Exhibit 10.1
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SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
Dated as of December 22, 2004
(amending and restating the Amended and Restated Credit and
Guaranty Agreement, dated as of March 28, 2003),
among
RELIANT ENERGY, INC.,
as the Borrower,
The Other Loan Parties Referred To Herein,
as Guarantors,
The Other Lenders Party Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent,
BARCLAYS BANK PLC AND DEUTSCHE BANK SECURITIES INC.
as Syndication Agents,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CORPORATION,
as Documentation Agents
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DEUTSCHE BANK SECURITIES INC.,
BARCLAYS CAPITAL AND
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers for the Revolving Credit Facility
DEUTSCHE BANK SECURITIES INC.,
BARCLAYS CAPITAL,
BANC OF AMERICA SECURITIES LLC,
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P. AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Joint Bookrunners for the Revolving Credit Facility
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC, AND
BARCLAYS CAPITAL,
as Joint Lead Arrangers for the Term Loan Facility
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
BARCLAYS CAPITAL,
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P. AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Joint Bookrunners for the Term Loan Facility
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS......................................................... 1
1.1 Defined Terms................................................................................ 1
1.2 Other Interpretive Provisions................................................................ 54
1.3 Accounting Terms............................................................................. 55
1.4 Rounding..................................................................................... 56
1.5 Times of Day................................................................................. 56
1.6 Letter of Credit Amounts..................................................................... 56
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS.................................................... 56
2.1 The Loans.................................................................................... 56
2.2 Borrowings, Conversions and Continuations of Loans........................................... 56
2.3 Letters of Credit............................................................................ 58
2.4 Optional and Mandatory Prepayments........................................................... 67
2.5 Termination or Reduction of Commitments...................................................... 73
2.6 Repayment of Loans........................................................................... 73
2.7 Interest..................................................................................... 74
2.8 Fees......................................................................................... 74
2.9 Computation of Interest and Fees............................................................. 75
2.10 Evidence of Debt............................................................................. 75
2.11 Payments Generally; Administrative Agent's Clawback.......................................... 76
2.12 Sharing of Payments by Lenders............................................................... 78
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY................................................... 79
3.1 Taxes........................................................................................ 79
3.2 Illegality................................................................................... 81
3.3 Inability to Determine Rates................................................................. 81
3.4 Increased Costs; Capital Adequacy; Reserves on Eurodollar Rate Loans......................... 81
3.5 Compensation for Losses...................................................................... 83
3.6 Mitigation Obligations; Replacement of Lenders............................................... 83
3.7 Survival..................................................................................... 84
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................................................ 84
4.1 Conditions of Initial Credit Extension....................................................... 84
TABLE OF CONTENTS
(continued)
PAGE
4.2 Conditions to All Credit Extensions.......................................................... 88
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................... 89
5.1 Existence, Qualification and Power; Compliance with Laws..................................... 89
5.2 Authorization; No Contravention.............................................................. 89
5.3 Governmental Authorization; Other Consents................................................... 89
5.4 Binding Effect............................................................................... 89
5.5 Financial Statements; No Material Adverse Effect............................................. 90
5.6 Litigation................................................................................... 90
5.7 No Default................................................................................... 90
5.8 Ownership of Property; Liens................................................................. 90
5.9 Environmental Matters........................................................................ 91
5.10 Insurance.................................................................................... 92
5.11 Taxes........................................................................................ 92
5.12 ERISA Compliance............................................................................. 92
5.13 Subsidiaries; Equity Interests............................................................... 93
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............... 93
5.15 Disclosure................................................................................... 94
5.16 Compliance with Laws......................................................................... 94
5.17 Intellectual Property; Licenses, Etc......................................................... 94
5.18 Solvency..................................................................................... 95
5.19 Perfection, Etc.............................................................................. 95
ARTICLE VI. AFFIRMATIVE COVENANTS.................................................................... 95
6.1 Financial Statements......................................................................... 95
6.2 Certificates; Other Information.............................................................. 96
6.3 Notices...................................................................................... 98
6.4 Payment of Obligations....................................................................... 99
6.5 Preservation of Existence, Etc............................................................... 99
6.6 Maintenance of Properties.................................................................... 99
6.7 Maintenance of Insurance..................................................................... 99
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TABLE OF CONTENTS
(continued)
PAGE
6.8 Compliance with Laws......................................................................... 99
6.9 Books and Records............................................................................ 99
6.10 Inspection Rights............................................................................ 100
6.11 Use of Proceeds.............................................................................. 100
6.12 Additional Loan Parties; Security Interests.................................................. 100
6.13 Further Assurances........................................................................... 101
6.14 Florida Mortgaged Properties................................................................. 102
ARTICLE VII. NEGATIVE COVENANTS....................................................................... 102
7.1 Liens........................................................................................ 102
7.2 Investments.................................................................................. 102
7.3 Indebtedness................................................................................. 102
7.4 Consolidation and Mergers.................................................................... 105
7.5 Asset Sales.................................................................................. 106
7.6 Restricted Payments.......................................................................... 107
7.7 Line of Business............................................................................. 108
7.8 Transactions with Affiliates................................................................. 108
7.9 Restrictive Agreements....................................................................... 109
7.10 Use of Proceeds.............................................................................. 110
7.11 Financial Covenants.......................................................................... 110
7.12 Capital Expenditures......................................................................... 111
7.13 Modification of Certain Agreements........................................................... 111
7.14 Fiscal Year.................................................................................. 112
7.15 Commodity Hedging............................................................................ 112
7.16 Suspension of Certain Covenants upon Release Date............................................ 112
7.17 Orion Subsidiaries........................................................................... 113
7.18 Designated Entities.......................................................................... 113
7.19 Foreign Investments.......................................................................... 114
ARTICLE VIII. guaranty................................................................................. 114
8.1 Guaranty; Limitation of Liability............................................................ 114
8.2 Guaranty Absolute............................................................................ 115
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TABLE OF CONTENTS
(continued)
PAGE
8.3 Waivers and Acknowledgments.................................................................. 116
8.4 Subrogation.................................................................................. 117
8.5 Assumption and Joinder....................................................................... 117
8.6 Subordination................................................................................ 118
8.7 Continuing Guaranty; Assignments............................................................. 118
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES........................................................... 119
9.1 Events of Default............................................................................ 119
9.2 Remedies upon Event of Default............................................................... 121
9.3 Application of Funds......................................................................... 122
ARTICLE X. THE AGENTS AND THE ISSUING BANKS......................................................... 123
10.1 Appointment and Authority.................................................................... 123
10.2 Rights As a Lender........................................................................... 123
10.3 Exculpatory Provisions....................................................................... 123
10.4 Reliance by the Agents....................................................................... 124
10.5 Delegation of Duties......................................................................... 125
10.6 Resignation of Administrative Agent.......................................................... 125
10.7 Non-Reliance on Administrative Agent and Other Lenders....................................... 126
10.8 No Other Duties, Etc......................................................................... 126
10.9 Administrative Agent May File Proofs of Claim................................................ 126
10.10 Collateral and Guaranty Matters.............................................................. 127
ARTICLE XI. MISCELLANEOUS............................................................................ 130
11.1 Amendments, Etc.............................................................................. 130
11.2 Notices; Effectiveness; Electronic Communication............................................. 131
11.3 No Waiver; Cumulative Remedies............................................................... 133
11.4 Expenses; Indemnity; Damage Waiver........................................................... 133
11.5 Payments Set Aside........................................................................... 135
11.6 Successors and Assigns....................................................................... 135
11.7 Confidentiality.............................................................................. 139
11.8 Right of Setoff.............................................................................. 140
11.9 Interest Rate Limitation..................................................................... 140
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TABLE OF CONTENTS
(continued)
PAGE
11.10 Counterparts; Integration; Effectiveness..................................................... 140
11.11 Survival of Representations and Warranties................................................... 141
11.12 Severability................................................................................. 141
11.13 Replacement of Lenders....................................................................... 141
11.14 Governing Law; Jurisdiction; Etc............................................................. 142
11.15 Waiver of Jury Trial......................................................................... 143
11.16 USA PATRIOT Act Notice....................................................................... 143
11.17 No Oral Agreements........................................................................... 143
11.18 Citibank Intercreditor Agreement............................................................. 143
11.19 Orion Bank Guarantors........................................................................ 143
11.20 Amended and Restated Credit Agreement........................................................ 144
SIGNATURES............................................................................................ S-1
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SCHEDULES
1.1(a) Existing Letters of Credit
1.1(b) Guarantors
1.1(c) Contracts Relating to the California Receivables
1.1(d) Subordination Terms
1.1(e) Mortgages and Title Policies
1.1(f) Secured Hedge Agreements
1.1(g) Existing Indebtedness
2.1 Commitments and Pro Rata Shares
5.8(c) Closing Date Mortgaged Properties
5.9(c) Environmental Matters
5.13 Subsidiaries and Other Equity Investments
5.17 Intellectual Property Matters
7.3(k) List of Agreements Prohibiting Subordination of
Intercompany Indebtedness
10.10(e) Certain Closing Actions
11.2 Administrative Agent's Office; Certain Addresses for
Notices
EXHIBITS
FORM OF
A Borrowing Notice
▇ ▇/C Certificate
C Continuation/Conversion Notice
D-1 Revolving Credit Note
D-2 Term Note
E Compliance Certificate
F Assignment and Assumption
G Assumption and Joinder
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SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT (as
further amended, restated, supplemented or otherwise modified from time to time,
this "Agreement") dated as of December 22, 2004, is among RELIANT ENERGY, INC.,
a Delaware corporation (the "Borrower"), the other LOAN PARTIES referred to
herein, as Guarantors, each lender from time to time party hereto (collectively,
the "Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent, and BARCLAYS BANK, PLC and DEUTSCHE BANK SECURITIES INC.,
as Syndication Agents and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
CAPITAL CORPORATION, as Documentation Agents.
PRELIMINARY STATEMENTS:
The Borrower and certain of its Subsidiaries (such terms and each other
capitalized term used but not defined in the recitals having the meaning
provided in Section 1.1) have entered into the Amended and Restated Credit and
Guaranty Agreement, dated as of March 28, 2003 (such agreement, as further
amended, restated, supplemented or otherwise modified prior to the date hereof,
the "Existing Credit Agreement") with Bank of America, N.A., as administrative
agent, Barclays Bank PLC and Deutsche Bank AG, New York Branch, as syndication
agents and the other lenders and agents party thereto.
The Borrower has requested that the parties to the Existing Credit
Agreement amend and restate the terms of the Existing Credit Agreement, and
replace the extensions of credit thereunder (including the loans and letters of
credit governed by the terms of the Existing Credit Agreement), with this
Agreement.
The parties hereto agree that from and after the effectiveness of this
Agreement, the obligations under the Existing Credit Agreement, including the
terms of the extensions of credit outstanding thereunder, shall be continued as,
and evidenced by, the Loans, Letters of Credit and other Credit Agreement
Obligations and Loan Documents.
The Lenders have indicated their willingness to continue extensions of
credit under the Existing Credit Agreement as Loans and Letters of Credit
hereunder, and make additional Loans and continue existing or issue additional
Letters of Credit on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquired Debt" means with respect to any specified Person:
(a) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Subsidiary of, such specified Person; and
(b) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Acquisition" means any transaction or any series of related
transactions by which a Person (1) acquires any going business (including a
power generation facility) or all or substantially all of the assets of any
other Person, or division thereof, whether through purchase of assets, merger,
or otherwise or (2) directly or indirectly acquires greater than 50% of the
Voting Stock of any other Person.
"Acquisition Consideration" means the gross consideration (other than
Equity Interests in the Borrower) paid (including Indebtedness assumed) in
connection with any Acquisition.
"Actionable Default" means (1) the failure to pay any payment of
principal of or interest on any Series of Secured Debt outstanding in the amount
of $50,000,000 or more resulting in an event of default under the applicable
Series of Secured Debt after payment is due, including payments that are due (or
if any required offer had been timely made would be due) in respect of any
mandatory offer to purchase Parity Secured Debt resulting in an event of default
under the applicable Series of Secured Debt, (2) the failure to pay in full,
when due and payable in full (whether at maturity, upon acceleration or
otherwise), either the Secured Notes or the Loans or any other Series of Secured
Debt outstanding in the amount of $50,000,000 or more, (3) the exercise by the
Collateral Trustee or any of its co-trustees or agents (including the
Administrative Agent) of any right or power that is exercisable by it only upon
default to take sole and exclusive dominion or control over any deposits in a
deposit account, commodity contract in a commodity account or financial asset in
a securities account constituting any Shared Collateral or the delivery of any
instructions to the Collateral Trustee directing it to foreclose or otherwise
enforce, or to disburse the proceeds of enforcement of, any Lien upon any
Collateral, or (4) the occurrence of any Event of Default under this Agreement
or the Secured Note Agreements arising from the commencement of any bankruptcy
case, receivership or other insolvency or liquidation proceeding by or against
the Borrower or any of its Subsidiaries or any similar default provision at any
time in effect under any indenture or agreement governing any Series of Secured
Debt.
"Additional Guarantor" means each Person (other than the Guarantors
party hereto on the Closing Date) that shall be required to execute and deliver
an Instrument of Assumption and Joinder pursuant to Section 6.12.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
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"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 11.2, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" of any specified Person means any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such specified Person; provided, that a Person will be deemed to be
an Affiliate of the Borrower if the Borrower has knowledge that such Person
beneficially owns 10% or more of the Voting Stock of the Borrower; provided,
further, that the Borrower shall only be deemed to have knowledge of any Person
beneficially owning 10% or more of the Borrower's Voting Stock if such Person
has filed a statement of beneficial ownership pursuant to Sections 13(d) or
13(g) of the Exchange Act or has provided written notice thereof to the
Borrower. Notwithstanding the foregoing, no Person (other than the Borrower or
any Restricted Subsidiary of the Borrower) in whom a Securitization Entity makes
an Investment in connection with a Qualified Securitization Transaction shall be
deemed to be an Affiliate of the Borrower solely by reason of such Investment.
"Agent-Related Person" means each of the Administrative Agent, the
Collateral Agent, each Joint Lead Arranger and each Joint Bookrunner named on
the cover page of this Agreement, together with their respective Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Agents" means, collectively, the Syndication Agents and the
Documentation Agents (as of the Closing Date), the Administrative Agent and the
Collateral Agent.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate Revolving Credit Commitments" means the Revolving Credit
Commitments of all the Lenders.
"Agreement" is defined in the preamble.
"Applicable Margin" means a per annum rate equal to (a) with respect to
Revolving Credit Loans (i) 1.875% with respect to Base Rate Loans and (ii)
2.875% with respect to Eurodollar Rate Loans and Letters of Credit, (b) with
respect to Term Loans (i) 1.375% with respect to Base Rate Loans and (ii) 2.375%
with respect to Eurodollar Rate Loans and (c) 0.50% with respect to the
commitment fee payable under Section 2.8(a); provided, that on and after the
180th day following the consummation by the Borrower or any of its Subsidiaries
of any acquisition of Permitted ERCOT Assets, each of the rates with respect to
Revolving Credit Loans set forth in clause (a) shall increase by 2.00% on the
amount of outstanding Revolving Credit Loans which is equal to the lesser of (x)
the aggregate amount of all Revolving Credit Loans outstanding as of such date
and (y) the amount by which the Acquisition Consideration paid for all
acquisitions of Permitted ERCOT Assets on or after the Closing Date through such
date exceeds the Funded ERCOT Amount as of such date.
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"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Asset Sale" means:
(a) the sale, lease, conveyance or other disposition of any
assets; and
(b) the issuance of Equity Interests in any of the Borrower's
Restricted Subsidiaries.
Notwithstanding the foregoing, none of the following items will be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions
that involves assets with gross cash proceeds of $3,000,000 or less;
(2) a transfer of assets between or among the Borrower and
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary
to the Borrower or to a Restricted Subsidiary of the Borrower;
(4) the sale or lease of products, services or accounts
receivable in the ordinary course of business and any sale or other
disposition of damaged, worn out or obsolete assets or assets no longer
used or useful in the Borrower's or any of its Restricted Subsidiaries'
business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) sales of accounts receivable, equipment and related assets
(including contract rights) of the type specified in the definition of
Qualified Securitization Transaction to a Securitization Entity;
(7) a Restricted Payment that is permitted by the provisions
of Section 7.6 hereof or a Permitted Investment;
(8) a disposition resulting from any Condemnation; provided,
that if such disposition involves assets with gross cash proceeds in
excess of $3,000,000, that any cash proceeds received in connection
therewith are treated as Net Asset Sale Proceeds;
(9) the disposition by Reliant Energy Wholesale Generation,
LLC of the substation at the Bighorn generating facility (and the
related real property assets) to be conveyed to Nevada Power Company
pursuant to the terms and provisions of that certain EPC Agreement
dated December 18, 2002 between Reliant Energy Bighorn, LLC and Nevada
Power Company; and
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(10) a disposition of assets (other than any assets securing
Parity Secured Debt) in connection with a foreclosure, transfer or deed
in lieu of foreclosure or other exercise of remedial action.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 11.6(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit F or any other form approved by the
Administrative Agent.
"Assignment of Leases and Rents" means any assignment of leases and
rents or equivalent document now existing or hereafter entered into, that is
executed and delivered by one or more of the Loan Parties to the Collateral
Trustee (for the benefit of the Secured Parties), and in each case, as such
document may be amended, restated, supplemented or otherwise modified from time
to time.
"Attributable Debt" means, on any date, (a) in respect of a sale and
leaseback transaction, the present value of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended (such present value to
be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP; provided, that if such
sale and leaseback transaction results in a Capital Lease Obligation, the amount
of Indebtedness represented thereby will be determined in accordance with the
definition of "Capital Lease Obligation") and (b) in respect of any Synthetic
Lease Obligation or financing lease, the amount of the remaining lease payments
under the relevant lease that would as of such date be required to be
capitalized on a balance sheet in accordance with GAAP if such lease were
accounted for as a Capital Lease Obligation.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries for the Fiscal Year
ended December 31, 2003, and the related consolidated statements of income or
operations, shareholders' equity and comprehensive income (loss) and cash flows
for such Fiscal Year of the Borrower and its consolidated Subsidiaries,
including the notes thereto.
"Auto-Renewal Letter of Credit" means a Letter of Credit with an
initial expiry date of one year or less after the date of its issuance that has
automatic renewal provisions.
"Availability Period" means the period from and including the Closing
Date to but not including the Revolving Credit Termination Date.
"Bank of America" means Bank of America, N.A. and its successors.
"Bank Security Agreement" means the Amended and Restated Security
Agreement, dated as of July 1, 2003, among the Borrower, the other Loan Parties
and Bank of America, as Collateral Agent, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, as codified at 11 U.S.C. Section 101 et seq.
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"Barclays Bank" means Barclays Bank PLC and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members or
board of directors thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Board Resolution" means a resolution passed by the Board of Directors
of the Borrower.
"Borrower" has the meaning specified in the introductory paragraph
hereto, and its successors.
"Borrowing" means a Revolving Credit Borrowing or a Term Borrowing, as
the context may require.
"Borrowing Notice" means a notice of (a) a Term Borrowing in
substantially the form of Exhibit A, (b) a Revolving Credit Borrowing in
substantially the form of Exhibit A, (c) a conversion (which shall not
constitute a new Borrowing) of Loans from one Type to the other in substantially
the form of Exhibit C, or (d) a continuation (which shall not constitute a new
Borrowing) of Eurodollar Rate Loans, pursuant to Section 2.2(a), substantially
in the form of Exhibit C.
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"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, Houston, Texas or the state where the Administrative Agent's
Office is located and, if such day relates to any Eurodollar Rate Loan, means
any such day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank eurodollar market.
"California Receivables" means all amounts currently owing to a Loan
Party and withheld on the Closing Date in connection with the contracts set
forth on Schedule 1.1(c).
"Capital Expenditure" means, with respect to any Person for any period,
the aggregate amount of all expenditures by such Person during that period
which, in accordance with GAAP, are or should be included in "additions to
property, plant and equipment", "capital expenditures" or similar items
reflected in the statement of cash flows of such Person for such period. For
purposes of this definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with insurance or
proceeds of any Condemnation shall be included in Capital Expenditures only to
the extent of the gross amount of such purchase price, less the credit granted
by the seller of such equipment for the equipment being traded in at such time
or the amount of such insurance or proceeds of any Condemnation, as the case may
be.
"Capital Lease Obligation" means, as applied to any Person, at the time
any determination is to be made, the amount of the liability in respect of a
capital lease that would at that time be required to be capitalized on a balance
sheet of such Person in accordance with GAAP in the reasonable judgment of such
Person, and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(c) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Collateral Agent, for the benefit of any L/C Issuer and the Revolving Credit
Lenders, as collateral for the L/C Obligations and/or the Revolving Credit
Commitments, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent, the Borrower,
the Collateral Agent and such L/C Issuer; provided, that such cash or
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deposit account balances shall not be subject to any Lien other than the Lien of
the Lenders to secure the Obligations. Derivatives of such term (including the
term "Cash Collateral") have corresponding meanings.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided, that the
full faith and credit of the United States is pledged in support of
those securities) having maturities of not more than one year from the
date of acquisition;
(3) deposit accounts with any lender party to this Agreement,
Mellon Bank N.A., ▇▇▇▇▇ Fargo Bank, N.A., Wachovia Bank, National
Association, or any other bank that has a long-term debt rating at the
time of investment of A+ or better by S&P and A1 or better by ▇▇▇▇▇'▇
(an "Approved Bank");
(4) time deposits, certificates of deposit, acceptances or
prime commercial paper issued by an Approved Bank at the time acquired
or issued (as applicable and whichever is latest), in each case, having
a maturity of not more than one year from the date of acquisition;
(5) repurchase obligations for underlying securities of the
types described in clause (2) entered into with an Approved Bank at the
time acquired, issued or entered into (as applicable and whichever is
latest), in each case, having a maturity of not more than one year from
the date of acquisition and secured by securities of the type described
in clause (2), the market value of which (including accrued interest)
is not less than the amount of the applicable repurchase agreement;
(6) commercial paper with a rating at the time of investment
of A-1 by S&P and P-1 by ▇▇▇▇▇'▇ and, in each case, maturing within one
year after the date of acquisition; and
(7) money market funds which invest primarily in Cash
Equivalents of the kinds described in clauses (1) through (6) of this
definition.
"Casualty Event" means the damage or destruction, as the case may be,
of property of any Person; provided, that Casualty Event shall not include any
disposition to which clause (8) of the definition of Asset Sale applies.
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
-8-
"Change of Control" means the occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Borrower and its Subsidiaries taken as a
whole to any "person" (as that term is used in Section 13(d) of the
Exchange Act, but excluding any employee benefit plan of the Borrower
or any of its Restricted Subsidiaries, and any person or entity acting
in its capacity as trustee, agent or other fiduciary or administrator
of any such plan);
(b) the adoption of a plan relating to the liquidation or
dissolution of the Borrower other than (i) the consolidation with,
merger into or transfer of all or part of the properties and assets of
any Restricted Subsidiary of the Borrower to the Borrower or any other
Restricted Subsidiary of the Borrower and (ii) the merger of the
Borrower with an Affiliate solely for the purpose of reincorporating
the Borrower or reforming the Borrower in another jurisdiction;
(c) the consummation of any transaction (including any merger
or consolidation) the result of which is that any "person" (as defined
above) becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Borrower, measured by voting power
rather than number of shares;
(d) the first day on which a majority of the members of the
Board of Directors of the Borrower are not Continuing Directors; or
(e) the Borrower consolidates with, or merges with or into,
any Person, or any Person consolidates with, or merges with or into,
the Borrower, in any such event pursuant to a transaction in which any
of the outstanding Voting Stock of the Borrower or such other Person is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of the Borrower
outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee
Person (immediately after giving effect to such issuance).
"Channelview" means Reliant Energy Channelview, L.P., a Delaware
limited partnership, and its successors.
"Closing Date" means the first date all the conditions precedent in
Section 4.1 are satisfied or waived in accordance with Section 11.10.
"Closing Date Mortgaged Properties" has the meaning specified in
Section 4.1(b)(ii).
"Code" means the Internal Revenue Code of 1986 as amended from time to
time.
"Collateral" means, collectively, (i) the "Collateral" as defined in
the Collateral Trust Agreement, and (ii) the "Collateral" as defined in the
Separate Security Agreement.
-9-
"Collateral Agent" means Bank of America in its capacity as collateral
agent for the Credit Agreement Secured Parties, or such successor Collateral
Agent as may be appointed pursuant to Article XI.
"Collateral Trust Agreement" means that certain collateral trust
agreement, dated as of July 1, 2003, entered into among the Borrower, certain of
its Subsidiaries and Wachovia Bank, National Association, as initial Collateral
Trustee, and acknowledged and agreed to by the Administrative Agent (in its
capacity as a collateral trustee agent) and Wilmington Trust Company, as trustee
for the holders of the Secured Notes, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"Collateral Trustee" means any collateral trustee for the Secured
Parties under the Collateral Trust Agreement.
"Commitment" means, as the context may require, a Term Commitment or a
Revolving Credit Commitment.
"Commodity Hedging Obligations" means, with respect to any specified
Person, the net obligations of such Person under agreements or arrangements
designed to protect such Person against fluctuations in commodity prices.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E. "Condemnation" shall mean any condemnation or other taking, or
temporary or permanent requisition of, any property, any interest therein or
right appurtenant thereto, or any change of grade affecting any property, in
each case as the result of the exercise of any right of condemnation or eminent
domain. A sale or other transfer to a Governmental Authority in lieu of, or in
anticipation of, condemnation shall be deemed to be a Condemnation.
"Consolidated EBITDAR" means, for any Person for any period determined
on a consolidated basis in accordance with GAAP, an amount equal to, without any
duplication, (a) net income (before giving effect to the cumulative effect of
changes in accounting principles and discontinued operations (including Liberty
Electric Power LLC, a Delaware limited liability company) and before income
taxes and franchise taxes to the extent based on the income of such Person and
its Subsidiaries) for such period, plus (b) Consolidated Interest Charges for
such period, plus (c) depreciation, depletion, impairment, abandonment and
amortization expense for such period, plus (d) the book accounting lease expense
under the REMA Lease for such period, plus (e) interest and fees expensed under
any receivables monetization or securitization during such period (other than
interest and fees arising out of a securitization or monetization of the
California Receivables), plus (f) net unrealized losses related to non-trading
energy derivatives, plus (g) cash dividends or distributions actually received
during such period from an entity which is not a consolidated Subsidiary of such
Person other than El Dorado Energy, LLC, plus (h) the Borrower's pro rata share
of the EBITDAR of El Dorado Energy, LLC, and minus (i) net unrealized gains
related to non-trading energy derivatives;
provided, however, for purposes of this definition, (i) gains and losses on the
disposition of assets not in the ordinary course of business, (ii) any other
noncash charge or gain, and (iii) any extraordinary or other non-recurring item
or expense, including severance costs, shall be
-10-
excluded to the extent incurred or realized during such period in accordance
with GAAP from the calculation of Consolidated EBITDAR.
If during any period for which Consolidated EBITDAR is being
determined, the Borrower or any Subsidiary shall have (a) made or consummated
any Acquisition for gross consideration of $3,000,000 or more (including
Indebtedness assumed), then Consolidated EBITDAR shall be determined on a pro
forma basis for such period as if such Acquisition had been made or consummated
as of the beginning of the first day of such period or (b) made or consummated
any Asset Sale that is not fully included in discontinued operations, then
Consolidated EBITDAR shall, to the extent such Asset Sale is not excluded from
Consolidated EBITDAR pursuant to the foregoing proviso, be determined on a pro
forma basis for such period as if such Asset Sale had been made or consummated
as of the beginning of the first day of such period.
"Consolidated Interest Charges" means, without duplication, for any
period for the Borrower and its Subsidiaries on a consolidated basis, (a) the
total interest expense for such period, plus (b) the interest expense during
such period attributable to (i) the REMA Lease, (ii) the fees and yield paid in
connection with, or interest expense attributable to, any account receivables
securitization or monetization permitted hereunder (other than with respect to
the California Receivables), (iii) the Borrower's pro rata share of the net
interest expense of El Dorado Energy, LLC, and (iv) any capitalized interest
during such period, plus (c) all cash dividends and distributions paid on
preferred or preference stock, plus (d) to the extent deducted in determining
total interest expense, net unrealized gains of any Hedging Agreements permitted
hereunder and existing on or prior to the Closing Date (excluding any ongoing
settlement payments in connection with permitted interest rate swap agreements),
minus (e) (i) the total interest income of such Person and its Subsidiaries,
including interest income from any escrow or trust account, but excluding any
interest income attributable to the California Receivables, including any
settlement and collection of the California Receivables for such period, (ii) in
all cases whether expensed or amortized, any interest expense attributable to
(A) any makewhole or premium paid in connection with the repayment of any Debt
permitted hereunder, (B) any upfront direct or indirect costs, expenses, or fees
incurred in connection with, including those arising out of the preparation for
the maturity of, (1) the Existing Credit Agreement, this Agreement and other
Debt, and the restructuring or payoff of the Debt of OPC and its Subsidiaries or
(2) the incurrence of any Debt after the Closing Date, (C) to the extent added
in determining total interest expense, the upfront cost and net unrealized
losses of any Hedging Agreements permitted hereunder and existing on or prior to
the Closing Date (excluding ongoing settlement payments in connection with
permitted interest rate swap agreements), and (D) any of the RRI Warrants; (iii)
any interest expense attributable to the Liberty Project Financing, (iv) any
interest expense attributable to the California Receivables, including any
settlement or collection thereof, and (v) all non-recurring interest expense
with respect to items not constituting Indebtedness.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDAR for the period of the four
prior Fiscal Quarters ending on such date to (b) Consolidated Interest Charges
for such period.
-11-
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated
EBITDAR for the period of the four Fiscal Quarters most recently ended.
"Consolidated Total Debt" means, as of any date of determination, for
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP, (i) all outstanding Debt of the Borrower and its Subsidiaries on such
date, minus (ii) without duplication, all (a) cash and short-term investments,
in an aggregate amount not to exceed $300,000,000 at any time, (b) restricted
cash, in an amount not to exceed the aggregate amount of Indebtedness of the
Borrower or any of its Subsidiaries, the terms of which Indebtedness cause such
cash to appear as restricted cash on the consolidated balance sheet of the
Borrower and its Subsidiaries, and (c) broker, counterparty, and customer
margin/collateral assets and deposits advanced to or held on behalf of such
broker, counterparty or customer, as each of the foregoing appears on the
consolidated balance sheet of the Borrower and its Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Borrower who (a) was a member of such
Board of Directors on the Closing Date; or (b) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contribution Agreement" means that certain Second Amended and Restated
Contribution Agreement dated as of the date hereof and executed by each of the
Loan Parties, as such agreement may be amended, restated, supplemented or
otherwise modified from time to time.
"Control" means, with respect to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise; and the terms "controlling," "controlled by" and
"under common control with" have correlative meanings.
"Control Agreement" means a Deposit Account Control Agreement or a
Securities Account Control Agreement.
"Convertible Notes" means the Borrower's 5.00% Convertible Senior
Subordinated Notes due 2010 in an aggregate principal amount of $275,000,000,
issued pursuant to that certain Indenture, dated as of June 24, 2003, by and
between the Borrower and Wilmington Trust Company, as trustee.
"Core Asset Consent" means, as of any date of determination, the
consent of both (a) Lenders having more than 50% of the Revolving Credit
Exposure and (b) Lenders holding in the aggregate more than 50% of the aggregate
Outstanding Amount of all Term Loans; provided, that the Commitment of, and the
portion of the applicable Outstandings held or deemed held by,
-12-
any Defaulting Lender shall be excluded for purposes of making a determination
as to whether the required consent has been obtained under either clause (a) or
(b) above.
"Credit Agreement Obligations" means all advances to, and debts,
liabilities, Obligations, covenants and duties of, any Loan Party arising under
or in connection with any Loan Document or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including Post-Petition Interest.
"Credit Agreement Secured Parties" means, collectively, the Lenders,
each L/C Issuer, the Administrative Agent, each counterparty to a Secured Hedge
Agreement that is (or at the time such Secured Hedge Agreement was entered into,
was) a Lender or an Affiliate thereof (a "Hedge Bank") and (in each case) each
of their respective successors, transferees and assigns.
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debt" means, as of any date of determination with respect to the
Borrower and its Subsidiaries, without duplication, in accordance with GAAP the
following: (a) the total amount of indebtedness, including any fair value
adjustments, and other obligations of the Borrower and its Subsidiaries for
borrowed money (whether by loan or the issuance of debt securities), including
the unreimbursed amount of any drawings under letters of credit issued for the
account of the Borrower or any of its Subsidiaries, (b) all Capital Lease
Obligations and, except for the REMA Lease, Attributable Debt in respect of sale
and leaseback transactions, Synthetic Lease Obligations or financing leases, (c)
the unpaid balance owed to the certificate holders under the REMA Lease, (d)
obligations under any accounts securitization or monetization arrangement
permitted hereunder and not recorded on the Borrower balance sheet for that
period (other than with respect to any securitization or monetization of the
California Receivables), (e) all guaranties of payment or collection of any
obligations described in clauses (a) through (d) of this definition of any other
Person, and (f) the Borrower's pro rata share of the net outstanding bank debt
of El Dorado Energy, LLC;
provided, however, that Debt shall not include: (i) any guaranties that may be
incurred by endorsement of negotiable instruments for deposit or collection in
the ordinary course of business or similar transactions, (ii) any Obligations or
guaranties of performance of Obligations under performance bonds, (iii) trade
accounts payable in the ordinary course of business, (iv) customer advance
payments and customer deposits arising in the ordinary course of business, (v)
the liability of any Person as a general partner of a partnership for Debt of
such partnership, if the partnership is not a Subsidiary of such Person, and
(vi) any completion or performance guarantees (or similar guarantees that a
project or a Subsidiary perform as planned).
In determining the outstanding amount of any Debt: (a) the amount of
money borrowed shall be the outstanding principal amount thereof, (b) the amount
of all unreimbursed letters of credit shall be the unreimbursed amount thereof,
(c) the amount of any accounts monetization or securitization shall be the
amount invested by the investor therein, and (d) the amount of guaranties shall
be the amount of the guaranteed obligations determined as provided above in this
sentence.
-13-
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Credit Agreement
Obligations other than Loans and L/C Obligations, an interest rate equal to (i)
the Base Rate plus (ii) the Applicable Margin, if any, applicable to Revolving
Credit Loans maintained as Base Rate Loans plus (iii) 2% per annum, and (b) when
used with respect to Loans and L/C Obligations, a rate equal to (i) the rate of
interest applicable thereto hereunder plus (ii) the Applicable Margin, if any,
applicable thereto plus (iii) 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Term Loans, Revolving Credit Loans or participations in L/C
Obligations required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to pay over
to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"Deposit Account" shall have the meaning given to such term in the
Security Agreement.
"Deposit Account Control Agreement" means, with respect to any Deposit
Account, a written agreement or other authenticated record, in form and
substance reasonably satisfactory to the Administrative Agent, pursuant to which
the depositary bank in which such Deposit Account is maintained shall agree,
among other things, to comply at any time with instructions from the Collateral
Trustee (or its co-trustees, agents or sub-agents) to such depositary bank
directing the disposition of funds from time to time credited to such Deposit
Account, without further consent of any Loan Party or its nominee, as any such
agreement or record may be amended, restated, supplemented or otherwise modified
from time to time.
"Designated Entities" means, collectively, OPH, REMA, Channelview and
their respective Subsidiaries.
"Deutsche Bank" means Deutsche Bank AG, New York Branch, and its
successors.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the Term Loan Maturity Date. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the
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right to require the Borrower to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Borrower
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with the provisions of Section 7.6
hereof. The amount of Disqualified Stock deemed to be outstanding at any time
for purposes of this Agreement shall be equal to the maximum amount that the
Borrower and its Restricted Subsidiaries may become obligated to pay upon the
maturity of, or pursuant to any mandatory redemption provisions of, such
Disqualified Stock, exclusive of accrued dividends.
"Documentation Agent" means each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means a Subsidiary that is organized or
incorporated under the laws of the United States or a State thereof.
"Draw Amount" means, with respect to any Letter of Credit, the amount
necessary to settle the obligations of any L/C Issuer under any draft or demand
made under such Letter of Credit.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and each L/C Issuer and (ii) unless an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided, that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries or any Person who
in the ordinary course of its business owns and/or operates power generating
facilities.
"Environmental Laws" means any and all Federal, state, local, regional
and foreign statutes, laws, rules of common law, constitutional provisions,
regulations, ordinances, rules judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or governmental restrictions relating
to pollution and the protection of the environment or Hazardous Materials,
including, without limitation, those relating to the use analysis, generation,
manufacture, storage, discharge, emission, release, disposal, transportation
treatment, investigation, removal, or remediation of Hazardous Materials.
Environmental Laws include, without limitation, those acts commonly referred to
as the Comprehensive Environmental Response, Compensation and Liability Act of
1980; the Superfund Amendments and Reauthorization Act; the National
Environmental Policy Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act, the Solid Waste Disposal Act, the Clean
Water Act, the Clean Air Act, the Toxic Substances Control Act, and the
Occupational Safety and Health Act, and their state counterparts.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure
-15-
to any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equally and Ratably" means, in reference to sharing of any Liens on
Shared Collateral or proceeds thereof as among the holders of Parity Secured
Obligations, after allowing for the payment priorities in the Order of
Application, that such Liens or proceeds:
(1) shall be allocated and distributed to the applicable
Parity Secured Debt Representative for account of the holders of
Secured Notes, to the Administrative Agent for account of the Lenders
and to the Secured Debt Representative for each other Series of Secured
Debt for account of the holders of such Series of Secured Debt, ratably
in proportion to the principal, interest, fees and premium (if any)
outstanding, when the allocation or distribution is made, on (i) the
Secured Notes, (ii) Credit Agreement Obligations, (iii) Hedging
Obligations and amounts payable to a Lender in connection with a bank
account or any other banking services, in each case, that are required
by this Agreement to be secured on an equal and ratable basis with the
Credit Agreement Obligations and (iv) all other Series of Secured Debt
(allocated proportionately to the Secured Debt Representative for each
other Series of Secured Debt if there is more than one), respectively;
and thereafter
(2) shall be allocated and distributed (if any remain after
payment in full of all of the principal, interest, fees and premium (if
any) outstanding on the Secured Notes, Credit Agreement Obligations,
the Hedging Obligations and other amounts payable to a lender referred
to in clause (1), and each other Series of Secured Debt) to the
applicable Secured Debt Representative for account of the holders of
any remaining Secured Note Obligations, to the Administrative Agent for
account of the Lenders holding any remaining Credit Agreement
Obligations, Hedging Obligations or such other amounts and to the
Secured Debt Representative for each other Series of Secured Debt for
account of the holders of any remaining Parity Secured Obligations in
respect of such Series of Secured Debt, ratably in proportion to the
aggregate unpaid amount of such remaining Secured Note Obligations,
Credit Agreement Obligations, Hedging Obligations or such other amounts
and other remaining Parity Secured Obligations, respectively, that are
due and demanded prior to the date such distribution is made.
For this purpose:
(1) unfunded commitments to extend credit shall not be counted
as outstanding debt;
(2) obligations of the Borrower or any Guarantor in respect of
outstanding letters of credit, bank guarantees, bankers' acceptances or
other similar instruments shall be counted as outstanding debt (whether
or not contingent), except that if any such instrument thereafter
expires without being funded, an equitable adjustment shall be made in
any future distribution so that the aggregate amount distributed is
distributed Equally and Ratably as if such instrument had never been
outstanding (but all distributions shall be final and non-refundable
when made);
-16-
(3) during the pendency of any Actionable Default, and subject
to the Order of Application, if any payment or distribution is made in
cash to the Lenders or any other holders of Parity Secured Obligations
from or on account of Separate Collateral by reason of enforcement of
Liens or realization in a bankruptcy case, receivership or other
insolvency or liquidation proceeding, then any concurrent or subsequent
payment or distribution that is to be made in cash to such holders from
or on account of Shared Collateral by reason of any such enforcement or
realization shall be reduced, and any concurrent or subsequent payment
or distribution that is to be made in cash to the remaining holders of
Parity Secured Obligations from or on account of Shared Collateral by
reason of any such enforcement or realization shall be increased, to
the extent necessary to cause the aggregate amount of all payments and
distributions made in cash to all holders of Parity Secured Obligations
(whether made from or on account of Separate Collateral or from or on
account of Shared Collateral) by reason of any such enforcement or
realization to be distributed Equally and Ratably as fully as if the
Separate Collateral had been Shared Collateral; and
(4) all amounts apportioned and distributed to the
Administrative Agent or the Secured Debt Representative for any other
Series of Secured Debt may be allocated, apportioned and distributed by
it in accordance with the applicable provisions of the Credit Agreement
or the indenture or agreement governing such other Series of Secured
Debt, including to give effect to any payment priorities provided for
therein as among the holders of obligations outstanding thereunder.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERCOT" means the Electric Reliability Council of Texas.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which is a member of the controlled group of the Borrower or under
common control with the Borrower within the meaning of Section 414(b) or (c) of
the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any
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liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1.
"Excepted Debt" means Indebtedness expressly permitted to be incurred
or issued pursuant to Section 7.3(a) (solely with respect to the Credit
Agreement Obligations in respect of the Revolving Credit Loans and L/C
Obligations), (b), (c), (d), (e), (f), (h), (j) (other than a refinancing of the
Term Loans), (k) and (s).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Entities" shall mean: (a) Channelview and OPH and (b) each of
their respective Subsidiaries; provided, however, that Channelview and OPH,
together with their respective Subsidiaries, shall no longer be an "Excluded
Entity" in the event that (x) such entity is not prohibited under any agreement
for borrowed money from taking the actions set forth in Section 6.12, and (y)
such entity is no longer restricted or prohibited from paying dividends or other
distributions to a Loan Party, repaying loans or advances owed to a Loan Party
or transferring any of its properties or assets to a Loan Party, other than
restrictions imposed by Law.
"Excluded Proceeds" means any Net Asset Sale Proceeds that are
designated by the Borrower as Excluded Proceeds; provided, that (a) not more
than $300,000,000 of such Net Asset Sale Proceeds may be designated as Excluded
Proceeds during any single calendar year, (b) not more than $750,000,000 of such
Net Asset Sale Proceeds may be designated as Excluded Proceeds on or after the
Closing Date, and (c) Net Asset Sale Proceeds from Asset Sales of generation
assets or other businesses, in each case acquired by the Borrower or any
Restricted Subsidiary after the Closing Date pursuant to an Acquisition may not
be designated as Excluded Proceeds.
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"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 11.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.1(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.1(a).
"Existing Credit Agreement" is defined in the first recital.
"Existing Florida Mortgages" means the mortgages listed in Item 1 of
Schedule 1.1(e).
"Existing Indebtedness" means Indebtedness (other than intercompany
Indebtedness) of the Borrower and its Restricted Subsidiaries in existence on
the Closing Date and set forth on Schedule 1.1(g).
"Existing Letters of Credit" means the letters of credit described on
Schedule 1.1(a) hereto.
"Existing Mortgages" means the mortgages listed in Item 2 of Schedule
1.1(e):
"Existing Title Policies" means the title policies listed in Item 3 of
Schedule 1.1(e):
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person from proceeds of insurance (other than proceeds of
business interruption insurance to the extent such proceeds constitute
compensation for lost earnings).
"Facility" means the Term Facility, the Revolving Credit Facility or
the L/C Sublimit, as the context may require.
"Fair Market Value" means the value that would be paid by a willing
buyer to a willing seller in a transaction not involving distress or necessity
of either party, determined in good faith by the chief financial officer of the
Borrower or Board of Directors of the Borrower or the selling entity (unless
otherwise provided in this Agreement).
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, that (a) if
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such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.
"Fee Letter" means any of (i) the respective letter agreements, each
dated as of December 14, 2004, between or among the Borrower and each Agent or
one of its Affiliates and (ii) the letter agreement, dated as of December 3,
2004, between the Borrower and the Administrative Agent, as each may be amended,
restated, supplemented or otherwise modified from time to time.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "2004 Fiscal Year") refer to the Fiscal Year
ending on December 31 of such calendar year.
"Florida Mortgaged Properties" means the Closing Date Mortgaged
Properties described in the Existing Florida Mortgages.
"Florida Mortgage Supplement" means a Supplement to the Existing
Florida Mortgages, in a form reasonably acceptable to the Agents and the
Borrower, and completed to include the Credit Agreement Obligations as Secured
Debt under each such Existing Florida Mortgage.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Person" means any Person that is not organized or existing
under the United States or a state thereof.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Free Cash Flow" means, for any period from January 1, 2005 through the
date of its determination:
(a) the Borrower's aggregate operating cash flow from
continuing operations;
plus
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(b) to the extent deducted in determining operating cash flow
from continuing operations, any extraordinary or other non-recurring
item or expense, including severance payments;
plus (if a reduction) or minus (if an increase)
(c) the aggregate changes in margin deposits on energy trading
and hedging activities, net;
plus (if a reduction) or minus (if an increase)
(d) the aggregate changes in restricted cash, all during such
period;
minus
(e) capital expenditures during such period;
all, except for clause (b), as indicated on the Borrower's consolidated
statements of cash flows.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded ERCOT Amount" means, as of any date, the sum of the amount of
Free Cash Flow, Net Financing Proceeds and Net Asset Sales Proceeds actually
generated or received, as applicable, under clauses (a), (b), (c), (d) or (f) of
the definition of Permitted Acquisition Limit, on and after the Closing Date
through such date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ Sachs Credit Partners L.P. and its
successors.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of, or pertaining to,
government.
"Granting Lender" has the meaning specified in Section 11.6(h).
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness (whether arising by virtue of partnership arrangements,
or
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by agreements to keep-well, to purchase assets, goods, securities or services,
to take or pay or to maintain financial statement conditions or otherwise). The
term "Guarantee" as a verb has a corresponding meaning.
"Guaranteed Obligations" has the meaning specified in Section 8.1(a).
"Guarantors" means each of:
(a) the entities listed on Schedule 1.1(b) hereto; and
(b) any other Subsidiary of the Borrower that executes this
Agreement in accordance with the provisions of this Agreement,
and their respective successors and assigns.
"Guaranty" means the guaranty of the Credit Agreement Obligations
provided by each Guarantor pursuant to the terms of Article VIII of this
Agreement.
"Hazardous Materials" means all explosive, flammable, corrosive or
radioactive substances or wastes and all hazardous, carcinogenic, mutagenic or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes, toxic mold and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedge Bank" has the meaning specified in the definition of "Secured
Parties".
"Hedge Termination Value" means, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or
after the date such Hedging Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s)
determined as the ▇▇▇▇-to-market value(s) for such Hedging Agreements, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
"Hedging Agreement" has the meaning specified in the definition of
"Hedging Obligation".
"Hedging Obligations" means, with respect to any specified Person, the
net obligations of such Person under:
(a) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(b) other agreements or arrangements designed to manage
interest rate risk; and
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(c) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates (any agreement
or arrangement referred to in this clause or any of the foregoing
clauses (a) and (b), a "Hedging Agreement").
The amount of any net obligation under any Hedging Agreement on any date shall
be deemed to be the Hedge Termination Value thereof as of such date.
"Honor Date" means the date of any payment by any L/C Issuer under a
Letter of Credit.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses or trade payables),
whether or not contingent (without duplication):
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or reimbursement agreements in respect
thereof;
(c) in respect of banker's acceptances;
(d) representing Capital Lease Obligations or Attributable
Debt in respect of sale and leaseback transactions (including the REMA
Lease), Synthetic Lease Obligations or financing leases;
(e) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed;
(f) representing any Hedging Obligations; or
(g) consisting of Disqualified Stock.
whether or not any of the preceding items appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In addition, the
term "Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person. If obligations
of a Securitization Entity are Indebtedness, for the purposes of calculating the
amount of Indebtedness of a Securitization Entity outstanding as of any date,
the face or notional amount of any interest in receivables or equipment that is
outstanding as of such date shall be deemed to be Indebtedness but any such
interests held by Affiliates of such Securitization Entity shall be excluded for
purposes of such calculation. The amount of any Indebtedness outstanding as of
any date will be:
(i) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
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(ii) the principal amount of and premium (if any) on the
Indebtedness, in the case of any other Indebtedness;
(iii) in respect of Indebtedness of other Persons secured by a
Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such asset at such date
of determination, and
(B) the amount of such Indebtedness of such other
Persons; and
(iv) in respect of any Guarantee, an amount equal to the
stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 11.4(b).
"Instrument of Assumption and Joinder" means an Assumption and Joinder
Agreement substantially in the form of Exhibit G.
"Intercreditor Confirmation" means the agreement of any holder of
Parity Secured Debt or other Parity Secured Obligations to the provisions
described in the Order of Application and definition of the term "Equally and
Ratably," as set forth in any Secured Debt Document for the benefit of, and
enforceable as a third party beneficiary by, each present and future holder of
Parity Secured Obligations and each present and future Secured Debt
Representative.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
applicable Maturity Date; provided, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, each Quarterly Payment Date and
the applicable Maturity Date.
"Interest Period" means as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three, six,
nine, or, if available, twelve months thereafter, as selected by the Borrower in
its Borrowing Notice, as the case may be; provided, that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar
-24-
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the applicable
Maturity Date.
"Investment" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or similar obligations), advances or capital
contributions (excluding payroll, commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. "Investment"
shall exclude extensions of trade credit by the Borrower and its Restricted
Subsidiaries in the ordinary course of business and Permitted PEDFA Bond
Indebtedness. The acquisition by the Borrower or any Subsidiary of the Borrower
of a Person that holds an Investment in a third Person will be deemed to be an
Investment by the Borrower or such Subsidiary in such third Person in an amount
equal to the Fair Market Value of the Investments held by the acquired Person in
such third Person. Except as otherwise provided in this Agreement, the amount of
an Investment shall be its Fair Market Value at the time the Investment is made
and without giving effect to subsequent changes in value.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by ▇▇▇▇▇'▇ or BBB- (or the equivalent) by S&P.
"Investment Grade Rating Date" means the date on which (i) the rating
assigned to the Secured Notes by each of S&P and ▇▇▇▇▇'▇ or, if no Secured Notes
are outstanding, the corporate rating assigned to the Borrower, is an Investment
Grade Rating and (ii) no Default shall have occurred and be continuing.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Junior Securities" mean the issuance by the Borrower, solely for cash
proceeds (except for the conversion of any convertible security into ordinary
common stock of the Borrower), of senior subordinated notes (where either (i)
the subordination provisions of such notes shall be at least as favorable to the
Lenders as the subordination provisions set forth in Schedule 1.1(d) or the
Convertible Notes; or (ii) the subordination provisions shall be in all respects
satisfactory to the Agents), or preferred or preference stock of any kind,
common equity securities, or any warrants, options or similar instruments for
the purchase of any equity interest, whether common or preferred; provided, that
any convertible security constituting a "Junior Security" pursuant to the
foregoing shall be convertible only into ordinary common stock of the Borrower.
"Laws" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial
-25-
precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C Certificate" shall mean a certificate, substantially in the form
of Exhibit B, to be delivered by the Borrower to the Administrative Agent and
the applicable L/C Issuer in connection with the issuance of each Letter of
Credit or the amendment of any outstanding Letter of Credit to increase the face
amount thereof (as applicable).
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Exposure" shall mean, at any time, the amount expressed in Dollars
of the aggregate or stated face amount of all drafts which may then or
thereafter be presented by beneficiaries under all Letters of Credit then
outstanding plus (without duplication), the face amount of all drafts which have
been presented or accepted under all Letters of Credit but have not yet been
paid or have been paid, but not reimbursed, whether directly or from the
proceeds of a Revolving Credit Loan hereunder.
"L/C Issuer" means each of ABN AMRO Bank N.V., Bank of America,
Barclays Bank, Deutsche Bank, JPMorgan Chase Bank, N.A., The Bank of Nova
Scotia, UBS AG, Stamford Branch and any other Lender which agrees (pursuant to a
joinder in form and substance satisfactory to the Administrative Agent) to be an
L/C Issuer after the Closing Date, each in its capacity as an issuer of Letters
of Credit hereunder, and in each case, its successors in such capacity as
provided in Section 11.6(b) hereof; provided, that each of such L/C Issuers
shall be required to issue Letters of Credit only in accordance with the terms
and subject to the conditions set forth herein, up to an aggregate amount, at
any one time, not in excess of the amount opposite such entity's name under the
column entitled "L/C Issuer Amount for Letters of Credit" in Schedule 2.1 hereto
(as such Schedule may be amended, restated, supplemented or otherwise modified
from time to time in accordance with the terms hereof). Each L/C Issuer may, in
its discretion, arrange for any Letter of Credit to be issued by an Affiliate of
such L/C Issuer as long as such Affiliate is reasonably acceptable to the
beneficiary under such Letter of Credit, in which case, the term "L/C Issuer"
shall include, with respect to Letters of Credit issued by such Affiliate, such
Affiliate.
"L/C Issuer Amount for Letters of Credit" has the meaning specified in
the definition of L/C Issuer.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed
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Amounts, including all L/C Borrowings. For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.6. For all purposes of
this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be drawn.
"L/C Sublimit" means $1,350,000,000.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes any L/C Issuer.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder
and shall include the Existing Letters of Credit.
"Letter of Credit Fee" has the meaning specified in Section 2.3(i).
"Letter of Credit Final Expiration Date" means the day that is five
Business Days prior to the Revolving Credit Termination Date.
"Liberty Project Financing" means the Indebtedness incurred by Liberty
Electric PA, LLC and Liberty Electric Power, LLC to finance the 568 Megawatt
combined cycle gas-fueled electric generating plant located in the Borough of
Eddystone, Delaware County, Pennsylvania, together with any extensions,
amendments, or refinancings thereof to the extent permitted hereunder.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement and any lease
that constitutes a security interest.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Term Loan or a Revolving Credit Loan.
"Loan Documents" means (i) this Agreement, (ii) each Note, (iii) each
L/C certificate, (iv) each Security Document, (v) each Secured Hedge Agreement,
(vi) the Contribution Agreement, (vii) each UCC financing statement, (viii) each
of the Fee Letters, (ix) the Texas Genco Intercreditor Agreement, (x) each
Instrument of Assumption and Joinder, (xi) each other document, agreement,
certificate or instrument required to be or otherwise executed by any Loan Party
in connection with this Agreement or any or any of the other documents listed
above and (xii) solely for purposes of Section 6.13, the Orion Note Documents.
"Loan Party" means the Borrower and each Guarantor.
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"Material Adverse Effect" means a material adverse effect upon (a) the
business, operations, property, financial condition or prospects of the Borrower
and its Subsidiaries taken as a whole; or (b) the validity or enforceability
against any Loan Party of any Loan Document to which it is a party or the
material rights and remedies of the Administrative Agent and the Lenders
thereunder.
"Material Subsidiary" means, as of any date, any Subsidiary of the
Borrower where either (i) $25,000,000 or more of Consolidated EBITDAR during the
four-Fiscal Quarter period most recently ended was attributable to such
Subsidiary or (ii) as of such date, had assets with a book value of $50,000,000
or more.
"Maturity Date" means, as the context may require, the Revolving Credit
Termination Date or the Term Loan Maturity Date.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and its
successors.
"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or if such company
shall cease to issue ratings, another nationally recognized rating company
selected in good faith by mutual agreement of the Administrative Agent and the
Borrower.
"Mortgage" shall mean any mortgage, deed of trust, deed to secure debt
or such equivalent document now existing or hereafter entered into covering the
Mortgaged Real Property Assets, that is executed and delivered by one or more of
the Loan Parties to the Collateral Trustee (for the benefit of the Secured
Parties), including the Existing Mortgages, as any such document may be amended,
restated, supplemented or otherwise modified from time to time.
"Mortgage Supplement" means Supplements to the Existing Mortgages
(except for the Existing Florida Mortgages), substantially in the form of the
form of Supplement attached to each Existing Mortgage, and completed to include
the Sharing Eligible Debt in existence on the Closing Date as an "Additional
Series of Secured Debt" under each such Existing Mortgage.
"Mortgaged Real Property Assets" means those real property assets of
the Loan Parties on which a Lien has been granted by the applicable Loan Party
to the Collateral Trustee (for the benefit of the Secured Parties).
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Asset Sale Proceeds" means the aggregate cash proceeds received by
the Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale
(including any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale and payments made to retire Indebtedness (other than the Loans)
required to be repaid in connection therewith, including legal, accounting and
investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as a result of the
Asset Sale, in each case, after taking
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into account any available tax credits or deductions and any tax sharing
arrangements, and amounts reserved for adjustment in respect of the sale price
of such asset or assets established in accordance with GAAP.
"Net Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the
Borrower, any Loan Party or OPH or any of its Subsidiaries in connection with
such Casualty Event in excess of $10,000,000, individually or in the aggregate
over the course of a Fiscal Year (net of all reasonable and customary collection
expenses thereof), but excluding any proceeds or awards required to be paid to a
creditor (other than the Lenders) which holds a first priority Lien permitted by
Section 7.1 on the property which is the subject of such Casualty Event.
"Net Financing Proceeds" means with respect to the incurrence or
issuance after the Closing Date by the Borrower to any Person of any Senior Debt
or Junior Securities permitted under this Agreement, the excess of:
(a) the gross cash proceeds received by the Borrower from such
incurrence or issuance, over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements actually
incurred in connection with such sale or issuance which have not been
paid to Affiliates of the Borrower in connection therewith.
"New Secured Notes" means the Borrower's 6.75% Secured Notes due 2014.
"Non-Recourse" means, with respect to any specified Person and the
Indebtedness of such Person:
(1) neither the Borrower nor any of its Restricted
Subsidiaries (A) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) for the Indebtedness of such Person other than a pledge
of the Equity Interests of such Person or of the Subsidiaries of such
Person, (B) is directly or indirectly liable as a guarantor or
otherwise of the Indebtedness of such Person, or (C) constitutes the
lender with respect to the Indebtedness of such Person; and
(2) in the case of an Unrestricted Subsidiary, no default on
the Indebtedness of such Unrestricted Subsidiary (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of Indebtedness of the Borrower or any
of its Restricted Subsidiaries to declare a default on such
Indebtedness of the Borrower or any of its Restricted Subsidiaries or
cause the payment of such Indebtedness of the Borrower or any of its
Restricted Subsidiaries to be accelerated or payable prior to its
stated maturity.
"Nonrenewal Notice Date" means, for any Letter of Credit, a day (to be
agreed upon at the time such Letter of Credit is issued) before which the
relevant L/C Issuer may prevent the renewal of such Letter of Credit.
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"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit D-1 or Exhibit D-2, as applicable.
"Obligations" means any principal, interest, premium, fees,
indemnifications, reimbursements, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OPC" means Orion Power Capital, LLC, a Delaware limited liability
company, and its successors.
"OPH" means Orion Power Holdings, Inc., a Delaware corporation, and its
successors.
"OPH Asset Sale Proceeds" means any Net Asset Sale Proceeds received by
the Borrower or any of its Subsidiaries from any Asset Sale by OPH or any of its
Subsidiaries.
"OPH Guaranty" means the Amended and Restated Guaranty Agreement
executed by OPH in favor of the holders of the Secured Obligations (as defined
in the Collateral Trust Agreement).
"OPH Note Indenture" means the Indenture, dated as of April 27, 2000,
among OPH and Wilmington Trust Company, as trustee, pursuant to which the OPH
Notes were issued, as amended, restated, supplemented or otherwise modified from
time to time.
"OPH Notes" means OPH's 12% Senior Notes due 2010.
"OPH Revolving Notes" means, collectively, the OPMW Revolving Note and
the OPNY Revolving Note.
"OPMW" means Orion Power MidWest, L.P., a Delaware limited partnership,
and its successors.
"OPMW Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated as of October 28, 2002, among OPMW, the financial institutions
party thereto as lenders, and Bank of America, N.A., as administrative agent, as
amended, restated, supplemented or otherwise modified from time to time.
"OPMW New Term Note" means the term note, dated as of the date hereof,
issued by OPMW to the Borrower in an original principal amount equal to
$400,000,000 less the original principal amount of the OPMW Refinancing Note, as
amended, restated, supplemented or otherwise modified from time to time.
"OPMW Refinancing Note" means the term note, dated as of the date
hereof, issued by OPMW to the Borrower in an original principal amount equal to
the aggregate principal amount of Indebtedness under the OPMW Credit Agreement
assigned to the Borrower on or before the Closing Date, as amended, restated,
supplemented or otherwise modified from time to time.
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"OPMW Revolving Note" means the revolving note, dated as of the date
hereof, issued by OPMW to the Borrower in the maximum principal amount of
$75,000,000 as amended, restated, supplemented or otherwise modified from time
to time.
"OPMW Term Notes" means, collectively, the OPMW Refinancing Note and
the OPMW New Term Note.
"OPNY Revolving Note" means the revolving note, dated as of the date
hereof, issued by OPMW to the Borrower in the maximum principal amount of
$50,000,000, as amended, restated, supplemented or otherwise modified from time
to time.
"OPNY Term Note" means the term note, dated as of the date hereof,
issued by OPNY to the Borrower in the original principal amount of $400,000,000,
as amended, restated, supplemented, or otherwise modified from time to time.
"Order of Application" has the meaning assigned to it in the Collateral
Trust Agreement.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Orion Guarantors" means, collectively, OPC, OPMW, OPNY, Orion Power
Midwest GP, Inc., Orion Power New York GP, Inc., Orion Power Midwest LP, LLC,
Orion Power New York LP, LLC, Twelvepole Creek LLC and Astoria Generating
Company, L.P.
"Orion Guaranty" means the Amended and Restated Guaranty Agreement
executed by the Orion Guarantors in favor of Reliant Energy, Inc., as secured
party, as amended, restated, supplemented or otherwise modified from time to
time.
"Orion Note Document" means each Orion Note and each agreement or other
document executed in connection therewith.
"Orion Notes" means, collectively, the OPMW Refinancing Note, the OPMW
New Term Note, the OPMW Revolving Note, the OPNY Term Note and the OPNY
Revolving Note.
"Orion Security Agreement" means the Amended and Restated Security
Agreement executed by OPH and the Orion Guarantors in favor of Reliant Energy,
Inc., as secured party, as amended, restated, supplemented or otherwise modified
from time to time.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or
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under any other Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement or any other Loan Document.
"Outstanding Amount" means (i) with respect to Term Loans and Revolving
Credit Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Term
Loans and Revolving Credit Loans, as the case may be, occurring on such date;
and (ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Borrower of Unreimbursed Amounts.
"Parity Secured Debt" means, collectively:
(1) the Secured Notes;
(2) the PEDFA Guaranties;
(3) the Credit Agreement Obligations; and
(4) Sharing Eligible Debt that is designated by the Borrower,
in a Certificate of a Responsible Officer of the Borrower delivered to
the Collateral Trustee on or before the date of incurrence of such
Indebtedness, as entitled to share Equally and Ratably in the benefits
and proceeds of all Liens held by the Collateral Trustee in Shared
Collateral.
"Parity Secured Obligations" means, collectively, the Secured Note
Obligations, the PEDFA Guaranty Obligations, the Credit Agreement Obligations
and all Obligations in respect of each other Series of Secured Debt.
"Participant" has the meaning specified in Section 11.6(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PEDFA Guaranties" means collectively, the Borrower's (i) five
Guarantee Agreements, each dated as of December 22, 2004, among the Borrower,
the Guarantors and ▇.▇.▇▇▇▇▇▇ Trust Company, as trustee, and (ii) other
guaranties constituting Permitted PEDFA Bond Indebtedness made by the Borrower
from time to time in accordance with Section 7.3.
"PEDFA Guaranty Obligations" means:
(1) the Obligations of the Borrower under the PEDFA Guaranties
issued on the Closing Date; or
(2) the Obligations of the Borrower under the PEDFA Guaranties
issued after the Closing Date that constitute another Series of Secured
Debt.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA
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and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.
"Permitted Acquisition" means any Acquisition by the Borrower or any of
its Restricted Subsidiaries that satisfies all of the following conditions: (1)
the aggregate Acquisition Consideration paid or incurred by the Borrower and its
Restricted Subsidiaries in connection with such Acquisition, together with the
aggregate Acquisition Consideration paid by Borrower and its Restricted
Subsidiaries in connection with all other Acquisitions since the Closing Date,
does not exceed the Permitted Acquisition Limit, (2) no Default shall have
occurred and be continuing or would result therefrom on the date of the closing
of such Acquisition, (3) the Borrower shall have delivered to the Administrative
Agent a certificate of an Authorized Officer certifying compliance with Section
7.11 on a pro forma basis after giving effect to the Acquisition (without
supporting calculations), (4) the acquired Person is in (or the acquired assets
are useful in) a Permitted Business, and (5) the assets, including any Capital
Stock, acquired pursuant to such Acquisition shall be pledged as additional
collateral for the Facilities, and any acquired entity shall become a Guarantor,
in each case in accordance with Section 6.12.
"Permitted Acquisition Limit" means, as of any date, an amount equal to
the sum of (a) the lesser of (i) 50% of Free Cash Flow for the period from the
Closing Date through such date and (ii) $1,000,000,000, (b) in the case of the
acquisition of a Permitted ERCOT Asset, the amount of additional senior secured
Indebtedness issued for such Acquisition, not to exceed $500,000,000, (c) the
amount of additional senior secured Indebtedness issued since the Closing Date,
not to exceed $300,000,000, (d) the amount of unsecured Indebtedness and
Specified Junior Securities issued since the Closing Date, but only to the
extent not required hereunder to be applied to the prepayment of Term Loans, (e)
with respect to acquisitions of Permitted ERCOT Assets through the second
anniversary of the Closing Date, an amount, not less than zero, equal to
$500,000,000 less the amounts under clauses (a), (b), (c), (d), and (f) of this
definition used for Acquisition Consideration of Permitted ERCOT Assets;
provided, that not more than $200,000,000 of the foregoing $500,000,000 amount
under this clause (e) may be utilized for Acquisition Consideration from the
first through the second anniversary of the Closing Date, and (f) the amount of
Excluded Proceeds since the Closing Date, in each case to the extent such
amounts are actually received by the Borrower and permitted to be retained by it
under this Agreement.
"Permitted Business" means the business of providing services and
products in the energy market and any businesses incidental or reasonably
related thereto.
"Permitted Debt" has the meaning assigned to it in Section 7.3.
"Permitted Encumbrances" has the meaning specified in the Mortgages.
"Permitted ERCOT Assets" means (1) electric generating assets together
with assets related thereto (including any assets related to the operation and
fuel supply of such electric generating assets) which assets support the
Borrower's and/or its Restricted Subsidiaries' retail business in the State of
Texas and (2) all (but not less than all) of the Capital Stock of any Person
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that owns solely Permitted ERCOT Assets (whether directly or through one or more
wholly owned Subsidiaries) described in clause (1) above.
"Permitted Exceptions" means secured Indebtedness of the Borrower or
any of its Restricted Subsidiaries incurred pursuant to Section 7.3(b), (c),
(d), (h) (other than Secured Note Obligations) and (s) (solely with respect to
Indebtedness to which clause (6) or (7) of the definition of Permitted Liens
applies) and Permitted Refinancing Indebtedness with respect to the foregoing.
"Permitted Investments" means:
(1) any Investment by the Borrower or any Restricted
Subsidiary in the Borrower or in a Restricted Subsidiary;
(2) any Investment in Cash Equivalents and, in the case of any
Person, cash equivalents or other liquid investments permitted under
any credit facility constituting Permitted Debt to which such Person is
a party;
(3) any Investment by the Borrower or any Restricted
Subsidiary constituting a Permitted Acquisition;
(4) any Investments in any Person having an aggregate Fair
Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with (i) all other Investments made pursuant to this clause
that are at the time outstanding and (ii) the aggregate amount of
Restricted Payments made pursuant to Section 7.6, not to exceed
$75,000,000 since the Closing Date;
(5) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with the provisions of Section 7.5;
(6) any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than Disqualified
Stock) of the Borrower;
(7) any Investments received in compromise or resolution of
(A) Obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Borrower or any of its
Restricted Subsidiaries, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer; or (B) litigation, arbitration or
other disputes with Persons who are not Affiliates;
(8) Investments represented by Hedging Obligations;
(9) loans or advances to employees made in the ordinary course
of business up to an aggregate principal amount not to exceed
$10,000,000 at any one time;
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(10) any Investment acquired by the Borrower or any of its
Restricted Subsidiaries on account of any claim against, or interest
in, any other Person (A) acquired in good faith in connection with or
as a result of a bankruptcy, workout, reorganization or
recapitalization of such other Person or (B) as a result of a bona fide
foreclosure by the Borrower or any of its Restricted Subsidiaries with
respect to any claim against any other Person;
(11) repurchases of the Secured Notes or other Parity Secured
Debt (not using proceeds of Revolving Credit Loans except as expressly
permitted hereunder);
(12) any Investment by the Borrower or a Restricted Subsidiary
of the Borrower in a Securitization Entity or any Investment by a
Securitization Entity in any other Person in connection with a
Qualified Securitization Transaction;
(13) payment of consolidated taxes pursuant to the Tax Sharing
Agreement, dated as of October 1, 2002, among the Borrower and its
Subsidiaries named therein, as amended, supplemented or modified from
time to time and any other tax allocation agreements among the Borrower
and its Subsidiaries;
(14) receivables owing to the Borrower or a Restricted
Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, that such trade terms may include such concessionary trade
terms as the Borrower or such Restricted Subsidiary deems reasonable
under the circumstances; and
(15) other Investments in any Person having an aggregate Fair
Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause that
are at the time outstanding not to exceed $125,000,000.
"Permitted Liens" means:
(1) Liens held by the Collateral Trustee Equally and Ratably
securing all Indebtedness that is Parity Secured Debt and Equally and
Ratably securing all other Parity Secured Obligations;
(2) Liens that are granted or maintained by the Borrower and
the Restricted Subsidiaries as security for Credit Agreement
Obligations;
(3) Liens on assets of REMA and its Subsidiaries securing
Indebtedness of REMA and its Subsidiaries permitted to be incurred
pursuant to clause (c) of Section 7.3, including cash collateral for
letters of credit issued thereunder and Liens encumbering assets of
REMA and/or any of its Subsidiaries securing obligations under, or in
connection with, or which constitute, Qualifying Credit Support (as
defined in the participation agreements to which REMA is a party);
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(4) Liens on assets of the ▇▇▇▇▇▇ Subsidiary securing
Permitted PEDFA Bond Indebtedness incurred by the ▇▇▇▇▇▇ Subsidiary and
that is Non-Recourse to the Borrower and all of its other Restricted
Subsidiaries (other than an unsecured Guarantee, if any, provided by
the Borrower or any Guarantor);
(5) Liens on assets of a Restricted Subsidiary in existence on
the date on which such Person becomes a Restricted Subsidiary
(provided, that (i) such Liens existed at the time such Person became a
Restricted Subsidiary and were not created in anticipation thereof,
(ii) no such Lien shall attach to any asset acquired by such Person,
after such Person became a Restricted Subsidiary, pursuant to an
Investment in such Person by the Borrower or any Restricted Subsidiary,
or in an Affiliate Transaction that does not satisfy the requirements
of Section 7.8(a) and (iii) the amount of Indebtedness secured thereby
is not increased);
(6) Liens securing Capital Lease Obligations and purchase
money obligations, in each case permitted to be incurred pursuant to
clause (s) of Section 7.3, covering only the assets acquired with or
financed by such Indebtedness;
(7) Liens securing obligations under sale leaseback
transactions and Synthetic Lease Obligations, in each case permitted to
be incurred pursuant to clause (s) of Section 7.3, covering only the
assets acquired with or financed by such Indebtedness;
(8) Liens in favor of the Borrower or the Guarantors;
(9) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; provided, that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor;
(10) Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the ordinary
course of business;
(11) survey exceptions, encumbrances, easements or
reservations, including those for licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines, other utilities, mineral
reservations and rights and leases, zoning restrictions and other
restrictions as to the use of real property or other exceptions to
title that were not incurred in connection with Indebtedness and that
(A) exist on the Closing Date and are recorded on such date, (B) are
permitted under the terms of the Security Documents or (C) do not in
the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such
Person;
(12) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Agreement if such Permitted
Refinancing Indebtedness is incurred by the same obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded (except as provided in clause (4) of the definition of
Permitted Refinancing Indebtedness); provided, that:
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(a) the new Lien shall be limited to all or part of
the same categories of property and assets that secured or,
under the written agreements pursuant to which the original
Lien arose, could secure the original Lien (plus improvements
and accessions to, such property or proceeds or distributions
thereof), except, if Permitted PEDFA Bond Indebtedness is
Sharing Eligible Debt, it may be secured by Liens held by the
Collateral Trustee on the Shared Collateral;
(b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (i) the
outstanding principal amount or, if greater, committed amount
of the Permitted Refinancing Indebtedness and (ii) an amount
necessary to pay any fees and expenses, including premiums,
related to such refinancings, refunding, extension, renewal or
replacement and (iii) any protective advances with respect to
the property and assets that secure such Permitted Refinancing
Indebtedness;
(13) Liens on assets transferred to a Securitization Entity or
on assets of a Securitization Entity, in either case incurred in
connection with a Qualified Securitization Transaction;
(14) financing statements (including precautionary statements)
filed in connection with a Capital Lease Obligation, financing lease,
Synthetic Lease Obligation or an operating lease, in each case, not
prohibited hereunder; provided, that no such financing statement
extends to, covers or refers to as collateral, any property or assets
of the Borrower or a Restricted Subsidiary, other than the property or
assets which are subject to such Capital Lease Obligation, financing
lease, Synthetic Lease Obligation, or operating lease;
(15) Liens arising out of or in connection with any judgment
that does not constitute an Event of Default or in connection with any
litigation or other legal proceeding as to which an appeal to contest
or review is timely commenced in good faith by appropriate proceedings
and as to which adequate reserves have been established in accordance
with GAAP; provided, that any right to levy, seizure, attachment,
sequestration, foreclosure or garnishment of any property and assets of
the Borrower or a Restricted Subsidiary thereof arising out of or in
connection with any such Lien has been and continues to be enjoined or
effectively stayed;
(16) inchoate statutory Liens arising under ERISA;
(17) Liens (A) on cash and short-term investments (i)
deposited by the Borrower or any of its Subsidiaries in margin accounts
with or on behalf of futures contract brokers or paid over to other
counterparties or (ii) pledged or deposited as collateral to a contract
counterparty or issuer of surety bonds by the Borrower or any of its
Subsidiaries, in the case of clause (i) or (ii), to secure obligations
with respect to (a) contracts for commercial and trading activities in
the ordinary course of business and contracts (including physical
delivery, option (whether cash or financial), exchange, swap and
futures contracts) for the purchase, transmission, distribution, sale,
lease or hedge of
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any energy-related commodity or service or (b) interest rate, commodity
price, or currency rate management contracts or derivatives and (B)
encumbering assets other than accounts or receivables arising out of
contracts or agreements relating to the generation, distribution or
transmission of energy; provided, that all such agreements or contracts
are entered into in the ordinary course of business;
(18) Liens arising by virtue of any statutory or common law
provision relating to banker's liens, rights of set off or similar
rights, contractual rights of setoff or netting arrangements entered
into in the ordinary course of business and similar rights with respect
to deposit accounts, commodity accounts and/or securities accounts;
(19) Liens arising under Section 9.343 of the Texas Uniform
Commercial Code or similar statutes of states other than Texas;
(20) Liens created under the Security Agreement dated as of
March 28, 2003 among Reliant Energy Retail Services, LLC ("RERS"),
StarEn Power, LLC ("StarEn") and Reliant Energy Solutions, LLC
("Solutions"), as debtors, and Texas ▇▇▇▇▇, ▇.▇. as secured party
securing up to $250,000,000 of obligations owing to Texas ▇▇▇▇▇, ▇.▇.
under the Master Power Purchase and Sale Agreement dated as of October
1, 2002 between Texas ▇▇▇▇▇, ▇.▇ and Reliant Energy Electric Solutions,
LLC, as each may be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time, and the
related Guaranty dated as of October 1, 2002 by Reliant Energy Retail
Holdings, LLC, RERS, StarEn and Solutions in favor of Texas ▇▇▇▇▇,
▇.▇., as the same may be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time, provided,
that such Liens are subject always to the terms of the Texas Genco
Intercreditor Agreement, as such agreement may be amended, amended and
restated, supplemented or otherwise modified, renewed or replaced from
time to time;
(21) pledges and deposits to secure the payment of worker's
compensation, unemployment insurance, social security benefits or
obligations under similar laws, or to secure the payment or performance
of statutory or public obligations (including environmental, municipal
and public utility commission obligations and requirements),
reimbursement or indemnity obligations arising out of surety,
performance, or other similar bonds, and other obligations of a like
nature, in each case incurred in the ordinary course of business;
(22) Liens granted by a Person in favor of a commercial
trading counterparty pursuant to a netting agreement, which Liens
encumber rights under agreements that are subject to such netting
agreement and which Liens secure such Person's obligations to such
counterparty under such netting agreement; provided, that any such
agreements and netting agreements are entered into in the ordinary
course of business; and provided, further, that the Liens are incurred
in the ordinary course of business and when granted, do not secure
obligations which are past due;
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(23) Liens on proceeds from the issuance of ▇▇▇▇▇▇ Tax-Exempt
Bonds or Permitted PEDFA Bond Indebtedness and Liens on Indebtedness of
the Borrower held by the ▇▇▇▇▇▇ Subsidiary securing the ▇▇▇▇▇▇
Tax-Exempt Bonds or Permitted PEDFA Bond Indebtedness;
(24) Liens on assets of Reliant Energy Channelview L.P. and
Liens on the Equity Interests in Reliant Energy Channelview (Delaware)
LLC and Reliant Energy Channelview (Texas) LLC, to the extent such
Liens are existing on the Closing Date;
(25) Liens on assets of REMA and its Subsidiaries created in
connection with the sale-leaseback of REMA's interests in the Keystone,
Conemaugh and Shawville generating facilities consummated in August,
2000;
(26) Liens created in connection with the indemnity and
contribution obligations in favor of underwriters or note purchasers in
connection with the ▇▇▇▇▇▇ Tax-Exempt Bonds;
(27) Liens on assets of Reliant Energy Solutions, LLC created
in connection with Delivery Order No. DABT39-97-C-4046 dated September
1997 and issued by the Directorate of Contracting, Contract Support
Division, Ft. Sill, Oklahoma;
(28) Liens incurred in the ordinary course of business of the
Borrower or any Restricted Subsidiary of the Borrower securing
obligations that do not exceed $25,000,000 in the aggregate at any one
time outstanding; and
(29) Liens on certain of Reliant Energy Wholesale Generation
LLC's switchyard equipment at the Choctaw generating facility granted
to Entergy in connection with an Operating and Maintenance Agreement.
"Permitted PEDFA Bond Indebtedness" means Indebtedness incurred or
guaranteed by the Borrower and/or the Guarantors in tax-exempt Pennsylvania
industrial development act financings that are not supported by Letters of
Credit outstanding under this Agreement, the proceeds of which are used:
(a) to build the ▇▇▇▇▇▇ Facility;
(b) to reimburse the Borrower, its Restricted Subsidiaries or
the ▇▇▇▇▇▇ Subsidiary for amounts advanced or incurred, or for
Indebtedness incurred to fund such construction costs, prior to the
date of incurrence of such Indebtedness; or
(c) to refund or defease the ▇▇▇▇▇▇-Tax Exempt Bonds or
refinance Indebtedness evidenced by or in support of the ▇▇▇▇▇▇-Tax
Exempt Bonds.
"Permitted Prior Liens" means (1) Liens described in clauses (5), (6),
(7), (9), (10), (11), (14), (17), (18), (19), (20), (21), (22), (26), (27) and
(29) of the definition of "Permitted Liens," (2) Liens refinancing or replacing
any of the Liens contemplated in clause (1) of this definition,
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and (3) Liens that arise by operation of law and are not voluntarily granted, to
the extent entitled by law to priority over the security interests created by
the Security Documents.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Borrower or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Borrower or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided, that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses, costs and
fees and premiums incurred in connection therewith);
(2) except for Permitted PEDFA Bond Indebtedness, such
Permitted Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Credit Agreement Obligations, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Credit
Agreement Obligations on terms at least as favorable to the Lenders as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, as
reasonably determined by the Borrower or such Restricted Subsidiary;
(4) such Indebtedness is incurred either by the Borrower or by
the Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, except
that Permitted PEDFA Bond Indebtedness may be (A) incurred by the
Borrower and/or guaranteed by the Borrower and/or the Guarantors if the
assets of the ▇▇▇▇▇▇ Subsidiary (other than Investments in the Borrower
pledged to secure such Permitted PEDFA Bond Indebtedness and proceeds
from the issuance of Permitted PEDFA Bond Indebtedness that secures
Permitted PEDFA Bond Indebtedness) remain free of all Liens securing
Indebtedness, except Liens held by the Collateral Trustee as security
for Parity Secured Obligations or (B) guaranteed by the Borrower on an
unsecured basis if such Indebtedness is otherwise Non-Recourse to the
Borrower and its other Restricted Subsidiaries (other than the ▇▇▇▇▇▇
Subsidiary) and is secured solely by Liens on the assets of the ▇▇▇▇▇▇
Subsidiary and/or the Equity Interests of the ▇▇▇▇▇▇ Subsidiary;
(5) if incurred by the Borrower, such Indebtedness may be
guaranteed by the Guarantors; and
(6) such Indebtedness (other than Indebtedness permitted
pursuant to clause (d) or (e) of Section 7.3 and letter of credit
facilities refinancing the Revolving
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Credit Facility and permanently reducing the Revolving Credit
Commitments, Dollar for Dollar) has a final maturity date that is at
least six years after the Closing Date and provides for the
amortization of not more than 10% of its original outstanding principal
amount prior to such final maturity date.
"Person" means any individual, corporation, firm, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Post-Petition Interest" means interest accruing after the filing of
any petition in bankruptcy, or the commencement of any case, proceeding or
action relating to the bankruptcy, reorganization or insolvency of the Borrower
or any other Loan Party (or interest that would accrue but for the operation of
applicable bankruptcy, reorganization or insolvency laws), whether or not a
claim for post-filing or post-petition interest is allowed or allowable as a
claim in any such case, proceeding or action.
"Pro Rata Percentage" means, on any date of determination and with
respect to Net Asset Sale Proceeds to be applied in accordance with Section
2.4(b)(i), a percentage equal to (i) the Total Outstandings on such date,
divided by (ii) the sum of (A) the Total Outstandings on such date, plus (B) the
amount of the unused Aggregate Revolving Credit Commitments then in effect, plus
(C) the aggregate outstanding principal amount of Parity Secured Debt described
in clause (Y) of Section 2.4(b)(i)(A) or clause (Z) of Section 2.4(b)(i)(B) with
respect to which an offer to repurchase or prepay is required to be made, or
which must be otherwise repurchased or prepaid (in part), with the Net Asset
Sale Proceeds described in such clause (Y) of Section 2.4(b)(i)(A) or clause (Z)
of Section 2.4(b)(i)(B).
"Pro Rata Share" means, with respect to each Lender and with respect to
any Facility at any time, a fraction (expressed as a percentage, carried out to
the ninth decimal place), (a) with respect to the Revolving Credit Facility, the
numerator of which is the amount of the Revolving Credit Commitment of the
relevant Revolving Credit Lender (or, in the case of the L/C Sublimit, the
amount of such Revolving Credit Lender's obligation to participate therein) at
such time and the denominator of which is the aggregate Revolving Credit
Commitments (or, in the case of the L/C Sublimit, the aggregate amount of the
Revolving Credit Lenders' obligations to participate therein) at such time;
provided, that if the commitment of each Revolving Credit Lender to make
Revolving Credit Loans and the obligation of any L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 9.2, then the Pro Rata Share
of each Revolving Credit Lender shall be determined based on the Pro Rata Share
of such Revolving Credit Lender immediately prior to such termination and after
giving effect to any subsequent assignments made pursuant to the terms hereof
and (b) with respect to the Term Facility, the numerator of which is the
outstanding principal amount of the Term Loans of the relevant Term Lender at
such time and the denominator of which is the aggregate outstanding principal
amount of the Term Loans at such time.
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"Purchase Money Note" means a promissory note of a Securitization
Entity evidencing amounts owed to the Borrower or any Restricted Subsidiary of
the Borrower in connection with a Qualified Securitization Transaction to a
Securitization Entity, which note shall be repaid from cash available to the
Securitization Entity other than amounts required to be established as reserves
pursuant to agreements, amounts paid to investors in respect of interest and
principal and amounts paid in connection with the purchase of newly generated
receivables or newly acquired equipment.
"Qualified Securitization Transaction" means any transaction or series
of transactions that may be entered into by the Borrower or any of its
Restricted Subsidiaries pursuant to which the Borrower or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer to: (a) a Securitization
Entity (in the case of a transfer by the Borrower or any of its Restricted
Subsidiaries); and (b) any other Person (in the case of a transfer by a
Securitization Entity), or may grant a security interest in any accounts
receivable or equipment (whether now existing or arising or acquired in the
future) of the Borrower or any of its Restricted Subsidiaries, and any assets
related thereto, including all collateral securing such accounts receivable and
equipment, all contracts and contract rights and all guarantees or other
obligations in respect of such accounts receivable and equipment, proceeds of
such accounts receivable and equipment and other assets (including contract
rights) which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable and equipment.
"Quarterly Payment Date" means the first day of each April, July,
October and January, or, if any such date is not a Business Day, the next
succeeding Business Day; provided, that the initial "Quarterly Payment Date"
shall be April 1, 2005.
"Reduction Amount" is defined in Section 2.4(b)(viii).
"Register" has the meaning specified in Section 11.6(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Release Date" means the date on which both (a) as of the last day of
two consecutive Fiscal Quarters, both (i) the Consolidated Leverage Ratio for
the applicable immediately preceding four Fiscal Quarters was 2:75:1 or less and
(ii) the Consolidated Interest Coverage Ratio for the applicable immediately
preceding four Fiscal Quarters was 3.25:1 or more, and (b) the Term Loans have
been repaid in full in accordance with the terms of this Agreement.
"REMA" shall mean Reliant Energy Mid-Atlantic Power Holdings, LLC, a
Delaware limited liability company, and its successors.
"REMA Lease" shall mean, collectively, the obligations of REMA as
facility lessee under the Facility Lease Agreements, each dated as of August 24,
2000 and each between REMA and, respectively, Conemaugh Lessor Genco, LLC,
Keystone Lessor Genco, LLC, and Shawville Lessor Genco, LLC, and under the
related participation agreements and other documents executed in connection
therewith.
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"Remedial Action" shall have the meaning ascribed to it in Section
101(24) of the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et. seq. or any other Environmental Law.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Term Loans or Revolving Credit Loans, a Borrowing
Notice and (b) with respect to an L/C Credit Extension, an L/C Certificate.
"Required Cash Collateral Amount" has the meaning specified in Section
2.3(a)(ii)(B).
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the sum of (a) the Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations being deemed "held" by such Lender for purposes of this
definition) and (b) the aggregate unused Revolving Credit Commitments; provided,
that the unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"RERH" means Reliant Energy Retail Holdings, LLC, a Delaware limited
liability company, and its successors.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means any of the following:
(1) any declaration or payment of any dividend or the making
of any other payment or distribution on account of the Borrower's or
any of its Restricted Subsidiaries' Equity Interests (including any
payment in connection with any merger or consolidation involving the
Borrower or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Borrower's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Borrower or to the Borrower or a Restricted
Subsidiary of the Borrower);
(2) any purchase, redemption or other acquisition or
retirement for value (including in connection with any merger or
consolidation involving the Borrower) of any Equity Interests of the
Borrower;
(3) any payment on or with respect to, or purchase,
redemption, defeasance or other acquisition or retirement for value of
any Indebtedness of the Borrower or of any
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Guarantor that is contractually subordinated to the Credit Agreement
Obligations (excluding any intercompany Indebtedness, intercompany
receivables or intercompany advances between or among any of the
Borrower and its Restricted Subsidiaries and Permitted PEDFA Bond
Indebtedness), except a payment of interest or principal at the Stated
Maturity thereof.
"Restricted Subsidiary" means a Subsidiary organized or incorporated
under the laws of the United States or a State thereof that is not an
Unrestricted Subsidiary.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Loans of the same Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the
Revolving Credit Lenders pursuant to Section 2.1(b).
"Revolving Credit Commitment" means, as to each Revolving Credit
Lender, its obligation to (a) make Revolving Credit Loans to the Borrower
pursuant to Section 2.1(b) (in an aggregate amount for all Revolving Credit
Lenders not to exceed $1,700,000,000), and (b) purchase participations in L/C
Obligations, in an aggregate principal amount at any one time outstanding not to
exceed, initially, the amount set forth opposite such Lender's name on Schedule
2.1 under the caption "Revolving Credit Commitment" or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.
"Revolving Credit Exposure" means, as of any date of determination, (i)
the aggregate Revolving Credit Commitments or (ii) if the commitment of each
Lender to make Revolving Credit Loans and the obligation of the L/C Issuers to
make L/C Credit Extensions have been terminated pursuant to Section 9.2, the
Total Revolving Credit Outstandings (with the aggregate amount of each Lender's
risk participation and funded participation in L/C Obligations being deemed
"held" by such Lender for purposes of this definition).
"Revolving Credit Facility" means, at any time, the aggregate Revolving
Credit Exposures of all Revolving Credit Lenders at such time.
"Revolving Credit Lender" means, at any time, any Lender that has a
Revolving Credit Commitment at such time.
"Revolving Credit Loan" means a loan by a Revolving Credit Lender to
the Borrower under Section 2.1(b).
"Revolving Credit Note" means a promissory note of the Borrower payable
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit D-1 hereto, evidencing the aggregate indebtedness of the Borrower to
such Revolving Credit Lender resulting from the Revolving Credit Loans made by
such Revolving Credit Lender.
"Revolving Credit Termination Date" means the earlier of (a) December
22, 2009 and (b) the date of termination in whole of the Revolving Credit
Commitments and the L/C Sublimit pursuant to Section 2.5 or 9.2.
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"RRI Warrants" means the warrants issued by the Borrower pursuant to
the Warrant Agreement.
"S&P" shall mean Standard & Poor's Ratings Group (presently a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.), together with its successors, or, if such
company shall cease to issue ratings, another nationally recognized rating
company selected in good faith by mutual agreement of the Administrative Agent
and the Borrower.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Debt Documents" means, collectively, the Credit Documents, the
Texas Genco Intercreditor Agreement, the Secured Note Agreements, the PEDFA
Guaranties and the indenture, agreement and other documents governing each other
Series of Secured Debt and all agreements binding on any obligor related
thereto.
"Secured Debt Representative" means:
(1) in the case of the Secured Notes, Wilmington Trust
Company, as Trustee;
(2) the ▇▇▇▇▇▇ ▇▇▇▇ Trustee;
(3) in the case of Indebtedness under this Agreement, the
Administrative Agent; or
(4) in the case of any other Series of Secured Debt, the
trustee, agent or representative of the holders of such Series of
Secured Debt who maintains, or on whose behalf is maintained, the
transfer register for or who acts as administrative agent for such
Series of Secured Debt and is appointed as Secured Debt Representative
(for purposes related to the administration of the Security Documents)
pursuant to the indenture or agreement governing such Series of Secured
Debt.
"Secured Hedge Agreement" means any Hedging Agreement permitted under
Article VI or VII that is entered into by and between the Borrower and any Hedge
Bank, including each of the Hedging Agreements listed on Schedule 1.1(f).
"Secured Note Agreements" means, collectively (a) the Indenture, dated
as of July 1, 2003, among the Borrower, the guarantors referred to therein, and
Wilmington Trust Company, as trustee, pursuant to which the Borrower's 9.25%
Secured Notes due 2010 were issued, (b) the Indenture, dated as of July 1, 2003,
among the Borrower, the guarantors referred to therein, and Wilmington Trust
Company, as trustee, pursuant to which the Borrower's 9.50% Secured Notes due
2013 were issued, (c) the Indenture, dated as of December 22, 2004 among the
Borrower, the guarantors referred to therein, and Wilmington Trust Company, as
trustee, pursuant to which the New Secured Notes were issued, and (d) each other
indenture among the Borrower, the guarantors referred to therein (if applicable)
and the indenture trustee thereunder, and each other loan or note purchase
agreement among the Borrower, the guarantors referred to therein (if
applicable), the Lenders or note purchasers thereunder and the administrative
agent (if any) thereunder, in each case pursuant to which a series of Secured
Notes was issued or a loan was
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made constituting a series of Secured Notes, as each such agreement or indenture
may be amended, restated, supplemented or otherwise modified from time to time.
"Secured Note Obligations" means:
(1) the Secured Notes issued on the dates of the respective
Secured Note Agreements; or
(2) the Secured Notes issued by the Borrower after the dates
of the respective Secured Note Agreements that constitute another
Series of Secured Debt; or
(3) all related exchange notes;
together with the Guarantees of the foregoing and all other Obligations
(including all Obligations owing to the applicable Secured Debt Representatives)
of any obligor under the Secured Note Agreements.
"Secured Notes" means, collectively, the Borrower's (i) 9.25% Secured
Notes due 2010, (ii) 9.50% Secured Notes due 2013, (iii) New Secured Notes and
(iv) other senior secured notes issued from time to time in a private placement,
registered offering, exchange offering, or loan transaction, in which notes have
been issued in accordance with Section 7.3.
"Secured Parties" means, collectively, the Lenders, each L/C Issuer,
the Administrative Agent, each counterparty to a Secured Hedge Agreement that is
(or at the time such Secured Hedge Agreement was entered into, was) a Lender or
an Affiliate thereof (a "Hedge Bank") and (in each case) each of their
respective successors, transferees and assigns and each of the other "Secured
Parties" as defined in the Collateral Trust Agreement.
"Securities Account" shall mean any securities account as such term is
defined in the UCC, now or hereafter held in the name of any Loan Party.
"Securities Account Control Agreement" shall mean, with respect to any
Pledged Securities or other Investment Property (as such terms are defined in
the Security Agreement), a written agreement or other authenticated record, in
form and substance reasonably satisfactory to the Administrative Agent, pursuant
to which the securities intermediary which holds such Pledged Securities or such
other Investment Property shall agree, among other things, to comply with
entitlement orders or other instructions from the Collateral Trustee (or its
co-trustees, agents or sub-agents) to such securities intermediary as to Pledged
Securities or other Investment Property, without further consent of any Loan
Party or its nominee, as any such agreement or record may be amended, amended,
restated, supplemented or otherwise modified from time to time.
"Securitization Entity" means RE Retail Receivables, LLC, and any
Person in which the Borrower or any Restricted Subsidiary of the Borrower makes
an Investment and to which the Borrower or any Restricted Subsidiary of the
Borrower transfers accounts receivable or equipment (and related assets,
including contract rights) which engages in no activities other than in
connection with the financing, sale, or purchase of accounts receivable or
equipment or related
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assets (including contract rights) and which is designated by the Borrower (as
provided below) as a Securitization Entity:
(a) no portion of the Indebtedness or any other Obligations
(contingent or otherwise) of which:
(i) is guaranteed by the Borrower or any Restricted
Subsidiary of the Borrower (excluding guarantees of
Obligations (other than the principal of, and interest on,
Indebtedness)) pursuant to Standard Securitization
Undertakings;
(ii) is recourse to or obligates the Borrower or any
Restricted Subsidiary of the Borrower in any way other than
pursuant to Standard Securitization Undertakings; or
(iii) subjects any property or asset of the Borrower
or any Restricted Subsidiary of the Borrower, directly or
indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization
Undertakings;
(b) with which neither the Borrower nor any Restricted
Subsidiary of the Borrower has any material contract, agreement,
arrangement or understanding (except in connection with a Purchase
Money Note or Qualified Securitization Transaction) other than on terms
no less favorable to the Borrower or such Restricted Subsidiary than
those that might be obtained at the time from Persons that are not
Affiliates of the Borrower, as determined by the Borrower, other than
amounts payable in the ordinary course of business in connection with
servicing receivables and other assets of such entity; and
(c) which neither the Borrower nor any Restricted Subsidiary
of the Borrower has any obligation to maintain or preserve such
Person's financial condition or cause such Person to achieve certain
levels of operating results.
The Borrower shall notify the Administrative Agent of any such designation,
which notice shall include delivery to the Administrative Agent of a certificate
of a Responsible Officer certifying that such designation complied with the
foregoing conditions.
"Security Agreement" means the Amended and Restated Security Agreement,
dated as of July 1, 2003, among the Borrower, the other Loan Parties and the
Collateral Trustee (for the benefit of the Secured Parties), as such agreement
may be amended, restated, supplemented or otherwise modified from time to time.
"Security Documents" shall mean (i) the Collateral Trust Agreement, the
Security Agreement and the Separate Security Agreement, (ii) each Control
Agreement, (iii) each Mortgage, (iv) each Assignment of Leases and Rents, and
(v) each other security agreement, pledge agreement, mortgage, deed of trust,
assignment agreement and other instrument being executed concurrently herewith
or from time to time hereafter pursuant to which a Lien has been granted by any
of the Loan Parties in favor of the Collateral Agent (for the benefit of the
Secured Parties) or the Collateral Trustee (for the benefit of the Secured
Parties under the Collateral Trust Agreement) on any of its assets to secure any
of the Obligations.
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"Senior Debt" means Indebtedness that is not subordinated in right of
payment to the Credit Agreement Obligations.
"Separate Collateral" has the meaning assigned to it in the Collateral
Trust Agreement.
"Separate Security Agreement" shall mean that certain Amended and
Restated Security Agreement dated as of July 1, 2003, among the Borrower, the
other Loan Parties and the Collateral Agent (for the benefit of the Secured
Parties), as such agreement may be amended, restated, supplemented or otherwise
modified from time to time.
"Series of Secured Debt" means, severally, the Secured Notes, the PEDFA
Guaranties, the Indebtedness under this Agreement and each other issue or series
of Parity Secured Debt.
"▇▇▇▇▇▇ ▇▇▇▇ Issuer" has the meaning given to such term in the
definition of "▇▇▇▇▇▇ ▇▇▇▇ Trust Indentures" set forth in this Article.
"▇▇▇▇▇▇ ▇▇▇▇ Trust Indentures" means (a) the Trust Indenture, dated as
of December 1, 2001, between Pennsylvania Economic Development Financing
Authority (the "▇▇▇▇▇▇ ▇▇▇▇ Issuer") and the ▇▇▇▇▇▇ ▇▇▇▇ Trustee pursuant to
which the ▇▇▇▇▇▇ Series 2001A Bonds were issued by the ▇▇▇▇▇▇ ▇▇▇▇ Issuer, (b)
the Trust Indenture, dated as of April 1, 2002, between the ▇▇▇▇▇▇ ▇▇▇▇ Issuer
and the ▇▇▇▇▇▇ ▇▇▇▇ Trustee pursuant to which the ▇▇▇▇▇▇ Series 2002A Bonds were
issued by the ▇▇▇▇▇▇ ▇▇▇▇ Issuer, (c) the Trust Indenture, dated as of April 1,
2002, between the ▇▇▇▇▇▇ ▇▇▇▇ Issuer and the ▇▇▇▇▇▇ ▇▇▇▇ Trustee pursuant to
which the ▇▇▇▇▇▇ Series 2002B Bonds were issued by the ▇▇▇▇▇▇ ▇▇▇▇ Issuer, as
such Trust Indentures may be amended, restated, supplemented or otherwise
modified from time to time, (d) the Trust Indenture, dated as of September 1,
2003, between the ▇▇▇▇▇▇ ▇▇▇▇ Issuer and the ▇▇▇▇▇▇ ▇▇▇▇ Trustee pursuant to
which the ▇▇▇▇▇▇ Series 2003A Bonds were issued by the ▇▇▇▇▇▇ ▇▇▇▇ Issuer, (e)
the Trust Indenture, dated as of December 22, 2004, between the ▇▇▇▇▇▇ ▇▇▇▇
Issuer and the ▇▇▇▇▇▇ ▇▇▇▇ Trustee pursuant to which the ▇▇▇▇▇▇ Series 2004A
Bonds were issued by the ▇▇▇▇▇▇ ▇▇▇▇ Issuer, and (f) trust indentures entered
into by the ▇▇▇▇▇▇ ▇▇▇▇ Issuer after the Closing Date as permitted hereunder in
connection with any ▇▇▇▇▇▇ Tax-Exempt Bonds issued after the Closing Date.
"▇▇▇▇▇▇ ▇▇▇▇ Trustee" means ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association, as Trustee, and any successor or other trustee, under the ▇▇▇▇▇▇
▇▇▇▇ Trust Indentures.
"▇▇▇▇▇▇ Facility" means the 521 MW coal facility and related assets
owned by Reliant Energy ▇▇▇▇▇▇, LLC, or its successors, and located in New
▇▇▇▇▇▇▇▇, Indiana County, Pennsylvania.
"▇▇▇▇▇▇ Series 2001A Bonds" has the meaning given to such term in the
definition of "▇▇▇▇▇▇ Tax-Exempt Bonds".
"▇▇▇▇▇▇ Series 2002A Bonds" has the meaning given to such term in the
definition of "▇▇▇▇▇▇ Tax-Exempt Bonds".
"▇▇▇▇▇▇ Series 2002B Bonds" has the meaning given to such term in the
definition of "▇▇▇▇▇▇ Tax-Exempt Bonds".
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"▇▇▇▇▇▇ Series 2003A Bonds" has the meaning given to such term in the
definition of "▇▇▇▇▇▇ Tax Exempt Bonds."
"▇▇▇▇▇▇ Series 2004A Bonds" has the meaning given to such term in the
definition of "▇▇▇▇▇▇ Tax Exempt Bonds."
"▇▇▇▇▇▇ Subsidiary" means Reliant Energy ▇▇▇▇▇▇, LLC, a Delaware
limited liability company, and its successors.
"▇▇▇▇▇▇ Tax-Exempt Bonds" shall mean (1) the Pennsylvania Economic
Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy ▇▇▇▇▇▇, LLC
Project), Series 2001A, in the original aggregate principal amount of
$150,000,000 (the "▇▇▇▇▇▇ Series 2001A Bonds"), (2) the Pennsylvania Economic
Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy ▇▇▇▇▇▇, LLC
Project), Series 2002A, in the original aggregate principal amount of
$75,000,000 (the "▇▇▇▇▇▇ Series 2002A Bonds"), (3) the Pennsylvania Economic
Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy ▇▇▇▇▇▇, LLC
Project), Series 2002B, in the original aggregate principal amount of
$75,000,000 (the "▇▇▇▇▇▇ Series 2002B Bonds"), (4) the Pennsylvania Economic
Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy ▇▇▇▇▇▇, LLC
Project), Series 2003A, in the original aggregate principal amount of
$100,000,000 (the "▇▇▇▇▇▇ Series 2003A Bonds"), and (5) any bonds issued by
PEDFA on or after the Closing Date as permitted hereunder and supported by
letters of credit outstanding hereunder.
"Shared Collateral" has the meaning assigned to it in the Collateral
Trust Agreement.
"Sharing Eligible Debt" means:
(1) Indebtedness under clauses (a), (e) and (f) of the
definition of Permitted Debt;
(2) Indebtedness under clause (s) of the definition of
Permitted Debt;
(3) the Secured Notes;
(4) the PEDFA Guaranties;
(5) Permitted Refinancing Indebtedness of the Borrower or, if
it constitutes Permitted PEDFA Bond Indebtedness, Indebtedness of the
Borrower and/or the ▇▇▇▇▇▇ Subsidiary and/or guaranteed by the Borrower
and/or the Guarantors, the net proceeds of which are used to refinance
Indebtedness evidenced by or in support of the ▇▇▇▇▇▇ Tax-Exempt Bonds;
provided, that in the case of Permitted PEDFA Bond Indebtedness, the
assets of the ▇▇▇▇▇▇ Subsidiary (other than Investments in the Borrower
pledged to secure such Permitted PEDFA Bond Indebtedness and proceeds
from the issuance of Permitted PEDFA Bond Indebtedness that secures
Permitted PEDFA Bond Indebtedness) shall remain free of all Liens
securing Indebtedness, except Permitted Prior Liens and Liens held by
the Collateral Trustee as security for the Parity Secured Debt; and
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(6) Permitted Refinancing Indebtedness, the net proceeds of
which are used to refinance Parity Secured Debt;
provided, that each category of Indebtedness described above:
(1) must be guaranteed by any of the Restricted Subsidiaries
that, on the date of incurrence of such Indebtedness, is obligated as a
Guarantor under a Guarantee of the Credit Agreement Obligations;
(2) must not be subordinated in right of payment or in respect
of the application of the proceeds of the Collateral Trustee's Liens on
the Collateral to any other Indebtedness of the Borrower or any
Guarantor (whether or not such other Indebtedness is part of the same
series of Indebtedness), except in accordance with the Order of
Application; and
(3) is governed by an indenture or agreement that appoints a
Secured Debt Representative and includes an Intercreditor Confirmation.
"Solvent" and "Solvency" mean, with respect to any Person on any date
of determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability; provided, that if the context in which "Solvent" or
"Solvency" is used refers to a Person together with its Subsidiaries, Person as
used above shall be deemed to be a reference to such Person together with its
Subsidiaries.
"SPC" has the meaning specified in Section 11.6(h).
"Specified Junior Securities" means subordinated debt securities issued
by the Borrower that:
(1) are subordinated to the Loans pursuant to subordination
provisions (A) at least as favorable to the Lenders as either the
subordination provisions set forth in Schedule 1.1(d) hereto or the
subordination provisions applicable to the Borrower's 5.00% Convertible
Senior Subordinated Notes due 2010 issued pursuant to that certain
indenture, dated as of June 24, 2003, by and between the Borrower and
Wilmington Trust Company, as trustee, or (B) otherwise acceptable to
the Agents;
(2) have a final maturity date occurring at least 91 days
after the Term Loan Maturity Date and have a Weighted Average Life to
Maturity at least 91 days longer than the Weighted Average Life to
Maturity of the Term Loans;
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(3) are not guaranteed by any Subsidiary of the Borrower
except for any guarantee by a Guarantor that is contractually
subordinated in right of payment to the prior payment in full in cash
to the Guaranty; and
(4) are not convertible into any other securities except
Equity Interests of the Borrower (other than Disqualified Stock).
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower, which are substantially similar to those in
existence on the Closing Date or are otherwise reasonably customary in an
accounts receivable or equipment securitization transaction, in each case, as
determined by the Borrower.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the Closing Date, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subordinated Indebtedness" means any Indebtedness of a Person that is
contractually subordinated to the Credit Agreement Obligations.
"Subordinated Obligations" has the meaning specified in Section 8.6.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary", "Restricted Subsidiary", "Restricted Subsidiaries" or
"Subsidiaries" shall refer to a Subsidiary, Restricted Subsidiary, Restricted
Subsidiaries or Subsidiaries of the Borrower.
"Syndication Agent" means each of Barclays Bank and Deutsche Bank
Securities Inc.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under a so-called synthetic, off-balance sheet or tax retention lease.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Borrowing" means a borrowing consisting of simultaneous Term
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Term Lenders pursuant to Section
2.1(a).
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"Term Commitment" means, as to each Term Lender, its obligation to make
Term Loans to the Borrower pursuant to Section 2.1(a) in an aggregate amount at
any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.1 under the caption "Term Commitment" or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable (in an aggregate amount for all Term Lenders not to exceed
$1,300,000,000).
"Term Facility" means, at any time, the aggregate Term Loans of all
Term Lenders at such time.
"Term Lender" means, at any time, any Lender that has a Term Commitment
at such time.
"Term Loan" means a loan made by a Term Lender to the Borrower under
Section 2.1(a).
"Term Loan Maturity Date" means April 30, 2010.
"Term Note" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit D-2 hereto,
evidencing the aggregate indebtedness of the Borrower to such Term Lender
resulting from the Term Loans made by such Term Lender.
"Termination Date" means the date on which (i) all of the Credit
Agreement Obligations have been indefeasibly paid in full in cash, (ii) the
Commitments have been permanently terminated in their entirety, (iii) all
Letters of Credit shall have expired or been terminated or canceled or the
Borrower shall have provided Cash Collateral for such unexpired or
non-terminated Letters of Credit in accordance with the terms of this Agreement,
and (iv) (A) each Secured Hedge Agreement shall have (1) expired, (2) been
terminated or canceled or (3) been transferred by the applicable Hedge Bank in a
manner (satisfactory in all respects to such Hedge Bank) so that such Hedge Bank
no longer has any obligations whatsoever with respect to such Secured Hedge
Agreement, or (B) the Credit Agreement Obligations under such Secured Hedge
Agreement shall have been collateralized in a manner reasonably satisfactory to
the applicable Hedge Bank(s).
"Texas Genco Intercreditor Agreement" means (1) the Intercreditor
Agreement dated as of July 1, 2003, among Texas ▇▇▇▇▇, ▇.▇., Bank of America,
N.A. and the Collateral Trustee and (2) any other intercreditor agreement on
similar terms relating to other secured power supply arrangements permitted
hereunder.
"Threshold Amount" means, on any date of determination, except as
otherwise set forth in Section 6.12 as to any Domestic Subsidiary or group of
Domestic Subsidiaries which are not Loan Parties, that such Subsidiary or
Subsidiaries had either (i) $25,000,000 or more of Consolidated EBITDAR during
the four-Fiscal Quarter period most recently ended or (ii) had assets the
aggregate book value of which was $50,000,000 or more.
"Title Company" means a title insurance company of recognized national
standing which is acceptable to the Administrative Agent in its sole discretion.
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"Title Policy" shall mean, with respect to any Mortgage, a mortgagee
policy of title insurance (ALTA or the equivalent) or marked "commitment" of
title insurance insuring the applicable Mortgage as a first priority Lien on
such real property asset in favor of the Collateral Trustee (for the benefit of
the holders of the Parity Secured Obligations, including the Secured Parties) to
secure the Parity Secured Obligations, free of all Liens other than the
Permitted Encumbrances, which policy of title insurance shall be issued by a
Title Company in such policy amounts, with such endorsements and affirmative
insurance, and in form and substance reasonably satisfactory to the
Administrative Agent, and shall contain no exceptions to coverage other than
matters satisfactory to the Administrative Agent in its judgment reasonably
exercised and which policy of title insurance shall have been fully paid for by
the Borrower.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Total Revolving Credit Outstandings" means the aggregate Outstanding
Amount of all Revolving Credit Loans and all L/C Obligations.
"Type" means with respect to a Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.3(c)(i).
"Unrestricted Subsidiary" means (a) as of the Closing Date, RE Retail
Receivables, LLC, and (b) thereafter, any Subsidiary of the Borrower that is
designated by the Board of Directors of the Borrower as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that:
(a) such Subsidiary has no Indebtedness other than
Indebtedness that is Non-Recourse to the Borrower and its Restricted
Subsidiaries;
(b) except as permitted pursuant to Section 7.8, such
Subsidiary is not party to any agreement, contract, arrangement or
understanding with the Borrower or any Restricted Subsidiary unless the
terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Borrower or such Restricted Subsidiary than
those that might be obtained at the time from Persons who are not
Affiliates of the Borrower;
(c) such Subsidiary is a Person with respect to which neither
the Borrower nor any of its Restricted Subsidiaries has any direct or
indirect obligation (i) to subscribe for additional Equity Interests or
(ii) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results;
and
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(d) the aggregate Fair Market Value of all outstanding
Investments owned by the Borrower and its Restricted Subsidiaries in
the Subsidiary properly designated and of all outstanding Investments
owned by such Subsidiary properly designated would be Permitted
Investments under Section 7.2 as of the time of the designation.
Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary
will be evidenced to the Administrative Agent by filing with the Administrative
Agent a certified copy of the Board Resolution giving effect to such designation
and a certificate of a Responsible Officer of the Borrower certifying that such
designation complied with the preceding conditions and was permitted by Section
7.2. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it will thereafter cease
to be an Unrestricted Subsidiary for purposes of this Agreement and the other
Loan Documents and any Indebtedness of such Subsidiary will be deemed to be
incurred by a Restricted Subsidiary of the Borrower as of such date and, if such
Indebtedness is not permitted to be incurred as of such date pursuant to Section
7.3, the Borrower will be in default of such covenant. The Board of Directors of
the Borrower may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Borrower of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
will only be permitted if (i) such Indebtedness is permitted pursuant to Section
7.3; and (ii) no Default would be in existence following such designation. Upon
any such designation of an Unrestricted Subsidiary as a Restricted Subsidiary,
the redesignated Subsidiary will become a Guarantor pursuant to and if required
by Section 6.12; provided, that any redesignated Restricted Subsidiary that is
not a Material Subsidiary need not become a Subsidiary Guarantor until such time
as it becomes a Material Subsidiary.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (A) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (B) the number of
years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
1.2 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) 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
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requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) 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
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) 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.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.3 ACCOUNTING TERMS.
(a) Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders
and the Borrower); provided, that until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP. Unless otherwise noted, computation of financial
covenants and financial requirements under the Loan Documents shall be made on a
consolidated basis for the Borrower and its Subsidiaries, without duplication.
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1.4 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.5 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.6 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.1 THE LOANS.
(a) The Term Borrowings. Subject to the terms and conditions set forth
herein, each Term Lender severally agrees to make a term loan to the Borrower on
the Closing Date in an amount equal to the Term Commitment of such Term Lender.
Amounts borrowed under this clause and repaid or prepaid may not be reborrowed.
Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
(b) The Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, each Revolving Credit Lender severally agrees to
make loans to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Revolving Credit Commitment; provided,
that after giving effect to any Revolving Credit Borrowing, the sum of the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations
shall not exceed such Lender's Revolving Credit Commitment. Within the limits of
each Lender's Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this clause, prepay under
Section 2.4, and reborrow under this clause. Revolving Credit Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.2 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (New York time) (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans and
(ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this clause must be confirmed promptly by
delivery to the Administrative Agent of a written Borrowing Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall
be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Except as provided in Section 2.3(c), each Borrowing of or
conversion to Base Rate Loans shall be
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in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Borrowing Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Term Borrowing or a Revolving Credit
Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date
of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed, converted
or continued, (iv) the Type of Loans to be borrowed or to which existing Loans
are to be converted, and (v) if applicable, the duration of the Interest Period
with respect thereto. If the Borrower fails to specify a Type of Loan in a
Borrowing Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Borrowing Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Borrowing Notice, the Administrative Agent
shall promptly notify each Lender under the applicable Facility of the amount of
its Pro Rata Share of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans described in Section 2.2(a). In the case of a Borrowing, each Lender under
the applicable Facility shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. (New York time) on the Business Day
specified in the applicable Borrowing Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.2 (and, if such Borrowing is the
initial Credit Extension, Section 4.1), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the
Administrative Agent by 3:00pm (New York time) on the Business Day specified in
the applicable Borrowing Notice, either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the
Borrower; provided, that if, on the date the Borrowing Notice with respect to
such Borrowing is given by the Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to the
Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of an Event of Default, no Loans may
be requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are
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outstanding, the Administrative Agent shall notify the Borrower and the Lenders
of any change in the Administrative Agent's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than ten Interest Periods in effect.
(f) The failure of any Lender to make the Loan to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
2.3 LETTERS OF CREDIT.
(a) The L/C Sublimit.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuers agree, in reliance upon the agreements of the other
Revolving Credit Lenders set forth in this Section, (1) from time to
time on any Business Day during the period from the Closing Date until
the Letter of Credit Final Expiration Date, to issue Letters of Credit
for the account of the Borrower or its Subsidiaries, and to amend or
renew Letters of Credit previously issued by it, in accordance with
Section 2.3(b), and (2) to honor drawings if presented in accordance
with the terms and conditions of such Letters of Credit; and (B) the
Revolving Credit Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower or its Subsidiaries;
provided, that no L/C Issuer shall be obligated to make any L/C Credit
Extension with respect to any Letter of Credit, if as of the date of
such L/C Credit Extension, (x) the Total Outstandings under the
Revolving Credit Facility would exceed the aggregate Revolving Credit
Commitments, (y) the L/C Exposure would exceed the L/C Sublimit;
provided, further, that no L/C Issuer shall be required to issue, amend
or renew any Letter of Credit if, after giving effect thereto, all L/C
Obligations held by such L/C Issuer with respect to all Letters of
Credit issued by such L/C Issuer (or its Affiliates) would exceed the
amount set forth on Schedule 2.1, opposite the name of such L/C Issuer,
under the column entitled "L/C Issuer Amount for Letters of Credit", or
(z) the sum of the aggregate Outstanding Amount of the Revolving Credit
Loans of any Revolving Credit Lender plus such Lender's Pro Rata Share
of the L/C Exposure would exceed such Lender's Revolving Credit
Commitment. Each request by the Borrower for the issuance or amendment
of a Letter of Credit shall be deemed to be a representation by the
Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in each proviso to the preceding sentence. Within
the foregoing limits, and subject to the terms and conditions hereof,
the Borrower's ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and paid. All Existing Letters of
Credit shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be Letters of Credit and shall be
subject to and governed by the terms and conditions hereof.
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(ii) No L/C Issuer shall be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain such L/C Issuer from issuing such Letter of
Credit, or any Law applicable to such L/C Issuer or any
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over such
L/C Issuer shall prohibit, or request that such L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such
L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon such L/C
Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which such L/C Issuer in
good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the expiry date of such requested Letter of
Credit would occur after the earlier of (1) the first
anniversary of its date of issuance and (2) the Letter of
Credit Final Expiration Date; provided, that notwithstanding
the foregoing, any Letter of Credit issued or extended
(including any automatic renewal) no later than 30 days prior
to the Revolving Credit Termination Date may have an
expiration date of up to 90 days after the Revolving Credit
Termination Date so long as the Borrower has provided Cash
Collateral on or before the date of such issuance or extension
in an amount equal to the sum (the "Required Cash Collateral
Amount") of (x) the then-undrawn amount of such Letter of
Credit plus (y) the aggregate amount of fees that would accrue
pursuant to Section 2.3(i) and (j) (assuming the application
of clause (ii) thereof) with respect to such Letter of Credit
if such undrawn amount were the daily amount available to be
drawn thereunder through the expiry date thereof, and
otherwise in accordance with Section 2.3(g);
(C) the issuance of such Letter of Credit would
violate one or more generally applicable policies of such L/C
Issuer;
(D) such Letter of Credit is to be denominated in a
currency other than Dollars, or such Letter of Credit allows
for payments more than three Business days after the expiry
date of such Letter of Credit; or
(E) a default on any Revolving Credit Lender's
obligations to fund under Section 2.3(c) exists or any
Revolving Credit Lender is at such time a Defaulting Lender
hereunder, unless such L/C Issuer had entered into
satisfactory arrangements with the Borrower or such Revolving
Credit Lender to eliminate such L/C Issuer's risk with respect
to such Lender.
(iii) No L/C Issuer shall be under any obligation to amend any
Letter of Credit in any way (whether or not such amendment increases
the amount of the applicable Letter of Credit) (A) at any time on or
after the Revolving Credit Termination Date, or (B) if the
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beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit on the basis that the stated amount
of the Letter of Credit has been reduced, the expiry date thereof has
been accelerated or any term relating to the procedure for drawing
thereunder has changed. In addition, and without limiting the terms of
the first sentence of this clause, no L/C Issuer shall be under any
obligation to amend any Letter of Credit to increase the amount thereof
if such L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof by reason
of the provisions of Section 2.3(a)(i), Section 2.3(a)(ii), Section 4.2
or otherwise.
(iv) Each L/C Issuer shall act on behalf of the Revolving
Credit Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and such L/C Issuer shall have all
of the benefits and immunities (A) provided to the Administrative Agent
in Article X with respect to any acts taken or omissions suffered by an
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article X included such L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to such
L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued upon the request of
the Borrower delivered to the relevant L/C Issuer (with a copy to the
Administrative Agent) in the form of an L/C Certificate, appropriately
completed and signed by a Responsible Officer of the Borrower. Such L/C
Certificate must be received by such L/C Issuer and the Administrative
Agent not later than 3:00 p.m. (New York time) at least two Business
Days (or such later date and time as the Administrative Agent and such
L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date. In the case of a request for an
initial issuance of a Letter of Credit, such L/C Certificate shall
specify in form and detail reasonably satisfactory to such L/C Issuer:
(A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the
account party or parties thereof; (F) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder;
and (G) the transactions or obligations to be supported thereby. In the
case of a request for an amendment of any outstanding Letter of Credit,
such L/C Certificate shall specify in form and detail reasonably
satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a
Business Day); (3) the nature of the proposed amendment; and (4) such
other matters consistent with the items set forth in clauses (A)-(G) in
the preceding sentence as such L/C Issuer may reasonably require.
(ii) Promptly after receipt of any L/C Certificate, subject to
the terms and conditions hereof, such L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable
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amendment, as the case may be, in each case in accordance with such L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Revolving Credit Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the relevant L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Lender's Pro
Rata Share times the amount of such Letter of Credit. No L/C Issuer
shall be obligated to make any independent determination as to whether
the requested issuance or amendment is permitted in accordance with the
terms hereof, and, unless and until such L/C Issuer receives such
confirmation from the Administrative Agent, such L/C Issuer shall have
no obligation to issue the requested Letter of Credit.
(iii) If the Borrower so requests in any applicable L/C
Certificate, any L/C Issuer shall issue an Auto-Renewal Letter of
Credit. Unless otherwise directed by such L/C Issuer, the Borrower
shall not be required to make a specific request to such L/C Issuer for
any such renewal. Once an Auto-Renewal Letter of Credit has been
issued, the Borrower and the Revolving Credit Lenders shall be deemed
to have authorized (but may not require) such L/C Issuer to permit the
renewal of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Final Expiration Date; provided, that
(A) such L/C Issuer may give a notice of non-renewal and thereby
prevent the renewal of an Auto-Renewal Letter of Credit if such L/C
Issuer has determined at any time prior to the Nonrenewal Notice Date
of such Auto-Renewal Letter of Credit, in accordance with the terms of
the Letter of Credit, that it would have no obligation at such time to
extend such Letter of Credit in its renewed form under the terms hereof
(by reason of the provisions of Section 2.3(a)(i), Section 2.3(a)(ii),
Section 2.3(a)(iii) or otherwise), and (B) such L/C Issuer shall not
permit any such renewal if it has received notice (which may be by
telephone, if immediately confirmed in writing, or in writing) on or
before the day that is ten days before the Nonrenewal Notice Date from
the Administrative Agent or the Borrower that one or more of the
applicable conditions specified in Section 2.3(a)(i) is not then
satisfied; and provided, further, that notwithstanding the foregoing,
any Letter of Credit so renewed no later than 30 days prior to the
Revolving Credit Termination Date may have an expiration date of up to
90 days after the Revolving Credit Termination Date so long as the
Borrower has provided Cash Collateral on or before the date of such
issuance or extension in an amount equal to the then-applicable
Required Cash Collateral Amount.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the relevant L/C Issuer will
also deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the relevant
L/C Issuer shall promptly notify the Borrower and the Administrative
Agent thereof (which may be telephonic, promptly confirmed by
telecopy). Not later than 12:00 p.m. (New York time) on an Honor Date,
the Borrower may reimburse such L/C Issuer through the Administrative
Agent in an
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amount equal to the amount of such drawing. If the Borrower does not so
reimburse such L/C Issuer on the date necessary to settle the
obligations of the L/C Issuer under any draft drawn or demand made
under a Letter of Credit, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the Honor Date, the amount of
the unreimbursed drawing (the "Unreimbursed Amount"), and the amount of
such Lender's Pro Rata Share thereof. In such event, the Unreimbursed
Amount shall automatically be converted (unless the Borrower is in
Default under Section 9.1(f) or (g)) to a Revolving Credit Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.2(a) for the principal amount of Base Rate Loans
and without regard to whether the conditions in Section 4.2 are then
satisfied, but subject to the amount of the unutilized portion of the
Aggregate Commitments. Any notice given by any L/C Issuer or the
Administrative Agent pursuant to this clause may be given by telephone
if immediately confirmed in writing; provided, that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Revolving Credit Lender (including the Revolving
Credit Lender acting as L/C Issuer) shall upon any notice pursuant to
Section 2.3(c)(i) make funds available to the Administrative Agent for
the account of the relevant L/C Issuer at the Administrative Agent's
Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. (New York time) on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.3(c)(iii), each Revolving Credit
Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to such L/C Issuer.
(iii) Such Base Rate Loan shall be made as of the date of such
settlement of such Letter of Credit. The proceeds of such Base Rate
Loan shall be paid by the Lenders to the Administrative Agent for
payment to the relevant L/C Issuer of such Letter of Credit (and the
Administrative Agent shall promptly pay such proceeds to such L/C
Issuer) to reimburse such L/C Issuer of such Letter of Credit for each
Lender's Pro Rata Share of the Dollar Equivalent of the amount actually
disbursed by such L/C Issuer of such Letter of Credit pursuant to such
draft or demand. With respect to any Unreimbursed Amount that is not
fully refinanced by a Revolving Credit Borrowing of Base Rate Loans
because the Borrower is in Default under Section 9.1(f) or (g) or for
any other reason, the Borrower shall be deemed to have incurred from
the relevant L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Revolving Credit
Lender's payment to the Administrative Agent for the account of such
L/C Issuer pursuant to Section 2.3(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section.
(iv) Until each Revolving Credit Lender funds its Revolving
Credit Loan or L/C Advance pursuant to this clause (c) to reimburse any
L/C Issuer for any amount
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drawn under any Letter of Credit, interest in respect of such Lender's
Pro Rata Share of such amount shall be solely for the account of such
L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make
Revolving Credit Loans or L/C Advances to reimburse any L/C Issuer for
amounts drawn under Letters of Credit, as contemplated by this clause
(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against such L/C
Issuer, the Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided, that each Revolving Credit Lender's obligation to
make Revolving Credit Loans (but not its obligation to make L/C
Advances) pursuant to this clause (c) is subject to the Borrower not
being in Default under Section 9.1(f) or (g). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse such L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to
the Administrative Agent for the account of any L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this clause (c) by the time specified in this clause (c)(ii), such
L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to such L/C Issuer
at a rate per annum equal to the Federal Funds Rate from time to time
in effect for the first three days and, thereafter, at a rate of
interest equal to the Base Rate. A certificate of the relevant L/C
Issuer submitted to any Revolving Credit Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (c)(vi) shall be conclusive absent manifest error.
(vii) If at any time a distribution is to be made by the
Administrative Agent to any Lender and such Lender has failed to make
available to the Administrative Agent for the account of the relevant
L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this clause (c), the Administrative Agent
shall pay such distribution to such L/C Issuer, to the extent of such
unpaid amount together with any interest thereon accrued pursuant to
Section 2.3(c)(vi).
(d) Repayment of Participations.
(i) At any time after any L/C Issuer has made a payment under
any Letter of Credit and has received from any Revolving Credit Lender
such Lender's L/C Advance in respect of such payment in accordance with
Section 2.3(c), if the Administrative Agent receives for the account of
such L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Pro Rata Share thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time
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during which such Lender's L/C Advance was outstanding) in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of any L/C Issuer pursuant to Section 2.3(c)(i) is required
to be returned under any of the circumstances described in Section 11.5
(including pursuant to any settlement entered into by such L/C Issuer
in its discretion), each Revolving Credit Lender shall pay to the
Administrative Agent for the account of such L/C Issuer its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect for the first three days and,
thereafter, at a rate of interest equal to the Base Rate. The
obligations of the Revolving Credit Lenders under this clause shall
survive the payment in full of the Credit Agreement Obligations and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
any relevant L/C Issuer for each drawing under each Letter of Credit and
(without duplication) to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be
acting), such L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by such L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by such L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law;
(v) any exchange, release or nonperfection of any Collateral,
or any release or amendment or waiver of or consent to departure from
the Guaranty or any other
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guarantee, for all or any of the Credit Agreement Obligations of the
Borrower in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower, except as otherwise provided in clause
(f) of this Section.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the relevant L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against such L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Revolving Credit Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of any
L/C Issuer, any Agent-Related Person nor any of the respective correspondents,
participants or assignees of any L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct
as determined by a court of competent jurisdiction; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or L/C Certificate. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, that this assumption is not intended
to, and shall not, preclude the Borrower's pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any other
agreement. None of any L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of any L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i) through
(iv) of Section 2.3(e); provided, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against an L/C Issuer, and such
L/C Issuer may be liable to the Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by such L/C Issuer's willful
misconduct or gross negligence as determined by a court of competent
jurisdiction or such L/C Issuer's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit AND THE BORROWER FOR ITSELF AND ITS SUBSIDIARIES, HEREBY WAIVES AND
RELINQUISHES ANY AND ALL CLAIMS IT MAY HAVE FOR INCIDENTAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES AND FOR DIRECT DAMAGES RESULTING FROM NEGLIGENCE BY ANY L/C
ISSUER WHICH DOES NOT RISE TO THE LEVEL OF GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. In furtherance and not in limitation of the foregoing, any L/C
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and such L/C Issuer shall not be responsible for
the
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validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent or
any L/C Issuer to the Borrower, if, as of the Letter of Credit Final Expiration
Date, any Letter of Credit may for any reason remain outstanding and partially
or wholly undrawn, the Borrower shall immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the Letter of Credit Final Expiration Date).
As required pursuant to Section 2.3(a)(ii) or 2.3(b)(iii), the Borrower shall
immediately Cash Collateralize the relevant Letter(s) of Credit in the amount
specified therein. The Borrower hereby grants to the Collateral Agent, for the
benefit of the L/C Issuers and the Revolving Credit Lenders, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in a Cash Collateral Account.
If at any time the Collateral Agent determines that any funds held as Cash
Collateral are subject to any right or claim of any Person other than the
Collateral Agent or that the total amount of such funds is less than the
aggregate Outstanding Amount of all L/C Obligations that are required to be Cash
Collateralized at such time, the Borrower will, forthwith upon demand by the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in such Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Outstanding Amount over (b) the total amount of
funds, if any, then held as Cash Collateral that the Collateral Agent determines
to be free and clear of any such right and claim. Upon the drawing of any Letter
of Credit for which funds are on deposit as Cash Collateral, such funds shall be
applied, to the extent permitted under applicable law, to reimburse the relevant
L/C Issuers. So long as no Event of Default shall have occurred and be
continuing, upon payment, expiration or termination of a Letter of Credit that
was Cash Collateralized, applicable amounts on deposit in Cash Collateral
Accounts shall be promptly returned to the Borrower.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the relevant L/C Issuer and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i)
the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each standby Letter
of Credit, or (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
(the "ICC") at the time of issuance (including the ICC decision published by the
Commission on Banking Technique and Practice on April 6, 1998 regarding the
European single currency (euro)) shall apply to each commercial Letter of
Credit, and in each case to the extent not inconsistent with the above referred
rules, the laws of the State of New York shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with its Pro
Rata Share a Letter of Credit fee (the "Letter of Credit Fee") for each Letter
of Credit equal to (x) for so long as such Letter of Credit shall be Cash
Collateralized, 1.00% per annum times the daily amount available to be drawn
under such Letter of Credit and (y) otherwise, the Applicable Margin for
Eurodollar Rate Loans times the daily amount available to be drawn under such
Letter of Credit. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such
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Letter of Credit shall be determined in accordance with Section 1.6. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on each Quarterly Payment Date, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Final Expiration Date with respect to such Letter of Credit and thereafter on
demand. If there is any change in the Applicable Margin for Eurodollar Rate
Loans during any quarter, for purposes of clause (y) above the remaining daily
amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Margin for Eurodollar Rate Loans separately for
each period during such quarter that such Applicable Margin was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Lenders, while any Event of Default exists under Section 9.1(a),
all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to each L/C Issuer for its own account a
fronting fee with respect to Letters of Credit issued by such L/C Issuer, at a
rate per annum equal to (i) to the extent the aggregate stated amount of all
outstanding Letters of Credit issued by such L/C Issuer is less than or equal to
$250,000,000, 0.15% and (ii) to the extent the aggregate stated amount of all
outstanding Letters of Credit issued by such L/C Issuer is in excess of $250
million, 0.25% (but only on such excess), computed on the daily amount available
to be drawn under such Letters of Credit on a quarterly basis in arrears, and
due and payable on each Quarterly Payment Date, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Final Expiration Date with respect to such Letter of Credit and
thereafter on demand. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.6. In addition, the Borrower shall pay
directly to each L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of such L/C Issuer relating to letters of credit as from time to time
in effect. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any L/C Certificate, the terms hereof
shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse each L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.4 OPTIONAL AND MANDATORY PREPAYMENTS.
(a) Optional. The Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Loans in whole or in
part without premium or penalty; provided, that (1) such notice must be received
by the Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (2) any prepayment of Eurodollar
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Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; (3) any prepayment of Base Rate Loans shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding; and (4) any prepayments of Term Loans shall be applied ratably to
the principal repayment installments thereof on a pro rata basis. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid. The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender's Pro Rata
Share of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.5. Each such
prepayment shall be applied to the Loans of the Lenders in accordance with their
respective Pro Rata Shares.
(b) Mandatory. (i) If the Borrower or any of its Restricted
Subsidiaries consummates any Asset Sale which in the aggregate results in the
realization by the Borrower or such Restricted Subsidiary of Net Asset Sale
Proceeds (determined as of the date of such Asset Sale, whether or not such Net
Asset Sale Proceeds are then received by the Borrower or such Restricted
Subsidiary), the Borrower shall apply all Net Asset Sale Proceeds received
pursuant to Section 7.5 and all other Net Asset Sale Proceeds other than
Excluded Proceeds, in each case, to the extent not previously applied in such
Fiscal Year to make mandatory prepayments of Term Loans under this clause (b)(i)
(it being understood that Net Asset Sale Proceeds subject to this clause (b)(i)
applied in such Fiscal Year to make prepayments of Term Loans prior to receipt
of such Net Asset Sale Proceeds other than Excluded Proceeds shall be deemed to
have been made as a mandatory prepayment under this clause (b)(i)), within three
Business Days after the date of receipt thereof by the Borrower or such
Restricted Subsidiary subject to the provisions of Section 2.4(b)(ix)), as
follows:
(A) to the extent such Net Asset Sale Proceeds are
not OPH Asset Sale Proceeds, (X) if none of such Net Asset
Sale Proceeds is required by the terms of any Parity Secured
Debt to be offered to any holder of any Parity Secured Debt or
otherwise used to repurchase or prepay any Parity Secured
Debt, to prepay Loans (determined as provided in Section
2.4(b)(vii) and (viii) below) in an amount equal to 100% of
such Net Asset Sale Proceeds received and (Y) if any of such
Net Asset Sale Proceeds is required by the terms of any Parity
Secured Debt to be offered to any holder of any Parity Secured
Debt or otherwise used to repurchase or prepay any Parity
Secured Debt, to prepay Loans (determined as provided in
Section 2.4(b)(vii) and (viii) below) in an amount equal to
100% of such Net Asset Sale Proceeds received multiplied by
the Pro Rata Percentage; and
(B) to the extent such Net Asset Sale Proceeds are
OPH Asset Sale Proceeds, (X) if none of such Net Asset Sale
Proceeds is required by the terms of any Parity Secured Debt
or the OPH Note Indenture to be offered to any holder of any
Parity Secured Debt or any holder of an OPH Note or otherwise
used to repurchase or prepay any Parity Secured Debt or OPH
Notes, to prepay Loans (determined as provided in Section
2.4(b)(vii) and (viii) below) in an amount equal to 100% of
such Net Asset Sale Proceeds received, to the extent the OPH
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Note Indenture does not prohibit the distribution of such Net
Asset Sale Proceeds to the Borrower, (Y) to the extent such
OPH Asset Sale Proceeds in the aggregate are equal to or less
than the outstanding principal amount of the OPMW Term Notes
and the OPNY Term Note, to prepay (without any offer to
repurchase or prepay any OPH Notes) on first, the OPMW New
Term Note and the OPNY Term Note on a pro rata basis and
second the OPMW Refinancing Note, and, in turn, to prepay
Loans (determined as provided in Section 2.4(b)(vii) and
(viii) below) (without any offer to repurchase or prepay any
other Parity Secured Debt), and (Z) to the extent such OPH
Asset Sale Proceeds (I) in the aggregate exceed the
outstanding principal amount of the OPMW Term Notes and the
OPNY Term Note, (II) are not otherwise required, in accordance
with the OPH Note Indenture, to be offered to prepay any OPH
Notes, and (III) are required by the terms of any Parity
Secured Debt to be offered to any holder of Parity Secured
Debt or otherwise used to repurchase or prepay any Parity
Secured Debt, to pay a dividend in the amount of such proceeds
to the Borrower and, in turn, to prepay Loans (determined as
provided in Section 2.4(b)(vii) and (viii) below) in an amount
equal to 100% of such Net Asset Sale Proceeds received
multiplied by the Pro Rata Percentage, but only (so long as
and to the extent such Net Asset Sale Proceeds are not
accepted by any such holder of Parity Secured Debt) to the
extent the OPH Note Indenture does not prohibit the
distribution of such Net Asset Sale Proceeds to the Borrower.
In addition, in the event any such Net Asset Sale Proceeds
described in the foregoing sentence (x) are required by the terms of
any Parity Secured Debt to be and are offered to any holder of Parity
Secured Debt but are not accepted by such holder, or (y) are required
by the terms of the OPH Note Agreement to be and are offered to any
holder of an OPH Note but are accepted neither by such holder nor
subsequently by any holder of any Parity Secured Debt to whom they are
required by the terms of any Parity Secured Debt Agreement to be and
are offered, and are permitted in accordance with the OPH Note
Indenture to be distributed to the Borrower (such Net Asset Sale
Proceeds being referred to herein as "Available Proceeds"), then
promptly, but in any event no later than three (3) Business Days after
the last day for, in each case, such holder of any Parity Secured Debt
to accept the repurchase or prepayment offer, the Borrower shall prepay
Loans (determined as provided in Section 2.4(b)(vii) and (viii) below)
in an amount equal to 100% of such Available Proceeds.
(ii) Upon the incurrence or issuance by the Borrower or any of
its Subsidiaries of any secured Senior Debt (other than Excepted Debt)
and any Permitted Refinancing Indebtedness of any of the foregoing, the
Borrower shall prepay an aggregate principal amount of Loans equal to
100% of all Net Financing Proceeds received therefrom within three
Business Days after the date of receipt thereof by the Borrower or such
Subsidiary subject to the provisions of Section 2.4(b)(ix).
(iii) Upon the incurrence or issuance by the Borrower or any
of its Subsidiaries of any unsecured Senior Debt (other than Excepted
Debt), the Borrower shall prepay an aggregate principal amount of Loans
equal to (x) if the Consolidated Leverage Ratio determined on a pro
forma basis after giving effect to such incurrence or issuance as of
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the last day of the Fiscal Quarter most recently ended equals or
exceeds to 4.0:1, 75% of all Net Financing Proceeds received therefrom
and (y) if the Consolidated Leverage Ratio so determined is less than
4.0:1, 50% of all Net Financing Proceeds received therefrom, within
three Business Days after the date of receipt thereof by the Borrower
or such Subsidiary subject to the provisions of Section 2.4(b)(ix);
provided, that so long as no Event of Default shall have occurred and
be continuing, (A) if the Borrower intends to reinvest any Net
Financing Proceeds in accordance with this proviso, it shall deliver
written notice of such intention to the Administrative Agent on or
prior to the third Business Day immediately following the date on which
Borrower receives such Net Financing Proceeds, (B) if the Borrower
shall have delivered such notice, it may reinvest all or any portion of
such Net Financing Proceeds in an aggregate amount, together with the
aggregate amount of Net Financing Proceeds reinvested pursuant to
Section 2.4(b)(iv), not to exceed $500,000,000 in ERCOT Assets so long
as, pending such reinvestment, the Net Financing Proceeds are applied
to repay Revolving Credit Loans or maintained as Collateral for the
Credit Agreement Obligations, and (C) on the date the Borrower
consummates such purchase of ERCOT Assets, it shall deliver a
certificate of a Responsible Officer to the Administrative Agent
certifying that all, or, subject to the immediately succeeding proviso,
part of, such Net Financing Proceeds have been reinvested in accordance
with the proviso of this clause (b)(iii) and, as a result, no mandatory
prepayments are required under this clause (b)(iii); provided, further,
that any Net Financing Proceeds not so reinvested shall be immediately
applied to the prepayment of the Loans as set forth in this Section.
(iv) Upon the incurrence or issuance by the Borrower of any
Junior Securities (other than Excepted Debt and other than in
connection with the exercise of employee options or the RRI Warrants),
the Borrower shall prepay an aggregate principal amount of Loans equal
to 50% of all Net Financing Proceeds received therefrom, within three
Business Days after the date of receipt thereof by the Borrower subject
to the provisions of Section 2.4(b)(ix); provided, that so long as no
Event of Default shall have occurred and be continuing, (A) if the
Borrower intends to reinvest any Net Financing Proceeds in accordance
with this proviso, it shall deliver written notice of such intention to
the Administrative Agent on or prior to the Business Day immediately
following the date on which Borrower receives such Net Financing
Proceeds, (B) if the Borrower shall have delivered such notice, it may
reinvest all or any portion of such Net Financing Proceeds in an
aggregate amount, together with the aggregate amount of Net Financing
Proceeds reinvested pursuant to Section 2.4(b)(iii), not to exceed
$500,000,000 in ERCOT Assets so long as, pending such reinvestment, the
Net Financing Proceeds are applied to repay Revolving Credit Loans or
maintained as Collateral for the Credit Agreement Obligations, and (C)
on the date the Borrower consummates such purchase of ERCOT Assets, it
shall deliver a certificate of a Responsible Officer to the
Administrative Agent certifying that all, or, subject to the
immediately succeeding proviso, part of, such Net Financing Proceeds
have been reinvested in accordance with the proviso of this clause
(b)(iv) and, as a result, no mandatory prepayments are required under
this clause (b)(iv); provided, further, that any Net Financing Proceeds
not so reinvested shall be immediately applied to the prepayment of the
Loans as set forth in this Section.
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(v) Upon any Extraordinary Receipt received by or paid to or
for the account of the Borrower, any of the Loan Parties or OPH or any
of its Subsidiaries in respect of its property or assets, and not
otherwise included in clause (i), (ii), (iii) or (iv) of this clause
(b), the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of all Net Casualty Proceeds received therefrom within
three Business Days after the date of receipt thereof by the Borrower
or such Subsidiary subject to the provisions of Section 2.4(b)(ix);
provided, that with respect to proceeds of insurance and Condemnation
awards (or payments in lieu thereof), (A) if the Borrower intends to
reinvest the Net Casualty Proceeds thereof in accordance with this
proviso, it shall deliver written notice of such intention to the
Administrative Agent on or prior to the Business Day immediately
following the date on which Borrower receives such Net Casualty
Proceeds, (B) if the Borrower shall have delivered such notice, the Net
Casualty Proceeds thereof may be reinvested, so long as such
reinvestment is to restore, repair or replace the assets or property or
purchase other assets with substantially the same utility and in the
same line of business in respect of which such Net Casualty Proceeds
were received, and so long as such reinvestment is consummated or
irrevocably committed to be consummated within 365 days after the
receipt of such Net Casualty Proceeds so long as, pending such
reinvestment, the Net Casualty Proceeds are applied to repay Revolving
Credit Loans or maintained as Collateral for the Credit Agreement
Obligations, and (C) on the date the Borrower consummates or commits to
consummate such restoration, repair or replacement or purchase, it
shall deliver a certificate of a Responsible Officer to the
Administrative Agent certifying that all, or, subject to the
immediately succeeding proviso, part of, such Net Casualty Proceeds
have been reinvested in accordance with the first proviso of this
clause (b)(v) and, as a result, no mandatory prepayments are required
under this clause (b)(v); provided, further, that any Net Casualty
Proceeds not so reinvested (or such lesser percentage which represents
the remaining portion of such proceeds not expended or committed
pursuant to the foregoing and less any amounts required to pay for
necessary remediation expenses with respect to a condition affecting
the applicable property, to pay reasonable expenses incurred in
connection with the closure of the applicable property and to pay any
costs reasonably incurred in connection with such casualty event) shall
be immediately applied to the prepayment of the Loans in accordance
with the foregoing or, to the extent the Collateral Trustee is loss
payee under any insurance policy (if applicable), the Borrower shall
irrevocably direct the Collateral Trustee to transfer to the
Administrative Agent to be applied (in each case, promptly, but in no
event later than three (3) Business Days following receipt of such
proceeds) as a prepayment of Loans in accordance with the foregoing;
provided, that if an Event of Default shall have occurred and be
continuing, all Net Casualty Proceeds which would otherwise be payable
to the Borrower pursuant to this clause (b)(v) shall be paid to the
Collateral Trustee and applied pursuant to the Collateral Trust
Agreement; provided, however, that with respect to tangible property
subject to any Permitted Encumbrance, no such prepayment shall be
required to the extent that this clause (b)(v) would require an
application of Net Casualty Proceeds that would violate or breach any
of the provisions of the instruments or documents under which such
Permitted Encumbrance arises or which governs the application of
proceeds.
(vi) If, as a result of the Borrower reducing the Aggregate
Revolving Credit Commitments, the Total Revolving Outstandings at any
time exceed the Aggregate
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Revolving Credit Commitments then in effect, the Borrower shall
immediately prepay Revolving Credit Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided,
that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this clause (b)(vi) unless after the prepayment
in full of the Revolving Credit Loans the Total Revolving Credit
Outstandings exceed the Aggregate Revolving Credit Commitments then in
effect.
(vii) Each prepayment of Loans pursuant to clauses (i), (ii),
(iii), (iv) or (v) of this clause (b) shall be applied, first, ratably
to the Term Loans to the principal repayment installments thereof on a
pro rata basis and, thereafter, to the Revolving Credit Loans in the
manner set forth in clause (b)(viii).
(viii) Prepayments of the Revolving Credit Loans made pursuant
to clause (i), (ii), (iii), (iv) or (v) of this clause (b) shall be
applied, first, to prepay L/C Borrowings outstanding at such time until
all such L/C Borrowings are paid in full, second, to prepay Revolving
Credit Loans outstanding at such time until all such Revolving Credit
Loans are paid in full and, third, to Cash Collateralize the L/C
Obligations; and, in the case of prepayments of the Revolving Credit
Loans required pursuant to clause (i), (ii), (iii), (iv) or (v) of this
clause (b), the amount remaining, if any, after the prepayment in full
of all Loans and L/C Borrowings outstanding at such time and the L/C
Obligations have been Cash Collateralized (the sum of such prepayment
amounts, cash collateralization amounts and remaining amount being,
collectively, the "Reduction Amount") may be retained by the Borrower
for use in the ordinary course of its business. Upon the drawing of any
Letter of Credit, which has been Cash Collateralized, such funds shall
be applied (without any further action by or notice to or from the
Borrower or any other Person) to reimburse the applicable L/C Issuer or
the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding the provisions of Sections 2.4(b)(i),
(ii), (iii), (iv) and (v), if any mandatory prepayments under any such
clause of this clause (b) would result in the Borrower incurring any
obligation (as determined in the reasonable judgment of the Borrower)
under Section 3.5 as a result of any such mandatory prepayment of
Eurodollar Loans prior to the last day of an Interest Period, so long
as no Default has occurred and is continuing, the Borrower may defer
the making of such mandatory prepayment until the earlier of (A) the
last day of such Interest Period and (B) the date thirty days after the
date on which such mandatory prepayment would otherwise have been
required to be made; provided that, pending such mandatory prepayment,
the related amounts shall be applied to repay Revolving Credit Loans or
maintained as Collateral for the Credit Agreement Obligations.
(x) Notwithstanding anything to the contrary contained herein,
all of the foregoing provisions of Section 2.4(b) shall be suspended
following the Release Date; provided, that (i) no Default or Event of
Default shall have occurred and been existing as of the Release Date
and (ii) if, after the Investment Grade Rating Date, the ratings
assigned to the Secured Notes by both ▇▇▇▇▇'▇ and S&P should decline to
below an Investment Grade Rating, all of the foregoing provisions of
Section 2.4(b) shall be reinstituted as of and from the date of such
rating decline.
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2.5 TERMINATION OR REDUCTION OF COMMITMENTS.
(a) Optional. The Borrower may, upon notice to the Administrative
Agent, terminate the unused portion of the Revolving Credit Commitments, or from
time to time permanently reduce the unused portion of the Revolving Credit
Commitments; provided, that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the unused portions of
the Revolving Credit Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Outstanding Amount of Revolving Credit
Loans and L/C Obligations would exceed the Aggregate Revolving Credit
Commitments.
(b) Mandatory. The Term Commitment shall be automatically and
permanently reduced to zero on the Closing Date (after giving effect to the
Borrowing of Term Loans).
(c) Application of Commitment Reductions; Payment of Fees. The
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Term Commitment or the unused Revolving
Credit Commitment under this Section. Each reduction of the unused portion of
the Term Commitments pursuant to Section 2.5(a) shall be applied ratably to the
Term Loans and to the principal repayment installments thereof on a pro rata
basis. Upon any reduction of unused Commitments, the Commitment of each Lender
shall be reduced by such Lender's Pro Rata Share of the amount by which such
Commitment is reduced. All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.
2.6 REPAYMENT OF LOANS.
(a) Term Loans. The Borrower shall repay to the Administrative Agent
for the ratable account of the Term Lenders on each Quarterly Payment Date the
aggregate principal amount of Term Loans set forth opposite such Quarterly
Payment Date (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.4);
provided, that the final principal repayment installment of the Term Loans shall
be repaid on the Term Loan Maturity Date in an amount equal to the aggregate
principal amount of all Term Loans outstanding on such date:
Quarterly Payment Date Amount of Term Loan Repayment
--------------------------------------------------------------------------------
April 1, 2005 through (and including) $3,250,000
January 1, 2010
April 30, 2010 The remaining amount of Term Loans
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(b) Revolving Credit Loans. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Revolving Credit Termination Date the aggregate principal amount of all
Revolving Credit Loans outstanding on such date.
2.7 INTEREST.
(a) Subject to the provisions of clause (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Margin; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Margin.
(b) (i) During all times that an Event of Default under Section
9.1(a) shall have occurred and be continuing, the Borrower shall pay interest on
the principal amount of all outstanding Loans and Unreimbursed Amounts and all
overdue interest, fees and other amounts, at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(ii) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.8 FEES. In addition to certain fees described in clauses (i) and (j)
of Section 2.3:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
commitment fee equal to the Applicable Margin times the actual daily amount by
which the Aggregate Commitments for Revolving Credit Loans exceed the sum of (i)
the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount
of L/C Obligations; provided, that any commitment fee accrued with respect to
any of the Commitments of a Defaulting Lender during the period prior to the
time such Lender became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrower so long as such Lender shall be a Defaulting Lender
except to the extent that such commitment fee shall otherwise have been due and
payable by the Borrower prior to such time; provided, further, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender. The commitment fee shall
accrue at all times during the Availability Period, including at any time during
which one or more of the conditions in Article IV is not met, and shall be due
and payable quarterly in arrears on each Quarterly Payment Date, commencing with
the first such date to occur after the Closing Date, and on the Revolving
Commitment Termination Date. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Margin during any quarter,
the actual daily amount shall be computed and multiplied
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by the Applicable Margin separately for each period during such quarter that
such Applicable Margin was in effect.
(b) Draw-Down Fee. The Borrower shall pay draw-down fees to the
Administrative Agent for the account of each Revolving Credit Lender in
accordance with its Pro Rata Share, as follows:
(i) within five Business Days following the date of
consummation by the Borrower or any of its Subsidiaries of any
acquisition of Permitted ERCOT Assets, a draw-down fee equal to 0.50%
of the amount by which the Acquisition Consideration paid for all
acquisitions of Permitted ERCOT Assets on or after the Closing Date
through such date exceeds the Funded ERCOT Amount as of such date; and
(ii) on the 180th day following the date of consummation by
the Borrower or any of its Subsidiaries of any acquisition of Permitted
ERCOT Assets, a draw-down fee equal to 1.50% of the amount by which the
Acquisition Consideration paid for all acquisitions of Permitted ERCOT
Assets on or after the Closing Date through such date exceeds the
Funded ERCOT Amount as of such date.
(c) Other Fees. (i) The Borrower shall pay to the Agents and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Administrative Agent such
fees as shall have been separately agreed upon in writing in the
amounts and at the times so specified. Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.
2.9 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided, that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.11(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.10 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or
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any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Credit Agreement Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Borrower shall
promptly execute and deliver to such Lender (through the Administrative Agent) a
Note, which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in clause (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to Section 2.10(a), and by each Lender in its account or
accounts pursuant to Section 2.10(a), shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement and the other
Loan Documents, absent manifest error; provided, that the failure of the
Administrative Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrower under this Agreement and the
other Loan Documents.
2.11 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender's Lending Office. All payments received by the Administrative Agent
after 2:00 p.m. shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's
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share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section 2.2 and
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds 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 (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative
Agent. 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 Lenders or an L/C Issuer
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 Lenders or such L/C Issuer, 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 Lenders or such L/C Issuer, as the
case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or such
L/C Issuer, in immediately available funds 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 greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this clause shall be conclusive, absent
manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article, and such funds
are not made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
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(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and to make
payments pursuant to Section 11.4(c) are several and not joint. The failure of
any Lender to make any Loan, to fund any such participation or to make any
payment under Section 11.4(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan, to purchase its participation or to make its payment under Section
11.4(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.12 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Loans made by it or the
participations in L/C Obligations held by it resulting in such Lender's
receiving payment of a proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans and subparticipations in L/C
Obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided, that:
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C
Obligations to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 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 Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any 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, each Lender or each L/C Issuer, 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 timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of clause (a) above, the Borrower shall timely 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 Lender and each L/C Issuer, within 10 days after
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 Lender or such L/C Issuer, 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 Lender or
an L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or an L/C
Issuer, shall be conclusive absent manifest error.
(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) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, 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 of withholding. In
addition, any Lender, if requested by the
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Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code,
(x) a certificate to the effect that such Foreign Lender is not (A) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or any L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or such L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent, such Lender or such L/C
Issuer, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the
event the Administrative Agent, such Lender or such L/C Issuer is required to
repay such refund to such Governmental Authority. This clause shall not be
construed to require the Administrative Agent, any Lender or any L/C Issuer to
make available
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its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.2 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
3.3 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason in connection with any request for a Eurodollar Rate Loan or
a conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.4 INCREASED COSTS; CAPITAL ADEQUACY; RESERVES ON EURODOLLAR RATE
LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.4(e)) or any L/C Issuer;
(ii) subject any Lender or any L/C Issuer to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit,
any participation in a Letter of
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Credit or any Eurodollar Rate Loan made by it, or change the basis of
taxation of payments to such Lender or such L/C Issuer in respect
thereof (except for Indemnified Taxes or Other Taxes covered by Section
3.1 and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender or such L/C Issuer); or
(iii) impose on any Lender or any L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Rate Loans made by such 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
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or
such L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or such L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or such L/C Issuer, the Borrower will
pay to such Lender or such L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or such L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer determines
that any Change in Law affecting such Lender or such L/C Issuer or any Lending
Office of such Lender or such Lender's or such L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or such L/C Issuer's capital or on the capital
of such Lender's or such L/C Issuer's holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such L/C Issuer, to a level below that which such Lender or
such L/C Issuer or such Lender's or such L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
such L/C Issuer's policies and the policies of such Lender's or such L/C
Issuer's holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or such L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or such L/C
Issuer or such Lender's or such L/C Issuer's holding company for any such
reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or an L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or such L/C Issuer or its holding company, as the case may be, as specified in
clause (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or such L/C
Issuer, 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 Lender or
any L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or such L/C Issuer's
right to demand such compensation; provided, that the Borrower shall not be
required to compensate a Lender or such L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than six months prior to the date that such Lender or such L/C
Issuer, as the case may be, notifies
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the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or such L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan;
provided, that the Borrower shall have received at least 10 days' prior notice
(with a copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.
3.5 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 11.13;
excluding any loss of anticipated profits, but including any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.6 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.4, or the Borrower is required to pay any
additional amount to any Lender or any
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Governmental Authority for the account of any Lender pursuant to Section 3.1, or
if any Lender gives a notice pursuant to Section 3.2, then such 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
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.1 or 3.4, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.2, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.4, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.1, the Borrower may replace such Lender in accordance with Section
11.13.
3.7 SURVIVAL. All of the Borrower's obligations under this Article
shall survive termination of the Aggregate Commitments and repayment of all
other Credit Agreement Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.1 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and
the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party;
(iv) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each of the Borrower and its Subsidiaries
is validly existing, in good standing and
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qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse
Effect;
(v) a favorable opinion of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, L.L.P.,
counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, in form and substance reasonably satisfactory to the
Administrative Agent;
(vi) favorable opinions of local counsel for the Loan Parties
in jurisdictions in which the Closing Date Mortgaged Properties are
located, including, among other things, opinions with respect to the
enforceability and perfection of the Mortgages covering the Closing
Date Mortgaged Properties and any related fixture filings, in form and
substance reasonably satisfactory to the Administrative Agent;
(vii) a favorable opinion of general counsel to the Loan
Parties, OPMW and OPNY, in form and substance reasonably satisfactory
to the Administrative Agent; and
(viii) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections
4.2(a) and (b) have been satisfied, and (B) that there has been no
event or circumstance since December 31, 2003 that, except as disclosed
in any Exchange Act filings made on or before five Business Days before
the Closing Date, has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect;
(b) The Collateral Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party:
(i) With respect to the personal property Collateral:
(A) an amendment to the Security Agreement, executed
by the Collateral Trustee, making certain modifications to the
Security Agreement with respect to this Agreement, in form and
substance reasonably satisfactory to the Administrative Agent;
(B) an amendment to the Bank Security Agreement,
making certain modifications to the Bank Security Agreement
with respect to this Agreement, in form and substance
reasonably satisfactory to the Administrative Agent;
(C) delivery of each originally executed Orion Note,
together with undated note powers executed in blank with
respect thereto;
(D) UCC-3 amendments, restating the collateral
description in the UCC financing statements relating to the
Security Agreement as necessary in connection with the
amendment referenced above, in form and substance reasonably
satisfactory to the Administrative Agent; and
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(E) UCC-3 amendments, restating the collateral
description in the UCC financing statements relating to the
Bank Security Agreement as necessary in connection with the
amendment referenced above, in form and substance reasonably
satisfactory to the Administrative Agent.
(ii) Recorded copies of the Existing Mortgages with respect to
each of the properties indicated on Schedule 5.8(c) hereto (the
"Closing Date Mortgaged Properties"), which, upon the Closing Date,
will create valid and subsisting Liens on the Closing Date Mortgaged
Properties in favor of the Collateral Agent for the benefit of the
Secured Parties, together with:
(A) evidence that (i) counterparts of the Mortgage
Supplements have been duly executed, acknowledged and
delivered for filing in the filing or recording offices in
which each Existing Mortgage being supplemented by an
associated Mortgage Supplement was filed and (ii) all filing
and recording taxes, if any, and fees have been paid or will
be paid upon recordation or filing of the Mortgage
Supplements; and
(B) pro forma modification endorsements that the
Title Companies have agreed to issue to the Collateral Trustee
that, when issued by the Title Companies, will provide the
Collateral Trustee (for benefit of the Secured Parties in
accordance with the Collateral Trust Agreement) with
mortgagee's title insurance through the Closing Date under the
Existing Title Policies insuring that the Existing Mortgages
(not including the Existing Florida Mortgages), as
supplemented by the Mortgage Supplements, create a first
priority Lien (subject to Permitted Encumbrances) on the
Closing Date Mortgaged Properties (not including the Florida
Mortgaged Properties) securing the Parity Secured Obligations;
provided that the coverage effectuated by the Title Companies'
issuance of the modification endorsements shall be the
substantially the same as or better than the coverage under
the Existing Title Policies prior to the date of issuance of
the modification endorsements, except for the addition of
Liens (as defined in and permitted under the Existing Credit
Agreement) arising between the date the Existing Title
Policies were last modified by the Title Companies and the
Closing Date;
(iii) a duly executed and acknowledged Florida Mortgage
Supplement with respect to each Existing Florida Mortgage, delivered
into escrow on terms and conditions reasonably satisfactory to the
Agents and the Borrower (which terms and conditions shall include
provision for the release from escrow and appropriate recording of each
such Florida Mortgage Supplement in accordance with and in the
circumstances contemplated by Section 6.14);
(iv) such tax and Uniform Commercial Code lien searches as the
Administrative Agent may reasonably request and demonstrating that no
other filings, encumbrances or transfers (other than in connection with
Permitted Liens and Permitted Encumbrances) with regard to any
Collateral are of record in any jurisdiction in which it shall be
reasonably necessary or desirable for the Collateral Agent or
Collateral Trustee,
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as applicable, to make a Uniform Commercial Code filing in order to
provide the Collateral Agent or Collateral Trustee, as applicable, (for
the benefit of the Secured Parties) with a perfected security interest
in the Collateral and if applicable, evidence reasonably satisfactory
to the Administrative Agent that any Liens indicated by such financing
statements (or similar documents) that are not permitted under this
Agreement, have been or will be released on or prior to the Closing
Date; and
(v) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent reasonably may require.
(c) The Borrower shall have received Net Financing Proceeds from the
issuance of New Senior Notes (i) that, together with the aggregate principal
amount of Term Loans made on the Closing Date, is sufficient to refinance and
replace the obligations under the Existing Credit Agreement, but in any event
not to exceed, when aggregated with the Net Financing Proceeds from the
incurrence of additional Permitted PEDFA Bond Indebtedness for the ▇▇▇▇▇▇ Series
2004A Bonds, $2,500,000,000 and (ii) on terms and conditions and pursuant to
documentation reasonably satisfactory to the Agents and the Borrower.
(d) Any fees required to be paid on or before the Closing Date shall
have been paid.
(e) Any accrued interest, fees and other costs and expenses required to
be paid under the Existing Credit Agreement on or before the Closing Date shall
have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have
paid all fees, charges and disbursements of counsel to the Administrative Agent
to the extent invoiced prior to or on the Closing Date.
(g) The Closing Date shall have occurred on or before December 31,
2004.
(h) All governmental authorizations and all third party consents and
approvals necessary in connection with the Loan Documents shall have been
obtained (without the imposition of any conditions that are not acceptable to
the Lenders) and shall remain in effect.
(i) Since December 31, 2003, there shall not have occurred any event,
development, condition or circumstance not disclosed in the Borrower's 2003
report filed on SEC Form 10-K, first-, second-, or third-quarter 2004 reports
filed on SEC Form 10-Q, or any report filed on SEC form 8-K at least five
Business Days before the Closing Date, that shall have had a Material Adverse
Effect.
(j) The OPMW Credit Facility shall have been amended and restated in
its entirety, and the aggregate outstanding principal amount of the OPMW Credit
Facility shall have been refinanced in full, by the OPMW Refinancing Note, and
each Orion Note shall have been executed and delivered, in each case on terms
and conditions (including with respect to collateral securing the obligations
thereunder) and pursuant to documentation reasonably satisfactory to the Agents
and the Borrower. It is acknowledged and agreed that the collateral for the OPMW
Refinancing Note will include real property only if the lenders under the OPMW
Credit Facility assign the existing mortgages securing such facility to the
Collateral Agent for the benefit of the Lenders. All hedging obligations of OPMW
arising under or in connection with the OPMW
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Credit Facility owing to lenders of OPMW shall have been terminated and
arrangements satisfactory to the counterparties thereunder to pay such
obligations in full shall have been made. The Orion Guaranty and the Orion
Security Agreement shall each have been executed and delivered, in each case on
terms and conditions reasonably satisfactory to the Agents and the Borrower.
Without limiting the generality of the provisions of Section 11.4, for
purposes of determining compliance with the conditions specified in this
Section, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension (including the initial Credit
Extensions hereunder, but excluding any Borrowing Notice requesting only a
conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loan
and other than a Revolving Credit Loan to reimburse a drawing under a Letter of
Credit as provided herein) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects on and as of
the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier
date (provided, that representations and warranties which have Material Adverse
Effect qualifiers shall be true and correct in all respects to the extent such
Material Adverse Effect qualifier is applicable thereto), and except that for
purposes of this Section, the representations and warranties contained in
clauses (a) and (b) of Section 5.5 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.1.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, each L/C Issuer shall
have received a Request for Credit Extension in accordance with the requirements
hereof.
Each Request for Credit Extension (other than a Borrowing Notice
requesting only a conversion of Loans to the other Type or a continuation of
Eurodollar Rate Loans and other than a Revolving Credit Loan to reimburse a
drawing under a Letter of Credit as provided herein) submitted by the Borrower
shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.2(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.1 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries, where such Contractual Obligation (x) evidences Indebtedness of
the Borrower or any of its Subsidiaries or (y) is identified in the exhibit list
from time to time in filings made by the Borrower with the SEC as material to
the Borrower, or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject
that could reasonably be expected to have a Material Adverse Effect; (c) violate
any Law that could reasonably be expected to have a Material Adverse Effect; or
(d) result in the creation of any Lien other than a Permitted Lien. Each Loan
Party and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.
5.3 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (i) the execution, delivery or performance by any Loan Party of
this Agreement or any other Loan Document, (ii) the grant by any Loan Party of
the Liens granted by it pursuant to the Loan Documents, or (iii) the perfection
or maintenance of the Liens created under the Loan Documents (including the
first priority nature thereof) (other than the filing of UCC-1 Financing
Statements, the Mortgages, and the Assignments of Leases and Rents), all of
which have been duly obtained, taken, given or made and are in full force and
effect.
5.4 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered
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will constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by general principles of equity, whether such enforceability is considered
in a proceeding at law or in equity.
5.5 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein and (ii) fairly present in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as of the date thereof and their results of operations
and cash flows for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein.
(b) The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries dated September 30, 2004, and the related consolidated
statements of income and cash flows and the related notes and supplemental
information for the Fiscal Quarter ended on that date (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present in all
material respects the financial condition of the Borrower and its Subsidiaries
as of the date thereof and their results of operations and cash flows for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, except as
disclosed in the Borrower's Exchange Act filings made on or before the five
Business Days before the Closing Date, that has had or could reasonably be
expected to have a Material Adverse Effect.
5.6 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as disclosed in the Borrower's Exchange Act filings made
on or before the five Business Days before the Closing Date, either individually
or in the aggregate, if determined adversely, could reasonably be expected to
have a Material Adverse Effect.
5.7 NO DEFAULT. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.8 OWNERSHIP OF PROPERTY; LIENS.
(a) Each of the Borrower and each Subsidiary has good and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for Permitted
Liens and Permitted Encumbrances and such
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defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) The property of the Borrower and its Restricted Subsidiaries is
subject to no Liens, other than Permitted Liens and Permitted Encumbrances.
(c) Set forth on Schedule 5.8(c) hereto is a complete and accurate list
of all real property interests owned as of the Closing Date by the Borrower and
its Subsidiaries which are material to their business and are reflected on the
financial statements referred to in Section 5.5 (other than such properties or
assets disposed of since the date of such financial statements), showing as of
the date hereof the street address, county or other relevant jurisdiction,
state, and record owner thereof. Except as set forth on Schedule 5.8(c), the
Borrower and each Subsidiary has good, marketable and insurable fee simple title
to such real property, free and clear of all Liens, other than Permitted Liens
and Permitted Encumbrances.
5.9 ENVIRONMENTAL MATTERS.
(a) Borrower and its Subsidiaries have been and are in compliance with
all Environmental Laws, including obtaining and complying with all required
environmental permits, other than non-compliances that could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(b) Neither the Borrower nor any of its Subsidiaries nor any property
currently or, to the knowledge of Borrower or any of its Subsidiaries,
previously owned, operated or leased by or for Borrower or any of its
Subsidiaries is subject to any pending or, to the knowledge of Borrower or any
of its Subsidiaries, threatened, claim, order, agreement, notice of violation,
notice of potential liability or is the subject of any pending or threatened
proceeding or governmental investigation under or pursuant to Environmental Laws
other than those that could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 5.9(c), as of the Closing Date
neither the Borrower nor any of its Subsidiaries has a treatment, storage or
disposal facility requiring a permit under the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq., the regulations thereunder or any
state analog.
(d) There are no facts, circumstances or conditions known to Borrower
or any of its Subsidiaries arising out of or relating to the operations or
ownership of Borrower or any of its Subsidiaries or of the property owned,
operated or leased by Borrower or any of its Subsidiaries that are not
specifically included in the financial information furnished to the Lenders that
could be reasonably expected to result in any Environmental Liabilities that
could reasonably be expected to have a Material Adverse Effect, unless such
liabilities are (i) covered by environmental liability insurance, (ii) subject
to an indemnity from any Governmental Authority, or (iii) subject to an
indemnity satisfactory to the Borrower from a Person that is not an Affiliate of
the Borrower that the Borrower has determined in good faith is appropriately
credit worthy in relation to the potential amount of such liabilities.
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(e) As of the Closing Date, no environmental Lien has attached to any
property of Borrower or its Subsidiaries and, to the knowledge of Borrower or
its Subsidiaries, no facts, circumstance or conditions exist that could,
individually or in the aggregate, reasonably be expected to result in an
environmental Lien that would have a Material Adverse Effect.
(f) Neither Borrower nor any of its Subsidiaries is undertaking, and
has not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or Remedial Action relating
to any actual or threatened release of Hazardous Materials at any site, location
or operation, either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law that could reasonably be
expected to have a Material Adverse Effect; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any
property currently or formerly owned or operated by Borrower or any of its
Subsidiaries have been disposed of in a manner that could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are customarily carried by companies of same or similar size
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed after
giving effect to applicable extensions, except for tax returns or reports the
failure of which to timely file could not reasonably be expected to have a
Material Adverse Effect, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower
or any Subsidiary that would, if made, have a Material Adverse Effect. Except
for (y) the Tax Sharing Agreement referred to in clause (13) of Permitted
Investments and (z) the Tax Allocation Agreement dated as of December 31, 2000,
by and among Reliant Energy, Inc. (now known as Centerpoint Energy, Inc.) and
its affiliates parties thereto and Reliant Resources, Inc. and its affiliates
parties thereto, on the Closing Date, neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions (both quarterly and annually) to each Plan subject to
Section 412 of the Code, and
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no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur
that could reasonably be expected to have a Material Adverse Effect; (ii) no
Pension Plan has any Unfunded Pension Liability, whether or not waived, that
could reasonably be expected to have a Material Adverse Effect, and no
application for a waiver of the minimum funding standard has been filed with
respect to any Pension Plan; (iii) neither any Loan Party nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA) that could reasonably be expected to
have a Material Adverse Effect; (iv) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan that could reasonably be expected to have a
Material Adverse Effect; and (v) neither the Borrower nor any ERISA Affiliate
has engaged in a transaction that could be subject to Sections 4069 or 4212(c)
of ERISA.
5.13 SUBSIDIARIES; EQUITY INTERESTS. On the Closing Date, the Borrower
has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries
have been validly issued, are fully paid and nonassessable and are owned in the
amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens
except those created under the Loan Documents and the Permitted Liens. On the
Closing Date, the Borrower and its Subsidiaries have no equity investments in
any other Person other than those specifically disclosed in Part (b) of Schedule
5.13. All of the outstanding Equity Interests in the Borrower have been validly
issued and are fully paid and nonassessable. Set forth on Part (c) of Schedule
5.13 is a complete and accurate list of all Loan Parties, showing as of the
Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the
address of its principal place of business and its U.S. taxpayer identification
number.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock and no
proceeds of any Borrowings or drawings under any Letter of Credit will be used
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.
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(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or any foreign, federal or local statute or
any other Law of the United States of America or any other jurisdiction, in each
case limiting its ability to incur indebtedness for money borrowed as
contemplated hereby or by any other Loan Document or (ii) is or is required to
be registered as an "investment company" under the Investment Company Act of
1940. Neither the making of any Loan, nor the issuance of any Letters of Credit,
nor the application of the proceeds or repayment thereof by the Borrower, nor
the consummation of the other transactions contemplated by the Loan Documents,
will violate any provision of any such Act or any rule, regulation or order of
the SEC thereunder.
5.15 DISCLOSURE. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it (other than general industry, political, and economic conditions), that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished), at the time furnished or
delivered, contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in the
light of the circumstances under which they were made, not misleading; provided,
that with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time made.
5.16 COMPLIANCE WITH LAWS. Each Loan Party and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, unless the failure to so own or possess the
right to use could not reasonably be expected to have a Material Adverse Effect.
To the best knowledge of the Borrower, except as set forth on Schedule 5.17, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the Borrower
or any Subsidiary infringes upon any rights held by any other Person in a manner
that could reasonably be expected to have a Material Adverse Effect. Except as
set forth on Schedule 5.17, no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower, threatened,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
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5.18 SOLVENCY. The Borrower is, together with its Subsidiaries on a
consolidated basis, Solvent.
5.19 PERFECTION, ETC.
(a) The Security Documents (other than the Mortgages and the
Assignments of Leases and Rents), create and grant to the Collateral Trustee for
the benefit of the applicable Secured Parties or the Collateral Agent (for the
benefit of the Credit Agreement Secured Parties), together with (i) the filing
of appropriate UCC-1 and, if applicable, UCC-3, financing statements with the
filing offices required under the Security Agreement, and (ii) the possession of
certificated Pledged Securities (together with blank executed stock powers with
respect thereto), a valid, first priority, perfected security interest in the
Collateral, subject (other than in the case of investment property) only to
Permitted Encumbrances and, as to perfection, subject to the terms and
provisions of the Security Agreement.
(b) The Mortgages and the Assignments of Leases and Rents, when the
Mortgage Supplements are executed and delivered, will create in favor of the
Collateral Trustee, for the benefit of the applicable Secured Parties, a legal,
valid and enforceable Lien on all of the Loan Parties' respective right, title
and interest in and to the real property assets (except personalty that does not
constitute fixtures) covered thereby and the proceeds thereof. When each of the
Mortgage Supplements are filed in the appropriate offices specified by a Loan
Party and the proper amount of mortgage recording or similar taxes (if any) are
paid, each of the Mortgages and the Assignments of Leases and Rents together
with the UCC-1 financing statements relating to fixtures previously filed in
connection with the Mortgages, shall constitute fully perfected Liens on, and
fully perfected security interest in, all right, title and interest of the
applicable Loan Parties in the real property assets (except personalty that does
not constitute fixtures) covered thereby and the proceeds thereof, subject only
to Permitted Encumbrances and, as to perfection, subject to the terms and
provisions of the Mortgages and the Assignments of Leases and Rents.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Credit Agreement Obligation hereunder shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding (if neither (x) Cash
Collateralized in an amount equal to the then-applicable Required Cash
Collateral Amount nor (y) supported with a back-to-back letter of credit
reasonably acceptable to the L/C Issuers), the Borrower shall, and shall (except
in the case of the covenants set forth in Sections 6.1, 6.2, and 6.3) cause each
Subsidiary to:
6.1 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within 90 days after the end
of each Fiscal Year of the Borrower, an audited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such Fiscal
Year, and the related consolidated statements of income or operations,
stockholders' equity, comprehensive income (loss) and cash flows for such Fiscal
Year, setting forth in each case in comparative form the figures as of the end
of, and for, the
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previous Fiscal Year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied by a report and
opinion of an independent registered public accounting firm of nationally
recognized standing, which report and opinion shall be prepared in accordance
with the standards of the Public Company Accounting Oversight Board or its
successor and shall not be subject to any "going concern" or like qualification
or exception;
(b) as soon as available, but in any event within 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower,
an unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such Fiscal Quarter, and the related unaudited
consolidated statements of income or operations for such Fiscal Quarter and for
the portion of the Borrower's Fiscal Year then ended and cash flows for the
portion of the Borrower's Fiscal Year then ended, setting forth in each case in
comparative form the figures for the corresponding Fiscal Quarter of the
previous Fiscal Year and the corresponding portion of the previous Fiscal Year,
all in reasonable detail, certified by a Responsible Officer of the Borrower as
fairly presenting in all material respects the financial condition, results of
operations and cash flows of the Borrower and its consolidated Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes;
(c) as soon as available, but in any event within thirty (30) days
after the end of the first and second calendar months of each Fiscal Quarter, a
copy of the Borrower's (i) internal monthly consolidated corporate reporting
package (i.e., flash reports) and (ii) monthly historical collateral postings
(liquidity) reports; and
(d) within 15 days after approval thereof by the Borrower's Board of
Directors for each Fiscal Year, a consolidated plan and financial forecast for
such Fiscal Year and the two immediately succeeding Fiscal Years (or portion
thereof) through the Term Loan Maturity Date (a "Financial Plan"), including (i)
a forecasted consolidated balance sheet and forecasted consolidated statements
of income or operations and cash flows of the Borrower and its Subsidiaries for
each such Fiscal Year, (ii) forecasted consolidated statements of income or
operations and cash flows of the Borrower and its Subsidiaries for each month of
such Fiscal Year (but not subsequent Fiscal Years) and (iii) forecasts of
calculations under Section 7.11 for each Fiscal Quarter of such Fiscal Year, and
for each Fiscal Year in the case of subsequent Fiscal Years.
As to any information contained in materials furnished pursuant to Section
6.2(c), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.2 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent:
(a) concurrently with the delivery of the financial statements referred
to in Sections 6.1(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower;
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(b) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of
the board of directors) of the Borrower by independent accountants in connection
with the accounts or books of the Borrower or any Subsidiary, or any audit of
any of them;
(c) promptly after the same are available, copies of all quarterly and
annual reports filed by the Borrower with the SEC on Forms 10-Q and 10-K, and
all current reports filed by the Borrower with the SEC on Form 8-K;
(d) promptly after the furnishing thereof, copies of any notice of
default furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lenders
pursuant to Section 6.1 or any other clause of this Section;
(e) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each material,
non-routine, written notice or other material, non-routine, written
correspondence received from the SEC concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.1(a) or (b) or
Section 6.2(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 11.2; or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided, that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
Section 6.2(a) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
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The Borrower hereby acknowledges that (a) the Administrative Agent will
make available to the Lenders and each L/C Issuer materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (x) by marking
Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the
Administrative Agent and each L/C Issuer and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrower or
its securities for purposes of United States Federal and state securities laws;
(y) all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor."
6.3 NOTICES. Promptly notify the Administrative Agent and each Lender:
(a) after any Responsible Officer's obtaining knowledge of the
occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect (including as a result of (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws);
(c) after any Responsible Officer's obtaining knowledge of the
occurrence of any ERISA Event or of any contribution failure under Code Section
412, or ERISA Section 302 with respect to any Pension Plan, and
(d) of the (i) occurrence of any Asset Sale for which the Borrower is
required to make a mandatory repayment pursuant to Section 2.4(b)(i), and (ii)
incurrence or issuance of any Indebtedness for which the Borrower is required to
make a mandatory repayment pursuant to Section 2.4(b)(ii), (iii) or (iv).
Each notice pursuant to this Section (other than subsection (d)) shall
be accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.3(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
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6.4 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the Borrower or such
Subsidiary; and (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property that is not a Permitted Lien.
6.5 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.4 or 7.5; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
6.6 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof;
and (c) use the standard of care typical in the industry in the operation and
maintenance of its facilities, in each of cases (a), (b) and (c), except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.7 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons of same or similar size engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days' (or
such other period as required by law) prior notice to the Collateral Trustee of
termination, lapse or cancellation of such insurance.
6.8 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.9 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
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6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent to visit and inspect any of its
properties (subject in the case of access to its properties and assets, to any
applicable restrictions contained in the leases for the Mortgaged Real Property
Assets and the applicable Loan Party's site safety and security requirements),
to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its officers, and independent public accountants, all at the
expense of the Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Borrower; provided, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of (a) the Revolving Credit
Facility for general corporate purposes, including (i) permitted investments,
(ii) replacing loans and letters of credit under the Existing Credit Agreement,
(iii) funding scheduled payments of principal of and interest on (but excluding
the voluntary repayment or prepayment, or voluntary repurchase, retirement,
redemption or defeasance of the principal of or interest on) any Term Loans or
other Senior Debt, including other Parity Secured Debt, and (iv) acquisitions of
Permitted ERCOT Assets to the extent permitted hereunder and (b) of the Term
Loan Facility to (i) replace tranche A loans and term loans outstanding under
the Existing Credit Agreement and (ii) refinance the OPMW Credit Agreement.
6.12 ADDITIONAL LOAN PARTIES; SECURITY INTERESTS.
(a) Subject to the provisions of clause (b) below, promptly and in any
event within thirty (30) Business Days (i) after the formation or acquisition
after the Closing Date of any new Subsidiary (other than a Subsidiary that is
prohibited from becoming a Loan Party pursuant to an agreement for Indebtedness
in existence on the Closing Date which is permitted under Section 7.3, or an
agreement for any refinancing or renewal of any such Indebtedness pursuant to,
and in accordance with, Section 7.3) that has satisfied the Threshold Amount,
(ii) with respect to any Subsidiary (other than a Subsidiary that is prohibited
from becoming a Loan Party pursuant to an agreement for Indebtedness in
existence on the Closing Date which is permitted under Section 7.3, or an
agreement for any refinancing or renewal of any such Indebtedness pursuant to,
and in accordance with, Section 7.3) which was formed or acquired after the
Closing Date and which did not initially satisfy the Threshold Amount, after
such Subsidiary does satisfy the Threshold Amount, (iii) after any Subsidiary
ceases to be an Excluded Entity or (iv) after any Subsidiary Guarantees any
Indebtedness of the Borrower other than the Obligations (as the case may be),
deliver to the Collateral Trustee (with copies to the Administrative Agent) the
following: (x) in the case of the Domestic Subsidiaries, (A) an Instrument of
Assumption and Joinder executed by such Subsidiary pursuant to which, among
other things, such Subsidiary shall become a Loan Party hereunder; and a Joinder
Agreement (in substantially the form of Exhibit A to the Collateral Trust
Agreement) pursuant to which, among other things, such Subsidiary shall become a
party to the Collateral Trust Agreement and the Security Agreement, (B)
appropriate UCC-1 financing statements with respect to the collateral under the
Security Agreement and under the Separate Security Agreement, (C) all applicable
Lien searches with respect to such Subsidiary, (D) Organizational Documents
described in Section 4.1(a)(iii) and (iv) with respect
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to such Subsidiary, (E) a written opinion of counsel covering those matters
addressed in the opinion delivered on the Closing Date but limited to such
Subsidiary, (F) Mortgages for any of such Subsidiary's real property assets
having a book value in excess of $20,0000,000, (G) such other security documents
as may be reasonably requested by the Administrative Agent or its counsel and
all of the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and its counsel, and (H) if applicable, certificates or
other instruments (if any) representing 100% of the Equity Interests in such
Subsidiary owned by a Loan Party together with an undated stock power (or other
appropriate document) executed in blank for each such certificate or other
instrument; and (y) in the case of Foreign Subsidiaries, such security documents
as may be reasonably requested by, and in form and substance reasonably
satisfactory to, the Administrative Agent or its counsel, in order to cause the
pledge by the applicable Loan Parties of the Equity Interests of such Subsidiary
owned by such Loan Parties if such Foreign Subsidiary is a direct Subsidiary of
a Loan Party; provided, that no more than 65% of the total outstanding Equity
Interests of such Foreign Subsidiary shall be required to be pledged by the Loan
Parties pursuant to this Section. Neither the Collateral Agent nor the
Collateral Trustee nor any other Person shall be required to release any
Subsidiary from the Guaranty nor release any Lien on the Equity Interests or
assets of any Subsidiary solely for the reason that such Subsidiary ceases to
satisfy the Threshold Amount at any time.
(b) If at any time after the Closing Date, any one or more Domestic
Subsidiaries (other than Domestic Subsidiaries that are prohibited from becoming
a Loan Party pursuant to an agreement for Indebtedness in existence on the
Closing Date which is permitted under Section 7.3, or an agreement for any
refinancing or renewal of any such Indebtedness pursuant to, and in accordance
with, Section 7.3) have been formed or acquired which Subsidiaries are not Loan
Parties hereunder and have individually or in the aggregate satisfied the
Threshold Amount, promptly following its determination that the Threshold Amount
has been satisfied, cause one or more of such Subsidiaries to become Loan
Parties hereunder and to provide the documents required by Section 6.12(a)
above, so that (i) the aggregate book value of the assets of all Domestic
Subsidiaries that have been formed or acquired after the Closing Date and are
not Loan Parties hereunder is, at all times, less than $50,000,000 and (ii) the
aggregate Consolidated EBITDAR during the four-Fiscal Quarter period most
recently ended attributable to all such Subsidiaries formed or acquired after
the Closing Date that are not Loan Parties does not exceed $25,000,000.
(c) At any time and from time to time, promptly execute and deliver any
and all further instruments and documents and take all such other action as the
Administrative Agent and the Collateral Agent may reasonably deem necessary or
desirable in obtaining the full benefits of, or in perfecting and preserving the
Liens of, such Guaranties, Instruments of Assumption and Joinder, and Security
Documents.
Notwithstanding anything to the contrary contained herein, none of the
foregoing actions shall be required to be taken by, or with respect to, REMA or
any of its Subsidiaries.
6.13 FURTHER ASSURANCES. Promptly upon request by the Administrative
Agent, or any Lender through the Administrative Agent, (a) correct any material
defect or error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-
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register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (i)
carry out more effectively the purposes of the Loan Documents, (ii) to the
fullest extent permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Loan Documents, (iii) perfect and
maintain the validity, effectiveness and priority of any of the Loan Documents
and any of the Liens intended to be created thereunder and (iv) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively unto the
Secured Parties the rights granted or now or hereafter intended to be granted to
the Secured Parties under any Loan Document or under any other instrument
executed in connection with any Loan Document to which any Loan Party or any of
its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to
do so.
6.14 FLORIDA MORTGAGED PROPERTIES. Upon the occurrence and during the
continuation of any Event of Default, at the request of the Required Lenders,
the Borrower shall cause each of the Florida Mortgage Supplements to be filed in
the appropriate offices and the proper amount of mortgage recording or similar
taxes (if any) to be paid in connection therewith, in order to grant a fully
perfected Lien on, and fully perfected security interest in, all right, title
and interest of the applicable Loan Parties in the real property assets (except
personalty that does not constitute fixtures) covered thereby and the proceeds
thereof, subject only to Permitted Encumbrances and, as to perfection, subject
to the terms and provisions of the Existing Florida Mortgages and the
Assignments of Leases and Rents.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Credit Agreement Obligation hereunder shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding (if neither (x) Cash
Collateralized in an amount equal to the then-applicable Required Cash
Collateral Amount nor (y) supported with a back-to-back letter of credit
reasonably acceptable to the L/C Issuers), the Borrower shall not, nor shall it
permit any Restricted Subsidiary to, directly or indirectly:
7.1 LIENS. Create, incur, assume or otherwise cause or suffer to exist
or become effective any Lien of any kind on any asset now owned or hereafter
acquired, except Permitted Liens.
7.2 INVESTMENTS. Subject to Sections 7.18 and 7.19, make or hold any
Investments, except for Permitted Investments.
7.3 INDEBTEDNESS. Create, incur, issue, assume, suffer to exist,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to any Indebtedness (including Acquired Debt and
Disqualified Stock), and the Borrower shall not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock, in each case, other than
the following (collectively, "Permitted Debt"):
(a) the Credit Agreement Obligations;
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(b) Indebtedness of Securitization Entities under Qualified
Securitization Transactions in an aggregate principal amount at any one time
outstanding under this clause not to exceed $450,000,000;
(c) Indebtedness of REMA and its Subsidiaries in an aggregate principal
amount at any one time outstanding under this clause (with letters of credit
being deemed to have a principal amount equal to the maximum potential liability
of REMA and its Subsidiaries thereunder) not to exceed $60,000,000;
(d) the following Indebtedness of the Borrower and the Guarantors: (i)
Permitted PEDFA Bond Indebtedness and/or the guarantee thereof by the Borrower
or the Guarantors or (ii) Indebtedness evidenced by or in support of the ▇▇▇▇▇▇
Tax-Exempt Bonds, in an aggregate principal amount at any one time outstanding
under this clause, not to exceed $500,000,000 less the aggregate amount of all
repayments, optional or mandatory, of the principal of any Indebtedness incurred
pursuant to this clause that have been made by the Borrower and/or the
Guarantors since the Closing Date; (e) Indebtedness of the Borrower, including
Parity Secured Debt, pursuant to a letter of credit or synthetic letter of
credit facility not to exceed the sum of (i) the difference of (x) $500,000,000
minus (y) the aggregate principal amount of the ▇▇▇▇▇▇ Tax-Exempt Bonds
refinanced as fixed-rate Permitted PEDFA Bond Indebtedness on or after the
Closing Date in accordance with clause (d) above plus (ii) the aggregate amount
by which the Revolving Credit Commitments have been permanently reduced since
the Closing Date;
(f) Indebtedness of the Borrower, including Parity Secured Debt, in an
aggregate principal amount at any one time outstanding under this clause, not to
exceed $500,000,000, the proceeds of which are used to purchase (or which
Indebtedness is assumed in connection with the purchase of) Permitted ERCOT
Assets (provided, that such ERCOT Assets become Collateral securing the Credit
Agreement Obligations on (or promptly following) such purchase);
(g) Specified Junior Securities issued by the Borrower; provided, that
if there is any change in the terms of such Specified Junior Securities that
results in such securities no longer meeting all of the requirements of the
definition of "Specified Junior Securities," then such change will be deemed to
constitute an incurrence of Indebtedness by the Borrower that was not permitted
by this clause;
(h) Existing Indebtedness of the Borrower and its Restricted
Subsidiaries;
(i) Senior Debt of the Borrower that is not secured by any Lien;
(j) Permitted Refinancing Indebtedness of the Borrower or any of its
Restricted Subsidiaries in exchange for, or the net proceeds of which are used
to refund, refinance or replace Indebtedness (other than intercompany
Indebtedness) that was permitted to be incurred under clauses (a), (b), (c),
(d), (f), (g), (h), (i), (j) or (s) of this Section;
(k) intercompany Indebtedness between or among the Borrower and any of
its Restricted Subsidiaries; provided, that:
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(i) such Indebtedness (except Permitted PEDFA Bond
Indebtedness, Indebtedness restricted from being subordinated pursuant
to agreements identified on Schedule 7.3(k) and the Orion Notes) must
be subordinated to the prior payment in full in cash of the Credit
Agreement Obligations; and
(ii) (A) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Borrower or any Restricted Subsidiary, and (B) any sale
or other transfer of any such Indebtedness to a Person that is not the
Borrower or any Restricted Subsidiary (except transfers to the
Collateral Trustee to secure Parity Secured Obligations) shall be
deemed, in each case, to constitute an incurrence of such Indebtedness
by the Borrower or such Restricted Subsidiary, as the case may be, that
was not permitted by this clause;
(l) shares of preferred stock issued by any Restricted Subsidiary to
the Borrower or to any Restricted Subsidiary; provided, that:
(i) any subsequent issuance or transfer of Equity Interests
that results in any such preferred stock being held by a Person other
than the Borrower or any Restricted Subsidiary; and
(ii) any sale or other transfer of any such preferred stock to
a Person that is not either the Borrower or any Restricted Subsidiary,
shall be deemed, in each case, to constitute an issuance of such preferred stock
by the Borrower or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause;
(m) Hedging Obligations incurred by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business and not for
speculative purposes;
(n) Indebtedness of the Borrower or any of its Restricted Subsidiaries
in respect of workers' compensation claims, self-insurance obligations, bankers'
acceptances, performance and surety bonds provided by the Borrower or a
Restricted Subsidiary in the ordinary course of business;
(o) Indebtedness of the Borrower or any of its Restricted Subsidiaries
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so
long as such Indebtedness is covered within five business days;
(p) Indebtedness arising from agreements of the Borrower or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or Equity Interests of a
Subsidiary; provided, that the maximum aggregate liability in respect of all
such Indebtedness shall at no time exceed the gross proceeds (including non-cash
proceeds) actually received by the Borrower and/or such Restricted Subsidiary in
connection with such disposition;
(q) the Guarantee by the Borrower or any Guarantor of Indebtedness of
the Borrower or any Guarantor that is permitted by clause (d) (e), (f), (g),
(i), (j) or (s) of this Section;
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(r) the Guarantee by OPC and its Subsidiaries of the Orion Notes; and
(s) additional Indebtedness of the Borrower or any of its Restricted
Subsidiaries, including Parity Secured Debt, Indebtedness represented by Capital
Lease Obligations, mortgage financings or purchase money obligations, and
Disqualified Stock of the Borrower, in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, not to exceed
$300,000,000, the proceeds of which are used for, or assumed in connection with,
general corporate purposes of the Borrower or any of its Restricted
Subsidiaries.
Notwithstanding any of the foregoing, neither OPH nor any of its Subsidiaries
shall create, incur, issue, assume, suffer to exist, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
any Indebtedness (including Acquired Debt and Disqualified Stock), or issue any
shares of preferred stock, in each case, except to the extent permitted under
clauses (h) (but not any Permitted Refinancing Indebtedness thereunder), (k),
(l), (m), (n), (o), (p) and (r) of this Section.
7.4 CONSOLIDATION AND MERGERS.
(a) Consolidate or merge with or into another Person, or sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Borrower and its Restricted Subsidiaries taken as a
whole, in one or more related transactions, to another Person, except that:
(i) so long as no Default exists or would result therefrom,
any Subsidiary may merge with or dissolve into (i) the Borrower;
provided, that the Borrower shall be the continuing or surviving Person
or (ii) any one or more other Subsidiaries; provided, that when any
Guarantor is merging with or dissolving into another Subsidiary, the
Guarantor shall be the continuing or surviving Person or such other
Subsidiary shall become a Guarantor upon the consummation of such
merger or dissolution in compliance with Section 6.12;
(ii) in connection with any Asset Sale permitted under Section
7.5, any Subsidiary of the Borrower may dissolve, liquidate,
consolidate or merge with any other Person or permit any other Person
to consolidate or merge with or into it; and
(iii) so long as no Default exists or would result therefrom,
in connection with any Investment permitted under Section 7.2, any
Subsidiary of the Borrower may dissolve, liquidate, consolidate or
merge with or into any other Person or permit any other Person to merge
or consolidate with it; provided, that the Person surviving such
merger, dissolution or consolidation shall be a Guarantor in compliance
with Section 6.12.
(b) In addition, the Borrower shall not, nor shall it permit any of its
Restricted Subsidiaries to, directly or indirectly, lease all or substantially
all of the properties or assets of the Borrower and its Restricted Subsidiaries,
in one or more related transactions, to any other Person.
(c) This Section shall not apply to (i) any sale, transfer, assignment,
conveyance, lease or other disposition of assets between or among the Borrower
and the Restricted
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Subsidiaries, or (ii) the merger of the Borrower with an Affiliate solely for
the purpose of reincorporating or re-forming the Borrower in another
jurisdiction.
7.5 ASSET SALES.
(a) Consummate an Asset Sale unless:
(i) the Borrower (or the Restricted Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets or Equity Interests issued
or sold or otherwise disposed of (as reasonably determined by the
Borrower or such Restricted Subsidiary); and
(ii) at least 90% of the consideration therefor received in
the Asset Sale by the Borrower or such Restricted Subsidiary is in the
form of cash or Cash Equivalents. For purposes of this provision, each
of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower's most
recent consolidated balance sheet, of the Borrower or any
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Loans
or any Guaranty thereof) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement
that releases the Borrower or such Restricted Subsidiary from
further liability;
(B) any securities, notes or other Obligations
received by the Borrower or any such Restricted Subsidiary
from such transferee that are converted (by sale or other
disposition) by the Borrower or such Restricted Subsidiary
into cash, to the extent of the cash received in that
conversion within 60 days; and
(C) reasonable reserves for indemnity obligations and
purchase price adjustments funded in cash or held back by the
purchaser.
(b) In addition, without having obtained the Core Asset Consent in
writing, the Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate (i) an Asset Sale of (x) any Equity Interest in RERH
or (y) any "price-to-beat" small commercial or residential retail customers of
RERH or any of its Subsidiaries that are located in the "greater Houston area"
or (ii) an Asset Sale of any Equity Interest in REMA or OPH, or any assets of
RERH (other than any asset to which clause (b)(i)(y) applies), REMA or OPH (and,
in each case, their respective Subsidiaries), where the gross proceeds of the
portion of the Equity Interest or asset being sold, together with the gross
proceeds of any other such Equity Interest or assets sold in an Asset Sale on or
after the Closing Date, would exceed $2,500,000,000. For purposes of calculating
the amount under the foregoing clause (b)(ii), upon the first closing of any in
a series of transactions, all of the Equity Interests or assets whose sale is
contemplated by such series shall be deemed to have then been sold for their
gross proceeds as at the time of such first closing.
(c) If any Net Asset Sale Proceeds from any sale of Shared Collateral
or from any issuance of Equity Securities that constitute an Asset Sale are
required pursuant to the terms of any of the Secured Debt Documents to be
deposited into a cash collateral or similar account, then
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such Net Proceeds shall be deposited into a Cash Collateral Account as part of
the Shared Collateral. As to any other Net Asset Sale Proceeds, pending final
application of such Net Asset Sale Proceeds in accordance with Section 2.4, the
Borrower shall apply such Net Asset Sale Proceeds in accordance with Section
2.4.
7.6 RESTRICTED PAYMENTS. Make any Restricted Payment by way of the
payment of any dividend or distribution in cash or Cash Equivalents on any
Equity Interests of the Borrower prior to the Release Date; otherwise, make any
Restricted Payment except for the following:
(a) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the dividend would
have complied with the provisions of this Agreement (and, in the case of any
dividends to be paid by the Borrower, no Default had occurred and was continuing
on the date of such declaration);
(b) so long as no Default has occurred and is continuing or would be
caused thereby, the making of any Restricted Payment in exchange for, or
(subject to Section 2.4(b)(v)) out of the net cash proceeds of, the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Borrower) of, Equity Interests of the Borrower (other than Disqualified Stock)
or of the substantially concurrent contribution of common equity capital or
surplus to the Borrower;
(c) the defeasance, redemption, repurchase or other acquisition of
Subordinated Indebtedness of the Borrower or any Guarantor with the net cash
proceeds from a substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
(d) the payment of any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a Restricted Subsidiary
of the Borrower to the holders of its Equity Interests on a pro rata basis;
(e) so long as no Default has occurred and is continuing or would be
caused thereby, (i) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Borrower or any Restricted
Subsidiary of the Borrower in connection with any management equity subscription
agreement, stock option agreement, shareholders' agreement, severance agreement,
employee benefit plan or agreement or similar agreement, in each case, as in
existence and as in effect on the Closing Date, (ii) the repurchase, redemption
or other acquisition or retirement for value of any Equity Interests of the
Borrower or any Restricted Subsidiary of the Borrower in connection with any
management equity subscription agreement, stock option agreement, shareholders'
agreement, severance agreement, employee benefit plan or agreement or similar
agreement other than any such agreement or plan described in clause (i) above,
or (ii) the repurchase for value of any Equity Interests of the Borrower in the
open market to satisfy stock options issued by the Borrower that are
outstanding; provided, that with respect to clauses (ii) and (iii) above, the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests after the Closing Date may not exceed $25,000,000 in any
calendar year (or the pro rata portion thereof for the calendar year 2004);
(f) the repurchase of Equity Interests deemed to occur upon the
exercise of stock options to the extent such Equity Interests represent a
portion of the exercise price of those stock options;
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(g) the purchase by the Borrower of fractional shares upon conversion
of any securities of the Borrower into Equity Interests of the Borrower;
(h) so long as no Default has occurred and is continuing or would be
caused thereby, the declaration and payment of dividends to holders of any class
or series of Disqualified Stock of the Borrower or any Restricted Subsidiary of
the Borrower issued on or after the Closing Date in accordance with Section
7.3(s) hereof;
(i) the transactions with any Person (including any Affiliate of the
Borrower) set forth in clauses (b)(i) and (b)(iv) of Section 7.8(b) hereof and
the funding of any obligations in connection therewith;
(j) the issuance of Equity Interests of the Borrower (other than
Disqualified Stock) for other Equity Interests of the Borrower in connection
with any rights offering and payments for the redemption of fractional shares in
connection with any rights offering; and
(k) so long as no Default has occurred and is continuing or would be
caused thereby, additional Restricted Payments, other than the payment by the
Borrower of any cash dividends or other cash distributions in respect of the
Borrower's Equity Interests, in an aggregate amount not to exceed, together with
the aggregate amount of Investments made pursuant to clause (4) of the
definition of "Permitted Investments," $75,000,000 since the Closing Date.
Notwithstanding the foregoing terms of this Section, the aggregate
amount of Restricted Payments made pursuant to clauses (a) and (h), from the
Release Date but prior to the Investment Grade Rating Date shall not exceed
$50,000,000 in any twelve-month period. The amount of all Restricted Payments
(other than cash) shall be the Fair Market Value on the date of the Restricted
Payment of the asset(s) or securities proposed to be transferred or issued by
the Borrower or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment.
7.7 LINE OF BUSINESS. Not, nor permit any of its Restricted
Subsidiaries to, engage in any business other than the Permitted Business,
except to such extent as would not be material to the Borrower and its
Subsidiaries taken as a whole.
7.8 TRANSACTIONS WITH AFFILIATES.
(a) Not, and not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Borrower
(each, an "Affiliate Transaction"), unless such Affiliate Transaction is on
terms that are no less favorable (as reasonably determined by the Borrower) to
the Borrower or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Borrower or such Restricted
Subsidiary with an unrelated Person.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of Section
7.8(a) hereof:
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(i) any employment agreement or director's engagement
agreement, employee benefit plan, officer and director indemnification
agreement or any similar arrangement entered into by the Borrower or
any of its Restricted Subsidiaries in the ordinary course of business
or approved by the Board of Directors;
(ii) transactions between or among the Borrower and/or its
Restricted Subsidiaries (other than Foreign Subsidiaries);
(iii) transactions with a Person that is an Affiliate of the
Borrower solely because the Borrower owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable directors' fees to Persons who are
not otherwise Affiliates of the Borrower;
(v) any issuance of Equity Interests (other than Disqualified
Stock) of the Borrower to Affiliates of the Borrower;
(vi) Restricted Payments that do not violate the provisions of
Section 7.6 hereof;
(vii) transactions effected as part of a Qualified
Securitization Transaction;
(viii) loans or advances to employees in the ordinary course
of business not to exceed $10,000,000 in the aggregate outstanding at
any one time;
(ix) any agreement, instrument or arrangement as in effect as
of the Closing Date, or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in
any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Lenders in any
material respect than the original agreement as in effect on the
Closing Date as determined by the Borrower; and
(x) any pro rata distribution (including a rights offering) to
all holders of a class of Equity Interests or Indebtedness of the
Borrower or any of its Restricted Subsidiaries, including Persons who
are Affiliates of the Borrower or any of its Restricted Subsidiaries.
7.9 RESTRICTIVE AGREEMENTS. Enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Restricted Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Restricted Subsidiary to pay dividends or make any other
distributions with respect to any shares of its capital stock or any other
Equity Interest or participation in its profits owned by a Restricted
Subsidiary, or (c) the ability of any Restricted Subsidiary to make or repay
loans or advances to the Borrower or any other Restricted Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary or to
transfer any of its properties or assets to the Borrower or any other Restricted
Subsidiary; provided, that the foregoing shall not apply to (i) restrictions and
conditions imposed by Laws, or
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by any Loan Document, (ii) restrictions and conditions in any agreement or
contract existing on the Closing Date and any amendments, modifications,
restatements, renewals or replacements thereof that are not more restrictive,
taken as a whole, than the restrictions existing on the Closing Date, (iii)
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary or asset pending such sale; provided, that such
restrictions and conditions apply only to the Subsidiary or asset that is to be
sold and such sale is permitted hereunder, (iv) restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) customary non-assignment provisions in
any contract, easement or lease, and other customary encumbrances and
restrictions entered into in the ordinary course of business that are not more
restrictive, taken as a whole, than the encumbrances existing on the Closing
Date, (vi) restrictions or conditions contained in any trading, netting,
operating, construction, service, supply, purchase, sale or similar agreement to
which any Restricted Subsidiary is a party and which is entered into in the
ordinary course of business; provided, that such agreement prohibits the
encumbrance of solely the property or assets of such Restricted Subsidiary that
are the subject of such agreement, the payment rights arising thereunder and/or
the proceeds thereof and not to any other asset or property of such Restricted
Subsidiary or the assets or property of any other Restricted Subsidiary and
(vii) restrictions contained in documents evidencing Indebtedness existing at
the time at which any such Person first becomes a Restricted Subsidiary, so long
as such restriction was not agreed to or entered into solely in contemplation of
such change in status, and any amendments, modifications, restatements, renewals
or replacements thereof that are not more restrictive, taken as a whole, than
the restrictions existing at the time such Person first becomes a Restricted
Subsidiary.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11 FINANCIAL COVENANTS.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio (i) as of the end of any Fiscal Quarter of the Borrower
ending after the Release Date to be less than 2:75:1 and (ii) as of the end of
any Fiscal Quarter of the Borrower ending prior to the Release Date to be less
than the ratio set forth below opposite such Fiscal Quarter:
Minimum Consolidated
Four Fiscal Quarters Ending Interest Coverage Ratio
----------------------------------------------------------------------------
Closing Date through September 30, 2007 1.8:1.0
December 31, 2007 and each Fiscal Quarter 2.0:1.0
thereafter
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(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio
(i) as of the end of any Fiscal Quarter of the Borrower ending after the Release
Date to be greater than 3:25:1 and (ii) as of the end of any Fiscal Quarter of
the Borrower ending prior to the Release Date set forth below to be greater than
the ratio set forth below opposite such period:
Maximum Consolidated
Four Fiscal Quarters Ending Leverage Ratio
-------------------------------------------------------------------------
Closing Date through September 30, 2006 6.0:1.0
December 31, 2006 through September 30, 2007 5.5:1.0
December 31, 2007 and each Fiscal Quarter 5.0:1.0
thereafter
7.12 CAPITAL EXPENDITURES. Make or become legally obligated to make any
Capital Expenditure, except
(a) for Capital Expenditures other than in connection with an
Acquisition, in an amount not exceeding $250,000,000 in the aggregate for the
Borrower and its Restricted Subsidiaries during each Fiscal Year; provided, that
(i) any portion of the $250,000,000 amount permitted in any Fiscal Year that is
not used during such Fiscal Year (the "Carry Amount") may be carried forward for
a period of one Fiscal Year and added to the amount of permitted Capital
Expenditures in the immediately succeeding Fiscal Year (but no portion of any
Carry Amount shall be used (or deemed to be used) in the applicable Fiscal Year
until the entire amount of the Capital Expenditures permitted to be made in such
Fiscal Year (i.e., without giving effect to any Carry Amount) as provided in
this Section shall first have been used in full) and (ii) any portion of the
$250,000,000 amount permitted in any Fiscal Year may be subtracted from the
total amount permitted in such Fiscal Year and added to the permitted amount in
the immediately preceding Fiscal Year; and
(b) in the case of Capital Expenditures in connection with an
Acquisition, an amount that, together with the aggregate amount of Acquisition
Consideration paid by the Borrower or its Subsidiaries on or after the Closing
Date but prior to the Release Date, in the aggregate does not exceed the
Permitted Acquisition Limit;
provided, that in the case of both clauses (a) and (b), regulatory and
environmental capital expenditures necessary to operate assets or to comply with
law or permits and emergency capital expenditures, shall not be limited and
shall not be included in calculating compliance with such limitations.
7.13 MODIFICATION OF CERTAIN AGREEMENTS. Consent to any amendment,
supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in,
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(a) documents relating to Subordinated Indebtedness (other than
intercompany Indebtedness) of the Borrower or any Restricted Subsidiary in any
way that:
(i) increases the rate of or shortens the time for payment of
interest on any Subordinated Indebtedness;
(ii) increases the principal of, shortens the final maturity
date of or shortens the Weighted Average Life to Maturity of any
Subordinated Indebtedness;
(iii) alters in a manner adverse to the Borrower the
redemption provisions or the price or terms at which the Borrower or
such Restricted Subsidiary is required to offer to purchase any
Subordinated Indebtedness; or
(iv) amends the subordination provisions of the agreements
governing any Subordinated Indebtedness;
(b) the Organization Documents of the Borrower or any of its
Subsidiaries, if the result could reasonably expected to have a Material Adverse
Effect; or
(c) any Orion Note Document in any way that (i) reduces the rate of
interest or extends in a material manner the date scheduled for payment of
principal of or interest on, or reduces the principal amount (other than as a
result of a Dollar for Dollar repayment) of, any of the Orion Notes, (ii)
modifies, waives or deletes the terms of the Orion Note Documents which provide
for a cross-default to Indebtedness of OPH under the OPH Note Indenture or the
OPH Notes, or (iii) releases collateral securing the Orion Note Documents,
except in connection with any asset disposition that is not prohibited hereunder
and the Net Asset Sale Proceeds of which are applied in accordance herewith.
7.14 FISCAL YEAR. Not, nor permit any of its Restricted Subsidiaries
to, directly or indirectly, change its Fiscal Year from a Fiscal Year ending
December 31.
7.15 COMMODITY HEDGING. Not, nor permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or assume any Commodity
Hedging Obligations except in the ordinary course of business and not for
speculative purposes.
7.16 SUSPENSION OF CERTAIN COVENANTS UPON RELEASE DATE. Following the
Release Date (provided, that there shall not have occurred or been continuing
any Default as of the Release Date), (i) the provisions of clause (ii) of the
proviso to clause (5) of the definition of Permitted Liens and the provisions of
Sections 7.2, 7.5, 7.12, 7.18 and 7.19 hereof shall be suspended; provided, that
the Core Asset Consent shall continue to be required for the entire term of this
Agreement in connection with any Asset Sale contemplated by Section 7.5(b), (ii)
the provisions of Section 7.6 shall be suspended; provided, that following the
Release Date but prior to the Investment Grade Rating Date, dividends or
distributions of cash or Cash Equivalents on any Equity Interests of the
Borrower shall not exceed $50,000,000 in any twelve-month period, and other
Restricted Payments (as defined in the Secured Note Agreements, but excluding
Investments) shall be permitted only (x) to the extent permitted under the
Secured Note Agreements and (y) so long as no Default shall have occurred and be
continuing, and (iii) the Administrative Agent shall (and each Lender hereby
authorizes and directs the
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Administrative Agent to) promptly cause the release of all Liens securing the
Credit Agreement Obligations; provided, that immediately following such release,
the Borrower and its Subsidiaries shall not have any other secured Indebtedness
(other than the Permitted Exceptions). Notwithstanding the foregoing, if the
ratings assigned by both ▇▇▇▇▇'▇ and S&P to the Secured Notes should
subsequently decline to below an Investment Grade Rating, the provisions of
clause (ii) of the proviso to clause (5) of the definition of Permitted Liens
and the provisions of Sections 7.2, 7.5, 7.6, 7.12, 7.18 and 7.19 hereof shall
be reinstituted as of and from the date of such rating decline, and the
provisions of Section 7.6 hereof shall be interpreted as if they had been in
effect since the Release Date, except that no Default will be deemed to have
occurred solely by reason of a Restricted Payment made or declared (and later
made) in accordance with the provisions of Section 7.6, a breach of Section 7.2,
7.5, 7.12, 7.18 or 7.19 while the provisions of such Sections were suspended, or
a breach of Section 7.1 while the provisions of clause (ii) of the proviso to
clause (5) of the definition of Permitted Liens were suspended.
7.17 ORION SUBSIDIARIES.
(a) The Borrower shall not permit OPH or any of OPH's Subsidiaries to
distribute any cash (except Net Asset Sale Proceeds) to the Borrower or any of
its Subsidiaries, except as follows: first, to pay principal of and interest on
the OPH Revolving Notes; second, to the extent permitted under the OPH Note
Indenture, as a dividend paid by OPH to the Borrower; and third, to pay
principal of and interest on the OPMW Term Notes and OPNY Term Note.
(b) The Borrower shall not take or permit any action that would cause a
"Change of Control" (as defined in the OPH Note Indenture) to occur, without the
consent of the Required Lenders.
(c) The Borrower shall cause OPH and its Subsidiaries to apply any OPH
Asset Sale Proceeds to the prepayment of the OPMW Term Notes and OPNY Term
Notes, in each case until repaid in full.
7.18 DESIGNATED ENTITIES. Notwithstanding anything to the contrary
contained herein (including this Article):
(a) neither the Borrower nor any Restricted Subsidiary shall make any
Investment in or otherwise transfer any asset to any Designated Entity other
than (i) pursuant to cash loans evidenced by promissory notes that are pledged
as Collateral under the Security Documents (but released upon the Release Date);
provided, that to the extent any Designated Entity has Contractual Obligations
existing on the Closing Date which prohibit the incurrence by such Designated
Entity of Indebtedness (including pursuant to such promissory notes), the
Borrower and the Restricted Subsidiaries may, to the extent of such
prohibitions, make cash equity contributions to such Designated Entity, (ii)
credit support provided in the ordinary course of business to support
obligations other than Debt of such Designated Entity (such as and including
posting of cash and/or letters of credit, delivery of performance guarantees or
similar agreements and arrangements to guaranty the timely and complete
performance of such Designated Entity) and (iii) Investments and transfers of
assets (other than cash, Cash Equivalents, or any power generation facility) and
payments for goods and services in the ordinary course of business; and
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(b) no Designated Entity shall incur or permit to exist any
Indebtedness other than (i) pursuant to clause (a)(i) above, (ii) Existing
Indebtedness in respect of which it is obligated and (iii) Permitted Refinancing
Indebtedness with respect to any such Existing Indebtedness.
7.19 FOREIGN INVESTMENTS. Notwithstanding anything to the contrary
contained herein (including this Article), neither the Borrower nor any
Restricted Subsidiary (other than a Foreign Subsidiary) shall make any
Investment in any Foreign Subsidiary unless the Borrower shall have taken all
actions required by Section 6.12 with respect thereto; provided, that the
aggregate amount of Investments made by the Borrower and/or Restricted
Subsidiaries (other than a Foreign Subsidiary) in Foreign Subsidiaries after the
Closing Date shall not exceed $50,000,000.
ARTICLE VIII.
GUARANTY
8.1 GUARANTY; LIMITATION OF LIABILITY.
(a) Each Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Credit Agreement Obligations of the
Borrower now or hereafter existing (including any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing Credit
Agreement Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Credit Agreement Obligations being
the "Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable fees and expenses of counsel) incurred by any Agent or any other
Secured Party in enforcing any rights under this Guaranty or any other Loan
Document. Without limiting the generality of the foregoing, each Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any other Loan Party to any Secured Party under
or in respect of the Loan Documents but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty and the Obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to
the extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the Guarantors hereby irrevocably agree that the
Obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the Credit Agreement Obligations of such
Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Guaranty or any Instrument of Assumption and Joinder, such Guarantor will
contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other Guarantor so as to
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maximize the aggregate amount paid to the Secured Parties under or in respect of
the Loan Documents.
8.2 GUARANTY ABSOLUTE. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Secured
Party with respect thereto. The Credit Agreement Obligations of each Guarantor
under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other Credit Agreement Obligations of any other Loan Party
under or in respect of the Loan Documents, and a separate action or actions may
be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or any other
Loan Party or whether the Borrower or any other Loan Party is joined in any such
action or actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other Credit
Agreement Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure from
any Loan Document, including any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or any of
its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral
or any other collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of Collateral or any other collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral or any other collateral for all or
any of the Guaranteed Obligations or any other Credit Agreement Obligations of
any Loan Party under the Loan Documents or any other assets of any Loan Party or
any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure
or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Secured Party (each Guarantor waiving any duty on the
part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Instrument of Assumption and Joinder or any other guaranty or
agreement or the release or reduction of
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liability of any Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or
(h) any other circumstance (including any statute of limitations) or
any existence of or reliance on any representation by any Secured Party that
might otherwise constitute a defense available to, or a discharge of, any Loan
Party or any other guarantor or surety.
This Guaranty shall survive termination of this Agreement and shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by any Secured Party or any other Person upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Loan Party or
otherwise, all as though such payment had not been made.
8.3 WAIVERS AND ACKNOWLEDGMENTS.
(a) Each Guarantor hereby unconditionally and irrevocably waives
promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Guaranteed Obligations
and this Guaranty and any requirement that any Secured Party protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right
or take any action against any Loan Party or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Credit Agreement
Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Collateral Agent may, without
notice to or demand upon such Guarantor and without affecting the liability of
such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery by the
Collateral Agent and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be
afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
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(f) Each Guarantor acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in Section 8.2 and this Section are
knowingly made in contemplation of such benefits.
8.4 SUBROGATION. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire
against the Borrower, any other Loan Party or any other insider guarantor that
arise from the existence, payment, performance or enforcement of such
Guarantor's Guaranteed Obligations under or in respect of this Guaranty or any
other Loan Document, including any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Secured Party against the Borrower, any other Loan Party
or any other insider guarantor or any Collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including the right to take or receive from the Borrower, any other Loan Party
or any other insider guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, all Letters of Credit shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the latest
maturity date in respect of the Facilities outstanding from time to time and (c)
the latest date of expiration or termination of all Letters of Credit, such
amount shall be received and held in trust for the benefit of the Secured
Parties, shall be segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered to the Administrative Agent in the same
form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) any Guarantor shall make payment to any Secured Party of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, (iii)
the latest maturity date in respect of the Facilities outstanding from time to
time shall have occurred and (iv) all Letters of Credit shall have expired or
been terminated, the Secured Parties will, at such Guarantor's request and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.
8.5 ASSUMPTION AND JOINDER. Upon the execution and delivery by any
Additional Guarantor of an Instrument of Assumption and Joinder as required
under Section 6.12(a), (a) such Person shall become and be a Guarantor
hereunder, and each reference in this Guaranty to a "Guarantor" shall also mean
and be a reference to such Additional Guarantor, and each reference in any other
Loan Document to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (b) each reference herein to "this Guaranty,"
"hereunder," "hereof" or words of like import referring to this Guaranty, and
each reference in any other Loan Document to the "Guaranty," "thereunder,"
"thereof" or words of like import referring to this
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Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Instrument of Assumption and Joinder.
8.6 SUBORDINATION. Each Guarantor hereby subordinates any and all
debts, liabilities and other Obligations owed to such Guarantor by each other
Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section:
(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any proceeding under any
Debtor Relief Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Debtor Relief Law relating to any other Loan Party), however, unless the
Required Lenders otherwise agree, no Guarantor shall demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Debtor Relief Law relating to any other Loan Party, each Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in cash of
all Guaranteed Obligations (including all Post-Petition Interest) before such
Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Debtor Relief Law relating to any other Loan Party), each Guarantor shall, if
the Administrative Agent so request, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured Parties and
deliver such payments to the Administrative Agent on account of the Guaranteed
Obligations (including all Post-Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of such Guarantor under the other provisions of this
Guaranty.
8.7 CONTINUING GUARANTY; ASSIGNMENTS. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until the latest of (i)
the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (ii) the latest maturity date in respect of the
Facilities outstanding from time to time, (iii) the latest date of expiration or
termination of all Letters of Credit, or Cash Collateralization thereof or
issuance of a back-to-back letter of credit reasonably satisfactory to the
applicable L/C Issuer with respect thereto, and (iv) the release thereof in
accordance with Section 10.10, (b) be binding upon the Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the Secured
Parties and their successors, transferees and assigns. Upon the occurrence of
the latest date specified in clause (a) above, the Guarantors shall be released
from other Credit Agreement Obligations under the Loan Documents. Without
limiting the generality of clause (c) of the immediately preceding sentence, any
Secured Party may assign or otherwise transfer all or any portion of its rights
and Obligations under this Agreement (including all or any portion of its
Commitments, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise,
in each case as and to the extent provided in
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this Section. No Guarantor shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Secured Parties.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.1 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee or other
amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Section 6.3, 6.5 (only with
respect to the existence of the Borrower), 6.11 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in clause (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier to occur of (i) a Loan Party receiving
notice thereof from the Administrative Agent (which notice shall be given at the
request of any Lender) or any other Person, or (ii) a Responsible Officer or
other executive officer of a Loan Party obtains knowledge of such occurrence; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party, any Person required to become a
Loan Party pursuant to Section 6.12, REMA, OPH or any Subsidiary of REMA or OPH
(A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
under or Guarantee in respect of the REMA Lease or any other Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Hedging
Agreements) having an aggregate principal amount (including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than
$50,000,000, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is (x) in the case of all such
Indebtedness or Guarantees (including under or in respect of the REMA Lease), to
cause, or (y) in the case of all such Indebtedness or Guarantees (other than
under or in respect of the REMA Lease), to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be demanded
or to become due or to be repurchased, prepaid, defeased or
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redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its Stated Maturity, or
such Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Hedging Agreement an Early Termination
Date (as defined in such Hedging Agreement) resulting from (A) any event of
default under such Hedging Agreement as to which the Borrower or any Subsidiary
is the Defaulting Party (as defined in such Hedging Agreement) or (B) any
Termination Event (as so defined) under such Hedging Agreement as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Hedge Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than $50,000,000 and not paid when due; or
(f) Insolvency Proceedings, Etc. The Borrower or any Loan Party (or
Person that is required to become a Loan Party pursuant to Section 6.12) that is
a Material Subsidiary or REMA, OPH or any Subsidiary of REMA or OPH institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of their
respective property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of their respective
property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. The Borrower or any Loan Party
(or Person that is required to become a Loan Party pursuant to Section 6.12)
that is a Material Subsidiary or REMA, OPH or any Subsidiary of REMA or OPH
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due; or
(h) Judgments. There is entered against the Borrower, any Loan Party,
any Person that is required to become a Loan Party pursuant to Section 6.12,
OPH, REMA or any Subsidiary of OPH or REMA a final judgment or order for the
payment of money in an aggregate amount exceeding $50,000,000 (to the extent not
covered by independent third-party insurance or that has not been paid), and (A)
enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) within thirty (30) days from the later of (X) the entry of any
such judgment or the date of any such order (as applicable) and (Y) the date any
payment is required to be made on or with respect to any such judgment or order
pursuant to the terms thereof, the same shall not have been paid, discharged or
vacated or, in the case of a judgment, stayed pending appeal, or shall not have
been discharged or vacated within thirty (30) days from the entry of a final
order of affirmance on appeal; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $50,000,000,
or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan
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in an aggregate amount in excess of $50,000,000; or the Borrower fails to make a
contribution under Code Section 412 or ERISA Section 302 with respect to a
Pension Plan, within 30 days after the date on which the Borrower obtains
knowledge that such contribution is due, in an aggregate amount in excess of
$50,000,000; or
(j) Change of Control. There occurs any Change of Control; or
(k) Invalidity of Documents. (i) Any Security Agreement, Mortgage or
other Security Document after delivery thereof pursuant to Section 4.1 or 6.12
shall for any reason (other than pursuant to the terms thereof or as expressly
permitted thereby) cease to create a valid and perfected first priority Lien
(subject to Permitted Encumbrances and Permitted Liens) on and security interest
in the Collateral purported to be covered thereby; provided, that no such
defects pursuant to this clause with respect to a Lien granted or purported to
be granted by any of the Loan Documents shall give rise to an Event of Default
under this clause unless such defects shall adversely affect the aggregate value
of the Collateral by an aggregate amount of $50,000,000 or more; or (ii) any
Loan Party shall so assert such invalidity or lack of perfection or priority; or
(iii) any other Loan Document, at any time after its execution and delivery and
for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Credit Agreement Obligations thereunder, ceases
to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any provision of any other Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any other Loan Document, or purports to revoke, terminate or
rescind any provision of any other Loan Document; or
(l) Failure of Subordination. Unless otherwise waived or consented to
by the Administrative Agent and the Required Lenders in writing, the
subordination provisions relating to any Subordinated Indebtedness (the
"Subordination Provisions") shall fail to be enforceable by the Administrative
Agent, the Lenders and the L/C Issuers in accordance with the terms thereof, or
the monetary Credit Agreement Obligations shall fail to constitute "Senior
Indebtedness" or "Senior Debt" (or similar term) referring to the Credit
Agreement Obligations; or the Borrower or any of its Restricted Subsidiaries
shall, directly or indirectly, disavow or contest in any manner (i) the
effectiveness, validity or enforceability of any of the Subordination
Provisions, (ii) that the Subordination Provisions exist for the benefit of the
Secured Parties or (iii) that all payments of principal of or premium and
interest on the Subordinated Debt, or realized from the liquidation of any
property of any Loan Party, shall be subject to any of such Subordination
Provisions.
9.2 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following actions:
(a) declare by written notice to the Borrower the Commitment of each
Lender to make Loans and any obligation of an L/C Issuer to make L/C Credit
Extensions to be terminated, whereupon such Commitments and obligation shall be
terminated;
(b) declare by written notice to the Borrower the unpaid principal
amount of all outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or
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payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower;
(c) require by written notice to the Borrower that the Borrower Cash
Collateralize the L/C Obligations (in an amount equal to the then Outstanding
Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents;
provided, that upon the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation of an L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
9.3 APPLICATION OF FUNDS. After the exercise of remedies provided for
in Section 9.2 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 9.2), any amounts received
on account of the Credit Agreement Obligations shall be applied by the
Administrative Agent in the following order:
(a) to payment of that portion of the Credit Agreement
Obligations constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to
the Administrative Agent in its capacity as such;
(b) to payment of that portion of the Credit Agreement
Obligations constituting fees, indemnities and other amounts (other
than principal and interest) payable to the Lenders and each L/C Issuer
(including reasonable fees, charges and disbursements of counsel to the
respective Lenders and the respective L/C Issuer (including fees and
time charges for attorneys who may be employees of any Lender or any
L/C Issuer) and amounts payable under Article III), ratably among them
in proportion to the amounts described in this clause payable to them;
(c) to payment of Hedging Obligations and that portion of the
Credit Agreement Obligations constituting accrued and unpaid interest
on the Loans, L/C Borrowings and other Credit Agreement Obligations,
ratably among the Lenders and each applicable L/C Issuer in proportion
to the respective amounts described in this clause payable to them;
(d) to payment of that portion of the Credit Agreement
Obligations constituting unpaid principal of the Loans and L/C
Borrowings, ratably among the Lenders and each L/C Issuer in proportion
to the respective amounts described in this clause held by them;
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(e) to the Administrative Agent for the account of each L/C
Issuer, to Cash Collateralize that portion of L/C Obligations comprised
of the aggregate undrawn amount of Letters of Credit;
(f) to the payment of all other Credit Agreement Obligations
of the Loan Parties owing under or in respect of the Loan Documents
that are due and payable to the Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Credit
Agreement Obligations owing to the Secured Parties on such date; and
(g) the balance, if any, after all of the Credit Agreement
Obligations have been indefeasibly paid in full, to the Borrower or as
otherwise required by Law.
Subject to Section 2.3(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause (e) above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Credit Agreement Obligations, if any, in the order set forth above.
ARTICLE X.
THE AGENTS AND THE ISSUING BANKS
10.1 APPOINTMENT AND AUTHORITY. Each of the Lenders and each L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent and the Collateral Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
and the Collateral Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent and the
Collateral Agent, the Lenders and each L/C Issuer, and neither the Borrower nor
any other Loan Party shall have rights as a third party beneficiary of any of
such provisions.
10.2 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
or the Collateral Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent or the Collateral Agent and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent or
the Collateral Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent or the Collateral Agent hereunder
and without any duty to account therefor to the Lenders.
10.3 EXCULPATORY PROVISIONS. The Administrative Agent and the
Collateral Agent shall not have any duties or obligations except those expressly
set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent and the Collateral Agent:
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(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent and the Collateral Agent are required to exercise as
directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents); provided, that the Administrative Agent and the Collateral Agent
shall not be required to take any action that, in their opinion or the opinion
of their counsel, may expose the Administrative Agent or the Collateral Agent,
as applicable, to liability or that is contrary to any Loan Document or
applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or the Collateral Agent or any of their respective
Affiliates in any capacity.
The Administrative Agent and the Collateral Agent shall not be liable
for any action taken or not taken by it, WHETHER OR NOT RELATED TO ANY SINGULAR,
JOINT OR CONCURRENT NEGLIGENCE OF SUCH AGENTS, (i) with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent or the Collateral
Agent, as applicable, shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.1 and 9.2) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent and the
Collateral Agent shall be deemed not to have knowledge of any Default unless and
until notice describing such Default is given to the Administrative Agent or the
Collateral Agent, as applicable, by the Borrower, a Lender or an L/C Issuer.
The Administrative Agent and the Collateral Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent or the Collateral Agent, as
applicable.
10.4 RELIANCE BY THE AGENTS. The Agents shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by them to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to
have been made by the
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proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender or such L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or such L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Agents may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by them,
and shall not be liable for any action taken or not taken by them in accordance
with the advice of any such counsel, accountants or experts.
10.5 DELEGATION OF DUTIES. The Agents may perform any and all of their
respective duties and exercise their respective rights and powers hereunder or
under any other Loan Document by or through any one or more sub-agents appointed
by the Agents, respectively. The Agents and any such sub-agent may perform any
and all of their respective duties and exercise their respective rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Agents and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agents.
10.6 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
at any time give notice of its resignation to the Lenders, each L/C Issuer and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and each L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided, that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or
each L/C Issuer under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and each L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and
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Section 11.4 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as an L/C Issuer. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C
Issuer shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents, and (c) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit issued by the
retiring L/C Issuer, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring L/C Issuer to effectively assume
the obligations of the retiring L/C Issuer with respect to such Letters of
Credit.
10.7 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and each L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
10.8 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers or other Agents listed on
the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.
10.9 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Credit Agreement Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders, each applicable L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Lenders, such L/C Issuer and the Administrative Agent and their respective
agents and
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counsel and all other amounts due the Lenders, each applicable L/C Issuer and
the Administrative Agent under Sections 2.3(i) and (j), 2.8 and 11.4) allowed in
such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and each applicable L/C Issuer to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and each
applicable L/C Issuer, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.8 and 11.4.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment
or composition affecting the Credit Agreement Obligations or the rights of any
Lender or to authorize the Administrative Agent to vote in respect of the claim
of any Lender in any such proceeding.
10.10 COLLATERAL AND GUARANTY MATTERS.
(a) The Administrative Agent and the Collateral Agent are irrevocably
authorized, at the discretion of the Administrative Agent or the Collateral
Agent from time to time, to take any of the following actions or to direct the
Collateral Trustee or other applicable Persons to take any of the following
actions, in each case as the Administrative Agent or the Collateral Agent shall
determine to be in the interest of the Lenders:
(i) accept, release, subordinate or otherwise modify any Lien
on any real or personal property, including any security issued by or
other ownership interest in any Person, (A) with respect to
acceptances, at any time, (B) with respect to releases, upon the
Release Date or upon termination of the Aggregate Commitments and
payment in full of all Credit Agreement Obligations (other than
contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (C) with respect to releases, to
the extent of property that is or will be sold, monetized, securitized,
leased or otherwise transferred or disposed of as part of or in
connection with any transaction required or permitted under any Loan
Document or otherwise to the extent contemplated by any transaction
required or permitted under any Loan Document (and without limiting any
other applicable releases, to the extent any Subsidiary ceases to be a
Subsidiary of the Borrower, or all or substantially all of its assets
is sold or otherwise transferred or disposed of, then regardless of the
form of such transaction such release may extend to all of the
ownership interests in such Subsidiary and the assets of such
Subsidiary), (D) with respect to subordinations, to the extent the Lien
which benefits from the subordination is permitted by Section 7.1, or
(E) under other circumstances, to the extent such actions under such
other circumstances are approved, authorized or ratified in writing by
the Required Lenders or such greater percentage of Lenders required
under Section 11.1(i) or
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(j); provided that in any circumstances when any release is authorized,
any lesser modification such as a partial release or subordination is
also authorized;
(ii) accept, release, subordinate or otherwise modify the
Guaranty, any other Guarantee of any Credit Agreement Obligations or as
applicable any Person obligated under the Guaranty or any such
Guarantee, (A) with respect to acceptances, at any time, (B) with
respect to releases, if the applicable guarantor ceases to be a
Subsidiary as a result of a transaction permitted hereunder or
otherwise to the extent contemplated by any transaction required or
permitted under any Loan Document (and without limiting any other
applicable releases, to the extent any Subsidiary that is an issuer of
"Excluded Securities" as defined in the Collateral Trust Agreement is
released from the Guaranty or any such Guarantee, then such release may
extend to a release of Liens in the Excluded Securities issued by such
Subsidiary) or (C) under other circumstances, to the extent such other
actions under such circumstances are approved, authorized or ratified
in writing by the Required Lenders or such greater percentage of
Lenders required under Section 11.1(i) or (j); provided that in any
circumstances when any release is authorized, any lesser modification
such as a partial release or subordination is also authorized;
(iii) take or direct the taking of any action to which clause
(i) above applies (other than the release of, or the subordination of
the Secured Parties' Lien on, all or substantially all of the
Collateral in any transaction or series of related transactions) if and
to the extent determined by the Administrative Agent or the Collateral
Agent that the cost to the Credit Parties of not taking such action,
including administrative costs, is disproportionate to the benefit to
be maintained by the Secured Parties by not taking such action;
(iv) enter into any Texas Genco Intercreditor Agreement and
other intercreditor agreements, subordination agreements and other
agreements related to the Security Documents or the Guaranty or any
other Guarantee of any Credit Agreement Obligations determined by the
Administrative Agent or the Collateral Trustee to be in the interest of
the Lenders, (A) with Persons who have been granted Liens permitted by
Section 7.1, (B) to the extent contemplated by any transaction required
or permitted under any Loan Document or (C) under other circumstances
to the extent such other circumstances are approved, authorized or
ratified in writing by the Required Lenders or such greater percentage
of Lenders required under Section 11.1(i) or (j); and
(v) exercise rights (other than enforcement rights unless
authorized by the Required Lenders) and perform obligations under the
Collateral Trust Agreement and the other Security Documents, the
Guaranty and any other Guarantee of any Credit Agreement Obligations,
the documents and agreements referred to in clause (iv) above and
related documents and agreements, in each case as required or as deemed
appropriate in the discretion of the Administrative Agent or the
Collateral Trustee, including amending, supplementing, waiving,
providing consent under or otherwise modifying any of the foregoing
documents or agreements, directing or providing notices or other
communications to the Collateral Trustee and becoming or appointing any
agent, co-agent, sub-agent, trustee, co-trustee, sub-trustee or the
like for the Collateral Trustee or for other Persons.
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(b) The Administrative Agent and the Collateral Agent hereby agree to
take or direct the Collateral Trustee or other applicable Person to take, to the
extent not otherwise prohibited by this Agreement, (1) any of the actions
authorized under clause (a)(i)(A)-(D), (a)(ii)(A) or (B), or (iv)(A) or (B)
above upon the occurrence of any of the applicable circumstances set forth in
such clauses and the receipt of the Borrower's written request that such action
be taken. The manner of taking such actions shall be determined by the
Administrative Agent and the Collateral Agent in their reasonable discretion
after consultation with the Borrower following the occurrence of any of such
applicable circumstances. In connection therewith, the Administrative Agent and
the Collateral Agent shall timely execute and deliver, provide, return or
otherwise make available or direct the execution and delivery, provision, return
or otherwise making available of all filings, recordings, notices, and other
documents and agreements, including financing statements, recordable real
property documents and general releases and notices, directions and other
communications to the Collateral Trustee, required by the terms of this
Agreement or reasonably requested by the Borrower.
(c) Upon request by the Administrative Agent or the Collateral Agent at
any time, the Required Lenders will confirm in writing any authority to take or
direct the taking of any of the actions in accordance with this Section.
(d) Any actions taken or directed to be taken by the Administrative
Agent or the Collateral Agent under the authority granted under this Section
shall be deemed for all purposes to be authorized by and shall be binding on and
may be made on behalf of the Lenders and the other Secured Parties under this
Agreement. In addition, whether or not so authorized, the Collateral Trustee,
any agent, co-agent, sub-agent, trustee, co-trustee, sub-trustee or the like for
the Collateral Trustee and any other Person to whom these provisions may relate
are directed to follow, and shall be entitled to rely upon as so authorized by
the Lenders and the other Secured Parties under this Agreement, any document or
agreement, notice, direction or other communication signed by or received from
the Administrative Agent or the Collateral Agent purporting to be authorized by
or to be on behalf of the Lenders or any other Secured Parties under this
Agreement or any subset thereof under this Section or otherwise.
(e) Contemporaneously with the execution hereof, in addition to all
other authorizations provided in this Section, the Administrative Agent and the
Collateral Agent are irrevocably authorized to, and direct the Collateral
Trustee and any agent, co-agent, sub-agent, trustee, co-trustee, sub-trustee or
the like to, and hereby so direct all of them to, execute and deliver, provide,
return or otherwise make available all filings, recordings, notices and
documents and agreements (i) necessary or desirable to satisfy the conditions
set forth in Section 4.1, (ii) necessary or desirable to cause the return and
release of the OPH Guaranty, (iii) necessary or desirable to complete the
releases and other actions set forth on Schedule 10.10(e), and (iv) otherwise
deemed necessary or desirable by the Administrative Agent or the Collateral
Agent to effect the transactions contemplated in connection with the execution
and delivery of this Agreement.
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ARTICLE XI.
MISCELLANEOUS
11.1 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document (other than Fee Letters), and no consent to
any departure by the Borrower or any other Loan Party therefrom, shall be
effective unless in writing signed by the Required Lenders (or the
Administrative Agent or Collateral Agent, with the authorization of the Required
Lenders) and the Borrower or the applicable Loan Party, as the case may be, and,
if not signed by the Administrative Agent, acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.1(a), or, in the case of
the initial Credit Extension, Section 4.2, without the written consent of each
Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.2) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment of principal, interest, fees or
other amounts due to the Lenders (or any of them) or any scheduled or mandatory
reduction of the Aggregate Commitments hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this Section) any fees or other amounts payable hereunder or under any other
Loan Document without the written consent of each Lender directly affected
thereby; provided, that only the consent of the Required Lenders shall be
necessary to amend the definition of "Default Rate" or to waive any Obligation
of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(e) change Section 2.12 or Section 9.3 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section, the definition of "Required
Lenders" or the definition of "Core Asset Consent" or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;
(g) change any provision of Section 11.6 the effect of which would
impose additional restrictions on assignments and participations by Lenders
without the written consent of each Lender;
(h) change any provision of Sections 2.4(b)(vii), (viii), (ix) and (x)
without the written consent of each Lender;
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(i) except as otherwise permitted, authorized or required by any Loan
Document, release any Guarantor from the Guaranty without the written consent of
each Lender;
(j) except as otherwise permitted, authorized or required by any Loan
Document, release all or substantially all of the Collateral in any transaction
or series of related transactions, without the written consent of each Lender;
(k) change any provision of Section 7.11(a)(i) or 7.11(b)(i) or Section
7.5(b) or (in each case) any defined term referred to or applicable therein,
without the written consent of Lenders having more than 66--2/3% of the
Revolving Credit Exposure; or
(l) except to add any additional, or increase, any L/C Issuer Amount
for Letters of Credit with the consent of the Borrower and the affected L/C
Issuer, change any provision of Schedule 2.1 insofar as it relates to any L/C
Issuer Amount for Letters of Credit, without the written consent of each L/C
Issuer and (unless an Event of Default has occurred and is continuing) the
Borrower;
and, provided, further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by each L/C Issuer in addition to the Lenders required
above, affect the rights or duties of any L/C Issuer under this Agreement or any
Issuer Document relating to any Letter of Credit issued or to be issued by it;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iii) Section 11.6(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; and (iv) the Fee Letters may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
11.2 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in clause (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent or an L/C
Issuer, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 11.2; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
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Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in clause (b) below, shall be effective as provided in such clause (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and each L/C Issuer hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided, that the
foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to
Article II if such Lender or such L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided, that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement); provided, that if such notice or other communication
is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative
Agent and each L/C Issuer may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent and each L/C Issuer.
(d) Reliance by Administrative Agent, each L/C Issuer and Lenders. The
Administrative Agent, each L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Borrowing Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof received after
any action was taken in accordance with such terms. The Borrower shall indemnify
the Administrative Agent, each L/C Issuer, each Lender and the Related Parties
of each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower. All telephonic notices to and other telephonic communications with
the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.
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11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, any L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.4 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of one principal
counsel and reasonably required local counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by an L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred
by the Administrative Agent, any Lender or any L/C Issuer (including the
reasonable fees, charges and disbursements of any counsel for the Administrative
Agent, any Lender or any L/C Issuer), and shall pay all fees and time charges
for attorneys who may be employees of the Administrative Agent, any Lender or
any L/C Issuer, in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including
its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, WHETHER OR NOT RELATED TO ANY NEGLIGENCE
OF THE INDEMNIFIED PARTIES, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee),
and shall indemnify and hold harmless each Indemnitee from all fees and time
charges and disbursements for attorneys who may be employees of any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower or any other Loan Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or
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any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; provided, that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee, (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction or (z) result from any dispute arising solely between or
among any Lenders, Agents or L/C Issuers, which dispute is not a result of any
act or omission of any Loan Party.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under clause (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), an L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such
Lender's Pro Rata Share (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 any such sub-agent) or such L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or such L/C Issuer
in connection with such capacity. The obligations of the Lenders under this
clause (c) are subject to the provisions of Section 2.11(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and 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,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall
be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after the Borrower's receipt of a written demand
therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and any L/C Issuer, the replacement of
any Lender, the termination of the
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Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Credit Agreement Obligations.
11.5 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent, any L/C Issuer or any
Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its
right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, such L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the Credit Agreement Obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and each L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The Obligations of
the Lenders and each L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Credit Agreement Obligations and the
termination of this Agreement.
11.6 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of clause (b) of this Section, (ii)
by way of participation in accordance with the provisions of clause (d) of this
Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of clause (f) of this Section, or (iv) to an SPC in
accordance with the provisions of clause (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in clause (d) of
this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, each L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this clause (b), participations in L/C Obligations)
at the time owing to it); provided, that:
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an
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assignment to a Lender or an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding balance of
the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $1,000,000 with respect to Term Loans and
$10,000,000 with respect to Revolving Credit Commitments, unless each
of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned (including, with respect to any portion of any
Revolving Loan Commitment assigned, the corresponding obligation to
purchase participations in L/C Obligations pursuant to Section 2.3(b));
(iii) (x) any assignment of a Commitment must be approved by
the Administrative Agent and each L/C Issuer, and (y) any reduction in
any L/C Issuer Amount for Letters of Credit must be approved by each
L/C Issuer and (unless an Event of Default has occurred and is
continuing) the Borrower, in each case, such approval not to be
unreasonably withheld or delayed; and
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500, and the Eligible Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire; provided that only one such fee shall
be required in connection with a concurrent assignment by a Lender to
one or more Approved Funds.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to clause (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.1, 3.4, 3.5, and 11.4 with respect
to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this clause
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with clause (d) of
this Section.
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(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's Office
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and each L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of,
or notice to, the Borrower or the Administrative Agent, sell participations to
any Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations) owing to it); provided, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and each L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided, that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.1 that affects such Participant. Subject to clause (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.1, 3.4 and 3.5 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to clause (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 11.8 as though it were a Lender, provided, that such
Participant agrees to be subject to Section 2.11 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.1 or 3.4 than the
applicable 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 Lender if it were a Lender shall not be
entitled to the benefits of Section 3.1 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 3.1(e) as though it were a
Lender.
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(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided, that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided, that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under Section 2.11(b)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.4), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.
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(i) Resignation as an L/C Issuer after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time an L/C Issuer assigns
all of its Commitment and Loans pursuant to clause (b) above, such L/C Issuer
may, upon 30 days' notice to the Borrower and the Lenders, resign as an L/C
Issuer. In the event of any such resignation as an L/C Issuer, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer
hereunder; provided, that (i) each outstanding Letter of Credit issued by such
L/C Issuer shall remain in full force and effect until such Letter of Credit has
terminated or expired (without giving effect to any renewals thereof) and (ii)
no failure by the Borrower to appoint any such successor shall affect the
resignation of such L/C Issuer as an L/C Issuer. Each resigning L/C Issuer shall
retain all the rights and obligations of an L/C Issuer hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as
an L/C Issuer and all L/C Obligations with respect thereto.
11.7 CONFIDENTIALITY. Each of the Agents, the Collateral Agent, each
L/C Issuer and the Lenders understands that some of the information furnished to
it pursuant to this Agreement and the other Loan Documents may be received by it
prior to the time that such information shall have been made public, and each of
the Administrative Agent, the other Agents the Collateral Agent, each L/C Issuer
and the Lenders hereby agrees that it will keep all the Information (as defined
below) received by it confidential except that such Person shall be permitted to
disclose Information (i) only to such of its officers, directors, employees,
agents, representatives, auditors, consultants, advisors, trustees, investment
advisors, lawyers and affiliates as need to know such Information in connection
with this Agreement or any other Loan Document and who will be advised of the
confidential nature of such Information; (ii) to any other party to this
Agreement; (iii) to a proposed assignee or participant in accordance with
Section 11.6 hereof; provided that prior to any such disclosure each such
proposed assignee or participant shall agree in writing to be bound by the
provisions of this Section 11.7; (iv) to the extent required by Law and
regulations or by any subpoena or other legal process; (v) to the extent
requested by any bank regulatory authority or other regulatory authority; (vi)
to the extent such information (A) becomes publicly available other than as a
result of a breach of this Agreement or (B) becomes available to such Lender on
a nonconfidential basis from a source other than a Loan Party or any of its
Affiliates; (vii) to the extent the Borrower shall have consented to such
disclosure; (viii) in connection with the servicing of the Loans hereunder, in
protecting, exercising or enforcing any rights and/or remedies in connection
with any Loan Document or in any proceeding in connection with any Loan Document
or any of the transactions contemplated thereby or (ix) to the Collateral
Trustee. For the purposes of this Section, "Information" means all information
received from the Borrower, any other Loan Party or their respective officers,
directors, employees, agents, representatives, auditors, consultants, advisors,
trustees, investment advisors, lawyers and affiliates (collectively, "Credit
Party Agents") relating to the Borrower, any Loan Party, any Subsidiary of a
Loan Party or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any other Agent, the
Collateral Agent, any L/C Issuer or any Lender on a nonconfidential basis prior
to disclosure by the Borrower, any Loan Party or any Subsidiary of a Loan Party.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. In the event of any required disclosure of
Information, any Person required to maintain the confidentiality of such
Information as provided in this Section agrees to
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use reasonable efforts to inform the Borrower as promptly as practicable of the
circumstances and the Information required to be disclosed to the extent not
prohibited by Law.
11.8 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, each L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, such L/C Issuer or any such Affiliate to or for the credit or the
account of the Borrower or any other Loan Party against any and all of the
Credit Agreement Obligations of the Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or such
L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such Credit Agreement Obligations of the Borrower or such Loan Party
may be contingent or unmatured or are owed to a branch or office of such Lender
or such L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, each L/C Issuer and
their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, such L/C
Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer
agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application; provided, that the failure to give such notice
shall not affect the validity of such setoff and application.
11.9 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Credit Agreement Obligations hereunder.
11.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.1, 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 that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
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11.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Credit Agreement Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
11.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.4, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.1, if any Lender is a Defaulting Lender or if any other circumstance
exists hereunder that gives the Borrower the right to replace a Lender as a
party hereto, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.6), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided, that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 11.6(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.5) 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);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.4 or payments required to be made pursuant to
Section 3.1, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
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A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
11.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE SOUTHERN DISTRICT COURT OF THE STATE
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.2. NOTHING
IN THIS AGREEMENT WILL AFFECT THE
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RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.
11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
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 ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
11.17 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
11.18 CITIBANK INTERCREDITOR AGREEMENT. Those Lenders parties to this
Credit Agreement that were "Tranche A Lenders" (as defined in the Existing
Credit Agreement) under the Existing Credit Agreement hereby acknowledge and
agree that the Intercreditor Agreement dated as of March 28, 2003 between Bank
of America, N.A., as Administrative Agent and Collateral Agent and Citicorp USA,
Inc., as Tranche A Agent and Citibank, N.A., as Tranche A Collateral Agent, as
assigned to the Collateral Trustee, shall no longer be in effect.
11.19 ORION BANK GUARANTORS. Pursuant to the Existing Credit Agreement,
the Orion Bank Guarantors (as defined in the Existing Credit Agreement) provided
a limited guaranty of the obligations thereunder. The Lenders hereby acknowledge
and agree that such Orion Bank Guarantors are released from all obligations with
respect to such limited guaranty, and that such limited guaranty is no longer in
effect.
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11.20 AMENDED AND RESTATED CREDIT AGREEMENT. This Agreement is intended
to amend the Existing Credit Agreement in its entirety. It is intended to
evidence a continuation and reaffirmation of the obligations under the Existing
Credit Agreement and not a termination or extinguishment thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
RELIANT ENERGY, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
Reliant Energy Asset Management, LLC
Reliant Energy Aurora Development, LLC
Reliant Energy Aurora Holding, LLC
Reliant Energy Aurora I, LP
Reliant Energy ▇▇▇▇▇▇ ▇▇, LP
Reliant Energy Aurora, LP
Reliant Energy Broadband, Inc.
Reliant Energy California Holdings, LLC
Reliant Energy Capital (Europe), Inc.
Reliant Energy Communications, Inc.
Reliant Energy Coolwater, Inc.
Reliant Energy Corporate Services, LLC
Reliant Energy Deer Park, Inc.
Energy Ellwood, Inc.
Reliant Energy Etiwanda, Inc.
Reliant Energy Europe, Inc.
Reliant Energy Florida, LLC
Reliant Energy Florida Holdings, LLC
Reliant Energy Key/Con Fuels, LLC
Reliant Energy Mandalay, Inc.
Reliant Energy Net Ventures, Inc.
Reliant Energy Northeast Generation, Inc.
Reliant Energy Northeast Holdings, Inc.
Reliant Energy Ormond Beach, Inc.
Reliant Energy Power Generation, Inc.
Reliant Energy Power Operations I, Inc.
Reliant Energy Power Operations II, Inc.
Reliant Energy Renewables, Inc.
Reliant Energy Retail Holdings, LLC
Reliant Energy Retail Services, LLC
Energy Sabine (Texas), Inc.
Reliant Energy Services Desert Basin, LLC
Reliant Energy Services International, Inc.
Reliant Energy Services Mid-Stream, LLC
Reliant Energy Services, Inc.
Reliant Energy ▇▇▇▇▇▇, LLC
Reliant Energy Shelby County II, LP
Reliant Energy Shelby County, LP
Reliant Energy Shelby Development Corp.
Reliant Energy Shelby Holding Corp.
Reliant Energy Shelby I, LP
Reliant Energy ▇▇▇▇▇▇ ▇▇, LP
Reliant Energy Solutions, LLC
Reliant Energy Solutions Holdings, LLC
Reliant Energy Texas Renewables GP, LLC
Reliant Energy Texas Renewables, LP
Reliant Energy Trading Exchange, Inc.
Reliant Energy Ventures, Inc.
Reliant Energy Wholesale Generation, LLC
Reliant Energy Wholesale Service Company
Reliant Resources International Services, Inc.
StarEn Power, LLC
Texas Star Energy Company
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer of the corporations
and limited liability companies, and of the
general partners of the limited partnerships,
listed above
Reliant Energy CapTrades Holding Corp.
Reliant Energy Electric Solutions, LLC
Reliant Energy Renewables Holdings II, LLC
Reliant Energy Sabine (Delaware), Inc.
Reliant Energy Solutions East, LLC
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
Agent, an L/C Issuer and a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
BARCLAYS BANK PLC, as a Syndication Agent, an
L/C Issuer and a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
DEUTSCHE bank ag, NEW YORK
BRANCH, as an L/C Issuer and a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
DEUTSCHE bank SECURITIES INC., as a
Syndication Agent
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS
L.P., as a Documentation Agent and a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as a Documentation Agent and a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
[INSERT NAME OF LENDER]