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Exhibit 4.10
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GUARANTOR LOAN AGREEMENT
Between
LOUISIANA GENERATING LLC,
as borrower
and
NRG SOUTH CENTRAL GENERATING LLC
as lender
Dated as of March 30, 2000
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; CONSTRUCTION
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Section 1.1 Definitions ...................................................... 2
Section 1.2 Principles of Construction ....................................... 2
ARTICLE II
DESCRIPTION OF THE GUARANTOR LOAN
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Section 2.1 Acknowledgments of Subsidiary Guarantor;
Guarantor Loan ................................................... 2
Section 2.2 Term of this Agreement ........................................... 3
Section 2.3 Interest ......................................................... 3
Section 2.4 Principal ........................................................ 3
Section 2.5 Obligations of the Subsidiary Guarantor Hereunder
Unconditional .................................................... 4
Section 2.6 General Terms of Payment ......................................... 4
Section 2.7 Security ......................................................... 4
Section 2.8 Pledge of Guarantor Note ......................................... 4
ARTICLE III
COVENANTS AND AGREEMENTS OF THE SUBSIDIARY GUARANTOR
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Section 3.1 Reporting Requirements ........................................... 5
Section 3.2 Existence; Governmental Approvals; Compliance
with Applicable Laws ............................................. 5
Section 3.3 Title to Assets. ................................................. 6
Section 3.4 Payment of Taxes and Claims ...................................... 6
Section 3.5 Books and Records ................................................ 6
Section 3.6 Right of Inspection .............................................. 7
Section 3.7 Use of Proceeds; Depositary Accounts ............................. 7
Section 3.8 Performance of Transaction Documents ............................. 7
Section 3.9 Auditors ......................................................... 7
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Section 3.10 Operation of the Project ........................................ 7
Section 3.11 Insurance ....................................................... 8
Section 3.12 Third Party Consents ............................................ 8
Section 3.13 Permitted Indebtedness .......................................... 8
Section 3.14 Permitted Liens ................................................. 9
Section 3.15 Guarantees ...................................................... 9
Section 3.16 Business Activities ............................................. 9
Section 3.17 Assignment of Obligations; Additional Agreements ................ 9
Section 3.18 Fundamental Changes; Sale of Assets ............................ 10
Section 3.19 Investments; Transactions with Affiliates ...................... 10
Section 3.20 Finance Documents; Project Documents ........................... 12
Section 3.21 Restricted Payments ............................................ 13
Section 3.22 Investment Company Act ......................................... 13
Section 3.23 Taxation ....................................................... 13
Section 3.24 Further Assurances ............................................. 13
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
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Section 4.1 Events of Default ............................................... 14
Section 4.2 Remedies Upon a Guarantor Event of Default ...................... 17
Section 4.3 Continuing Lien ................................................. 18
Section 4.4 Defense of Actions .............................................. 19
ARTICLE V
GENERAL TERMS AND CONDITIONS
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Section 5.1 Notices ......................................................... 19
Section 5.2 Amendments and Waivers .......................................... 19
Section 5.3 No Waiver; Remedies Cumulative .................................. 20
Section 5.4 Severability .................................................... 20
Section 5.5 Third Party Beneficiaries ....................................... 20
Section 5.6 Subsidiary Guarantor in Control ................................. 21
Section 5.7 Number and Gender ............................................... 21
Section 5.8 Section Headings ................................................ 21
Section 5.9 Governing Law; Submission to Jurisdiction;/Waiver of
Jury Trial ...................................................... 21
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Section 5.10 Limitation of Liability ........................................ 22
Section 5.11 Counterparts ................................................... 23
Section 5.12 Successors and Assigns ......................................... 23
Section 5.13 Maximum Interest Rate .......................................... 23
Section 5.14 Entire Agreement ............................................... 23
Schedule I Amortization Schedule and Interest Rate
Schedule 3.13 Permitted Guarantor Indebtedness
Schedule 3.15 Permitted Liens
Schedule 3.16 Guarantees
Schedule 3.17 Permitted Investments
Exhibit A: Form of Guarantor Note
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GUARANTOR LOAN AGREEMENT
This GUARANTOR LOAN AGREEMENT, dated as of March 30, 2000 (this
"Agreement") is by and among LOUISIANA GENERATING LLC, a Delaware limited
liability company (the "Subsidiary Guarantor"), as borrower, and NRG SOUTH
CENTRAL GENERATING LLC, a Delaware limited liability company ("the Issuer"), as
lender.
RECITALS
WHEREAS, the Issuer is a limited liability company established for the
purpose of issuing the Bonds in its individual capacity pursuant to the
Indenture and to make loans pursuant to this Agreement;
WHEREAS, the Issuer has simultaneously with the execution and delivery of
this Agreement issued and sold the Initial Bonds pursuant to the Indenture;
WHEREAS, pursuant to this Agreement, the Issuer intends to use a portion
of the proceeds from the issuance and sale of the Initial Bonds to make the
Guarantor Loan to the Subsidiary Guarantor in the aggregate principal amount of
$800,000,000 the proceeds of which will be used, among other things, to finance
costs and expenses associated with the Acquisition; and
WHEREAS, payments of the principal of, premium (if any), interest on and
any other amounts due with respect to the Initial Bonds will be serviced by
repayment of the Guarantor Loan and guaranteed by the Subsidiary Guarantor.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto formally covenant, agree and
bind themselves as follows:
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ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. Except as otherwise expressly provided herein or
unless the context otherwise clearly requires, capitalized terms used in this
Agreement shall have the meanings ascribed thereto in Appendix A of the
Trust Indenture, dated as of March 30, 2000, among the Issuer, the Subsidiary
Guarantor and The Chase Manhattan Bank, as Bond Trustee and Appendix A is
incorporated by reference herein as if set forth in full herein.
Section 1.2 Principles of Construction. Except as otherwise expressly
provided herein or unless the context otherwise clearly requires, the principles
of construction set forth in Section 1.1 (Definitions; Construction) of the
Indenture shall apply to this Agreement.
ARTICLE II
DESCRIPTION OF THE GUARANTOR LOAN
Section 2.1 Acknowledgments of Subsidiary Guarantor; Guarantor Loan. The
Subsidiary Guarantor and the Issuer hereby acknowledge and agree that:
(a) pursuant to this Agreement, the Issuer does hereby lend to the
Subsidiary Guarantor and the Subsidiary Guarantor does hereby borrow from the
Issuer funds in the aggregate principal amount of Eight Hundred Million Dollars
($800,000,000) (the "Guarantor Loan") to be evidenced by a promissory note or
notes substantially in the form of Exhibit A issued by the Subsidiary Guarantor
in favor of the Issuer (each such note, including any note issued pursuant to
clause (b) of this Section 2.1, a "Guarantor Note"); and
(b) if proceeds from the issuance and sale of any Additional Bonds the
proceeds of which must be loaned to the Subsidiary Guarantor by the Issuer
pursuant to the terms of the Indenture or applicable Supplemental Indenture, the
outstanding principal balance of the Guarantor Loan shall be increased by the
amount of net proceeds loaned to the Subsidiary Guarantor in connection
therewith and the Guaran-
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tor Loan shall include the loan to the Subsidiary Guarantor of such proceeds, as
evidenced by a promissory note or notes substantially in the form of Exhibit A
to be issued by the Subsidiary Guarantor in favor of the Issuer.
Section 2.2 Term of this Agreement. This Agreement shall remain in full
force and effect from the date hereof until the payment in full of all amounts
due under this Agreement.
Section 2.3 Interest. Interest hereunder shall be paid in arrears on each
March 15 and September 15, commencing September 15, 2000, until all principal
hereunder is paid in full. Interest hereunder shall be computed (a) on the basis
of a three hundred sixty (360) day year, consisting of twelve (12) thirty (30)
day months, and (b) at the applicable rates per annum specified on Schedule I.
Section 2.4 Principal.
(a) Regular Repayment. (i) The Subsidiary Guarantor shall repay the
Guarantor Loan in installments to the Issuer on the dates, at the times and in
the amounts set forth on Schedule I (as the same may be modified (a) pursuant to
Section 8.3 of the Indenture and (b) to reflect any prepayments made pursuant to
clause (b) of this Section 2.4).
(ii) If any proceeds from the issuance of any Additional Bonds
are loaned to the Subsidiary Guarantor by the Issuer, principal payments
on the additional promissory note or notes issued by the Subsidiary
Guarantor pursuant to Section 2.1(b) shall be payable in scheduled
installments which correspond to the repayment of such Additional Bonds
pursuant to Schedule I of the Indenture as the same may be modified from
time to time.
(b) Prepayment. The Subsidiary Guarantor shall prepay the Guarantor
Loan pursuant to Section 3.4 of the Indenture (or shall instruct the Depositary
Bank to make the required withdrawals and transfers) in such amounts and at such
times as may be appropriate to permit the Issuer to redeem the Bonds pursuant to
Section 3.1 or Section 3.2 of the Indenture including any Redemption Premium if
required thereunder. Following such prepayment, the Subsidiary Guarantor shall
furnish the Bond Trustee, on behalf of the Issuer, an Officer's Certificate
setting forth the amortization schedule for the remaining Bonds after giving
effect to such prepayment and corresponding redemption under the Indenture.
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(c) The Subsidiary Guarantor shall prepay the Guarantor Loan in such
amounts and at such times as may be appropriate to permit the Issuer to defease
the Bonds pursuant to Section 9.2 of the Indenture.
Section 2.5 Obligations of the Subsidiary Guarantor Hereunder Uncondi-
tional. The obligation of the Subsidiary Guarantor to make the payments required
in Section 2.3 and Section 2.4 shall be absolute and unconditional and the
Subsidiary Guarantor shall not discontinue such payments for any reason,
including, without limitation, any acts or circumstances that may constitute
failure of consideration, eviction or constructive eviction from the Project,
including commercial frustration of purpose, or change in Applicable Law. The
Subsidiary Guarantor may, however, at its own cost and expense and in its own
name or, with the consent of the Issuer and subject to the provision of certain
indemnities as the Issuer may require, in the name of the Issuer, prosecute or
defend any action or proceeding or take any other action involving third Persons
which the Subsidiary Guarantor deems reasonably necessary in order to secure or
protect its right of possession, occupancy and use of the Project.
Section 2.6 General Terms of Payment. (a) All sums payable to the Issuer
hereunder shall be deemed paid to the extent the Collateral Agent shall apply,
pursuant to the instructions of either Obligor, amounts held by the Depositary
Bank to the payment of the principal of, interest on or any other amounts due in
respect of the Guarantor Loan and the principal of, premium (if any), interest
on or any other amounts due in respect of the Bonds, each in accordance with the
Indenture or any relevant Supplemental Indenture.
(b) All payments due or accruing hereunder shall be calculated
pursuant to the terms and provisions set forth in the Indenture with respect to
the corresponding payment due or accruing on the Bonds.
Section 2.7 Security. The obligations of the Subsidiary Guarantor
hereunder shall be secured as set forth herein and under the Security Documents.
Section 2.8 Pledge of Guarantor Note. The Issuer shall pledge the Guaran-
tor Note to the Collateral Agent, acting on behalf of the Secured Parties
pursuant to the Issuer Security Agreement. The Subsidiary Guarantor hereby
acknowledges and consents to the granting of such pledge and this Section 2.8
shall constitute notice thereof given as of the date of this Agreement.
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ARTICLE III
COVENANTS AND AGREEMENTS OF THE SUBSIDIARY GUARANTOR
The Subsidiary Guarantor hereby covenants and agrees that from the date
of this Agreement, it shall faithfully observe and fulfill, and shall cause to
be faithfully observed and fulfilled, each and all of the following covenants
until the Debt Termination Date shall have occurred:
Section 3.1 Reporting Requirements. The Subsidiary Guarantor shall
furnish or cause to be furnished to the Issuer:
(a) promptly, and in any event within ten (10) days after the receipt
of notice of the occurrence of any litigation, claim, proceeding or controversy
pending or the receipt by the Subsidiary Guarantor of a written threat of any
such litigation, claim, proceeding or controversy involving or affecting the
Subsidiary Guarantor or the Project that would in any case reasonably be
expected to result in a Material Adverse Effect, notice of the same;
(b) copies of all material notices delivered in connection with any
Project Document or otherwise in connection with the Project; and
(c) all other information reasonably requested by the Issuer to enable
the Issuer to satisfy its obligations under the Indenture.
Section 3.2 Existence; Governmental Approvals; Compliance with
Applicable Laws. (a) The Subsidiary Guarantor shall at all times preserve and
maintain in full force and effect its existence as a limited liability company
in good standing under the laws of the State of Delaware and its qualification
to do business in each other jurisdiction in which the character of properties
owned or leased by it or in which the transaction of its business as conducted
or proposed to be conducted makes such qualification necessary, except where the
failure to be so qualified would not reasonably be expected to have a Material
Adverse Effect; provided, however that (i) the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 3.18
and (ii) the Subsidiary Guarantor may change its status as a limited liability
company if the Rating Agencies confirm in writing that the change will not
result in a Ratings Downgrade and the Subsidiary Guarantor otherwise complies
with its obligations under the Finance Documents.
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(b) The Subsidiary Guarantor shall (i) obtain all Governmental Approvals
necessary for the transaction of its business as conducted or proposed to be
con-ducted and (ii) maintain its status as an EWG except in either case where
the failure to do so would not reasonably be expected to result in a Material
Adverse Effect.
(c) The Subsidiary Guarantor shall comply with all Applicable Laws
(including Environmental Laws) and Governmental Approvals applicable to it, and
all other acts, rules, regulations, permits, orders and requirements of any
legislative, executive, administrative or judicial body relating to the
performance by the Subsidiary Guarantor of its obligations hereunder, except
where the failure to do so would not reasonably be expected to result in a
Material Adverse Effect.
Section 3.3 Title to Assets. The Subsidiary Guarantor shall preserve and
maintain good, valid and marketable title or leasehold rights to the Mortgaged
Property and its assets constituting part of the Collateral (excluding any real
property that is not part of the Mortgaged Property) (subject to no Liens other
than Permitted Liens) except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect; provided, however, that nothing
in this Section 3.3 shall prevent the Subsidiary Guarantor from disposing of any
asset subject to terms and provisions of Section 3.18.
Section 3.4 Payment of Taxes and Claims. The Subsidiary Guarantor shall,
prior to the time that penalties shall attach thereto, pay and discharge or
cause to be paid or discharged all Taxes, assessments and governmental charges
or levies imposed upon it or its income or profits except where the failure to
do so would not reasonably be expected to result in a Material Adverse Effect;
provided that the Subsidiary Guarantor shall not be required to pay any such
obligation if (a) such charges are being diligently contested in good faith by
appropriate proceedings, and (b) adequate reserves are established with respect
to the contested items (in accordance with GAAP). The Subsidiary Guarantor
shall promptly pay or cause to be paid any valid, final non-appealable judgment
enforcing any such Tax, assessment, governmental charge or levy and shall cause
the same to be satisfied of record, as applicable.
Section 3.5 Books and Records. The Subsidiary Guarantor shall at all
times keep proper books of record and account truly and fairly reflecting the
financial condition and results of operations of the Subsidiary Guarantor in
which full, true and correct entries in conformity with GAAP and all Applicable
Laws shall be made of all dealings and transactions in relation to its business
and activities.
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Section 3.6 Right of Inspection. Upon reasonable advance written notice,
the Subsidiary Guarantor shall permit the Bond Trustee or its representative to
visit and inspect, in the presence of representatives of the Subsidiary
Guarantor, if reasonably requested by the Bond Trustee, any of the properties of
the Subsidiary Guarantor, and to examine and make copies of the books of record
and accounts of the Subsidiary Guarantor as reasonably necessary and discuss the
affairs, finances and accounts of the Subsidiary Guarantor with, and be advised
as to the same by, its officers, all at such reasonable times and intervals and
to such reasonable extent as the Bond Trustee may request.
Section 3.7 Use of Proceeds; Depositary Accounts. (a) The Subsidiary
Guarantor shall use all proceeds of the Guarantor Loan solely to (i) finance the
Acquisition and to pay certain fees, expenses, costs and taxes associated
therewith and (ii) repay in full any Indebtedness owed to any Affiliate that is
outstanding on the Closing Date.
(b) Unless otherwise permitted by the Indenture, the Subsidiary
Guarantor shall cause (i) all Project Revenues, (ii) any proceeds received from
the sale of assets related to the Project (excluding Assets Specifically Held
for Resale) and (iii) all Loss Proceeds, proceeds received in connection with a
Title Event or proceeds received in connection with a PPA Buy-Out received by it
to be deposited into the Revenue Account.
Section 3.8 Performance of Transaction Documents. The Subsidiary
Guarantor shall perform all of its material covenants and agreements contained
in any of the Transaction Documents to which it is a party, except where such
nonperformance would not reasonably be expected to result in a Material Adverse
Effect.
Section 3.9 Auditors. The Subsidiary Guarantor shall retain
PricewaterhouseCoopers LLP or another nationally recognized independent
accounting firm in the United States to act as its auditors and authorize such
firm to communicate directly with the Bond Trustee and the Collateral Agent.
Section 3.10 Operation of the Project. The Subsidiary Guarantor shall
maintain and operate the Project in accordance with prudent independent power
industry practice.
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Section 3.11 Insurance. (a) The Subsidiary Guarantor shall at all times
maintain, with responsible, reputable and financially sound insurance carriers,
and provide satisfactory evidence of, customary insurance in such amounts
(subject to reasonable and customary deductibles and sublimits) and with terms
and conditions in accordance with prudent independent power industry practice.
All policies (other than workers' compensation) shall name the Collateral Agent
and the Bond Trustee as loss payee or additional insured.
(b) Each insurance policy obtained by the Subsidiary Guarantor shall
provide for at least ten (10) days' written notice to the Bond Trustee and the
Collateral Agent of cancellation, reduction in amount of coverage or any other
material change in coverage.
Section 3.12 Third Party Consents. The Subsidiary Guarantor shall use
commercially reasonable efforts to obtain Third Party Consents with respect to
each material Project Document entered into by the Subsidiary Guarantor after
the Closing Date.
Section 3.13 Permitted Indebtedness. The Subsidiary Guarantor shall not
create or incur or suffer to exist any Indebtedness except the following
(collectively, "Permitted Guarantor Indebtedness"):
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness related to Permitted Liens;
(c) Indebtedness outstanding on the Closing Date as set forth on
Schedule 3.13;
(d) Indebtedness owed to the Issuer pursuant to any intercompany notes
that have been pledged to the Collateral Agent;
(e) Indebtedness to an Additional Guarantor; and
(f) Indebtedness represented by Hedging Agreements;
(g) Indebtedness in respect of letters of credit, surety bonds or
performance bonds issued in the ordinary course of business;.
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(h) trade indebtedness or other similar Indebtedness incurred in the
ordinary course of business (but not in any case for borrowed money);
(i) other Indebtedness in an aggregate principal amount not to exceed
$15,000,000 (Escalated) at any one time; and
(j) Indebtedness related to the Subsidiary Guarantor's obligations to
establish certain funds under its power purchase agreements with the EMC's.
Section 3.14 Permitted Liens. The Subsidiary Guarantor shall not create
or suffer to exist or permit any Lien upon or with respect to any of its
properties except Permitted Liens.
Section 3.15 Guarantees. The Subsidiary Guarantor shall not become
liable, directly or indirectly, in connection with any Guarantee Obligation,
except for (a) the Guarantee, (b) endorsements and similar obligations in the
ordinary course of business and (c) guarantees existing on the Closing Date as
set forth on Schedule 3.15.
Section 3.16 Business Activities. The Subsidiary Guarantor shall not
engage in any activities other than (a) those contemplated by this Agreement and
the other Finance Documents and activities incidental thereto, (b) the
acquisition, ownership, operation and maintenance of the Project and the Joint
Operating Assets (and, in each case, activities incidental or related thereto)
or (c) the acquisition and ownership of Additional Guarantors; provided, that,
(i) prior to acquiring or creating any Additional Guarantor, the Subsidiary
Guarantor shall obtain written confirmation from each Rating Agency that such
action will not result in a Ratings Downgrade; (ii) each Additional Guarantor
shall enter into a loan agreement containing covenants substantially similar to
those set forth in Sections 3.13, 3.14, 3.15, 3.16, 3.18, 3.19, 3.21 and 3.23
hereof; and (iii) each Additional Guarantor shall enter into a guarantee of
payments due on the Bonds substantially similar to the Guarantee.
Section 3.17 Assignment of Obligations; Additional Agreements. Other than
assignments to the Collateral Agent, the Subsidiary Guarantor shall not assign
any of its rights or obligations under any material Project Document or enter
into any additional material Project Document unless (a) an Authorized Officer
of the Subsidiary Guarantor certifies that the transactions contemplated by such
assignment or additional Project Document would not reasonably be expected to
result in a Material Adverse Effect or (b) each Rating Agency confirms in
writing that the
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assignment or entering into such additional Project Document would not result in
a Ratings Downgrade.
Section 3.18 Fundamental Changes; Sale of Assets. (a) Except as otherwise
permitted under the Indenture or other Finance Documents, the Subsidiary
Guarantor shall not enter into any transaction of merger or consolidation,
change its form of organization or its business, liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution) except that, if at the time no
Default exists or is caused by such action: (i) the Subsidiary Guarantor may
merge into the Issuer in a transaction in which the Issuer is the surviving
corporation; (ii) the Subsidiary Guarantor may merge into an Additional
Guarantor in a transaction in which the surviving entity is an Additional
Guarantor and the Issuer's economic interest in the Subsidiary Guarantor's
assets shall not have been diminished as a result of such merger; and (iii) the
Subsidiary Guarantor may liquidate or dissolve if the assets of the Subsidiary
Guarantor are transferred to an Additional Guarantor (provided that the Issuer's
economic interest in such assets would not be diminished as a result thereof) if
the Subsidiary Guarantor determines in good faith that such liquidation or
dissolution in the best interests of the Subsidiary Guarantor and would not
reasonably be expected to result in a Material Adverse Effect.
(b) The Subsidiary Guarantor shall not sell, lease, transfer, assign
or otherwise dispose of (in one transaction or in a series of transactions) any
of its assets unless such transaction is a Permitted Asset Sale.
(c) The Subsidiary Guarantor shall not amend its certificate of
formation or any other organizational document unless such amendment is
otherwise permitted by Section 3.2 hereof or in connection with a name change.
Section 3.19 Investments; Transactions with Affiliates. (a) The
Subsidiary Guarantor shall not directly or indirectly, make investments, loans
or advances or acquire the stock, obligations or securities of any Person
except:
(i) loans to any Additional Guarantor with the funds borrowed by
the Issuer in accordance with the Indenture and on-lent to the Subsidiary
Guarantor or as otherwise on deposit in the Revenue Account;
(ii) investments in Cash Equivalents;
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(iii) investments outstanding on the Closing Date as set forth on
Schedule 3.19;
(iv) operating deposits with banks;
(v) investments by the Subsidiary Guarantor in any Additional
Guarantors;
(vi) investments in another Person, if as a result of such
investment (x) such other Person becomes an Additional Guarantor or (y)
such other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all of its assets to the Subsidiary
Guarantor or an Additional Guarantor;
(vii) investments representing capital stock or obligations issued
to the Subsidiary Guarantor in settlement of claims against any other
Person by reason of a composition or readjustment of debt or a
reorganization of any debtor of the Subsidiary Guarantor;
(viii) investments acquired by Subsidiary Guarantor in connection
with any asset sale permitted under this Agreement to the extent such
investments are non-cash proceeds as permitted under this Agreement;
(ix) any investment to the extent that the consideration therefore
is capital stock (other than redeemable capital stock) of the Subsidiary
Guarantor;
(x) investments consisting of security deposits with utilities and
other Persons made in the ordinary course of business;
(xi) Hedging Agreements;
(xii) amounts constituting Restricted Payments which the
Subsidiary Guarantor would be permitted to make under Section 3.21; and
(xiii) additional investments up to but not exceeding $10,000,000
(Escalated) outstanding at any one time in the aggregate among the
Obligors and any Additional Guarantor.
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For purposes of clause (xiii) of this Section, the aggregate amount of an
investment at any time shall be deemed to be equal to (A) the aggregate amount
of cash, together with the aggregate fair market value of property, including
any securities, loaned, advanced, contributed, transferred or otherwise invested
that gives rise to such investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash or other property in respect of
such investment; the amount of an investment shall not in any event be reduced
by reason of any write-off of such investment not increased by any increase in
the amount of earnings retained in the Person in which such Investment is made
that have not been dividend, distributed or otherwise paid out.
(b) The Subsidiary Guarantor shall not enter into any transaction or
series of related transactions with any Affiliate except (i) transactions in the
ordinary course of business at prices and on terms not less favorable than a
comparable transaction entered into on an arm's-length basis; (ii) transactions
between or among the Issuer, the Subsidiary Guarantor or any Additional
Guarantor not involving any other Affiliate; (iii) any Restricted Payment
otherwise permitted by the terms and conditions of the Indenture and this
Agreement, and (iv) transactions that are contemplated by any Transaction
Document entered into on or prior to the Closing Date or any extension, renewal
or replacement thereof that would not reasonably be expected to result in a
Material Adverse Effect.
Notwithstanding the foregoing, the restrictions set forth in this
covenant shall not apply to (i) reasonable and customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the
Subsidiary Guarantor entered into in the ordinary course of business, (ii) loans
and advances to officers directors and employees of the Subsidiary Guarantor
for reasonable travel, entertainment, moving and other relocation expenses, in
each case made in the ordinary course of business, (iii) the incurrence of
intercompany Indebtedness which constitutes Permitted Indebtedness and (iv)
transactions pursuant to agreements in effect on the date hereof.
Section 3.20 Finance Documents; Project Documents. (a) The Subsidiary
Guarantor shall not consent to, enter into or grant any amendment, waiver,
consent, change or modification to the Finance Documents, or assign any of its
obligations thereunder, except in accordance with this Agreement.
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(b) The Subsidiary Guarantor shall not consent to, enter into or grant
any amendment, waiver, consent or change or modification, or permit the
cancellation or termination of, any Project Document unless such action (i)
would not reasonably be expected to result in a Material Adverse Effect or (ii)
shall otherwise be permitted by the terms and conditions of this Agreement.
Section 3.21 Restricted Payments. The Subsidiary Guarantor shall not
declare nor make any Restricted Payments except for payments permitted under
Section 6.7 of the Indenture.
Section 3.22 Investment Company Act. The Subsidiary Guarantor shall not
take any action which will cause it to be in violation of the Investment Company
Act of 1940 (as such act may be amended, modified or supplemented from time to
time) including all rules and regulations promulgated thereunder.
Section 3.23 Taxation. The Subsidiary Guarantor shall not elect or cause
itself to be treated as a corporation for United States federal or state income
tax purposes and shall not take any action which will cause it to be treated as
a corporation for United States federal or state income tax purposes unless in
connection with a change permitted under Section 3.2.
Section 3.24 Further Assurances. (a) The Subsidiary Guarantor shall
execute and deliver, from time to time as requested by the Bond Trustee or the
Collateral Agent or as necessary, at the Subsidiary Guarantor's expense, such
other documents in connection with the rights and remedies of the Bond Trustee
and the Holders granted or provided for by the Finance Documents and to
consummate the transactions contemplated therein.
(b) The Subsidiary Guarantor shall, at its own expense, take all
reasonable actions necessary to establish, maintain, protect, perfect and
continue the perfection of the Liens created by the Security Documents and its
rights and title and the rights and title of the Bond Trustee and the Holders to
the Guarantor Collateral in such manner and in such places as in the opinion of
counsel to the Subsidiary Guarantor, the Bond Trustee or the Collateral Agent is
required by Applicable Law in order to fully preserve and protect the rights of
the Collateral Agent and the Bond Trustee.
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ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
Section 4.1 Events of Default. The term "Guarantor Event of Default,"
whenever used herein, shall mean any of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or shall
come about or be affected by operation of law, or be pursuant to or in
compliance with any Applicable Law), and any such event shall continue to be
Guarantor Event of Default if and for so long as it shall not have been
remedied:
(a) the Subsidiary Guarantor shall fail to pay any principal of,
premium (if any) and interest due with respect to any Guarantor Loan when the
same becomes due and payable, whether by scheduled maturity or required
prepayment or redemption or by acceleration or otherwise and such failure
continues for fifteen (15) or more days following the due date for payment;
(b) an Indenture Event of Default shall have occurred and be
continuing;
(c) the Subsidiary Guarantor shall default in the performance or
observance of any covenant or agreement contained in Section 3.2 (with respect
to the maintenance of the corporate existence of the Subsidiary Guarantor only),
Section 3.4, Section 3.10, Section 3.13, Section 3.14, Section 3.15, Section
3.16, Section 3.18, Section 3.20, Section 3.21, Section 3.22 or Section 3.24 and
such failure shall continue uncured for thirty (30) or more days from the
earliest to occur of (i) the date an Authorized Officer of the Subsidiary
Guarantor obtains actual knowledge of such failure or (ii) the date on which an
Authorized Officer of the Subsidiary Guarantor receives written notice from the
Bond Trustee, the Collateral Agent or any Holder of such Default;
(d) the Subsidiary Guarantor shall default in the performance or
observance of any of its covenants or material obligations contained in this
Agreement (other than those referred to in clause (c) of this Section 5.1) and
such failure shall continue uncured for thirty (30) or more days from the
earliest to occur of (i) the date an Authorized Officer of the Subsidiary
Guarantor obtains actual knowledge of such failure or (ii) the date on which an
Authorized Officer of the Subsidiary Guarantor receives written notice from the
Bond Trustee, the Collateral Agent or any Holder of such Default; provided that
if the Subsidiary Guarantor commences and diligently pursues efforts to cure
such default within such thirty (30) day period and delivers
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written notice thereof to the Bond Trustee, the Subsidiary Guarantor may
continue to effect such cure of the default and such default shall not be deemed
a "Guarantor Event of Default" for an additional sixty (60) days following the
end of the initial thirty (30) day period so long as the Subsidiary Guarantor is
diligently pursuing such cure;
(e) the Subsidiary Guarantor shall (i) apply for or authorize or
approve or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or all or a substantial
part of its property, (ii) admit in writing its inability or be generally unable
to pay its debts as such debts become due, (iii) make a general assignment for
the benefit of its creditors, (iv) commence a voluntary case under the Federal
Bankruptcy Code, (v) file a petition seeking to take advantage of any other
Debtor Relief Law, (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 Federal Bankruptcy Code or any other Debtor Relief Law or (vii) take
any action for the purpose of effecting any of the foregoing including, without
limitation, commencing a shareholder vote in connection with any of the
foregoing;
(f) a proceeding or case shall be commenced without the application or
consent of the Subsidiary Guarantor in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution, winding-up or the
composition or readjustment of debts or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Subsidiary Guarantor or all
or a substantial part of its property under any Debtor Relief Law and such
proceeding or case shall continue undismissed, or any order, judgment or decree
approving any of the foregoing shall be entered and continue unstayed and in
effect, for a period of sixty (60) or more consecutive days, or any order for
relief against the Subsidiary Guarantor shall be entered in any involuntary case
under the Federal Bankruptcy Code or any other Debtor Relief Law;
(g) any Security Document to which the Subsidiary Guarantor is party
shall cease to be in full force and effect or, except to the extent permitted by
the terms and conditions of any Security Document, any Lien purported to be
granted thereby with respect to any Guarantor Collateral described therein shall
cease to be a valid and perfected Lien in favor of the Collateral Agent for the
benefit of the Secured Parties on the Guarantor Collateral described therein
with the priority purported to be created thereby and such cessation has
resulted in a Material Adverse Effect; provided that the Subsidiary Guarantor
shall have thirty (30) days from the
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earliest to occur of (i) the date an Authorized Officer of the Subsidiary
Guarantor obtains actual knowledge thereof or (ii) the date on which an
Authorized Officer of the Subsidiary Guarantor receives written notice from the
Bond Trustee, the Collateral Agent or any Holder of such Default to cure such
cessation (if curable) or to furnish to the Collateral Agent all documents or
instruments required to cure any such cessation (if curable);
(h) Indebtedness for borrowed money of the Subsidiary Guarantor in an
amount exceeding $15,000,000 (Escalated) (other than any amount due under or
pursuant to the Finance Documents) is required to be prepaid, or shall be
declared to be due and payable, other than by scheduled required payment, prior
to the stated maturity thereof, as the result of the acceleration of the stated
maturity thereof following an event of default thereunder; provided that such
default and acceleration has not been annulled or rescinded within thirty (30)
days and remains in effect with respect to such Indebtedness;
(i) the entry of one or more final and non-appealable judgment or
judgments for the payment of money in excess of $25,000,000 (Escalated)
(exclusive of amounts fully covered by insurance or indemnity) against the
Subsidiary Guarantor, which remain unpaid or unstayed for a period of sixty
(60) or more consecutive days;
(j) any material Finance Document to which the Subsidiary Guarantor is
a party is declared in a final nonappealable judgment to be unenforceable
against any the Subsidiary Guarantor, or the Subsidiary Guarantor shall have
expressly repudiated its obligations thereunder and ceased to perform such
obligations, or defaulted in the performance or observance of any of its
material obligations thereunder and such default has continued unremedied for a
period of five (5) Business Days or more;
(k) any material Project Document to which the Subsidiary Guarantor is
a party ceases to be valid and binding and in full force and effect (other than
as permitted or contemplated hereunder), any third party thereto denies that it
has any liability or obligation under such material Project Document and such
third party ceases performance thereunder, or any third party is in default
under such material Project Document (subject to any applicable grace period
thereunder), and in each case such cessation or default has resulted or would
reasonably be expected to result in a Material Adverse Effect; provided,
however, that no such event shall be a Guarantor Event of Default if (i) within
one hundred eighty (180) days from any
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such occurrence the Subsidiary Guarantor (x) causes the third party to reaffirm
the disaffirmed provisions or resume performance (as the case may be) or (y)
enters into a replacement document substantially similar to the original
document or (ii) each Rating Agency confirms in writing that such event will not
result in a Ratings Downgrade;
(l) an Event of Loss with respect to the entire Project shall occur
for which no Loss Proceeds are received by either Obligor or the Subsidiary
Guarantor shall voluntary abandon the entire Project for sixty (60) consecutive
days and in each case such Event of Loss or voluntary abandonment has resulted
or would reasonably be expect to result in a Material Adverse Effect; provided
that the occurrence of an Event of Loss shall not be a Guarantor Event of
Default if within thirty (30) days from the occurrence of such Event of Loss,
there exists an Approved Restoration Plan in respect of the remediation of the
damage, loss or taking giving rise to such Event of Loss;
(m) any Governmental Approval required for the operation of the
Project is revoked, terminated, withdrawn or ceases to be in full force and
effect if such revocation, termination, withdrawal or cessation would reasonably
be expected to have a Material Adverse Effect; provided that no such event shall
be a Guarantor Event of Default if within sixty (60) days from the occurrence
thereof the Subsidiary Guarantor diligently pursues in good faith and (i)
obtains an additional Governmental Approval in substitution therefor or
replacement thereof or (ii) causes such Governmental Approval to be reissued;
provided further that the such event shall not be a Guarantor Event of Default
for an additional thirty (30) days following the expiration of the initial sixty
(60) day period if within the sixty (60) day period the Guarantor Default has
not been cured but the Subsidiary Guarantor continues to diligently pursue in
good faith the items set forth in clauses (i) and (ii) above during such
additional thirty (30) day period, and
(n) the Subsidiary Guarantor shall fail to satisfy its obligations and
payments under the Guarantee.
Section 4.2 Remedies Upon a Guarantor Event of Default. Subject to the
Intercreditor Agreement, if one or more Guarantor Events of Default shall have
occurred and be continuing, then:
(a) in the case of a Guarantor Event of Default described in clause
(a), (b) (with respect to an Indenture Event of Default under clause (a) of
Section 5.1 of the
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Indenture) or (n) of Section 4.1, then, in each and every case, upon the written
and unrescinded direction (such direction may be rescinded as permitted by the
terms of the Indenture) of (i) the One-Third Holders or (ii) the Bond Trustee,
notwithstanding the absence of direction from the One-Third Holders, if in the
good faith exercise of its discretion the Bond Trustee determines that such
action is necessary to protect the interests of the Holders, the Issuer shall
declare that portion of the outstanding principal amount of all Guarantor Notes,
all interest accrued and unpaid thereon, all premium (if any), all other amounts
payable in respect thereof and all other amounts payable under this Agreement to
be due and payable, whereupon the same shall become immediately due and payable
without presentment, demand, protest or further notice of any kind, all of which
are hereby waived;
(b) in the case of a Guarantor Event of Default described in clause
(b) (except with respect to an Indenture Event of Default under clause (a), (e)
or (f) of Section 5.1 of the Indenture), or clause (c), (d), (g), (h), (i), (j),
(k), (l) or (m) of Section 4.1, then, in each and every case, upon the written
and unrescinded direction (such direction may be rescinded as permitted by the
terms of the Indenture) of (i) the Majority Holders or (ii) the Bond Trustee,
notwithstanding the absence of direction from the Majority Holders if in the
good faith exercise of its discretion the Bond Trustee determines that such
action is necessary to protect the interests of the Holders, the Issuer shall
declare that portion of the outstanding principal amount of all Guarantor Notes,
all interest accrued and unpaid thereon, all premium (if any), all other amounts
payable in respect thereof and all other amounts payable under this Agreement to
be due and payable, whereupon the same shall become immediately due and payable
without presentment, demand, protest or further notice of any kind, all of which
are hereby waived; and
(c) in the case of a Guarantor Event of Default described in clause
(b) (with respect to an Indenture Event of Default under clause (e) or (f) of
Section 5.1 of the Indenture), or clause (e) or (f) of Section 4.1 then, in each
and every case, the entire outstanding principal amount of all Guarantor Notes,
all interest accrued and unpaid thereon, all premium (if any), all other amounts
payable in respect thereof and all other amounts payable under this Agreement
shall automatically become due and payable without presentment, demand, protest
or notice of any kind, all of which are hereby waived.
Section 4.3 Continuing Lien. (a) The Liens on and security interests in
the Collateral granted in this Agreement, the Security Documents and the other
Finance Documents to which the Subsidiary Guarantor is a party secure all
Indebtedness and
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all obligations of the Subsidiary Guarantor owed to the Issuer in connection
with the Guarantor Loan of whatever kind or character, whether now owing,
hereafter arising or hereafter to be performed.
(b) Notwithstanding anything to the contrary in this Agreement, the
Security Documents or the other Finance Documents to which the Subsidiary
Guarantor is a party, if on the date the principal balance of the Bonds and the
Working Capital Facility is fully paid (the "Pay-Off Date") any other amounts
owed by the Subsidiary Guarantor hereunder remain to be paid, the Issuer shall
not be obligated to release any collateral remaining subject to the Security
Documents, and such collateral shall continue to secure the payment of such
amounts as of the Pay-off Date.
Section 4.4 Defense of Actions. Subject to the Intercreditor Agreement,
upon the occurrence and during the continuance of a Guarantor Event of Default,
the Subsidiary Guarantor may (but shall not be obligated to) commence, appear in
or defend any action or proceeding purporting to affect the Guarantor Loan, the
Guarantor Notes or the respective rights and obligations of the Issuer and any
other Person pursuant to this Agreement, the Security Documents or any other
Finance Document to which the Subsidiary Guarantor is a party. The Issuer may
(but shall not be obligated to) pay all necessary expenses, including reasonable
attorneys' fees and expenses, incurred in connection with such proceedings or
actions, which expenses the Subsidiary Guarantor hereby agrees to repay to the
Issuer promptly upon demand.
ARTICLE V
GENERAL TERMS AND CONDITIONS
Section 5.1 Notices. (a) Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by
registered or certified mail, postage prepaid, or sent by overnight delivery or
telecopy to the Issuer, the Subsidiary Guarantor, the Bond Trustee or the
Rating Agencies at their respective addresses specified on Schedule III to the
Indenture, or in each case at such other address as shall be designated by such
Person in a written notice to the other parties hereto.
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Section 5.2 Amendments and Waivers. No waiver, amendment, modification
or termination of any provision of this Agreement, or consent to any departure
by the Subsidiary Guarantor therefrom, shall in any event be effective unless
such waiver, amendment, modification or termination is in writing, is signed by
the parties hereto and is in accordance with the Intercreditor Agreement and
Section 8.3 of the Indenture. Any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
Section 5.3 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Issuer in exercising any right, power or privilege hereunder or
under any other Finance Document and no course of dealing between the Issuer or
the Subsidiary Guarantor shall impair any such right, power or privilege or
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Finance Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies expressly
provided herein or in any other Finance Document are cumulative and not
exclusive of any rights, powers or remedies which the Issuer would otherwise
have, all of which may at the discretion of the Issuer, subject to the
Intercreditor Agreement, be pursued separately, successively or concurrently
against the Subsidiary Guarantor, the Collateral or any other collateral
securing the obligations of the Subsidiary Guarantor hereunder. No notice to or
demand on the Subsidiary Guarantor in any case shall entitle the Subsidiary
Guarantor to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Issuer to any other or
further action in any circumstances without notice or demand.
Section 5.4 Severability. In case any provision in or obligation under
this Agreement or any Guarantor Note shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 5.5 Third Party Beneficiaries. Except as provided in Section
5.12, nothing in this Agreement or in any Guarantor Note, express or implied,
shall give or be construed to give any Person, other than the parties hereto,
the Bond Trustee and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Agreement. Notwithstanding the preceding sentence, no
Holder shall have any right to pursue any remedy hereunder except pursuant to
the Intercreditor Agreement and through the Bond Trustee as permitted under
Section 5.5 of the Indenture.
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Section 5.6 Subsidiary Guarantor in Control. In no event shall the rights
and interests of the Issuer or the Bond Trustee under this Agreement and the
other Finance Documents to which the Subsidiary Guarantor is a party be
construed to give the Issuer or the Bond Trustee, or be deemed to indicate that
the Issuer or the Bond Trustee has, control of the business, management or
properties of the Subsidiary Guarantor or power over the daily management
functions and operating decisions made by the Subsidiary Guarantor.
Section 5.7 Number and Gender. Whenever used herein, the singular number
shall include the plural and the plural the singular, and the use of any gender
shall be applicable to all genders.
Section 5.8 Section Headings. Captions, section headings and the table of
contents appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Section 5.9 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. (a) THIS AGREEMENT IS A CONTRACT MADE UNDER THE LAWS OF THE ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ AND SHALL FOR ALL PURPOSES BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
(b) Any legal action or proceeding against the Subsidiary Guarantor
with respect to this Agreement may be brought in the courts of the State of New
York in the County of New York or of the United States for the Southern District
of New York and, by execution and delivery of this Agreement, the Subsidiary
Guarantor hereby irrevocably submits and accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Subsidiary Guarantor agrees that a judgment, after exhaustion of
all available appeals, in any such action or proceeding shall be conclusive and
binding upon the Subsidiary Guarantor, and may be enforced in any other
jurisdiction by a suit upon such judgment, a certified copy of which shall be
conclusive evidence of the judgment. The Subsidiary Guarantor hereby irrevocably
designates, appoints and empowers CT Corporation System with offices on the date
hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, as its designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and
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all legal process, summons, notices and documents which may be served in any
such action or proceeding. If for any reason such designee, appointee and agent
shall cease to be available to act as such, the Subsidiary Guarantor agrees to
designate a new designee, appointee and agent in New York City on the terms and
for the purposes of this provision satisfactory to the Bond Trustee. The
Subsidiary Guarantor further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Subsidiary Guarantor at its address referred to in Section 5.1, such service
to become effective five (5) days after such mailing. Nothing herein shall
affect the right of the Issuer to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against the Subsidiary
Guarantor in any other jurisdiction.
(c) The Subsidiary Guarantor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Finance Document brought in the courts referred to in
clause (b) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(d) WITH REGARD TO THIS AGREEMENT, THE SUBSIDIARY GUARANTOR AND THE
ISSUER HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY.
Section 5.10 Limitation of Liability. The obligations of the Subsidiary
Guarantor or an Affiliate thereof hereunder are solely the corporate obligations
of the Subsidiary Guarantor and no recourse shall be had against NRG, the
Members or any employee, officer, director, member, shareholder, Affiliate,
agent or servant of the Subsidiary Guarantor and NRG (each a "Non-Recourse
Person") with respect to this Agreement, any of the obligations of the
Subsidiary Guarantor hereunder or any obligation of the Subsidiary Guarantor for
the payment of any amount payable hereunder for any claim based on, arising out
of or relating to this Agreement; provided, however, that nothing in this
Section 5.10 shall be deemed to affect or diminish (a) the obligations of any
such Non-Recourse Person under any Transaction Document to which it is party,
(b) the rights and remedies of the Issuer against any such Non-Recourse Person
under any Transaction Document to which any such Non-Recourse Person is a party,
(c) the rights and remedies of the Issuer with respect to
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the Collateral or (d) the obligations of any such Non-Recourse Person under any
Transaction Document as a result of such Person's fraud or willful misconduct.
Section 5.11 Counterparts. This Agreement may be executed in any number
of counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 5.12 Successors and Assigns. All of the covenants, promises and
agreements in this Agreement by or on behalf of the Subsidiary Guarantor or the
Issuer shall bind and inure to the benefit of their respective successors and
assigns, regardless of whether so expressed, except that the Subsidiary
Guarantor may not assign or transfer all or any part of its rights and
obligations under this Agreement other than with the prior written consent of
the Bond Trustee and in accordance with the Indenture and the Intercreditor
Agreement.
Section 5.13 Maximum Interest Rate. Notwithstanding any provision to the
contrary contained herein or in any Guarantor Note, at no time shall the
Subsidiary Guarantor be obligated or required to pay interest on the principal
balance due hereunder or thereunder at a rate which could be in excess of the
maximum interest rate permitted by law to be contracted or agreed to be paid. If
by the terms hereof or of any Guarantor Note, the Subsidiary Guarantor is at any
time required or obligated to pay interest in excess of such maximum rate, then
the rate of interest applicable hereunder or thereunder shall be deemed to be
immediately reduced to such maximum rate and the interest payable shall be
computed at such maximum rate.
Section 5.14 Entire Agreement. This Agreement, together with any other
agreements executed in connection herewith, is intended by the parties hereto as
a final expression of their agreement as to the matters covered hereby and is
intended as a complete and exclusive statement of the terms and conditions
hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
LOUISIANA GENERATING LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
NRG SOUTH CENTRAL GENERATING LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
29
SCHEDULE I
AMORTIZATION OF PRINCIPAL AND INTEREST RATE
Series A Series B
Payment Principal Principal
Date Repayment Repayment
-------------------- ------------------ --------------------
September 15, 2000 $ 11,250.00 $ -
March 15, 2001 $ 12,500.00 $ -
September 15, 2001 $ 12,750.00 $ -
March 15, 2002 $ 12,750.00 $ -
September 15, 2002 $ 12,750.00 $ -
March 15, 2003 $ 12,750.00 $ -
September 15, 2003 $ 12,750.00 $ -
March 15, 2004 $ 7,500.00 $ -
September 15, 2004 $ 7,500.00 $ -
March 15, 2005 $ 7,500.00 $ -
September 15, 2005 $ 7,500.00 $ -
March 15, 2006 $ 7,500.00 $ -
September 15, 2006 $ 7,500.00 $ -
March 15, 2007 $ 7,500.00 $ -
September 15, 2007 $ 7,500.00 $ -
March 15, 2008 $ 12,500.00 $ -
September 15, 2008 $ 12,500.00 $ -
March 15, 2009 $ 13,750.00 $ -
September 15, 2009 $ 13,750.00 $ -
March 15, 2010 $ 17,500.00 $ -
September 15, 2010 $ 17,500.00 $ -
March 15, 2011 $ 21,250.00 $ -
September 15, 2011 $ 21,250.00 $ -
March 15, 2012 $ 22,500.00 $ -
September 15, 2012 $ 22,500.00 $ -
March 15, 2013 $ 22,500.00 $ -
September 15, 2013 $ 23,750.00 $ -
March 15, 2014 $ 23,750.00 $ -
September 15, 2014 $ 26,250.00 $ -
Schedule I-1
30
Series A Series B
Payment Principal Principal
Date Repayment Repayment
-------------------- ------------------ --------------------
March 15, 2015 $ 26,250.00 $ -
September 15, 2015 $ 27,500.00 $ -
March 15, 2016 $ 27,500.00 $ -
September 30, 2016 $ - $ 22,500.00
March 15, 2017 $ - $ 22,500.00
September 15, 2017 $ - $ 21,000.00
March 15, 2018 $ - $ 19,500.00
September 15, 2018 $ - $ 19,500.00
March 15, 2019 $ - $ 18,000.00
September 15, 2019 $ - $ 18,000.00
March 15, 2020 $ - $ 16,500.00
September 15, 2020 $ - $ 16,500.00
March 15, 2021 $ - $ 16,500.00
September 15, 2021 $ - $ 16,500.00
March 15, 2022 $ - $ 16,500.00
September 15, 2022 $ - $ 16,500.00
March 15, 2023 $ - $ 15,000.00
September 15, 2023 $ - $ 15,000.00
March 15, 2024 $ - $ 15,000.00
September 15, 2024 $ - $ 15,000.00
================= ==================
$ 500,000.00 $ 300,000.00
Schedule I-2
31
SCHEDULE 3.13
PERMITTED GUARANTOR INDEBTEDNESS
None.
Schedule 3.13-1
32
SCHEDULE 3.15
PERMITTED LIENS
1. Liens specifically assumed by the Subsidiary Guarantor as part of
Assumed Liabilities pursuant to the Fifth Amended and Restated Asset
Purchase and Reorganization Agreement, dated as of Secptember 21, 1999,
among the Subsidiary Guarantor, ▇▇▇▇▇ ▇. ▇▇▇▇▇, as Chapter 11 Trustee of
Cajun and NRG with respect to certain provisions.
Schedule 3.15-1
33
SCHEDULE 3.16
GUARANTEES
None.
Schedule 3.16-1
34
SCHEDULE 3.19
PERMITTED INVESTMENTS
1. PPA Form A Defense Fund (to be funded on March 31, 2000).
2. PPA Form B Defense Fund (to be funded on March 31, 2000).
Schedule 3.19-1
35
EXHIBIT A
FORM OF GUARANTOR NOTE
US$[________] [DATE]
For value received, the undersigned, LOUISIANA GENERATING LLC, a
Delaware limited liability company (the "Subsidiary Guarantor"), by this
promissory note promises to pay to the order of NRG SOUTH CENTRAL GENERATING
LLC, a Delaware limited liability company ("the Issuer"), at the office of The
Chase Manhattan Bank, a bank organized and existing under the laws of the State
of New York, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
in lawful currency of the United States of America and in immediately available
funds, the principal amount of [________] (US$[_________]), or if less, the
aggregate unpaid and outstanding principal amount of this Guarantor Note
advanced by the Issuer to the Subsidiary Guarantor pursuant to that certain
Guarantor Loan Agreement, dated as of March 30, 2000 (the "Guarantor Loan
Agreement"), by and among the Subsidiary Guarantor and the Issuer, and as the
same may be amended from time to time, and all other amounts owed by the
Subsidiary Guarantor to the Issuer hereunder.
This is one of the Guarantor Notes entered into pursuant to the
Guarantor Loan Agreement and is entitled to the benefits thereof and is subject
to all terms, provisions and conditions thereof. Capitalized terms used and not
defined herein shall have the meanings set forth in Appendix A of that certain
Trust Indenture, dated as of March 30, 2000 (the "Indenture"), by and between
the Issuer and The Chase Manhattan Bank, a bank organized and existing under the
laws of the State of New York, as Bond Trustee.
Reference is hereby made to the indenture and the Security
Documents for the provisions, among others, with respect to the custody and
application of the Collateral, the nature and extent of the security provided
thereunder, the rights, duties and obligations of the Subsidiary Guarantor and
the rights of the holder of this Guarantor Note.
The principal amount hereof is payable in accordance with the
Guarantor Loan Agreement, and such principal amount may be prepaid solely in
accordance with the Guarantor Loan Agreement.
Exhibit A-1
36
The Subsidiary Guarantor further agrees to pay, in lawful currency
of the United States of America and in immediately available funds, interest
from the date hereof on the unpaid and outstanding principal amount hereof until
such unpaid and outstanding principal amount shall become due and payable
(whether at stated maturity, by acceleration or otherwise) at the rates of
interest and at the times set forth in the Guarantor Loan Agreement, and the
Subsidiary Guarantor agrees to pay all other amounts due, including, without
limitation, fees and costs, as stated in the Guarantor Loan Agreement.
Upon the occurrence of any one or more Guarantor Events of Default
(as defined in Section 4.1 of the Guarantor Loan Agreement) all amounts then
remaining unpaid under this Guarantor Note may become or be declared to be
immediately due and payable as provided in the Guarantor Loan Agreement, without
notice of default, presentment or demand the payment, protest or notice of
nonpayment or dishonor, or notices or demands of any kind, all of which are
expressly waived by the Subsidiary Guarantor.
The obligations hereunder are subject to the limitations set forth
in Section 5.10 of the Guarantor Loan Agreement, the provisions of which are
hereby incorporated by reference.
THIS GUARANTOR NOTE IS A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF NEW YORK OF THE UNITED STATES OF AMERICA AND SHALL FOR ALL PURPOSES BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
Exhibit A-2
37
IN WITNESS WHEREOF, the Subsidiary Guarantor has caused this
Guarantor Note to be duly executed.
LOUISIANA GENERATING LLC
By:
-------------------------------------
Name:
Title:
Exhibit A-3