EXHIBIT 10.31
Execution Copy
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CREDIT AGREEMENT
dated as of
JULY 31, 2000
between
LIBERTY ELECTRIC PA, LLC
The BANK LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$168,500,000
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS.............................................1
SECTION 1.01. DEFINED TERMS...............................................1
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS......................1
SECTION 1.03. TERMS GENERALLY.............................................1
ARTICLE II. THE CREDITS.............................................1
SECTION 2.01. LOANS AND BORROWINGS........................................1
SECTION 2.02. NOTICE OF BORROWING.........................................1
SECTION 2.03. LETTERS OF CREDIT...........................................1
SECTION 2.04. FUNDING OF BORROWINGS.......................................1
SECTION 2.05. INTEREST ELECTIONS..........................................1
SECTION 2.06. TERMINATION AND REDUCTION OF THE COMMITMENTS................1
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT........................1
SECTION 2.08. PREPAYMENT OF LOANS.........................................1
SECTION 2.09. FEES........................................................1
SECTION 2.10. INTEREST....................................................1
SECTION 2.11. ALTERNATE RATE OF INTEREST..................................1
SECTION 2.12. INCREASED COSTS.............................................1
SECTION 2.13. BREAK FUNDING PAYMENTS......................................1
SECTION 2.14. TAXES.......................................................1
SECTION 2.15. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS....................................................1
SECTION 2.16. MITIGATION OBLIGATIONS; REPLACEMENT OF BANK LENDERS.........1
ARTICLE III. MISCELLANEOUS...........................................1
SECTION 3.01. NOTICES.....................................................1
SECTION 3.02. EXPENSES; INDEMNITY.........................................1
SECTION 3.03. SUCCESSORS AND ASSIGNS......................................1
SECTION 3.04. COUNTERPARTS; INTEGRATION; EFFECTIVENESS....................1
SECTION 3.05. SEVERABILITY................................................1
SECTION 3.06. GOVERNING LAW; JURISDICTION; ETC............................1
SECTION 3.07. WAIVER OF JURY TRIAL........................................1
SECTION 3.08. HEADINGS....................................................1
SECTION 3.09. SERVICE OF PROCESS..........................................1
SCHEDULE I - Commitments
SCHEDULE II - Amortization Schedule
SCHEDULE III - Drawdown Schedule
CREDIT AGREEMENT dated as of July 31, 2000 (the "AGREEMENT") among
LIBERTY ELECTRIC PA, LLC, a special purpose limited liability company formed
under the laws of the State of Delaware (the "BORROWER"), the BANK LENDERS party
hereto (the "BANK LENDERS") and THE CHASE MANHATTAN BANK, as Administrative
Agent (the "ADMINISTRATIVE AGENT") for and on behalf of the Bank Lenders
identified in Schedule 1 hereto.
The Borrower, Liberty Electric Power, LLC, the Lenders (as defined in
the Master Agreement) and the Chase Manhattan Bank as Administrative Agent are
parties to a Master Agreement of even date hereof (the "MASTER AGREEMENT") under
which the Borrower has requested the Lenders (including the Bank Lenders) to
make loans and or provide letters of credit to it as described more particularly
in the Master Agreement and, inter alia, this Credit Agreement. The Bank Lenders
are prepared to make such Loans and/or provide the Letters of Credit referred to
below upon the terms and conditions of the Master Agreement and this Credit
Agreement, and, accordingly, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. DEFINED TERMS.
Unless otherwise defined herein, capitalized terms used in this Agreement shall
have the meaning assigned to them in the Master Agreement. In addition, as used
in this Agreement, the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, with respect to any LIBOR Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
MULTIPLIED BY (b) the Statutory Reserve Rate.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, and (b) the Federal
Funds Effective Rate in effect on such day PLUS 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means (a) with respect to any Bank Lender
under the Debt Service Reserve Facility or the Working Capital Facility for
purposes of Sections 2.03 or in respect of any indemnity claim under Section
3.02(a) arising out of an action or omission of the Issuing Bank under this
Agreement, the percentage of the Working Capital Commitments represented by such
Bank Lender's Working Capital Commitment, and (b) with respect to any Bank
Lender in respect of any indemnity claim under Section 3.02(a) arising out of an
action or omission of the Administrative Agent under this Agreement, the
percentage of the total Commitments or Loans under all Facilities hereunder
represented by the aggregate amount of such Bank Lender's Commitments or Loans
of all Facilities hereunder. If the Commitments hereunder have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day, with respect to any ABR Loan or
LIBOR Loan, or with respect to the commitment fees and letter of credit fees
payable hereunder, as the case may be, the applicable rate per annum set forth
below under the caption "ABR/LIBOR Spread", "Commitment Fee Rate" or "Letter of
Credit Fee Rate", respectively, based upon the ratings by ▇▇▇▇▇'▇ and S&P,
respectively, applicable on such date to the Index Debt:
Facility ABR/LIBOR Spread Commitment Fee Rate Letter of Credit Fee Rate
The ABR Spread will be the higher
of (i) zero and (ii) 100 basis
points less than the LIBOR
Spreads for each period under
each Facility as listed below
TRANCHE A LOANS AND Prior to the 0.375% N/A
COMMITMENTS Conversion Date = 1.250%
From and including the
Conversion Date until the
third anniversary thereof = 1.250%
From and including the
third anniversary of the
Conversion Date until the
sixth anniversary of the
Conversion Date = 1.375%
From and including the sixth
anniversary of the Conversion
Date until the termination
in full of the Commitments and
payment in full of the Loans = 1.625%
WORKING CAPITAL LOANS Prior to the 0.375% Prior to the
AND COMMITMENTS Conversion Date = 1.250% Conversion Date = 1.250%
From and including the From and including the
Conversion Date until the Conversion Date until
third anniversary thereof = 1.250% the third anniversary thereof = 1.250%
From and including the From and including the
third anniversary of the third anniversary of the
Conversion Date until the Conversion Date until the
termination in full of the termination in full of the
Commitments and the Commitments and the
payment in full of the payment in full of the
Loans = 1.375% Loans = 1.375
DEBT SERVICE RESERVE Prior to the 0.375% Prior to the
LOANS AND COMMITMENTS Conversion Date = 1.250% Conversion Date = 1.250%
From and including the From and including the
Conversion Date until the Conversion Date until
third anniversary thereof = 1.250% the third anniversary thereof = 1.250%
From and including the From and including the
third anniversary of the third anniversary of the
Conversion Date until Debt Conversion Date until the
Service Reserve Maturity Date = 1.375% termination in full of the
From and including the Debt Commitments and the
Service Reserve Maturity payment in full of the
Date until the payment Loans = 1.375
in full of the Loans = 1.625%
A3/A- or higher = 0.750%
EQUITY BRIDGE LOANS Baa1/BBB+ = 0.875% A3/A- or higher =0.200% N/A
AND COMMITMENTS Baa2/BBB = 1.000% Baa1/BBB+ = 0.2500%
Baa3/BBB- or lower = 1.250% Baa2/BBB = 0.300%
Baa3/BBB- or lower= 0.375%
The commitment fee rate and spread for the Equity Bridge Loan
Commitments vary as set forth above depending on the weighted average of the
rating of the Index Debt of the guarantors guaranteeing the Members' Equity
Contribution under the Equity Contribution Agreement. The first rating refers to
the rating provided by ▇▇▇▇▇'▇, the second, to the rating provided by S&P. For
so long as the Columbia Energy Group is the guarantor under the Equity
Contribution Agreement the first mentioned commitment fee rate and spread shall
apply.
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating of Baa3/BBB-, as
applicable; (ii) if the ratings established or deemed to have been established
by ▇▇▇▇▇'▇ and S&P for the Index Debt shall fall within two different rating
levels listed above, the Applicable Rate shall be based on the higher of the two
ratings; and (iii) if the ratings established or deemed to have been established
by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of ▇▇▇▇▇'▇ or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Borrower
and the Bank Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWING" means Loans under the same Facility and Type, made,
converted or continued on the same date and, in the case of LIBOR Loans, as to
which a single Interest Period is in effect.
"DEBT PAYMENT ACCOUNT" has the meaning assigned to such term in the
Disbursement Agreement.
"DEBT SERVICE RESERVE AVAILABILITY PERIOD" means the period from and
including the date hereof to but excluding the Debt Service Reserve Maturity
Date.
"DEBT SERVICE RESERVE COMMITMENT" means, with respect to each Bank
Lender, the commitment, if any, of such Bank Lender to acquire participations in
Letters of Credit issued under the Debt Service Reserve Facility or to make Debt
Service Reserve Loans, expressed as an amount representing the maximum aggregate
amount of such Bank Lender's Debt Service Reserve Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Sections 3.2, 3.3 or
9.1 of the Master Agreement and (b) reduced or increased from time to time
pursuant to assignments by or to such Bank Lender pursuant to Section 12.4 of
the Master Agreement and Section 3.03 of this Agreement. The initial amount of
each Bank Lender's Debt Service Reserve Commitment is set forth on Schedule I,
or in the Assignment and Acceptance pursuant to which such Bank Lender shall
have assumed its Debt Service Reserve Commitment, as applicable. The initial
aggregate amount of the Bank Lenders' Debt Service Reserve Commitments is
$17,500,000.
"DEBT SERVICE RESERVE EXPOSURE" means, with respect to any Bank Lender
at any time the sum of the outstanding principal amount of such Bank Lender's
Debt Service Reserve Loans and its LC Exposure at such time under the Debt
Service Reserve Facility.
"DEBT SERVICE RESERVE MATURITY DATE" means the date that is the
earlier of seven (7) years after the Closing Date and the date that is five (5)
years after the Conversion Date.
"EQUITY BRIDGE LOAN COMMITMENT" means, with respect to each Bank
Lender, the commitment, if any, of such Bank Lender to make Equity Bridge Loans,
as such commitment may be (a) reduced from time to time pursuant to Sections
3.2, 3.3 or 9.1 of the Master Agreement and (b) reduced or increased from time
to time pursuant to assignments by or to such Bank Lender pursuant to Section
12.4 of the Master Agreement and/or Section 3.03 of this Agreement. The initial
amount of each Bank Lender's Equity Bridge Loan Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Bank
Lender shall have assumed its Equity Bridge Loan Commitment, as applicable. The
initial aggregate amount of the Bank Lenders' Equity Bridge Loan Commitments is
$41,000,000.
"EQUITY BRIDGE LOAN FACILITY" means the $41,000,000 equity bridge loan
facility provided by the Bank Lenders under the Credit Agreement.
"EQUITY BRIDGE LOAN MATURITY DATE" means the date that is earlier of
(i) the Conversion Date and (ii) the Date Certain.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Bank Lender, either Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Bank Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Bank Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.16(b)), any withholding tax that is imposed on amounts
payable to such Foreign Bank Lender at the time such Foreign Bank Lender becomes
a party to this Agreement or is attributable to such Foreign Bank Lender's
failure or inability to comply with Section 2.14(e), except to the extent that
such Foreign Bank Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.14(a).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FOREIGN BANK LENDER" means any Bank Lender that is organized under
the laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEX DEBT" means, with respect to any Person, senior, unsecured,
long-term indebtedness for borrowed money of such Person that is not guaranteed
by any other Person or subject to any other credit enhancement.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.05.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, each
Quarterly Date and (b) with respect to any LIBOR Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a LIBOR Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period.
"INTEREST PERIOD" means, with respect to any LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; PROVIDED, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a LIBOR Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"ISSUING BANK" means Chase, in its capacity as an issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.03(j).
"LC DISBURSEMENT" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time under a Facility, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time under
such Facility PLUS (b) the aggregate amount of all LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time under such
Facility. The LC Exposure of any Bank Lender at any time under such Facility
shall be its Applicable Percentage of the total LC Exposure at such time under
such Facility.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LIBO RATE" means, with respect to any LIBOR Borrowing for any
Interest Period, (a) the rate appearing on Page 3750 of the Telerate Service (or
on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service identified by the British
Bankers Association, as determined by the Administrative Agent from time to time
for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for Dollar deposits with a maturity comparable to such Interest Period,
or (b) in the event that such rate is not available at such time for any reason,
then the LIBO Rate with respect to such LIBOR Borrowing for such Interest Period
shall be the arithmetic average of the rates (rounded upwards, if necessary, to
the next 1/100 of 1%) at which Dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
Chase in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Financing Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any Financing
Document.
"PARTICIPANT" has the meaning assigned to such term in Section 3.03(c)
of the Credit Agreement.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by Chase as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"QUARTERLY DATES" means each April 15, July 15, October 15 and January
15 or, if such a date is not a Business Day, the Business Day immediately
following such date.
"REPAYMENT DATES" means each April 15, July 15, October 15 or January
15 in each year commencing on the first such date occurring no less than three
(3) months after the Conversion Date and continuing thereafter until the Tranche
A Loan Maturity Date or, if in any such case, such date is not a Business Day,
then the Business Day immediately following such date.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one MINUS the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which Chase is subject for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency funding and
to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Bank Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"TRANCHE A LOAN COMMITMENT" means, with respect to each Bank Lender,
the commitment, if any, of such Bank Lender to make Tranche A Loans, as such
commitment may be (a) reduced from time to time pursuant to Sections 3.2, 3.3 or
9.1 of the Master Agreement and (b) reduced or increased from time to time
pursuant to assignments by or to such Bank Lender pursuant to Section 12.4 of
the Master Agreement or Section 3.03 of this Agreement. The initial amount of
each Bank Lender's Tranche A Loan Commitment is set forth on Schedule I, or in
the Assignment and Acceptance pursuant to which such Bank Lender shall have
assumed its Tranche A Loan Commitment, as applicable. The initial aggregate
amount of the Bank Lenders' Tranche A Loan Commitments is $105,000,000.
"TRANCHE A LOAN MATURITY DATE" means the earlier of October 1, 2012
and the Repayment Date which occurs within 2 Business Days of the date which is
nine (9) years and nine (9) months after the first Repayment Date under the
Tranche A Facility.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"WORKING CAPITAL AVAILABILITY PERIOD" means the period from and
including the date hereof to but excluding the Working Capital Maturity Date.
"WORKING CAPITAL COMMITMENT" means, with respect to each Bank Lender,
the commitment, if any, of such Bank Lender to make Working Capital Loans and to
acquire participations in Letters of Credit issued under the Working Capital
Facility, expressed as an amount representing the maximum aggregate amount of
such Bank Lender's Working Capital Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Sections 3.2, 3.3 or 9.1 of the Master
Agreement and (b) reduced or increased from time to time pursuant to assignments
by or to such Bank Lender pursuant to Section 12.4 of the Master Agreement and
Section 3.03 of this Agreement. The initial amount of each Bank Lender's Working
Capital Commitment is set forth on Schedule I, or in the Assignment and
Acceptance pursuant to which such Bank Lender shall have assumed its Working
Capital Commitment, as applicable. The initial aggregate amount of the Bank
Lenders' Working Capital Commitments is $5,000,000.
"WORKING CAPITAL EXPOSURE" means, with respect to any Bank Lender at
any time, the sum of the outstanding principal amount of such Bank Lender's
Working Capital Loans and its LC Exposure under the Working Capital Facility at
such time.
"WORKING CAPITAL LETTER OF CREDIT" means a Letter of Credit issued
under the Working Capital Facility.
"WORKING CAPITAL LOAN" means a working capital loan made pursuant to
Section 3.1(e) of the Master Agreement.
"WORKING CAPITAL MATURITY DATE" means the date that is the earlier of
the date seven (7) years after the Closing Date and the date five (5) years
after the Conversion Date.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS.
For purposes of this Agreement, Loans may be classified and referred to by
Facility (e.g., a "TRANCHE A LOAN", a "WORKING CAPITAL LOAN" or a "EQUITY BRIDGE
LOAN") or by Type (e.g., a "LIBOR LOAN") or by Facility and Type (e.g., a "LIBOR
WORKING CAPITAL LOAN"). Borrowings also may be classified and referred to by
Facility (e.g., a "TRANCHE A LOAN BORROWING") or by Type (e.g., a "LIBOR
BORROWING") or by Facility and Type (e.g., a "LIBOR TRANCHE A LOAN BORROWING").
SECTION 1.03. TERMS GENERALLY.
The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
ARTICLE II. THE CREDITS
SECTION 2.01. LOANS AND BORROWINGS.
(a) THE LOANS. Subject to the terms and conditions set forth herein
and in the Master Agreement, each Bank Lender severally agrees to make the
Tranche A Loans, the Equity Bridge Loans, the Debt Service Reserve Loans and the
Working Capital Loans to the extent more particularly described in Sections
3.1(a), (c), (d) and (e) respectively, of the Master Agreement.
(b) OBLIGATIONS OF BANK LENDERS. Each Loan hereunder shall be made as
part of a Borrowing consisting of Loans of the same Facility and Type made by
the Bank Lenders ratably in accordance with their respective Commitments under
the applicable Facility. The failure of any Bank Lender to make any Loan
required to be made by it shall not relieve any other Bank Lender of its
obligations hereunder; PROVIDED that the Commitments of the Bank Lenders are
several and no Bank Lender shall be responsible for any other Bank Lender's
failure to make Loans as required.
(c) TYPE OF LOANS. Subject to Section 2.11, each Borrowing shall be
composed entirely of ABR Loans or LIBOR Loans as the Borrower may request in
accordance herewith. Each Bank Lender at its option may make any LIBOR Loan by
causing any domestic or foreign branch or Affiliate of such Bank Lender to make
such Loan; PROVIDED that any exercise of such option shall not affect the
obligation of such Bank Lender to fund the LIBOR Loan, the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement or
the cost to the Borrower of such Loan.
(d) MINIMUM AMOUNTS; LIMITATION ON NUMBER OF BORROWINGS. With respect
to any Borrowing made under the Tranche A Facility or the Equity Bridge Loan
Facility, at the commencement of each Interest Period for any LIBOR or ABR
Borrowing, such Borrowing shall be in an aggregate amount of $500,000 or a
larger multiple of $100,000 in excess of $500,000 or, to the extent that the
remaining Commitments outstanding under the applicable Facility are less than
$500,000, such lesser amount. With respect to any Borrowing made under the
Working Capital Facility or the Debt Service Reserve Facility, at the
commencement of each Interest Period for any LIBOR or ABR Borrowing, such
Borrowing shall be in an aggregate amount of $300,000 or a larger multiple of
$100,000 in excess of $300,000 or, to the extent that the remaining Commitments
under the Working Capital Facility are less than $300,000, such lesser amount;
PROVIDED, however, that an ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments under the applicable
Facility or that is required to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.03(f). Borrowings of more than one Type and
Facility may be outstanding at the same time; PROVIDED that there shall not at
any time be more than a total of four LIBOR Borrowings outstanding.
(e) LIMITATIONS ON LENGTHS OF INTEREST PERIODS. Notwithstanding any
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert to or continue as a LIBOR Borrowing: (i) any
Equity Bridge Loan Borrowing if the Interest Period requested with respect
thereto would end after the Equity Bridge Loan Maturity Date; (ii) any Working
Capital Loan Borrowing if the Interest Period requested with respect thereto
would end after the Working Capital Maturity Date; (iii) any Debt Service
Reserve Loan Borrowing if the Interest Period requested with respect thereto
would end after the Debt Service Reserve Maturity Date or (iv) any Tranche A
Loan Borrowing if the Interest Period therefor would commence before and end
after any Principal Payment Date unless, after giving effect thereto, the
aggregate principal amount of the Tranche A Loans having Interest Periods that
end after such Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Tranche A Loans permitted to be outstanding
after giving effect to the payments of principal required to be made on such
Principal Payment Date.
SECTION 2.02. NOTICE OF BORROWING.
To request a Borrowing, the Borrower shall notify the Administrative Agent of
such request by providing a Notice of Borrowing in the form attached as Exhibit
F to the Master Agreement (a) in the case of a LIBOR Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing; PROVIDED that any such notice of an ABR Debt Service Reserve Loan
Borrowing or an ABR Working Capital Loan Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.03(f) may be given not later
than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each
such Notice of Borrowing shall be irrevocable and shall specify the following
information in compliance with Section 2.01:
(i) whether the requested Borrowing is to be a Tranche A Loan
Borrowing, an Equity Bridge Loan Borrowing, a Debt Service Reserve Loan
Borrowing or a Working Capital Loan Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a LIBOR
Borrowing;
(v) in the case of a LIBOR Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested LIBOR Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. Promptly following
receipt of a Notice of Borrowing in accordance with this Section, the
Administrative Agent shall advise each Bank Lender of the details thereof and of
the amount of such Bank Lender's Loan to be made as part of the requested
Borrowing.
The Borrower may only request two Borrowings per calendar month under the
Tranche A Facility and the Equity Bridge Loan Facility collectively.
SECTION 2.03. LETTERS OF CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth herein and
in the Master Agreement, in addition to the Loans provided for in Section 2.01,
the Borrower may request the Issuing Bank to issue, at any time and from time to
time (i) with respect to the Debt Service Reserve Facility, as and from the
Conversion Date until the Debt Service Reserve Maturity Date, and (ii) with
respect to the Working Capital Facility, as and from the date which is six (6)
months prior to the Scheduled Conversion Date until the Working Capital Maturity
Date, Letters of Credit for its own account in such form as is acceptable to the
Issuing Bank in its reasonable determination. Letters of Credit issued hereunder
shall constitute utilization of the Debt Service Reserve Commitment or the
Working Capital Commitment, as applicable.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit) under the Debt Service Reserve Facility or the
Working Capital Facility, the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, reimbursement renewal
or extension) a notice requesting the issuance of a Letter of Credit under the
applicable Facility, or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (d) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on such Issuing Bank's standard
form in connection with any request for a Letter of Credit. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(c) LIMITATIONS ON AMOUNTS. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit, the Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Bank (determined for
these purposes without giving effect to the participations therein of the Bank
Lenders pursuant to paragraph (e) of this Section) shall not exceed $17,500,000
under the Debt Service Reserve Facility or $5,000,000 under the Working Capital
Facility, (ii) the total Working Capital Exposures shall not exceed the total
Working Capital Commitments and (iii) the total Debt Service Reserve Exposures
shall not exceed the total Debt Service Reserve Commitments.
(d) EXPIRATION DATE. Each Letter of Credit issued under the Debt
Service Reserve Facility or the Working Capital Facility shall expire on the
Debt Service Reserve Maturity Date or the Working Capital Maturity Date, as
applicable.
(e) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) under either the
Debt Service Reserve Facility or the Working Capital Facility by the Issuing
Bank, and without any further action on the part of the Issuing Bank or the Bank
Lenders, the Issuing Bank hereby grants to each Bank Lender, and each Bank
Lender hereby acquires from the Issuing Bank, a participation in such Letter of
Credit equal to such Bank Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. Each Bank Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of such Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments, subject to the
provisions of Section 2.03(c).
In consideration and in furtherance of the foregoing, each Bank Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for account of the Issuing Bank, such Bank Lender's Applicable Percentage of
each LC Disbursement made in connection with any Letter of Credit issued under
the Working Capital Facility or the Debt Service Reserve Facility by the Issuing
Bank promptly upon the request of the Issuing Bank at any time from the time of
such LC Disbursement until such LC Disbursement is reimbursed by the Borrower or
at any time after any reimbursement payment is required to be refunded to the
Borrower for any reason. Each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever in the same manner as provided in
Section 2.04 with respect to Loans made by such Bank Lender (and Section 2.04
shall apply, MUTATIS MUTANDIS, to such payment obligations of the Bank Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Bank Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment to
the Issuing Bank or, to the extent that the Bank Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Bank
Lenders and the Issuing Bank as their interests may appear in accordance with
such Bank Lender's Applicable Percentage. Any payment made by a Bank Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
shall not constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such LC Disbursement.
(f) REIMBURSEMENT. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit whether under the Debt Service Reserve Facility
or the Working Capital Facility, the Borrower shall reimburse the Issuing Bank
in respect of such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than 12:00 noon, New York City
time, on (i) the Business Day that the Borrower receives notice of such LC
Disbursement, if such notice is received prior to 10:00 a.m., New York City
time, or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time,
PROVIDED that, if such LC Disbursement is not less than $300,000, the Borrower
may, subject to the conditions to borrowing set forth herein and in the Master
Agreement, request in accordance with Section 2.02 that such payment be financed
with an ABR Debt Service Reserve Loan Borrowing in the case of an LC
Disbursement under the Debt Service Reserve Letter of Credit, or an ABR Working
Capital Loan Borrowing in the case of an LC Disbursement under the Working
Capital Letter of Credit, in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Debt Service Reserve Loan Borrowing or ABR Working
Capital Loan Borrowing, as the case may be.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Bank Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Bank Lender's Applicable Percentage thereof.
(g) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse LC
Disbursements under the Debt Service Reserve Letter of Credit or any Working
Capital Letter of Credit as provided in paragraph (f) of this Section (as well
as any Borrowings made to the Borrower to reimburse any LC Disbursements in
accordance with Section 2.03(f)) shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit, or any term
or provision therein, (ii) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply strictly with the terms of such Letter of
Credit, and (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Neither the Administrative Agent, the Bank Lenders nor the Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the Issuing Bank or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the respective Issuing
Bank; PROVIDED that the foregoing shall not be construed to excuse the Issuing
Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by (i) the Issuing Bank's gross negligence or willful
misconduct when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof or (ii) the Issuing Bank's
willful failure to pay under a Letter of Credit after the presentation to it by
the beneficiary under the Letter of Credit of a certificate strictly complying
with the terms and conditions of the Letter of Credit. The parties hereto
expressly agree that:
(i) the Issuing Bank may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of Credit
without responsibility for further investigation, regardless of any notice
or information to the contrary, and may make payment upon presentation of
documents that appear on their face to be in substantial compliance with
the terms of such Letter of Credit;
(ii) the Issuing Bank shall have the right, in its sole
discretion, to decline to accept such documents and to make such payment if
such documents are not in strict compliance with the terms of such Letter
of Credit; and
(iii) this paragraph (g) shall establish the standard of care to
be exercised by the Issuing Bank when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and the parties hereto hereby waive, to the extent permitted by applicable
law, any standard of care inconsistent with the foregoing).
(h) DISBURSEMENT PROCEDURES. The Issuing Bank shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under any Letter of Credit. The Issuing Bank
shall promptly after such examination notify the Administrative Agent and the
Borrower by writing of such demand for payment and whether such Issuing Bank has
made or will make an LC Disbursement thereunder; PROVIDED that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such Issuing Bank and the Bank Lenders with respect to
any such LC Disbursement.
(i) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Tranche A Loans;
PROVIDED that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (f) of this Section, then Section 2.10(c) shall apply.
Interest accrued pursuant to this paragraph shall be for account of the Issuing
Bank, except that interest accrued on and after the date of payment by any Bank
Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Bank
shall be for account of such Bank Lender to the extent of such payment.
(j) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be replaced
at any time by written agreement between the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Bank Lenders of any such replacement of the Issuing Bank.
At the time any such replacement shall become effective, the Borrower shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.09(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
replaced Issuing Bank under this Agreement with respect to Letters of Credit to
be issued by it thereafter and (ii) references herein to the term "Issuing Bank"
shall be deemed to include such successor or any previous Issuing Bank, or such
successor and all previous Issuing Banks, as the context shall require. After
the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.
(k) CASH COLLATERALIZATION. If an Event of Default shall occur and be
continuing and the Borrower receives notice from the Administrative Agent, the
Collateral Agent or the Required Lenders (in conjunction with a notice provided
under Section 9.1 of the Master Agreement, or at any time thereafter) demanding
the deposit of cash collateral pursuant to this paragraph, the Borrower shall
immediately deposit into the Debt Payment Account an amount in cash equal to the
aggregate LC Exposure as of such date under the Facilities PLUS any accrued and
unpaid interest thereon PROVIDED that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Section 9.1 of the Master Agreement. Such deposit shall be
held by the Administrative Agent in the Debt Payment Account as collateral in
the first instance for the aggregate LC Exposure under this Agreement and
thereafter for the payment of the "Secured Obligations" under and as defined in
the Intercreditor Agreement, and for these purposes the Borrower hereby grants a
security interest to the Administrative Agent for the benefit of the Bank
Lenders in the Debt Payment Account and in any financial assets (as defined in
the Uniform Commercial Code) or other property credited thereto.
SECTION 2.04. FUNDING OF BORROWINGS.
(a) FUNDING BY BANK LENDERS. Each Bank Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, (i) in the case
of any Loan made on or after the Conversion Date, to the Revenue Account, (ii)
in the case of any Loan made prior to the Conversion Date, to the Construction
Account. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to the
Construction Account or the Revenue Account, as applicable; PROVIDED that Debt
Service Reserve Loan Borrowings or Working Capital Loan Borrowings made to
finance the reimbursement of an LC Disbursement as provided in Section 2.03(f)
shall be remitted by the Administrative Agent to the Issuing Bank.
(b) PRESUMPTION BY THE ADMINISTRATIVE AGENT. Unless the Administrative
Agent shall have received notice from a Bank Lender prior to the proposed date
of any Borrowing that such Bank Lender will not make available to the
Administrative Agent such Bank Lender's share of such Borrowing, the
Administrative Agent may assume that such Bank Lender has made such share
available on such date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Bank Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then such Bank
Lender and the Borrower severally agree, without duplication, to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Bank Lender, the Federal Funds Effective Rate
or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans.
If such Bank Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Bank Lender's Loan included in such Borrowing.
SECTION 2.05. INTEREST ELECTIONS.
(a) ELECTIONS BY THE BORROWER FOR BORROWINGS. Each Borrowing initially
shall be of the Type specified in the applicable Notice of Borrowing and, in the
case of a LIBOR Borrowing, shall have an initial Interest Period as specified in
such Notice of Borrowing. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a LIBOR Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Bank Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) NOTICE OF ELECTIONS. To make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such election by the time
that a Notice of Borrowing would be required under Section 2.02 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such written Interest Election
Request shall be irrevocable and shall be in a form approved by the
Administrative Agent and signed by the Borrower.
(c) INFORMATION IN INTEREST ELECTION REQUESTS. Each Interest Election
Request shall specify the following information in compliance with Section 2.01:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) of this paragraph shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a LIBOR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request under any Facility requests a LIBOR
Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) NOTICE BY THE ADMINISTRATIVE AGENT TO BANK LENDERS. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Bank Lender of the details thereof and of such Bank Lender's
portion of each resulting Borrowing.
(e) FAILURE TO ELECT; EVENTS OF DEFAULT. If the Borrower fails to
deliver a timely Interest Election Request with respect to a LIBOR Borrowing
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing then, so
long as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a LIBOR Borrowing and (ii) unless repaid, each
LIBOR Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.06. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) SCHEDULED TERMINATION. Unless previously terminated, (i) the
Equity Bridge Loan Commitments and the Tranche A Loan Commitments shall
terminate on the Construction Stage Commitment Termination Date, (ii) the
Working Capital Commitments shall terminate on the Working Capital Maturity
Date; and (iv) the Debt Service Reserve Commitments shall terminate on the Debt
Service Reserve Maturity Date.
(b) VOLUNTARY TERMINATION OR REDUCTION. In accordance with Section 3.2
of the Master Agreement, the Borrower may at any time terminate, or from time to
time reduce, the Commitments under any Facility; PROVIDED that the Borrower
shall not terminate or reduce the Equity Bridge Loan Commitments, the Working
Capital Commitments or the Debt Service Reserve Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section 4.3
of the Master Agreement, the total Equity Bridge Loan Exposure, Working Capital
Exposure or Debt Service Reserve Exposure would exceed the total Equity Bridge
Loan Commitment, the total Working Capital Commitments or the total Debt Service
Reserve Commitment, respectively.
(c) NOTICE OF VOLUNTARY TERMINATION OR REDUCTION. In accordance with
Section 3.2 of the Master Agreement, the Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments
under any Facility under paragraph (b) of this Section. Promptly following
receipt of any notice, the Administrative Agent shall advise the Bank Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable.
(d) EFFECT OF TERMINATION OR REDUCTION. Each reduction of the
Commitments under any Facility shall be made ratably among the Bank Lenders in
accordance with their respective Commitments under such Facility.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) REPAYMENT. The Borrower hereby unconditionally promises to pay the
Loans as follows:
(i) to the Administrative Agent for account of the Bank Lenders
the outstanding principal amount of the Equity Bridge Loans, the Working
Capital Loans and the Debt Service Reserve Loans (to the extent such Debt
Service Reserve Loans are made prior to the Debt Service Reserve Maturity
Date) on the Equity Bridge Loan Maturity Date, the Working Capital Maturity
Date and the Debt Service Reserve Maturity Date, respectively;
(ii) to the Administrative Agent for the account of the Bank
Lenders the outstanding principal amount of the Tranche A Loans on each
Principal Payment Date set forth in the Amortization Schedule attached as
Schedule II subject to adjustment pursuant to paragraph (b) of this
Section).
In addition, to the extent there are Debt Service Reserve Loans made or
outstanding on the Debt Service Reserve Maturity Date, the Borrower hereby
unconditionally promises to pay such Debt Service Reserve Loans by paying to the
Administrative Agent for the account of the Bank Lenders a percentage of such
Debt Service Reserve Loans on each Principal Payment Date equal to the
percentage of Tranche A Loans payable on such date (calculated by taking the
amount of Tranche A Loans payable on such date as a percentage of all Tranche A
Loans outstanding on the Debt Service Reserve Maturity Date).
(b) ADJUSTMENT OF AMORTIZATION SCHEDULE. If the initial aggregate
amount of the Tranche A Loan Commitments exceeds the aggregate principal amount
of Tranche A Loans that are outstanding on the Conversion Date, then the
scheduled repayments of Borrowings to be made pursuant to this Section shall be
reduced ratably by an aggregate amount equal to such excess. Any prepayment
under a Tranche A Loan Borrowing shall be applied to reduce the subsequent
scheduled repayments of the Tranche A Loan Borrowings to be made pursuant to
this Section ratably across maturities. To the extent not previously paid, all
Tranche A Loans shall be due and payable on the Tranche A Loan Maturity Date.
(c) MANNER OF PAYMENT. Prior to any repayment or prepayment of any
Borrowings under any Facility hereunder, the Borrower shall select the Borrowing
or Borrowings of the applicable Facility to be paid and shall notify the
Administrative Agent of such selection not later than 11:00 a.m., New York City
time, two Business Days before the scheduled date of such repayment or five
Business days prior to payment in the case of prepayments; PROVIDED that each
repayment of Borrowings under any Facility shall be applied to repay any
outstanding ABR Borrowings of such Facility before any other Borrowings of such
Facility. If the Borrower fails to make a timely selection of the Borrowing or
Borrowings to be repaid or prepaid, such payment shall be applied, first, to pay
any outstanding ABR Borrowings of the applicable Facility and, second, to other
Borrowings of such Facility in the order of the remaining duration of their
respective Interest Periods (the Borrowing with the shortest remaining Interest
Period to be repaid first).
(d) MAINTENANCE OF LOAN ACCOUNTS BY BANK LENDERS. Each Bank Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Bank Lender resulting from
each Loan made by such Bank Lender, including the amounts of principal and
interest payable and paid to such Bank Lender from time to time hereunder.
(e) MAINTENANCE OF LOAN ACCOUNTS BY THE ADMINISTRATIVE AGENT. The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Facility under which such Loan was made
and Type thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Bank Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for account of the Bank Lenders and each
Bank Lender's share thereof.
(f) EFFECT OF ENTRIES. The entries made in the accounts maintained
pursuant to paragraph (d) or (e) of this Section shall be PRIMA FACIE evidence
of the existence and amounts of the obligations recorded therein; PROVIDED that
the failure of any Bank Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement
and the other Financing Documents.
(g) PROMISSORY NOTES. Any Bank Lender may request that Loans under any
Facility made by it be evidenced by a promissory note. In such event, the
Borrower shall prepare, execute and deliver to such Bank Lender a promissory
note payable to the order of such Bank Lender (or, if requested by such Bank
Lender, to such Bank Lender and its registered assigns) and in a form approved
by the Administrative Agent. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 3.03 hereof as Section 12.4 of the Master Agreement) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.08. PREPAYMENT OF LOANS.
NOTICES, ETC. The Borrower shall notify the Administrative Agent of
any prepayment under Section 4.2 or 4.3 of the Master Agreement (i) in the case
of prepayment of a LIBOR Borrowing, not later than 11:00 a.m., New York City
time, five Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment.
Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Bank Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type as provided in Section
2.01, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing and applied ratably across the maturities
therein. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.10.
SECTION 2.09. FEES.
(a) COMMITMENT FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Bank Lender a commitment fee, which shall accrue
at the Applicable Rate on the average daily unused amount of the Commitments
during the following availability periods: (i) for the Equity Bridge Loan
Commitments and the Tranche A Loan Commitments, during the Construction Stage
Availability Period; (ii) for the Working Capital Commitments, during the
Working Capital Availability Period; and (iii) for the Debt Service Reserve
Commitments, during the Debt Service Reserve Availability Period. Accrued
commitment fees shall be payable on each Quarterly Date and on the earlier of
the date the relevant Commitment terminates and matures, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to the Equity Bridge Loan Commitments
or the Working Capital Commitments, the Commitment of a Bank Lender under each
such Facility shall be deemed to be used to the extent of the outstanding Loans
and LC Exposure of such Bank Lender under such Facility.
(b) LETTER OF CREDIT FEES. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Bank Lender a letter of credit
participation fee with respect to such Bank Lender's participations in Letters
of Credit issued under the Debt Service Reserve Facility and the Working Capital
Facility, which shall accrue at a rate per annum equal to the Applicable Rate on
the average daily amount of such Bank Lender's LC Exposure under each such
Facility (excluding any portion thereof attributable to unreimbursed LC
Disbursements) PROVIDED, however, that the Borrower will remain liable for
participation fees to the Bank Lenders until such Bank Lender ceases to have any
LC Exposure under either the Debt Service Reserve Facility or the Working
Capital Facility, and (ii) to the respective Issuing Bank a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount of the
LC Exposure under each such Facility (excluding any portion thereof attributable
to unreimbursed LC Disbursements) until the date on which there ceases to be any
LC Exposure with respect to the Debt Service Reserve Commitment or the Working
Capital Commitments, as the case may be, as well as such Issuing Bank's standard
fees with respect to the issuance, amendment, renewal or extension of any Letter
of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including each Quarterly Date shall be payable with
respect to each Facility on the third Business Day following such Quarterly
Date, commencing on the first such date to occur after the date on which such
Facility becomes available; PROVIDED that all such fees shall be payable with
respect to a Facility on the date on which the Commitments under such Facility
terminate and any such fees accruing after the date on which such Commitments
terminate shall be payable on demand. Any other fees payable to either Issuing
Bank pursuant to this paragraph shall be payable within 10 days after demand.
All participation fees and fronting fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) PAYMENT OF FEES. All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
the respective Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Bank
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.10. INTEREST.
(a) ABR LOANS. The Loans constituting each ABR Borrowing shall bear
interest at a rate per annum equal to the Alternate Base Rate PLUS the
Applicable Rate.
(b) LIBOR LOANS. The Loans constituting each LIBOR Borrowing shall
bear interest at a rate per annum equal to the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing PLUS the Applicable Rate.
(c) DEFAULT INTEREST. Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% PLUS the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) PAYMENT OF INTEREST. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of the Equity Bridge Loans, the Working Capital Loans and the Debt Service
Reserve Loans, upon termination of the Equity Bridge Loan Commitment, the
Working Capital Commitment and the Debt Service Reserve Commitment,
respectively; PROVIDED that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of any ABR Equity Bridge Loans,
ABR Working Capital Loans or ABR Debt Service Reserve Loans prior to the Equity
Bridge Loan Maturity Date, the Working Capital Maturity Date or the Debt Service
Reserve Maturity Date, as applicable), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any LIBOR Borrowing prior to the end
of the current Interest Period therefor, accrued interest on such Borrowing
shall be payable on the effective date of such conversion.
(e) COMPUTATION. All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
demonstrable error.
SECTION 2.11. ALTERNATE RATE OF INTEREST.
If prior to the commencement of any Interest Period for a LIBOR Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent demonstrable error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period; or
(b) with respect to a particular Facility, the Administrative
Agent is advised by the Required Lenders under such Facility that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period (in circumstances when such rates are being determined under
clause (b) of the definition of LIBO Rate) will not adequately and
fairly reflect the cost to such Bank Lenders of making or maintaining
their Loans included in such Borrowing for such Interest Period under
such Facility;
then the Administrative Agent shall give notice thereof to the Borrower and the
Bank Lenders as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Bank Lenders that the circumstances giving
rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing to, or continuation of any Borrowing
as, a LIBOR Borrowing shall be ineffective and (ii) if any Notice of Borrowing
requests a LIBOR Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.12. INCREASED COSTS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Bank Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or LIBOR
Loans made by such Bank Lender or any Letter of Credit or participation
therein;
and the result of any of the foregoing shall be to increase the cost to such
Bank Lenders of making or maintaining any LIBOR Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Bank Lender or
the Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such Bank
Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Bank Lender or the Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Bank Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Bank Lender or the Issuing Bank
determines that any Change in Law regarding capital requirements results in a
reduction in the rate of return on such Bank Lender's or the Issuing Bank's
capital or on the capital of such Bank Lender's or the Issuing Bank's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Bank Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Bank Lender
or such Issuing Bank or such Bank Lender's or the Issuing Bank's holding company
could have achieved but for such Change in Law (taking into consideration such
Bank Lender's or the Issuing Bank's policies and the policies of such Bank
Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Bank Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Bank Lender or the Issuing Bank or such Bank Lender's or the
Issuing Bank's holding company for any such reduction suffered.
(c) CERTIFICATES FROM BANK LENDERS. A certificate of a Bank Lender or
the Issuing Bank setting forth the amount or amounts necessary to compensate
such Bank Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The certificate
delivered shall state the change which has occurred or the capital requirements
or other conditions which have been imposed on the Bank Lender or the Issuing
Bank or the request, direction or requirement which has been complied with,
together with the date thereof, the amount of such increased cost, reduction or
payment and the way in which such amount has been calculated. The Borrower shall
pay such Bank Lender or the Issuing Bank, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) DELAY IN REQUESTS. Failure or delay on the part of any Bank Lender
or the Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Bank Lender's or the Issuing Bank's right to demand
such compensation; PROVIDED that the Borrower shall not be required to
compensate a Bank Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Bank Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Bank Lender's or such Issuing Bank's intention to claim compensation
therefor; PROVIDED FURTHER that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.13. BREAK FUNDING PAYMENTS.
In the event of (a) the payment of any principal of any LIBOR Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any LIBOR Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.08 and is revoked in accordance herewith), or (d) the
assignment of any LIBOR Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section
2.16, then, in any such event, the Borrower shall compensate each Bank Lender
for the loss, cost and expense attributable to such event. In the case of a
LIBOR Loan, the loss to any Bank Lender attributable to any such event shall be
deemed to include an amount determined by such Bank Lender to be equal to the
excess, if any, of (i) the amount of interest that would have accrued on such
Loan for the period from the date of such payment, conversion, failure or
assignment to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing, conversion or
continuation) at the Adjusted LIBO Rate for such Interest Period, OVER (ii) the
amount of interest that such Bank Lender would earn on such principal amount for
such period if such Bank Lender were to deposit such principal amount for such
period at the interest rate that such Bank Lender (or an affiliate of such Bank
Lender) would bid, were it to bid at the commencement of such period, for Dollar
deposits from other banks in the eurodollar market. A certificate of any Bank
Lender setting forth any amount or amounts that such Bank Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent demonstrable error. The Borrower shall pay such Bank Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.14. TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Financing Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; PROVIDED that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Bank Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE BORROWER. In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent, each Bank Lender and the Issuing Bank, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Bank Lender or such Issuing Bank, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Bank Lender or the Issuing Bank, or by the Administrative Agent on
its own behalf or on behalf of a Bank Lender or the Issuing Bank, shall be
conclusive absent demonstrable error. Failure or delay on the part of the
Administrative Agent, any Bank Lender or the Issuing Bank to demand
indemnification pursuant to this Section 2.14(c) shall not constitute a waiver
of the Administrative Agent's, such Bank Lender's or the Issuing Bank's right to
demand such indemnification; PROVIDED that the Borrower shall not be required to
indemnify the Administrative Agent, any Bank Lender or the Issuing Bank pursuant
to this Section, 2.14(c) for any Indemnified Taxes or Other Taxes payable more
than six months prior to the date that the Administrative Agent, such Bank
Lender or the Issuing Bank, as the case may be, notifies the Borrower of the
Change in Law giving rise to such Indemnified Tax or Other Tax and of the
Administrative Agent's, such Bank Lender's or such Issuing Bank's intention to
claim therefore; PROVIDED FURTHER that, if the Change in Law giving rise to such
Indemnified Tax of Other Tax is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) FOREIGN LENDERS. Any Foreign Bank Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy of the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.15. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) PAYMENTS BY THE OBLIGORS. The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.12, 2.13 or 2.14, or
otherwise) or under any other Financing Document (except to the extent otherwise
provided therein) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing
Bank as expressly provided herein and except that payments pursuant to Sections
2.12, 2.13 and 2.14 hereof and Section 12.3 of the Master Agreement shall be
made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder or under any other Financing Document
(except to the extent otherwise provided therein) shall be made in Dollars.
(b) APPLICATION OF INSUFFICIENT PAYMENTS. If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, to pay interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (i) each Borrowing under a particular Facility shall be made from the
relevant Bank Lenders, each payment of commitment fee under Section 2.09 in
respect of Commitments under a particular Facility shall be made for account of
the relevant Bank Lenders, and each termination or reduction of the amount of
the Commitments under a particular Facility under Section 2.06 shall be applied
to the respective Commitments under such Facility of the relevant Bank Lenders,
pro rata according to the amounts of their respective Commitments under such
Facility; (ii) each Borrowing under any Facility shall be allocated pro rata
among the relevant Bank Lenders according to the amounts of their respective
Commitments under such Facility or their respective Loans of such Facility (in
the case of conversions and continuations of Loans); (iii) each payment or
prepayment of principal of the Loans hereunder by the Borrower shall be made for
account of the relevant Bank Lenders pro rata in accordance with the respective
unpaid principal amounts of each of such Loans held by them; and (iv) each
payment of interest on the Loans hereunder by the Borrower shall be made for
account of the relevant Bank Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Bank Lenders.
(d) SHARING OF PAYMENTS BY BANK LENDERS. If any Bank Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations in
LC Disbursements resulting in such Bank Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC
Disbursements and accrued interest thereon then due than the proportion received
by any other Bank Lender, then the Bank Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans and
participations in LC Disbursements of other Bank Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Bank Lenders
ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and participations in LC Disbursements;
PROVIDED that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement (including payments pursuant
to Section 2.12 and 2.13 hereof) or any payment obtained by a Bank Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Bank Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Bank Lender
were a direct creditor of the Borrower in the amount of such participation.
(e) PRESUMPTIONS OF PAYMENT. Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Bank Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Bank Lenders or the Issuing Bank, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Bank Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Bank Lender or the Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(f) CERTAIN DEDUCTIONS BY THE ADMINISTRATIVE AGENT. If any Bank Lender
shall fail to make any payment required to be made by it pursuant to Section
2.03(e) or (f), 2.04(b) or 2.15(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Bank
Lender to satisfy such Bank Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.16. MITIGATION OBLIGATIONS; REPLACEMENT OF BANK LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Bank Lender
requests compensation under Section 2.12, or if the Borrower is required to pay
any additional amount to any Bank Lender or any Governmental Authority for the
account of any Bank Lender pursuant to Section 2.14, then such Bank Lender shall
use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Bank
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and
(ii) would not subject such Bank Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Bank Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Bank Lender in
connection with any such designation or assignment.
(b) REPLACEMENT OF BANK LENDERS. If any Bank Lender requests
compensation under Section 2.12, or if the Borrower is required to pay any
additional amount to any Bank Lender or any Governmental Authority for the
account of any Bank Lender pursuant to Section 2.14, or if any Bank Lender
defaults in its obligation to fund Loans hereunder, then the Borrower may, at
its sole expense and effort, upon notice to such Bank Lender and the
Administrative Agent, require such Bank Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 3.02), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Bank Lender, if a Bank Lender accepts such assignment); PROVIDED that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if an Debt Service Reserve Commitment or a Working Capital
Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld or delayed PROVIDED that if the assignee's Index Debt
is rated (or whose bank holding company's Index Debt is rated) A or higher by
S&P or A2 or higher by ▇▇▇▇▇'▇, such consent shall not be required, (ii) such
Bank Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements, 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 of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.12 or payments required to be made pursuant to Section 2.14, such assignment
will result in a reduction in such compensation or payments. A Bank Lender shall
not be required to make any such assignment and delegation if, prior thereto, as
a result of a waiver by such Bank Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply;
PROVIDED that in the case of a waiver by a Bank Lender, the Borrower has
received adequate notice thereof.
ARTICLE III. MISCELLANEOUS
SECTION 3.01. NOTICES
All notices and other communications provided for in this Agreement shall be
sent, if practicable, by confirmed telecopy (with hard copy sent on the same day
by overnight courier) and, otherwise, by overnight courier service prepaid to a
Person at its address specified in Section 12.1 of the Master Agreement or,
where applicable, as specified under each signature on the signature page
attached hereto and shall be deemed effective when received.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Bank Lender, by notice to the Borrower and the
Administrative Agent). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 3.02. EXPENSES; INDEMNITY.
(a) REIMBURSEMENT BY BANK LENDERS. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent or
the Issuing Bank under Section 12.3 of the Master Agreement, each Bank Lender
severally agrees to pay to the Administrative Agent, or the Issuing Bank, as the
case may be, such Bank Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; PROVIDED that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent or the Issuing Bank in its capacity
as such.
(b) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the extent permitted by
applicable law, the Borrower shall not assert, and the Borrower hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, any Loan or Letter of Credit
or the use of the proceeds thereof.
(c) PAYMENTS. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 3.03. SUCCESSORS AND ASSIGNS.
(a) ASSIGNMENTS BY BANK LENDERS. Any Bank Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at the
time owing to it); PROVIDED that (i) except in the case of an assignment to a
Bank Lender or an Affiliate of a Bank Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Bank Lender's obligations in respect of its aggregate LC
Exposure, the Issuing Bank) must give their prior consent to any assignment
prior to the Conversion Date, (which consent shall not be unreasonably
withheld), and, any assignment after the Conversion Date must also have the
consent of such parties (which consent shall also not be unreasonably withheld)
other than the Borrower (who shall in any event be consulted prior to such
assignment); (ii) except in the case of an assignment to a Bank Lender or an
Affiliate of a Bank Lender or an assignment of the entire remaining amount of
the assigning Bank Lender's Commitment(s), the amount of the Commitment(s) of
the assigning Bank Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Bank Lender's rights and obligations under this Agreement, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Bank Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire; PROVIDED FURTHER that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause 9.1 of Article IX of the Master
Agreement has occurred and is continuing. Upon acceptance and recording pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Bank Lender under this Agreement, and the
assigning Bank Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Bank Lender's rights and obligations under this Agreement, such Bank
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.13 and 2.14 hereof and Sections 10.3 and 12.3 of
the Master Agreement). Any assignment or transfer by a Bank Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Bank Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(b) EFFECTIVENESS OF ASSIGNMENTS. Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Bank Lender and an assignee,
the assignee's completed Administrative Questionnaire (unless the assignee shall
already be a Bank Lender hereunder), the processing and recordation fee referred
to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept
such Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(c) PARTICIPATIONS. Any Bank Lender may, without the consent of the
Borrower, the Administrative Agent or the Issuing Bank, sell participations to
one or more banks or other entities (a "PARTICIPANT") in all or a portion of
such Bank Lender's rights and obligations under this Agreement and the other
Financing Documents (including all or a portion of its Commitments and the Loans
owing to it); PROVIDED that (i) such Bank Lender's obligations under this
Agreement and the other Financing Documents shall remain unchanged, (ii) such
Bank Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Bank and the other Bank Lenders shall continue to deal solely
and directly with such Bank Lender in connection with such Bank Lender's rights
and obligations under this Agreement and the other Financing Documents. Any
agreement or instrument pursuant to which a Bank Lender sells such a
participation shall provide that such Bank Lender shall retain the sole right to
enforce this Agreement and the other Financing Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Financing Documents PROVIDED that such agreement or instrument may provide
that such Bank Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section
12.2(b) of the Master Agreement. Subject to paragraph (d) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12 and 2.14 to the same extent as if it were a Bank Lender and had
acquired its interest by assignment pursuant to paragraph (a) of this Section.
(d) LIMITATIONS ON RIGHTS OF PARTICIPANTS. A Participant shall not be
entitled to receive any greater payment under Section 2.12 or 2.14 than the
applicable Bank Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Bank Lender if it were a Bank Lender shall
not be entitled to the benefits of Section 2.14 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.14(e) as though it were a
Bank Lender.
(e) CERTAIN PLEDGES. Any Bank Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Bank Lender, including any such pledge or assignment
to a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; PROVIDED that no such pledge or assignment
of a security interest shall release a Bank Lender from any of its obligations
hereunder or substitute any such assignee for such Bank Lender as a party
hereto.
(f) NO ASSIGNMENTS TO THE OBLIGORS OR AFFILIATES. Anything in this
Section to the contrary notwithstanding, no Bank Lender may assign or
participate any interest in any Loan or LC Exposure held by it hereunder to the
Borrower or any of its Affiliates or Subsidiaries without the prior consent of
each Bank Lender.
SECTION 3.04. COUNTERPARTS; INTEGRATION; EFFECTIVENESS.
This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page to this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 3.05. SEVERABILITY.
Any provision of this Agreement held to be invalid, illegal or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 3.06. GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) SUBMISSION TO JURISDICTION. The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Bank Lender may otherwise have to
bring any action or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.
(c) WAIVER OF VENUE. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) SERVICE OF PROCESS. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
3.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 3.07. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 3.08. HEADINGS.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 3.09. SERVICE OF PROCESS.
EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE COURTS REFERRED TO IN SECTION 3.06(B) IN ANY ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID TO
THE ADMINISTRATIVE AGENT AND THE BORROWER AT ITS ADDRESS REFERRED TO IN SECTION
3.01.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
LIBERTY ELECTRIC PA, LLC
By Columbia Electric Liberty Corporation,
a Member Manager
By:
------------------------------------
Name:
Acknowledged by:
LIBERTY ELECTRIC POWER, LLC
By Liberty Electric PA, LLC, its sole
Member
By Columbia Electric Liberty Corporation,
a Member Manager
By:
------------------------------------
Name:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------------------
Name:
Title:
THE BANK LENDERS
THE CHASE MANHATTAN BANK
By:
------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
By:
------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG -
NEW YORK BRANCH
By:
------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG -
NEW YORK BRANCH
By:
------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD. NEW
YORK BRANCH
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------
Name:
Title:
NORDDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK/CAYMAN ISLAND BRANCH
By:
------------------------------------
Name:
Title:
KBC BANK N.V. (NEW YORK BRANCH)
By:
------------------------------------
Name:
Title:
KBC BANK N.V. (NEW YORK BRANCH)
By:
------------------------------------
Name:
Title:
GOVERNOR AND COMPANY OF THE BANK OF
SCOTLAND
By:
------------------------------------
Name:
Title:
SCHEDULE I
COMMITMENTS
EQUITY WORKING
TITLE LENDER ALLOCATION TRANCHE A BRIDGE DSR CAPITAL
----- ------ ---------- --------- ------ --- --------
Administrative THE CHASE MANHATTAN BANK $20,000,000 $4,859,050 $12,470,326.41 $2,077,151 $593,472
Agent
Senior Managing THE BANK OF TOKYO-MITSUBISHI, LTD. $19,000,000 $11,839,763 $4,623,145 $1,973,294 $563,798
Agent NEW YORK BRANCH
Co-Agent UNION BANK OF CALIFORNIA, N.A. $17,000,000 $10,593,472 $4,136,499 $1,765,579 $504,451
Co-Agent NORDDEUTSCHE LANDESBANK GIROZENTRALE $16,250,000 $10,126,113 $3,954,006 $1,687,685 $482,196
NEW YORK/CAYMAN ISLAND BRANCH
Co-Agent BAYERISCHE HYPO-UND VEREINSBANK AG $16,250,000 $10,126,113 $3,954,006 $1,687,685 $482,196
Co-Agent LANDESBANK HESSEN-THURINGEN GIROZENTRALE $16,250,000 $10,126,113 $3,954,006 $1,687,685 $482,196
Co-Agent $16,250,000 $10,126,113 $3,954,006 $1,687,685 $482,196
THE DAI-ICHI KANGYO BANK, LTD.
Co-Agent CREDIT AGRICOLE INDOSUEZ $16,250,000 $14,080,119 $0 $1,687,685 $482,196
Co-Agent GOVERNOR AND COMPANY OF THE BANK OF $16,250,000 $10,126,113 $3,954,006 $1,687,685 $482,196
SCOTLAND
Participant KBC BANK N.V. (NEW YORK BRANCH) $15,000,000 $12,997,033 $0 $1,557,864 $445,104
SCHEDULE II
Amortization Schedule
PERCENTAGE
The 12 month period commencing on the Four quarterly payments of $2,037,634 7.7624%
first Principal Payment Date after the
Conversion Date
Year 2 Four quarterly payments of $2,161,620 8.2347%
Year 3 Four quarterly payments of $2,286,539 8.7106%
Year 4 Four quarterly payments of $2,398,088 9.1356%
Year 5 Four quarterly payments of $2,519,258 9.5972%
Year 6 Four quarterly payments of $2,646,924 10.0835%
Year 7 Four quarterly payments of $2,793,400 10.6415%
Year 8 Four quarterly payments of $2,963,395 11.2891%
Year 9 Four quarterly payments of $3,138,848 11.9575%
Year 10 Four quarterly payments of $3,304,294 12.5878%
Total $105,000,000 100.0000%
SCHEDULE III
Indicative Drawdown Schedule
Tranche A Equity Bridge
Loans Loan
July 31, 2000 $ 25,900,000
August 15, 2000 - $ 26,575,439
September 15, 2000 - $ 14,055,437
October 15, 2000 $ 21,400,000 $ (40,751,470)
November 15, 2000 - $ 15,424,254
December 15, 2000 - $ 17,967,477
January 15, 2001 $ 20,100,000 $ (33,452,142)
February 15, 2001 - $ 18,150,907
March 15, 2001 - $ 17,784,040
April 15, 2001 $ 21,400,000 $ (35,968,057)
May 15, 2001 - $ 14,525,493
June 15, 2001 - $ 11,308,964
July 15, 2001 $ 13,300,000 $ (25,922,246)
August 15, 2001 - $ 7,215,209
September 15, 2001 - $ 7,459,038
October 15, 2001 $ 2,900,000 $ (1,167,930)
November 15, 2001 - $ 6,023,278
December 15, 2001 - $ 5,399,312
January 15, 2002 - $ 3,751,575
February 15, 2002 - $ 4,037,527
March 15, 2002 - $ 8,119,432
Total $ 105,000,000 $ 40,535,267
WAIVER NO. 1 TO THE CREDIT AGREEMENT dated as of February 6, 2001 between
LIBERTY ELECTRIC PA, LLC, a special purpose limited liability company
incorporated under the laws of the State of Delaware (the BORROWER), each of the
Bank Lenders signatory to the Credit Agreement referred to below (the BANK
LENDERS) and THE CHASE MANHATTAN BANK, as administrative agent (the
ADMINISTRATIVE AGENT).
The Borrower, the Bank Lenders and the Administrative Agent are party to a
Credit Agreement dated as of July 31, 2000 (as amended, supplemented and
otherwise modified and in effect immediately prior to the effectiveness of the
amendments contemplated hereby, the CREDIT AGREEMENT).
The Borrower, Liberty Electric Power, LLC, the Lenders (as defined in the Master
Agreement referred to herein) and the Administrative Agent are party to a Master
Agreement dated as of July 31, 2000 (as amended, supplemented and otherwise
modified and in effect immediately prior to the effectiveness of the waiver
contemplated hereby, the MASTER AGREEMENT).
The Borrower has requested that the Bank Lenders agree, and the Bank Lenders
party hereto are willing, to waive certain notice provisions contained in
Section 2.02 of the Credit Agreement, all on the terms and conditions of this
Waiver No. 1.
Accordingly, in consideration of the premises and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
DEFINITIONS
1. Terms used but not defined herein shall have the respective meanings ascribed
to such terms in the Credit Agreement and the Master Agreement.
WAIVER
2. With respect to the proposed Borrowing of February 9, 2001 only, the Bank
Lenders hereby waive compliance with the provision set forth in Section 2.02 of
the Credit Agreement requiring, in the case of a LIBOR Borrowing, the provision
of a Notice of Borrowing to the Administrative Agent three Business Days before
the proposed Borrowing PROVIDED that such Notice of Borrowing shall be provided
to the Administrative Agent not less than 2 Business Days before the proposed
Borrowing.
The foregoing waiver shall not be construed as a waiver of (i) any other
provision; or (ii) any provision relating to a Notice of Borrowing made after
the date hereof. Such waiver shall not extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
REPRESENTATIONS AND WARRANTIES
3. The Borrower represents and warrants to the Bank Lenders that:
(a) This Waiver No. 1 has been duly and validly executed and delivered by such
Borrower and constitutes the Borrower's legal, valid and binding
obligation, enforceable against such Borrower in accordance with its terms.
(b) After giving effect to this Waiver No. 1, (i) no Default or Event of
Default shall have occurred and be continuing; and (ii) the representations
and warranties made by the Borrower in Article 6 of the Master Agreement
are true and correct on and as of the date hereof with the same force and
effect as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date).
CONDITIONS TO EFFECTIVENESS
4. The waiver provided for in Section 2 hereof shall become effective, as of the
date hereof, upon the execution and delivery of this Waiver No. 1 by the parties
hereto.
DOCUMENTS OTHERWISE UNCHANGED
5. Except as herein provided, the Credit Agreement shall remain unchanged and in
full force and effect.
EXPENSES
6. Without limiting its obligations under Section 12.3(a) of the Master
Agreement or Section 3.02 of the Credit Agreement, the Borrower agrees to pay,
on demand, all reasonable out-of-pocket costs and expenses of the Bank Lenders
(including the fees and disbursements of counsel to the Bank Lenders incurred in
connection with the negotiation, preparation, execution and delivery of this
Waiver No. 1).
BINDING EFFECT
7. This Waiver No. 1 shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
GOVERNING LAW
8. This Waiver No. 1 shall be governed by, and construed in accordance with, the
law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver No. 1 to be duly
executed as of the day and year first above written.
LIBERTY ELECTRIC PA, LLC
By Mid Atlantic Liberty Corporation, a Member Manager
By:
Name:
Title:
Acknowledged By:
LIBERTY ELECTRIC POWER, LLC
By Liberty Electric PA, LLC, its sole Member
By Mid Atlantic Liberty Corporation, a Member Manager
By:
Name:
Title:
THE CHASE MANHATTAN BANK
(As Administrative Agent)
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
By:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG - NEW YORK BRANCH
By:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG - NEW YORK BRANCH
By:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
NORDDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK/CAYMAN ISLAND BRANCH
By:
Title:
By:
Title:
KBC BANK N.V. (NEW YORK BRANCH)
By:
Title:
KBC BANK N.V. (NEW YORK BRANCH)
By:
Title:
GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
Title:
