardous Materials at
any such site or facility, that is not otherwise in
accordance with applicable Environmental Law, including any
such Release or Use or threatened Release which shall occur
during any period when such Indemnitee shall be in
possession of any such site or facility following the
exercise by either Agent or any other Secured Party of any
of its rights and remedies hereunder or under any Financing
Document or any other Transaction Document.
(c) Records. Each relevant Financing Party shall maintain in
accordance with its usual practice records evidencing the amounts
payable by the Borrower under this Section 11.03; provided that
the failure of any Financing Party to maintain such records shall
not in any manner affect the obligation of the Borrower to make
such payments.
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11.04 AMENDMENTS; ETC. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be amended or modified
only by an instrument in writing signed by each of the Borrower, the
Administrative Agent, the Collateral Agent and the Majority Lenders, or
by each of the Borrower and the Collateral Agent and the Administrative
Agent acting with the consent of the Majority Lenders, and any provision
of this Agreement may be waived by the Majority Lenders or by the
Administrative Agent acting with the consent of the Majority Lenders;
provided that:
(a) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative
Agent acting with the consent of all of the Lenders: (i) increase
or extend the term, or extend the time or waive any requirement
for the reduction or termination, of the Commitments; (ii) extend
the date fixed for the payment of principal of or interest on any
Loan or any fee hereunder; (iii) reduce the amount of any such
payment of principal; (iv) reduce the rate at which interest is
payable thereon or any fee is payable hereunder; (v) alter the
rights or obligations of the Borrower to prepay Loans; (vi) alter
the manner in which payments or prepayments of principal, interest
or other amounts hereunder shall be applied among the Lenders or
Types or Classes of Loans; (vii) alter the terms of this Section
11.04; (viii) amend the definition of the term "Majority Lenders"
or modify in any other manner the number or percentage of the
Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof; (ix) waive any of the
conditions precedent set out in Section 6.01; or (x) release all
or any material portion of the Collateral; and
(b) any amendment, modification, waiver or supplement of the rights or
duties of either Agent hereunder shall require the consent of such
Agent.
Anything in this Agreement to the contrary notwithstanding, if at any
time when the conditions precedent set out in Article VI to any extension
of credit hereunder are, in the opinion of the Majority Lenders,
satisfied, any Lender shall fail to fulfill its obligations to make such
extension of credit, then, for so long as such failure shall continue,
such Lender shall (unless the Majority Lenders, determined as if such
Lender were not a "Lender" hereunder, shall otherwise consent in writing)
be deemed for all purposes relating to amendments, modifications, waivers
or consents under this Agreement or any other Financing Document
(including under this Section 11.04 and under Section 10.09) to have no
Loans or Commitments, shall not be treated as a "Lender" hereunder when
performing the computation of Majority Lenders, and shall have no rights
under the preceding paragraph of this Section 11.04.
Anything in this Agreement to the contrary notwithstanding, no waiver or
modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to
satisfy a condition precedent to the making of a Loan of any Class shall
be effective against the Lenders making Loans of such Class for purposes
of the Commitments of such Class unless the Majority Lenders making Loans
of such Class shall have concurred with such waiver or modification, and
no waiver or
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modification of any provision of this Agreement or any other Financing
Document that could reasonably be expected to adversely affect the
Lenders making Loans of any Class in a manner that does not affect all
Classes equally shall be effective against the Lenders making Loans of
such Class unless the Majority Lenders making Loans of such Class shall
have concurred with such waiver or modification.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
permitted assigns.
11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) Borrower. The Borrower may not assign its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Lenders and the Administrative Agent.
(b) Lenders. Subject to the terms of clause (g) below, each Lender may
assign any of its Loans, its Notes and its Commitments (but only
with the consent of, in the case of an outstanding Commitment, the
Administrative Agent, not to be unreasonably withheld) to an
Eligible Assignee; provided that: (i) no such consent by the
Administrative Agent shall be required in the case of any
assignment to another Lender or an Affiliate (or Approved Fund) of
a Lender; (ii) except in the case of an assignment to a Lender or
an Affiliate (or Approved Fund) of a Lender or an assignment of
the entire remaining amount of the assigning Lender's Commitments,
any such partial assignment shall be in an amount at least equal
to $5,000,000; and (iii) each assignment by a Lender of its
Commitment, Loans or Note of a particular Class shall be made in
such a manner so that the same portion of its Commitment, Loans
and Note of such Class is assigned to the respective assignee.
Upon execution and delivery by the assignee to the Borrower and
the Administrative Agent of an instrument in writing pursuant to
which such assignee agrees to become a "Lender" hereunder (if not
already a Lender) having the Commitments and Loans specified in
such instrument, and upon consent thereto by the Administrative
Agent, to the extent required above, the assignee shall have, to
the extent of such assignment (unless otherwise provided in such
assignment with the consent of the Administrative Agent, to the
extent required above), the obligations, rights and benefits of a
Lender hereunder holding the Commitments and Loans (or portions
thereof) assigned to it (in addition to the Commitments and Loans,
if any, theretofore held by such assignee) and the assigning
Lender shall, to the extent of such assignment, be released from
the Commitments (or portion thereof) so assigned. Upon each such
assignment (other than such an assignment by United), the
assigning Lender shall pay the Administrative Agent an assignment
fee of $3,000.
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In furtherance of the foregoing, on the date of any such
assignment pursuant to this Section 11.06(b), the Borrower shall
deliver to the assigning Lender and the assignee Lender, in
exchange for the Notes theretofore delivered by the Borrower to
the assigning Lender, appropriately completed Notes, dated the
effective date of such assignment, payable to such assigning
Lender and to such assignee, in an aggregate amount equal to their
respective Commitments after giving effect to such assignment, and
otherwise duly completed.
[Intentionally omitted.]
(c) Participants. A Lender may sell or agree to sell to one or more
other Persons a participation in all or any part of any Loan held
by it, or in its Commitments (provided that partial participations
shall be in an amount at least equal to $5,000,000 or the entire
remaining amount of the assigning Lender's Loans and Commitments,
whichever is the lesser). Each purchaser of a participation (a
"PARTICIPANT") shall be entitled to the rights and benefits of the
provisions of Section 8.01(m) with respect to its participation in
such Loans and Commitments as if (and the Borrower shall be
directly obligated to such Participant under such provision as if)
such Participant were a "Lender" for purposes of said Section,
but, except as otherwise provided in Section 4.07(c), shall not
have any other rights or benefits under this Agreement or any Note
or any other Financing Document (the Participant's rights against
such Lender in respect of such participation to be those set out
in the agreements executed by such Lender in favor of the
Participant). All amounts payable by the Borrower to any Lender
under Article V in respect of Loans and its Commitments, shall be
determined as if such Lender had not sold or agreed to sell any
participations in such Loans and Commitments, and as if such
Lender were funding each of such Loans and Commitments in the same
way that it is funding the portion of such Loans and Commitments
in which no participations have been sold. In no event shall a
Lender that sells a participation agree with the Participant to
take or refrain from taking any action hereunder or under any
other Financing Document, except that such Lender may agree with
the Participant that it will not, without the consent of the
Participant, agree to: (i) increase or extend the term, or extend
the time or waive any requirement for the reduction or
termination, of such Lender's Commitment; (ii) extend the date
fixed for the payment of principal of or interest on the related
Loans or any portion of any fee hereunder payable to the
Participant; (iii) reduce the amount of any such payment of
principal; (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a
level below the rate at which the Participant is entitled to
receive such interest or fee; (v) alter the rights or obligations
of the Borrower to prepay the related Loans; or (vi) consent to
any modification or waiver hereof or of any Financing Document to
the extent that the same, under Section 10.09 or 11.04, requires
the consent of each Lender.
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Notwithstanding anything else provided herein, no Person
purchasing a participation in accordance with the terms hereof
shall be considered a "Lender" for any purposes of the Financing
Documents by reason of the purchase of such participation.
(d) Assignment to Federal Reserve Bank. Anything in this Section 11.06
to the contrary notwithstanding, any Lender may (without notice to
the Borrower, either Agent or any other Lender, and without
payment of any fee) assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(e) Information. A Lender may furnish any information concerning the
Borrower in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section
11.08.
(f) Assignment to Borrower. Anything in this Section 11.06 to the
contrary notwithstanding, no Lender may assign or participate any
interest in any Loan held by it hereunder to the Borrower or any
of its Affiliates without the prior consent of each Lender.
(g) United. Notwithstanding anything to the contrary in this Section
11.06, United shall not assign any interest in any Commitment or
Loan such that at any time it shall cease to own less than 50.1%
of the aggregate principal amount of the Loans from time to time
outstanding.
11.07 MARSHALLING; RECAPTURE. None of the Administrative Agent, the Collateral
Agent, or any Lender shall be under any obligation to marshal any assets
in favor of the Borrower or any other party or against or in payment of
any or all of the Secured Obligations. To the extent either Agent or any
Lender receives any payment by or on behalf of the Borrower, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to the
Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy or insolvency law, state or Federal law, common law
or equitable cause, then to the extent of such payment or repayment, the
obligation or part thereof that has been paid, reduced or satisfied by
the amount so repaid shall be reinstated by the amount so repaid and
shall be included within the liabilities of the Borrower to such Agent or
such Lender as of the date such initial payment, reduction or
satisfaction occurred.
11.08 CONFIDENTIALITY. Each Lender and each Agent agrees (on behalf of itself
and each of its Affiliates, directors, officers, employees and
representatives) to keep confidential, any non-public information
supplied to it by the Borrower pursuant to this Agreement that is
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identified by the Borrower as being confidential at the time the same is
delivered to such Lender or such Agent; provided that nothing herein
shall limit the disclosure of any such information: (i) to the extent
required by any Government Rule or judicial process; provided that,
unless prohibited by applicable Government Rules or not reasonably
practicable: (A) notice shall be given to the Borrower of such request;
and (B) such Lender or such Agent, as applicable, shall reasonably
cooperate with the Borrower to the extent the Borrower may seek to
challenge such requirement, so long as the Borrower pays all costs of
such challenge and the disclosing party determines that such challenge
would not adversely affect it; (ii) to counsel for any of the Lenders or
either Agent; (iii) to banking, securities exchange or other regulatory
or supervisory authorities, auditors or accountants; (iv) to either Agent
or any other Lender; (v) in connection with the exercise of any remedies
hereunder or under any of the Financing Documents or any suit, action or
proceeding relating to this Agreement or any other Financing Document or
the enforcement of rights hereunder or thereunder; (vi) to the
Independent Engineer, the Insurance Advisor or to other experts engaged
by either Agent or any Lender in connection with this Agreement and the
transactions contemplated hereby; (vii) to the extent that such
information is required to be disclosed to a Government Authority in
connection with a tax audit or dispute; (viii) in connection with any
Default and any enforcement or collection proceedings resulting therefrom
or in connection with the negotiation of any restructuring or "work-out"
(whether or not consummated) of the obligations of the Borrower under
this Agreement or the obligations of the Borrower, the Sponsor, the
Operator or other Project Party under any other Transaction Document; or
(ix) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective
assignee or participant) first executes and delivers to the respective
Lender and the Borrower a confidentiality agreement pursuant to which it
agrees to comply with the requirements of this Section 11.08.
Notwithstanding the foregoing provisions of this Section 11.08(b), the
foregoing obligation of confidentiality shall not apply to any such
information that: (A) was known to any Lender or either Agent prior to
the time it received such confidential information from the Borrower or
its Affiliates pursuant to the Transaction Documents; or (B) becomes part
of the public domain independently of any act of any Lender or either
Agent not permitted hereunder (through publication or otherwise); or (C)
is received by any Lender or either Agent, as applicable, without
restriction as to its disclosure or use, from a Person other than the
Borrower or its Affiliates; provided that such Lender or such Agent, as
applicable has no actual knowledge that such source is disclosing such
information to such Lender or such Agent, as applicable, in violation of
a confidentiality agreement with respect to such information.
11.09 NON-RECOURSE. No recourse shall be had for the payment of any obligations
under any Loan or upon any other obligation, covenant or agreement under
this Agreement or any other Financing Document, against the Sponsor or
any Affiliate thereof, any incorporator, direct or indirect stockholder,
member, partner, officer, director, as such, whether past, present or
future of the Sponsor or the Borrower or any Affiliate thereof or of any
successor corporation thereto (either directly or through the Sponsor or
the Borrower or a
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successor corporation) (each hereinafter, a "NON-RECOURSE PERSON"),
whether by virtue of any constitutional provision, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise. It
is expressly agreed and understood that:
(a) this Agreement and each other Financing Document are solely
limited liability company obligations of the Borrower, and that no
personal liability whatsoever shall attach to, or be incurred by,
any Non-Recourse Person, either directly or indirectly through the
Borrower or any successor Person, because of the indebtedness
thereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this Agreement
or any of the Financing Documents or to be implied herefrom or
therefrom; and
(b) any claim of or relating to such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Agreement and each
other Financing Document.
Notwithstanding the foregoing, nothing in this Section 11.09 shall impair
or in any way limit any liabilities or obligations of: (i) the Sponsor
under or pursuant to its obligations as set forth in the Borrower Equity
Interest Pledge; or (ii) any Non-Recourse Party for fraud or willful
misconduct.
11.10 SURVIVAL. The obligations of the Borrower under Sections 5.01, 5.05, 5.06
and 11.03, the obligations of the Lenders under Section 10.05 and the
obligations of the Borrower and the Lenders under the penultimate
sentence of Section 10.08 and under Section 11.08 shall survive after the
Termination Date. In addition, each representation and warranty made, or
deemed to be made by a notice of any Disbursement, herein or pursuant
hereto shall survive the making of such representation and warranty, and
no Lender shall be deemed to have waived, by reason of making any
Disbursement hereunder, any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or either Agent may have had notice or
knowledge or reason to believe that such representation or warranty was
false or misleading at the time such Disbursement was made.
11.11 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same instrument and any party hereto may execute
this Agreement by signing any such counterpart. This Agreement and the
other Financing Documents constitute the entire agreement and
understanding among the parties hereto with respect to matters covered by
this Agreement and the other Financing Documents and supersede any and
all prior agreements and understandings, written or oral, relating to the
subject matter hereof. This Agreement shall become effective at such time
as the Administrative Agent shall have received counterparts hereof
signed by all of the intended parties hereto.
11.12 NO THIRD PARTY BENEFICIARIES IN RELATION TO DISBURSEMENTS. THE AGREEMENT
OF THE LENDERS TO MAKE THE LOANS TO THE
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BORROWER, ON THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, ARE
SOLELY FOR THE BENEFIT OF THE BORROWER, AND NO OTHER PERSON (INCLUDING
ANY AFFILIATE OF THE BORROWER, OR ANY PROJECT PARTY, CONTRACTOR,
SUBCONTRACTOR, SUPPLIER, WORKMAN, CARRIER, WAREHOUSEMAN OR MATERIALMAN
FURNISHING LABOR, SUPPLIES, GOODS OR SERVICES TO OR FOR THE BENEFIT OF
ANY PROJECT) SHALL HAVE ANY RIGHTS HEREUNDER OR UNDER ANY OTHER FINANCING
DOCUMENT AS AGAINST EITHER AGENT OR ANY LENDER OR WITH RESPECT TO ANY
EXTENSION OF CREDIT CONTEMPLATED HEREBY.
11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION, ETC. THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN
NEW YORK COUNTY (INCLUDING ANY APPELLATE DIVISION THEREOF), AND OF ANY
OTHER APPELLATE COURT IN THE STATE OF NEW YORK, FOR THE PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (OTHER THAN ENFORCEMENT OF THE DEED OF
TRUST). EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
11.14 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, EACH AGENT AND EACH OF THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.15 SPECIAL EXCULPATION. NO CLAIM MAY BE MADE BY THE BORROWER, ANY OF ITS
AFFILIATES, ANY PARTY TO THIS AGREEMENT OR THE AFFILIATES, SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF ANY OF THEM
AGAINST EITHER AGENT OR ANY LENDER OR THE AFFILIATES, SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF ANY OF THEM FOR
ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS OR
DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER
THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, OR ANY ACT,
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OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND THE BORROWER
HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ UPON ANY CLAIM FOR ANY SUCH
DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO
EXIST IN ITS FAVOR.
11.16 SERVICE OF PROCESS. Each party hereto hereby irrevocably consents to the
service of process in any suit, action or proceeding in such courts by
the mailing thereof by any of the other parties hereto by registered or
certified mail, postage prepaid, to the "Address for Notices" specified
below its name on the signature pages hereof.
11.17 SERVICE OF PROCESS. Nothing herein shall in any way be deemed to limit
the ability of any party hereto to serve any writs, process or summonses
in any other manner permitted by applicable law or to obtain jurisdiction
over any other party hereto in such jurisdiction, and in such manner, as
may be permitted by applicable law.
11.18 SEVERABILITY. Any provision of this Agreement or the other Financing
Documents that is prohibited or unenforceable in any particular
jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of that prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or the other Financing Documents,
and any such prohibition or unenforceability in any particular
jurisdiction shall not invalidate or render unenforceable that provision
in any other jurisdiction.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
BORROWER
--------
ORMESA LLC
By: ORMAT FUNDING CORP.,
its Sole Member and Controlling Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director, Chief Financial Officer
and Assistant Secretary
Address for Notices:
Ormesa LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
Schedule I to the Credit Agreement
I-2
LENDERS
-------
UNITED CAPITAL,
a division of ▇▇▇▇▇▇ United Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Address for Notices:
United Capital, a division
of ▇▇▇▇▇▇ United Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Schedule I to the Credit Agreement
I-3
ADMINISTRATIVE AGENT
--------------------
UNITED CAPITAL,
a division of ▇▇▇▇▇▇ United Bank,
not in its individual capacity but solely
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Address for Notices:
United Capital, a division
of ▇▇▇▇▇▇ United Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Schedule I to the Credit Agreement
I-4
COLLATERAL AGENT
----------------
UNITED CAPITAL,
a division of ▇▇▇▇▇▇ United Bank,
not in its individual capacity but solely
as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Address for Notices:
United Capital, a division
of ▇▇▇▇▇▇ United Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Schedule I to the Credit Agreement