Exhibit B-4(e)
RIVER FUEL FUNDING COMPANY #3, INC.
$75,000,000
CREDIT AGREEMENT
Dated as of November 30, 2000
with
THE BANK OF NEW YORK,
as Administrative Agent
BANK ONE, N.A.,
as Syndication Agent
THE FUJI BANK, LIMITED,
as Documentation Agent
BNY CAPITAL MARKETS, INC.,
as Lead Arranger and Book Manager
and
THE VARIOUS LENDERS
TABLE OF CONTENTS
PAGE
I. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. 1
SECTION 1.02. Accounting Terms. 7
II. COMMERCIAL PAPER OPERATIONS
SECTION 2.01. Form and Maturity of Commercial Paper
Notes. 8
SECTION 2.02. Issuance of Commercial Paper Notes. 8
SECTION 2.03. Commercial Paper Account. 9
SECTION 2.04. Letters of Credit. 9
SECTION 2.05. Payments Under Letter of Credit. 10
SECTION 2.06. Termination Date; Termination of
Agreement. 10
SECTION 2.07. Modification or Termination of Letter of
Credit Facility in Certain Events. 11
SECTION 2.08. Letter of Credit Fee. 12
SECTION 2.09. Commitment Fee. 12
SECTION 2.10. Other Fees. 12
SECTION 2.11. Optional Reduction or Termination of
Commitments. 12
III. PARTICIPATION IN LETTER OF CREDIT PAYMENTS
SECTION 3.01. Participations. 13
SECTION 3.02. Repudiation of Obligation to Participate.13
IV. REVOLVING CREDIT LOANS
SECTION 4.01. Loans; Interest on the Loans. 14
SECTION 4.02. B Notes. 16
SECTION 4.03. Payments and Prepayments. 17
SECTION 4.04. Manner of Payments; Sharing Among
Lenders. 18
SECTION 4.05. Taxes, Reserves, Etc. 19
V. REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Organization, Powers, Etc. 21
SECTION 5.02. Authority, Etc. 21
SECTION 5.03. Litigation. 21
SECTION 5.04. Title to Properties. 21
SECTION 5.05. Consents, Etc. 22
SECTION 5.06. Investment Company Status. 22
SECTION 5.07. Ownership of Company, Etc. 22
SECTION 5.08. Lessee's Financial Statements. 22
SECTION 5.09. First Perfected Security Interest 23
SECTION 5.10. Absence of Certain Events. 23
VI. CONDITIONS PRECEDENT
SECTION 6.01. Conditions to Effectiveness. 23
SECTION 6.02. Conditions to Certain Credit Events. 24
SECTION 6.03. Conditions to Each Credit Event. 24
SECTION 6.04. Conditions to Issuance of Commercial
Paper Notes. 24
VII. AFFIRMATIVE COVENANTS
SECTION 7.01. Corporate Existence, Etc. 25
SECTION 7.02. Obligations and Taxes. 25
SECTION 7.03. Financial Statements and Certificates. 25
SECTION 7.04. Further Assurances. 26
SECTION 7.05. Litigation Notice. 26
SECTION 7.06. Access to Books and Records. 26
SECTION 7.07. Compliance with Laws. 26
SECTION 7.08. Indemnification. 27
VIII. NEGATIVE COVENANTS
SECTION 8.01. Indebtedness. 28
SECTION 8.02. Liens. 28
SECTION 8.03. Activities. 28
SECTION 8.04. Sales, Etc. 28
SECTION 8.05. Amendments, Etc. 29
SECTION 8.06. Investments. 29
SECTION 8.07. Dividends. 29
SECTION 8.08. Compliance with Securities Act. 29
SECTION 8.09. Consolidated Tax Returns. 29
IX. DEFAULTS
SECTION 9.01. Events of Default. 29
SECTION 9.02. Rights of Bank and Lenders Upon Default. 31
X. THE BANK AS AGENT
SECTION 10.01. The Agency. 32
SECTION 10.02. The Bank's Duties. 32
SECTION 10.03. Limitation of Liabilities. 33
SECTION 10.04. The Bank as a Lender. 33
SECTION 10.05. Lender Credit Decision. 33
SECTION 10.06. Indemnification. 34
XI. MISCELLANEOUS
SECTION 11.01. Notices. 34
SECTION 11.02. Survival of Agreement. 35
SECTION 11.03. Assignments and Participations 35
SECTION 11.04. Expenses of the Bank, Etc. 36
SECTION 11.05. APPLICABLE LAW. 37
SECTION 11.06. Amendments, Modifications and Waivers. 37
SECTION 11.07. Extension of Maturity 38
SECTION 11.08. No Recourse 38
SECTION 11.09. Severability. 38
SECTION 11.10. Table of Contents and Captions. 39
SECTION 11.11. Counterparts. 39
SECTION 11.12. LIBOR Lending Office. 39
SECTION 11.13. Authorization of Collateral Agent. 39
SECTION 11.14. WAIVER OF JURY. 39
SECTION 11.15. Security Agreement. 39
CREDIT AGREEMENT, dated as of November 30, 2000
between RIVER FUEL FUNDING COMPANY #3, INC., a Delaware
corporation (the "Company"), each of the Lenders from time
to time parties to this Agreement (the "Lenders"), THE BANK
OF NEW YORK, as letter of credit issuer and as
Administrative Agent for the Lenders (the "Bank"), BANK ONE,
N.A., as Syndication Agent, THE FUJI BANK, LIMITED, as
Documentation Agent, and BNY CAPITAL MARKETS, INC.
("BNYCMI"), as Lead Arranger and Book Manager.
WHEREAS, the Company has requested the Bank to
issue to the Depositary (as herein defined) letters of
credit for the benefit of holders of the Commercial Paper
Notes and the Lenders from time to time to make revolving
credit loans to the Company; and
WHEREAS, the Bank is willing to issue such letters
of credit; and
WHEREAS, the Lenders wish to participate in such
letters of credit and to make such revolving credit loans.
Therefore, the parties hereto hereby agree as
follows:
I. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms.
Unless the context otherwise requires, each term defined in
this Section 1.01 has when used in this Agreement the
meaning indicated:
"Applicable Commitment Fee Rate" means 0.075% per
annum during a Level I Period, 0.100% per annum during
a Level II Period, 0.125% per annum during a Level III
Period, 0.150% per annum during a Level IV Period,
0.200% per annum during a Level V Period and 0.475% per
annum during a Level VI Period; provided, however, if
the Debt Ratings by S&P and Moody's are split-rated (i)
by one rating category, the Applicable Commitment Fee
Rate shall be determined by the higher of the two and
(ii) by more than one rating category, the Applicable
Commitment Fee Rate shall be determined by the level
one below the higher rating by either S&P or Moody's.
"Applicable Margin" means 0.375% per annum during
a Level I Period, 0.500% per annum during a Level II
Period, 0.625% per annum during a Level III Period,
0.750% per annum during a Level IV Period, 1.000% per
annum during a Level V Period and 2.125% per annum
during a Level VI Period; provided, however, if the
Debt Ratings by S&P and Moody's are split-rated (i) by
one rating category, the Applicable Margin shall be
determined by the higher of the two and (ii) by more
than one rating category, the Applicable Margin shall
be determined by the level one below the higher rating
by either S&P or Moody's.
"Assignee" has the meaning specified in Section
11.03(c).
"Assignment and Acceptance" has the meaning
specified in Section 11.03(c).
"B Note" means a promissory note of the Company,
substantially in the form of Exhibit C hereto, payable
to the order of a Lender and evidencing such Lender's
Loans.
"Base Rate" means, for any day, the higher of (i)
the Prime Rate in effect on such date and (ii) the sum
of 1/2 of 1% per annum and the Federal Funds Rate in
effect on such date.
"Borrowing Date" means any date on which Loans are
made to the Company, which shall be a Business Day.
"Business Day" means any day other than (i) a
Saturday, Sunday or a day on which banking institutions
in New York City are authorized by law to close, or
(ii) with respect to the making of any LIBOR Rate Loan
(including the LIBOR Determination Date therefor), a
day on which commercial banks are not open for domestic
and international business (including dealings in
dollar deposits) in London and New York City.
"Collateral Account" has the meaning specified in
the Security Agreement.
"Collateral Agent" means The Chase Manhattan Bank,
as agent for the Bank and the Lenders and for the
respective holders of Intermediate Term Notes, pursuant
to the Security Agreement.
"Commercial Paper Account" has the meaning
specified in Section 2.03 hereof.
"Commercial Paper Notes" means the short term
promissory notes of the Company to be issued and sold
in the commercial paper market and entitled to the
benefits of the Letter of Credit, all as provided in
the Depositary Agreement.
"Commitment" means, with respect to a Lender, the
amount set forth opposite such Lender's name on
Schedule I, as such amount may be reduced from time to
time pursuant to Sections 2.11 or 3.02.
"Commitment Fee" has the meaning specified in
Section 2.09 hereof.
"Consent" means the consent of the Lessee to this
Agreement, substantially in the form of Exhibit D
hereto.
"Consolidated Indebtedness" means the Indebtedness
of the Lessee and its consolidated subsidiaries.
"Credit" means the sum of (i) the outstanding
principal amount of all Loans plus (ii) the outstanding
amount of all unreimbursed LOC Payments.
"Credit Documents" means this Agreement, the
Notes, the Guaranty, the Depository Agreement, any
Letter of Credit and the Security Agreement.
"Credit Event" means each issuance or extension of
a Letter of Credit, each issuance of Commercial Paper
Notes and each making of Loans hereunder.
"Date of Issuance" means any date on which a
Letter of Credit is issued by the Bank, which shall be
a Business Day.
"Debt Rating" means the ratings by Moody's or S&P
of the Lessee's senior secured long-term debt.
"Debt Ratio" means the ratio of (i) the Lessee's
Consolidated Indebtedness and Preferred Stock to (ii)
Total Liabilities and Equity.
"Depositary" means The Chase Manhattan Bank or
such other banking institution with a branch office in
New York City as the Company (with the consent of the
Bank) shall appoint as a depositary and as an issuing
agent and a paying agent for the Commercial Paper Notes
and which shall have entered into a Depositary
Agreement with the Company.
"Depositary Agreement" means an agreement
substantially in the form of Exhibit A hereto, together
with all amendments and supplements thereto.
"Drawing Deadline" with respect to any Commercial
Paper Note means the 16th day after the stated maturity
date of such Commercial Paper Note, or if such 16th day
is not a Business Day, the next succeeding Business
Day.
"Event of Default" means any one or more of the
events specified in Section 9.01 hereof.
"Face Amount" with respect to any Commercial Paper
Note means the principal amount thereof plus, in the
case of a Commercial Paper Note issued on an interest-
bearing basis, all interest payable on such Commercial
Paper Note to its stated maturity date.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded, if necessary, to the next greater
1/16 of 1%) 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 (i) if 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, and (ii) if no such rate is so
published on such next succeeding Business Day, then
the Federal Funds Rate for such day shall be the
average rate quoted to the Bank on such day on such
transactions, as determined by the Bank.
"Fuel Lease" means the Fuel Lease, dated as of
February 24, 1989, between the Company and the Lessee,
together with all amendments and supplements thereto.
"Guarantor" means Entergy Corporation, a Delaware
corporation.
"Guaranty" means the Guaranty, dated as of
February 24, 1989 by the Guarantor to the Company, with
respect to the Lessee's obligations under the Fuel
Lease.
"Indebtedness" of any person means, without
duplication, (i) all obligations of such person for
borrowed money or for the deferred purchase price of
property or services (including all obligations,
contingent or otherwise, of such person in connection
with letters of credit, bankers' acceptances, interest
rate protection agreements or other similar
instruments, including currency swaps) other than
indebtedness to trade creditors and service providers
incurred in the ordinary course of business and payable
on usual and customary terms, (ii) all obligations of
such person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness
created or arising under any conditional sale or other
title retention agreement with respect to property
acquired by such person (even though the rights and
remedies of the seller or lender under such agreement
in the event of default are limited to repossession or
sale of such property), (iv) all obligations of such
person under leases required to be accounted for as a
liability on a balance sheet of such person, (v) all
obligations of the types described in clauses (i),
(ii), (iii) or (iv) above secured by (or for which the
obligee has an existing right, contingent or otherwise,
to be secured by) any lien upon or in property
(including accounts and contract rights) owned by such
person, even though such person has not assumed or
become liable for the payment of such Indebtedness,
(vi) all Indebtedness of others guaranteed by such
person and (vii) all Indebtedness of any partnership of
which such person is a general partner.
"Interest Payment Date" with respect to each LIBOR
Rate Loan means the last day of the Interest Period for
such LIBOR Rate Loan.
"Interest Period" with respect to any LIBOR Rate
Loan means the term of such LIBOR Rate Loan; provided,
however, that if any Interest Period would otherwise
end on a day which is not a Business Day, that Interest
Period shall be extended to the next succeeding
Business Day unless the result of such extension would
be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on
the immediately preceding Business Day; any Interest
Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Intermediate Term Notes" means the Company's
Intermediate Term Secured Notes issued pursuant to one
or more Note Purchase Agreements.
"Lessee" means System Energy Resources, Inc., an
Arkansas corporation.
"Letter of Credit" means a letter of credit issued
by the Bank, substantially in the form of Exhibit B
hereto, together with all amendments thereto, or any
other letter of credit, together with all amendments
thereto, issued by the Bank in substitution therefor.
"Letter of Credit Fee" has the meaning specified
in Section 2.08 hereof.
"Level I Period" means any period during which the
Debt Rating is A+ or higher by S&P or A1 or higher by
Moody's.
"Level II Period" means any period that is not a
Level I Period during which the Debt Rating is A- or
higher by S&P or A3 or higher by Moody's.
"Level III Period" means any period that is not a
Level I Period or Level II Period during which the Debt
Rating is BBB+ or higher by S&P or Baa1 or higher by
Moody's.
"Level IV Period" means any period that is not a
Level I Period, a Level II Period or a Level III Period
during which the Debt Rating is BBB or higher by S&P or
Baa2 or higher by Moody's.
"Level V Period" means any period that is not a
Level I Period, a Level II Period, a Level III Period
or a Level IV Period during which the Debt Rating is
BBB- or higher by S&P or Baa3 or higher by Moody's.
"Level VI Period" means any period that is not a
Level I Period, a Level II Period, a Level III Period,
a Level IV Period or a Level V Period.
"LIBOR Determination Date" with respect to any
LIBOR Rate Loan means two Business Days prior to the
Borrowing Date for such LIBOR Rate Loan.
"LIBOR Rate" with respect to a LIBOR Rate Loan
made on a Borrowing Date, means the rate (rounded
upward to the nearest 1/8 of 1%), as determined by the
Bank, at which deposits of U.S. Dollars are offered to
the Bank in the London interbank market as of 11:00
A.M., London time, on the LIBOR Determination Date for
such Loan, in an amount equal to the principal amount
of the LIBOR Rate Loan to be made on such Borrowing
Date and for a period equal to the Interest Period for
such Loan.
"LIBOR Rate Loan" means any Loan having a fixed
term of, and maturing in (at the election of the
Company), one, two or three months, but in no event
later than the Termination Date and bearing interest on
the outstanding principal amount thereof until due and
payable (whether by acceleration or otherwise) at a
rate per annum based on the LIBOR Rate determined on
the LIBOR Determination Date for such Loan.
"Loan" means any revolving credit loan made by the
Lenders to the Company pursuant to Article IV hereof.
"LOC Payment" means any payment made by the Bank
under the Letter of Credit.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.,
or any successor thereto.
"Note" means any Commercial Paper Note or B Note.
"Note Purchase Agreement" means the several
agreements between the Company and the purchasers named
therein with respect to the sale by the Company of
Intermediate Term Notes.
"Nuclear Fuel" has the meaning specified in
Section 1 of the Fuel Lease.
"Outstandings" as of any date means the sum of (x)
the principal amount of the Loans outstanding on such
date, (y) the Face Amount of all Commercial Paper Notes
outstanding on such date less the Face Amount of
Commercial Paper Notes which have matured and for the
payment of which funds are on deposit in the Note
Redemption Account (as defined in the Depositary
Agreement) and (z) the amount on such date of all
unreimbursed LOC Payments.
"Participant" has the meaning specified in Section
11.03(b).
"Preferred Stock" means any mandatorily redeemable
preferred stock of the Lessee.
"Prime Rate" means the rate of interest publicly
announced by the Bank from time to time as its prime
rate.
"Prime Rate Loan" means a Loan maturing on the
Termination Date and bearing interest on the
outstanding principal amount thereof until due and
payable (whether by acceleration or otherwise) at a
rate per annum equal to the Base Rate in effect from
time to time.
"Pro Rata Share" means with respect to any Lender
at any time the proportion of such Lender's Commitment
then in effect to the Total Commitment then in effect.
"Required Lenders" means at least two Lenders
(which may include the Bank) whose Pro Rata Shares
equal or exceed 50%.
"River Fuel Trust #3" means the trust created
under the Trust Agreement.
"Security Agreement" means the Security and
Collateral Agency Agreement, dated as of February 24,
1989, between the Company and the Collateral Agent,
together with all amendments and supplements thereto.
"S&P" means Standard & Poor's Rating Group, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, or any successor
thereto.
"Special Termination Date" and "Special
Termination Notice" have the meanings specified in
Section 2.07 hereof.
"Termination Date" has the meaning specified in
Section 2.06 hereof.
"Total Commitment" means, on any day, the
aggregate Commitments on such day of all the Lenders as
such amount may be reduced from time to time pursuant
to Sections 2.11 or 3.02.
"Total Liabilities and Equity" means at any time
the consolidated total liabilities and equity of the
Lessee as shown on the most recent financial statement
of the Lessee filed with the Securities and Exchange
Commission on Form 10-K or Form 10-Q.
"Trust Agreement" means the Trust Agreement dated
as of February 22, 1989 among The Chase Manhattan Bank
(originally ▇▇▇▇▇▇ Guaranty Trust Company of New York),
as Trustor, United States Trust Company of New York, as
Trustee, and System Energy Resources, Inc., as
Beneficiary.
"Unused Commitment" as of any date means an amount
(determined on a daily basis as of the end of each day)
equal to (i) the Total Commitment in effect on such
date less (ii) Outstandings on such date.
SECTION 1.02. Accounting Terms.
Each accounting term not defined herein shall have the
meaning given to it under generally accepted accounting
principles applied on a consistent basis.
II. COMMERCIAL PAPER OPERATIONS
SECTION 2.01. Form and Maturity of Commercial Paper Notes.
Each Commercial Paper Note shall be issued by the
Depositary on behalf of the Company in accordance with the
Depositary Agreement and shall, if an interest-bearing
Commercial Paper Note, specify the amount of interest
applicable thereto. No Commercial Paper Note shall be
issued having a maturity date later than the earlier of (i)
270 days after its date of issuance and (ii) the day which
is 17 days in advance of the Termination Date in effect on
its date of issuance. Each such maturity date shall, in any
event, be a Business Day.
SECTION 2.02. Issuance of Commercial Paper Notes.
(a) Each Commercial Paper Note issued by the Company shall
be issued in a Face Amount of at least $100,000 and shall be
duly executed by it and delivered to the Depositary in
accordance with the terms of the Depositary Agreement. No
Commercial Paper Note shall be issued by the Company except
through the Depositary and in accordance with the terms of
this Agreement and the Depositary Agreement. The Company
shall not at any time issue Commercial Paper Notes in an
aggregate Face Amount exceeding the sum of (i) the Unused
Commitment plus (ii) the proceeds of such Commercial Paper
Notes to be deposited, on the same day as the day of such
issuance, in the Commercial Paper Account for the purpose of
reimbursing LOC Payments relating to matured and
concurrently maturing Commercial Paper Notes (whether or not
presented for payment) plus (iii) the proceeds of such
Commercial Paper Notes to be deposited, on the same day as
the day of such issuance, in the Commercial Paper Account
for the purpose of contemporaneously repaying outstanding
Loans; provided, however, that (after giving effect to the
use of such deposits) at no time shall the sum (i) of the
aggregate Face Amount of outstanding Commercial Paper Notes
plus (ii) the aggregate unpaid principal amount of
outstanding Loans plus (iii) the aggregate amount of
unreimbursed LOC Payments exceed the Total Commitment then
in effect.
(b) The Company shall not issue Commercial Paper Notes
unless the Bank shall have consented in writing to such
issuance. The Company shall not, after the receipt of
instructions from the Bank to cease issuing Commercial Paper
Notes, issue Commercial Paper Notes until the Bank shall
have rescinded such instructions and shall have consented in
writing to the issuance of Commercial Paper Notes. Any
instructions by the Bank to cease issuing Commercial Paper
Notes and each notice rescinding (or consenting to the
rescission of) such instructions shall be in writing or by
telephone (confirmed in writing promptly thereafter) or by
facsimile transmission or telex and shall also be given to
the Depositary. The Bank hereby agrees that, unless an
Event of Default (or, in the case of an issuance of
Commercial Paper Notes which would increase the
Outstandings, an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default)
shall have occurred and be continuing, and except as
provided in Section 2.07 hereof, it shall not give or keep
in effect instructions to cease issuing Commercial Paper
Notes so long as each of the conditions precedent specified
in Article VI hereof with respect to the issuance of
Commercial Paper Notes shall have been satisfied.
SECTION 2.03. Commercial Paper Account.
The Company shall maintain with the Depositary a special
account for the sole purpose of reimbursing LOC Payments and
paying Loans (the "Commercial Paper Account"). All proceeds
from the sale of Commercial Paper Notes and the proceeds of
all Loans made pursuant to Article IV hereof shall be
deposited in the Commercial Paper Account, the operation of
which shall be governed by the Depositary Agreement. The
Company may also instruct the Collateral Agent to make
transfers from the Collateral Account to the Commercial
Paper Account for the purpose of reimbursing LOC Payments or
paying Loans. If on any Business Day deposits made to the
Commercial Paper Account exceed the amount required to
reimburse LOC Payments with respect to matured and
concurrently maturing Commercial Paper Notes (whether or not
presented for payment) and to pay principal, interest and
cost reimbursement, if any, pursuant to Section 4.03(d) then
due and payable (at maturity, by notice of intention to
prepay or otherwise) with respect to Loans, the Bank shall
instruct the Depositary to withdraw such excess amount and
transfer the same to the Collateral Account.
SECTION 2.04. Letters of Credit.
(a) The Company may give the Bank not less than two
Business Days' prior notice in writing, by telex or by
facsimile transmission (or telephone notice promptly
confirmed in writing) of any requested Letter of Credit
which notice shall specify the proposed Date of Issuance,
the maximum amount payable thereunder (which shall not
exceed the Total Commitment then in effect) and the
expiration date (which shall not be later than one Business
Day prior to the Termination Date). Subject to
satisfaction, or waiver by all of the Lenders, of each of
the applicable conditions precedent contained in Article VI,
on the Date of Issuance the Bank will issue the Letter of
Credit so requested to the Depositary.
(b) If the Total Commitment shall be reduced pursuant to
Sections 2.11 or 3.02 hereof, then on the effective date of
such reduction, the Bank shall have the right to require the
Depositary to surrender the Letter of Credit then held by
the Depositary and simultaneously to accept in substitution
therefor a new Letter of Credit which shall contain the same
terms and conditions as the Letter of Credit for which it is
substituted except that such new Letter of Credit shall be
dated the date of issuance thereof and the maximum amount
payable by the Bank thereunder shall be equal to the amount
of the reduced Total Commitment.
(c) If a Termination Date or a Special Termination Date
occurs, then on the earliest to occur of (x) such
Termination Date or Special Termination Date if on such date
there are no outstanding and unpaid Commercial Paper Notes,
(y) the funding of the Note Redemption Account (as defined
in the Depositary Agreement) with amounts equal to the Face
Amount of all theretofore issued Commercial Paper Notes and
(z) the Business Day next succeeding the Drawing Deadline of
the latest to mature of theretofore issued and outstanding
Commercial Paper Notes (and provided that the Bank is not in
default under the Letter of Credit then held by the
Depositary) the Depositary shall surrender to the Bank any
Letter of Credit then held by it.
SECTION 2.05. Payments Under Letter of Credit.
The Company shall reimburse the Bank before the close of
business on the date of each drawing under a Letter of
Credit for the amount paid by the Bank under such Letter of
Credit, plus interest (computed on the basis of the actual
number of days elapsed in a year of 365 or, as the case may
be, 366 days) on any such amount, from the date of such
drawing until full reimbursement is made, at a rate per
annum equal to 2% plus the Base Rate as in effect from time
to time.
If any drawing under a Letter of Credit shall not
have been reimbursed by the close of business on the date of
such drawing, the Company shall be deemed to have requested
from the Lenders a Prime Rate Loan in an amount equal to the
amount of such drawing for the purpose of reimbursing the
Bank as aforesaid.
The Company's obligation to reimburse the Bank for
payments made by the Bank under a Letter of Credit shall be
absolute and unconditional under any circumstances and
irrespective of any set-off, counterclaim or defense to
payment which the Company may have or have had against the
Bank or any Lender, including, without limitation, any
defense based on the failure of the Company to receive all
or any part of the proceeds from the sale of Commercial
Paper Notes with respect to which such drawing was made or
any non-application or misapplication by the Depositary of
the proceeds of such drawing. No payment made as
contemplated by this paragraph shall be deemed to be a
waiver of any claim the Company may have against any party.
SECTION 2.06. Termination Date; Termination of Agreement.
The "Termination Date" in effect from time to time shall be
the date hereinafter provided. The Termination Date shall
initially be November 30, 2003 and, at the request of the
Company, may be extended by the Lenders in their discretion
for successive additional one-year periods by giving the
Company and the Depositary written notice of such extension
no earlier than 30 months and no later than 24 months prior
to the then current Termination Date. If (i) the Fuel Lease
shall terminate because of the occurrence of any of the
events specified in Section 20(a) thereof or as the result
of an election pursuant to Section 25(b)(i) thereof, then
the Termination Date hereunder shall be the "Termination
Settlement Date" (as defined in the Fuel Lease), and if (ii)
the Total Commitment shall be terminated entirely pursuant
to Section 2.11 hereof or as a result of the exercise by the
Lenders of their rights under Article IX hereof, then the
Termination Date shall be the effective date of such
termination of the Total Commitment. Upon (i) the payment
in full of all obligations of the Company hereunder and
under the Notes, or (ii) the occurrence of a Termination
Date, or (iii) the surrender to the Bank of the Letter of
Credit in accordance with Section 2.04(c) hereof, whichever
shall last occur, this Agreement shall terminate and the
Company and the Bank and the Lenders shall have no further
obligations hereunder or under the Depositary Agreement or
the Security Agreement; provided, however, that all
obligations and indemnities of the Company, the Bank and the
Lenders which are stated herein or in said Agreements to
survive the termination thereof shall remain in full force
and effect. Upon such termination the Bank shall execute
and deliver such agreements, consents or other instruments
as may be required to release any interest the Bank and the
Lenders may have in the Collateral (as defined in the
Security Agreement).
SECTION 2.07. Modification or Termination of Letter of
Credit Facility in Certain Events.
In the event any restrictions are imposed upon the Bank or
the Company by any law or regulation (including, without
limitation, any legal limits imposed by state or Federal law
or regulation) which in the sole judgment of the Bank would
prevent the Bank from consenting to the issuance or sale of
Commercial Paper Notes entitled to the benefit of a Letter
of Credit or from honoring demands for payment under the
Letter of Credit with respect to subsequently issued
Commercial Paper Notes, the obligation of the Bank to
consent to the issuance of Commercial Paper Notes and the
obligation of the Bank to issue a Letter of Credit shall
terminate, and the Bank shall promptly thereafter confirm
such termination in writing to the Company (with a copy to
the Depositary). Further, in the event that reserve
requirements or any other similar requirements or any taxes
or restrictions are hereafter imposed upon the Bank at any
time or from time to time which would materially adversely
affect the profitability to the Bank of the arrangements
contemplated by this Article II (other than any change in
income tax rates which affects solely the taxation of the
total net income of the Bank), the Bank shall promptly
notify the Company of such requirement or restriction and as
to such loss and prospective loss of such profitability
(specifying the reasons for such loss and providing
calculations showing the derivation of such loss). A copy
of such notice (herein called a "Special Termination
Notice") shall be given by the Bank to the Depositary and
the Lessee. Thereupon, the Company shall have the option by
notice in writing to the Bank and the Depositary to elect
either (i) promptly to compensate the Bank for its loss of
profitability from time to time as such losses are incurred
or (ii) to borrow from the Lenders as contemplated by
Article IV hereof and terminate the obligation of the Bank
hereunder to issue a Letter of Credit and to consent to the
issuance of Commercial Paper Notes. Unless the Company
exercises option (i) above at least five days prior to the
45th day after the date of the Special Termination Notice,
the Company shall compensate such loss of such profitability
from the date of the Special Termination Notice until the
later of the Special Termination Date (as hereinafter
defined) or the date when no Commercial Paper Notes are
outstanding, and the obligation of the Bank to consent to
the issuance of Commercial Paper Notes and to issue a Letter
of Credit shall automatically terminate on such 45th day.
If the Company gives timely notice that it has exercised
option (i) above, such Special Termination Notice shall
thereupon be deemed to be rescinded. The date of any
termination of the obligations of the Bank to consent to the
issuance of Commercial Paper Notes and to issue a Letter of
Credit as provided in this Section 2.07 is herein called the
"Special Termination Date". The Bank may at any time after
the giving of a Special Termination Notice or the occurrence
of a Special Termination Date, by a written notice to the
Company (with a copy to the Depositary), reinstate its
consent to the issuance of Commercial Paper Notes and the
Bank may issue a Letter of Credit in the amount of the Total
Commitment then in effect. Nothing contained herein shall
relieve the Bank of its obligation to honor demands under a
Letter of Credit with respect to Commercial Paper Notes
outstanding on or before the Special Termination Date.
SECTION 2.08. Letter of Credit Fee.
The Company shall pay to the Bank for the ratable account of
the Lenders, a fee (the "Letter of Credit Fee") (computed on
the basis of the actual number of days elapsed in a year of
365 or, as the case may be, 366 days) equal to the
Applicable Margin in effect from time to time applied to the
average aggregate Face Amount of Commercial Paper Notes
outstanding during each calendar quarter, such fee to be
paid on the last day of the month following the end of such
calendar quarter.
SECTION 2.09. Commitment Fee.
The Company shall pay to the Bank for the ratable account of
the Lenders, for each day that the Total Commitment shall
(subject to the terms and conditions hereof) be in effect, a
fee (the "Commitment Fee") (computed on the basis for the
actual number of days elapsed in a year of 365, or as the
case may be, 366 days) equal to the Applicable Commitment
Fee Rate applied to the Unused Commitment. The Commitment
Fee accrued with respect to any calendar quarter shall be
paid on the last day of the month following the end of such
calendar quarter.
SECTION 2.10. Other Fees.
The Company shall pay to the Bank such other fees for its
services hereunder in such amounts and at such times as may
be agreed upon by the Bank and the Company.
SECTION 2.11. Optional Reduction or Termination of
Commitments.
The Company may from time to time reduce the Total
Commitment by $1,000,000 or an integral multiple thereof or
terminate the Total Commitment entirely upon five Business
Days' prior written notice to the Bank (with a copy to the
Depositary), designating the date of such termination or
reduction (which shall be a Business Day). The date
specified in the aforesaid notice shall be the effective
date of any such termination or reduction; provided,
however, that the amount of the Total Commitment as so
reduced shall at no time be less than the sum of (i) the
aggregate unpaid principal amount of all Loans outstanding
on the effective date of such reduction plus (ii) the
aggregate amount of all unreimbursed LOC Payments plus (iii)
the aggregate Face Amount of all Commercial Paper Notes
outstanding on such effective date, other than any such
Commercial Paper Notes which, as of such effective date,
have matured and funds for the payment of which have been
deposited in the Note Redemption Account (as defined in the
Depositary Agreement). Any such reduction or termination of
the Total Commitment shall automatically ratably reduce or
terminate the Commitments of each Lender.
III. PARTICIPATION IN LETTER OF CREDIT PAYMENTS
SECTION 3.01. Participations.
Subject to the terms and conditions hereof, each Lender
shall be deemed, and hereby agrees, to have an undivided
percentage interest in each LOC Payment for which the Bank
is not immediately reimbursed by the Company and in the
Bank's rights to reimbursement with respect to such LOC
Payment, equal to its Pro Rata Share. The aggregate amount
of each Lender's Loans and its participation in LOC Payments
shall not exceed the amount of its Commitment then in
effect.
If the Company shall fail to reimburse the Bank in
an amount equal to the amount of any LOC Payment, then the
Bank shall promptly notify each Lender of the unreimbursed
amount of such LOC Payment and of such Lender's
participation therein. Not later than 1:00 P.M., New York
time, on the Business Day after the date notified by the
Bank, each Lender shall make available to the Bank in
immediately available funds at the office of the Bank in New
York City an amount equal to its Pro Rata Share of such LOC
Payment. In the event that any Lender fails to make
available to the Bank on such Business Day the amount of
such Lender's participation in such LOC Payment as provided
in this Section 3.01, the Bank shall be entitled to recover
such amount on demand from such Lender, together with
interest thereon at a rate per annum equal to (A) from (and
including) such Business Day to (and including) the third
Business Day thereafter, the Federal Funds rate, and (B)
from (but excluding) such third Business Day, the Base Rate.
The Bank shall distribute to each Lender that has paid all
amounts payable by it under this Section 3.01 with respect
to a Letter of Credit such Lender's Pro Rata Share of all
payments received by the Bank from the Company in
reimbursement of drawings honored by the Bank under such
Letter of Credit when such payments are received; provided,
however, that each Lender's share of interest thereon shall
be appropriately adjusted to reflect the date on which the
Lender paid to the Bank its Pro Rata Share of such drawing.
SECTION 3.02. Repudiation of Obligation to Participate.
If the Bank shall at any time determine that any Lender has
repudiated, for any reason and howsoever expressed, or has
breached any of its material obligations under this
Agreement (such Lender herein called a "Defaulting Lender"),
the Bank may, in its sole discretion and notwithstanding
anything to the contrary contained in this Agreement,
temporarily or permanently reduce the amount of the Total
Commitment by an amount equal to such Defaulting Lender's
Commitment; provided, however, that (i) no such reduction
shall have the effect of terminating, reducing, or altering
the terms of the Letter of Credit with respect to Commercial
Paper Notes outstanding at the time, and (ii) no such
reduction of the Total Commitment shall be effective until
notice thereof has been given to the Company and to the
Depositary and the Lessee. If the Bank proposes to reduce
the Total Commitment as provided in this Section, it shall
give the Company not less than 90 days' notice of the amount
and the effective date of the proposed reduction. During
the period from the giving of such notice to 45 days before
said effective date the Bank shall use its best efforts to
arrange for the other Lenders or any other bank or banks to
assume the Commitment of the Defaulting Lender. Not later
than 45 days before the effective date of such reduction the
Bank shall advise the Company either that it has arranged
for such assumption of the Defaulting Lender's Commitment
and that the Total Commitment will not be reduced or that
the Total Commitment will be reduced pursuant to the notice
previously given (specifying an amount of reduction no
greater than the amount specified in said notice).
Thereupon, the Total Commitment shall be reduced to the
extent specified in said notice, but in no event to an
amount less than the sum of (i) the aggregate Face Amount of
outstanding Commercial Paper Notes plus (ii) the aggregate
outstanding principal amount of all Loans plus (iii) the
aggregate amount of all unreimbursed LOC Payments. Such
reduction shall remain in effect until further written
notice from the Bank to the Company and the Depositary.
IV. REVOLVING CREDIT LOANS
SECTION 4.01. Loans; Interest on the Loans.
(a) Subject to the terms and conditions hereof, each of the
Lenders, severally and not jointly with the other Lenders,
agrees to make Loans to the Company in a principal amount
not exceeding, at any one time outstanding, such Lender's
Pro Rata Share of the Unused Commitment (after giving effect
to the repayment on the same day as such Loan is made of any
other Loans then outstanding and/or the reimbursement on the
same day as such Loan is made of any LOC Payments). The
Lenders shall not be required to make Loans on or after the
Termination Date. The Loans shall be either LIBOR Rate
Loans or Prime Rate Loans, as the Company may from time to
time elect; provided, however, that if on or before any
LIBOR Determination Date the Bank shall determine (which
determination shall be conclusive) that, by reason of any
circumstances affecting the London interbank market,
adequate and reasonable means do not exist for ascertaining
the LIBOR Rate and the Bank shall forthwith give notice of
such determination by telephone, telex or facsimile
transmission (confirmed in each case in writing) to the
Company, then so long as such circumstance shall exist, the
Lenders shall only be required to make Prime Rate Loans to
the Company; provided, further, that if on or before any
LIBOR Determination Date the Bank shall determine (which
determination shall be conclusive) that (i) by reason of a
change since the date of this Agreement in any applicable
law or governmental regulation or order of any country or
jurisdiction or other circumstances beyond the control of
the Lenders, the LIBOR Rate no longer represents the
effective cost to the Lenders of deposits of U.S. Dollars in
the London interbank market (except for changes with respect
to which the Lenders are compensated pursuant to Section
4.05 hereof), or (ii) for any reason the Lenders are unable
to obtain deposits of U.S. Dollars in the London interbank
market for the relevant Interest Period in the amount needed
to make any LIBOR Rate Loans, then, in any such case, the
Bank shall forthwith give notice of such determination by
telephone, telegraph or telex (confirmed in each case in
writing) to the Company, and so long as there shall exist
any such events, the Lenders shall only be required to make
Prime Rate Loans to the Company. Except as otherwise
provided herein, interest on the outstanding principal
amount of each Prime Rate Loan shall accrue at the Base Rate
and shall be payable quarterly on the last Business Day of
each calendar quarter and on the day such Prime Rate Loan is
paid, and interest on the outstanding principal amount of
each LIBOR Rate Loan shall accrue at a rate equal to the sum
of (i) the LIBOR Rate determined on the LIBOR Determination
Date therefor and (ii) the Applicable Margin in effect from
time to time, and shall be payable on the Interest Payment
Date relating thereto. Any Loan which is not paid when due
(whether by acceleration or otherwise) shall bear interest,
payable on demand, at a rate per annum equal to 2% above the
rate otherwise applicable to such Loan from time to time.
In computing interest on any Loan, the date of the making of
a Loan shall be included and the date of payment shall be
excluded. Interest on each LIBOR Rate Loan shall be
calculated on the basis of a 360-day year for the actual
number of days elapsed, and interest on each Prime Rate Loan
shall be calculated on the basis of a 365 or, as the case
may be, 366-day year for the actual number of days elapsed.
(b) Except as provided in Section 2.05 hereof, the Company
shall give the Bank not less than one Business Day's prior
notice in writing, by telex or by facsimile transmission (or
telephone notice promptly confirmed in writing) of any
requested Prime Rate Loans and not less than three Business
Days' prior notice in writing, by telex or by facsimile
transmission (or telephone notice promptly confirmed in
writing) of any requested LIBOR Rate Loans (including Loans
to refund maturing LIBOR Rate Loans), which notice shall be
irrevocable and shall specify the proposed Borrowing Date
for such Loans, the total amount thereof, whether such Loans
are to be LIBOR Rate Loans or Prime Rate Loans and, in the
case of a request for LIBOR Rate Loans, the Interest Period
of such Loans. If such notice shall fail to specify whether
the Loans are to be LIBOR Rate Loans or Prime Rate Loans,
the Company shall be deemed to have requested Prime Rate
Loans. If the Company shall fail to give said notice prior
to the Interest Payment Date for any LIBOR Rate Loan, it
shall be deemed to have requested that on said Interest
Payment Date the Lenders make a LIBOR Rate Loan to the
Company having an Interest Period of one month and in a
principal amount equal to the principal amount of the LIBOR
Rate Loan maturing on such Interest Payment Date. The
amount of each borrowing hereunder from the Lenders shall be
equal to the lesser of (i) the Unused Commitment or (ii)
$100,000 or an integral multiple thereof. Upon receipt of
any borrowing request (or deemed request pursuant to Section
2.05), the Bank shall promptly give notice to each Lender of
the substance of the borrowing request. Not later than
noon, New York time, on the Borrowing Date, each Lender
shall make available to the Bank such Lender's Pro Rata
Share of the requested Loans in funds immediately available
at the Bank's office. Subject to satisfaction, or waiver by
all of the Lenders, of each of the applicable conditions
precedent contained in Article VI, on the Borrowing Date the
Bank shall make available, in like funds, to the Company the
amounts received by the Bank from the Lenders, by
transferring the proceeds thereof in immediately available
funds to the Commercial Paper Account not later than 1:00
P.M., New York City time, on the Borrowing Date. If the
funds on deposit in the Commercial Paper Account (after
giving effect to the deposit in the Commercial Paper Account
of the proceeds of Commercial Paper Notes issued on such
date) shall exceed the amount required to reimburse in full
the LOC Payments with respect to Commercial Paper Notes
maturing on or before the Borrowing Date (whether or not
such Commercial Paper Notes are presented for payment) and
to pay principal, interest and cost reimbursement, if any,
pursuant to Section 4.03(d) then due and payable with
respect to Loans, then to the extent of such excess the
proceeds of the Loans made on such date shall be transferred
to the Collateral Account as instructed by the Bank to the
Depositary. Until the Termination Date the Company may
borrow, repay and reborrow hereunder in accordance with this
Section and Section 4.03 hereof.
(c) The failure of any Lender to make any Loan to be made
by it on the Borrowing Date therefor shall not relieve any
other Lender of its obligation to make its Loan or Loans on
such date, but neither any Lender nor the Bank shall be
responsible for the failure of any other Lender to make a
Loan to be made by such other Lender.
(d) The Bank may, but shall not be required to, advance on
behalf of any Lender the amount of such Lender's Loan to be
made on a Borrowing Date, unless such Lender shall have
notified the Bank prior to such Borrowing Date that it does
not intend to make such Loan on such date. If the Bank
makes any such advance, the Bank shall be entitled to
recover the amount so advanced on demand from the Lender on
whose behalf such advance was made and, if such Lender does
not pay the Bank the amount of such advance on demand, the
Company agrees promptly to repay such amount to the Bank.
Until such amount is repaid to the Bank by such Lender or
the Company, such advance shall be deemed for all purposes
to be a Loan made on such Borrowing Date by the Bank. The
Bank shall be entitled to recover from the Lender or the
Company, as the case may be, interest on the amount advanced
by it for each day from the Borrowing Date therefor until
repaid to the Bank, at a rate per annum equal to the Federal
Funds Rate until the third Business Day after the date of
the advance and, thereafter, at the Base Rate.
SECTION 4.02. B Notes.
The Loans shall be evidenced by B Notes payable to the order
of each Lender. Each Lender shall record on the schedule
attached to its B Note the date and principal amount of each
Loan and the date and amount of each repayment of principal
of such Loan. The failure of any Lender to so record shall
not relieve the Company of its obligation to repay
outstanding Loans and all interest thereon in accordance
herewith. The unpaid principal balance of each Prime Rate
Loan shall be payable on the Termination Date (as it may be
changed from time to time pursuant to the terms hereof) and
shall bear interest until paid at a rate, and payable on the
dates, specified in this Agreement for Prime Rate Loans.
The unpaid principal balance of each LIBOR Rate Loan shall
be payable on the Interest Payment Date for such Loan and
shall bear interest until paid at a rate, and payable on the
dates, specified in this Agreement for LIBOR Rate Loans.
SECTION 4.03. Payments and Prepayments.
(a) Optional Prepayments. The Company may at its option
prepay the Loans in whole at any time or in part from time
to time without penalty or premium. Each partial prepayment
of Loans pursuant to this Section 4.03(a) shall be in the
aggregate principal of $100,000 or an integral multiple
thereof. Whenever the Company proposes to prepay the Loans
in whole or in part it shall give two Business Days' prior
notice thereof in writing, by telex or by facsimile
transmission to the Bank stating the date of such
prepayment, the aggregate amount thereof and the amount
thereof to be applied to LIBOR Rate Loans and Prime Rate
Loans. If such prepayment is to be made with proceeds from
the sale of Commercial Paper Notes, the Company shall so
specify in the aforesaid notice and shall state the date on
which such Commercial Paper Notes are to be issued and the
amount of the proceeds therefrom proposed to be applied to
the prepayment of the Loans. If a prepayment of Loans is to
be made from the proceeds of Commercial Paper Notes, the
Company shall send a copy of the notice with respect to such
prepayment to the Depositary. Upon receipt of such notice,
the Bank shall promptly give notice thereof to each Lender.
(b) Mandatory Payments and Prepayments Upon Payments Under
Fuel Lease. If the Lessee shall make any payment pursuant
to Section 10(b) of the Fuel Lease, the proceeds of such
payment shall be applied to the reimbursement of LOC
Payments related to matured and concurrently maturing
Commercial Paper Notes or the prepayment or payment of the
Loans or the Intermediate Term Notes in such order of
application as the Company may from time to time determine,
together with all accrued interest thereon. If the Fuel
Lease shall terminate for any reason, the Company shall
prepay the Loans in full within the period required by
Section 20(b) of the Fuel Lease for payments by the Lessee.
All payments by the Lessee under the Fuel Lease (including
all payments of Basic Rent, as therein defined) shall be
deposited in the Collateral Account.
(c) Mandatory Prepayment Upon Changes In Law. If there
shall be any change in any applicable law or regulation, or
the interpretation thereof by any judicial or regulatory
authority, which, in the determination of the Bank, makes it
unlawful for any Lender to make or maintain LIBOR Rate
Loans, the Bank shall so advise the Company and thereupon
(i) the Lenders shall be deemed to have made, as of the date
of such notice, Prime Rate Loans to the Company in an amount
equal to the aggregate amount of the outstanding LIBOR Rate
Loans, and (ii) the proceeds of said Prime Rate Loans shall
be deemed to have been applied to the prepayment in full of
such outstanding LIBOR Rate Loans.
(d) Reimbursement of Banks' Losses on Prepayments. In the
event that the Company pays or prepays any LIBOR Rate Loans
pursuant to Section 4.03(a) or 4.03(b) hereof or by reason
of the acceleration of the maturity of the Loans pursuant to
Article IX hereof, or LIBOR Rate Loans are deemed to be
converted to Prime Rate Loans pursuant to Section 4.03(c)
hereof, the Company shall pay to each Lender an amount equal
to the excess, if any, of (i) such Lender's cost of funding
each such Loan over (ii) the amount of interest received by
such Lender in redepositing the payment with respect to such
Loan for the remaining portion of such Loan's Interest
Period. Each such payment by the Company pursuant to this
Section 4.03(d) with respect to any LIBOR Rate Loan shall be
made no later than 10 days after the Lender's request
therefor. Such Lender shall furnish to the Company a
statement setting forth its computation of any amount
required to be paid pursuant to this Section 4.03(d).
SECTION 4.04. Manner of Payments; Sharing Among Lenders.
(a) All payments, prepayments and other transfers of funds
under this Agreement shall be made in immediately available
funds at New York, unless the recipient thereof shall
otherwise agree. All payments of principal and interest on
the Loans shall be made to the Bank at its office at One
Wall Street, New York, New York (or at such other office in
New York City as the Bank may designate by written notice to
the Company), no later than 1:00 P.M. New York City time, of
the day when such payments are due.
(b) All funds received by the Bank for the account of the
Lenders in respect of payments made by the Company under
this Agreement shall be distributed forthwith by the Bank
among the Lenders, in like funds, as received, ratably in
proportion to their respective interests therein.
(c) Unless the Bank shall have received notice from the
Company prior to the date on which any payment from the
Company is due that the Company will not make such payment
in full, the Bank may assume that the Company has made such
payment in full to the Bank on such date and the Bank may,
in reliance upon such assumption, but shall not be obligated
to, cause to be distributed to each Lender on such due date
an amount equal to the amount then due such Lender. If and
to the extent that the Company shall not have so made such
payment, each Lender shall repay to the Bank forthwith on
demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays
such amount to the Bank, at the Federal Funds Rate.
(d) If any Lender shall receive from the Company or any
other person any amount owing under this Agreement (whether
received pursuant to the exercise of any right of set-off,
banker's lien, realization upon any security held for or
appropriated to such obligation or otherwise) other than in
proportion to such Lender's Pro Rata Share thereof, then
such Lender shall purchase from each other Lender a
participating interest in so much of the other Lenders'
Loans as shall be necessary in order that each Lender shall
share such payment with each of the other Lenders in
proportion to each Lender's Pro Rata Share; provided,
however, that nothing herein contained shall obligate any
Lender to apply any set-off or banker's lien or collateral
security permitted hereby first to the obligations of the
Company hereunder if the Company is obligated to such Lender
pursuant to other loans or notes. If any purchasing Lender
shall be required to return any excess payment received by
it, such participation shall be rescinded and the purchase
price restored to the extent of such return, but without
interest.
SECTION 4.05. Taxes, Reserves, Etc.
(a) U.S. Withholding Taxes. Both principal of and interest
on each Loan, and all other payments provided for herein are
payable net of any present or future taxes (other than taxes
on or measured by total net income of the Bank or any other
Lender), duties or other charges levied or imposed thereon
and required to be withheld by the United States of America
or any political subdivision or taxing authority thereof.
If any such taxes, duties or other charges are levied or
imposed with respect to payments hereunder, the Company will
pay to the Bank and/or the Lenders as additional interest
such additional amounts as may be necessary so that every
net payment of principal of and interest on such Loans and
all other payments to the Bank and/or the Lenders provided
for herein, after withholding or deduction for or on account
of any such present or future taxes, duties or other charges
imposed by the United States of America or any political
subdivision or taxing authority thereof, will not be less
than any amount provided for herein.
(b) Change in Taxation. If at any time during the term of
this Agreement (i) any law, executive order, regulation or
interpretation is enacted or promulgated by any government
or governmental authority (domestic or foreign) which
materially changes the method of collection of taxes which
on the date hereof are required to be withheld with respect
to, or the basis of taxation of payments to the Bank or any
other Lender of principal of or interest on any LIBOR Rate
Loan (except for changes in the rate of tax based solely on
the total net income of the Bank or such Lender), or (ii)
any change in applicable law or regulation or in the
interpretation thereof by the United States or any political
subdivision thereof shall subject the Bank or any other
Lender to any tax of any kind whatsoever with respect to
this Agreement or the Loans, or change the basis of taxation
of payments to any Lender of principal or interest payable
on the Loans (except for changes in the rate of tax based
solely on the total net income of the Bank or such Lender),
or shall impose on the Bank or any other Lender, directly or
indirectly, any other conditions affecting this Agreement or
the Loans which do not apply equally to banks organized
under the laws of the United States, the States of the
United States or the District of Columbia, and as a result
of any of the events specified in clauses (i) or (ii) above
the cost to the Bank or such Lender of making or maintaining
the Loans is increased by an amount which the Bank or such
Lender considers material or the Bank or such Lender is
subject to any loss, whether by reason of subjecting
payments on the Loans to double taxation or otherwise, the
Company will, upon receipt of the Bank's written request
therefor, which shall show in reasonable detail the
computation on which it is based, promptly indemnify the
Bank or such Lender for such increase in cost or loss.
(c) Increased Costs. If at any time after the date of this
Agreement, any law, executive order, regulation or
interpretation is enacted or promulgated by any government
or governmental authority, or any other governmental or
administrative action is taken, which imposes, modifies,
makes applicable or interprets as being applicable any
reserve requirements against assets held by the Bank or any
other Lender (other than, or in addition to, those referred
to in Section 4.05(d) hereof), or against deposits in or for
the account of, or loans by, the Bank or any other Lender,
or imposes on the Bank or any other Lender any other
conditions or obligations with respect to any LIBOR Rate
Loan, which requirement, condition or obligation was not
applicable or interpreted as being applicable to the Bank or
such Lender on the date hereof, and the result of any of the
foregoing is an increase in the cost to the Bank or such
Lender of maintaining any LIBOR Rate Loan, then the Company,
promptly after receipt of the Bank's written request
therefor which shall show in reasonable detail the
computations upon which it is based, will pay to the Bank or
such Lender as additional interest on such LIBOR Rate Loan
such amount as will compensate the Bank or such Lender for
such additional cost.
(d) Eurocurrency Reserves. If the Bank or any other Lender
shall be required to maintain reserves (including, without
limitation, basic, supplemental, marginal and emergency
reserves) under any regulations of the Board of Governors of
the Federal Reserve System or other United States federal
governmental authority having jurisdiction with respect
thereto, as now and from time to time hereafter in effect,
dealing with reserves for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of
such Board), the Bank or such Lender, as the case may be,
may require the Company, by notice to the Company at least
five days prior to an Interest Payment Date, to pay
additional interest on the LIBOR Rate Loan maturing on such
Interest Payment Date at a rate equal to the excess of
(i)(A) the LIBOR Rate applicable to such LIBOR Rate Loan
divided by (B) one minus the rate (expressed as a percentage
adjusted to the nearest 1/100 of one percent) at which such
reserves were so required to be maintained during the
related Interest Period, over (ii) the LIBOR Rate applicable
to such LIBOR Rate Loan.
(e) Capital Adequacy. In the event that minimum capital
requirements are hereafter imposed upon the Bank or any
other Lender at any time or from time to time which would
materially adversely affect the profitability to, or return
on equity of, the Bank or such Lender, as the case may be,
of the arrangements contemplated by this Agreement, the Bank
shall promptly notify the Company of such requirement or
restriction and as to such loss and prospective loss of such
profitability or reduction in return (specifying the reasons
for such loss or reduction and providing calculations
showing the derivation of such loss or reduction).
Thereupon, the Company shall promptly compensate the Bank or
such Lender for its loss of profitability or reduction in
return from time to time as such losses or reductions are
incurred.
V. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank
and the other Lenders that:
SECTION 5.01. Organization, Powers, Etc.
The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, is duly qualified and in good standing as a
foreign corporation authorized to do business in each other
jurisdiction where, because of the nature of its activities
or properties, such qualification is required, and has the
corporate power and authority to carry on business as the
owner and lessor of the property subject to the Fuel Lease
and to execute, deliver and perform this Agreement, the
Depositary Agreement, the Notes, the Fuel Lease, the
Security Agreement and each other document and agreement
executed and delivered by it pursuant hereto and thereto.
The Company has not engaged in any activities other than
those permitted by Section 8.03 hereof.
SECTION 5.02. Authority, Etc.
The execution, delivery and performance by the Company of
this Agreement, the Depositary Agreement, the Notes, the
Fuel Lease and the Security Agreement have been duly
authorized by all requisite corporate action (including any
necessary stockholder action) on the part of the Company and
do not violate any provision of law, any order of any court
or other governmental agency or the Certificate of
Incorporation or By-laws of the Company or any agreement or
other instrument to which the Company is a party, or by
which it or any of its property is bound, or conflict with,
or constitute (with due notice or lapse of time or both) a
default under, any such agreement or other instrument, and
will not result in the creation or imposition of any lien,
charge or encumbrance upon any of its property or assets
(except as provided in this Agreement and the Security
Agreement). This Agreement, the Depositary Agreement, the
Fuel Lease and the Security Agreement are, and the Notes
(when executed and delivered) will be, legally binding and
enforceable obligations of the Company, subject, however, to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles which may
limit the right to obtain the remedy of specific performance
of obligations.
SECTION 5.03. Litigation.
There is no action, suit, proceeding or investigation at law
or in equity or by or before any governmental
instrumentality or agency now pending against the Company
or, to the knowledge of the Company, threatened against the
Company or any property or rights of the Company (or any
basis therefor) which individually or in the aggregate, if
adversely determined, would materially impair the ability of
the Company to perform its obligations under this Agreement,
the Depositary Agreement, the Notes, the Fuel Lease or the
Security Agreement or would materially adversely affect the
financial condition of the Company.
SECTION 5.04. Title to Properties.
The Company has good title to all its assets, free and clear
of all mortgages, pledges, liens, charges and encumbrances,
except such as are permitted by Section 8.02 hereof;
provided, however, that the Company (except with respect to
its own actions) is making this representation and warranty
only to the extent of, and entirely in reliance on,
representations and warranties made by the Lessee or any
other vendor in the bills of sale delivered from time to
time pursuant to the Fuel Lease or in other instruments and
has made no independent investigation with respect thereto.
SECTION 5.05. Consents, Etc.
No consent, license, order, authorization or approval of, or
registration, declaration or filing with, any governmental
or public body or authority is required in connection with
the execution, delivery and performance by the Company of
this Agreement, the Notes, the Depositary Agreement, the
Fuel Lease, the Security Agreement, the Note Purchase
Agreements, the Consent, the borrowings under this
Agreement, the issuance and sale of the Commercial Paper
Notes or the issuance and sale of the Intermediate Term
Notes other than (i) a general license to own nuclear fuel
from the Nuclear Regulatory Commission (which license has
been granted under the authority of 10 C.F.R. Section 70.20
and is in full force and effect) and (ii) such other
consents, licenses, orders, authorizations, approvals,
registrations, declarations or filings as have been obtained
or made.
SECTION 5.06. Investment Company Status.
The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning
of the Investment Company Act of 1940, as amended. The
Company is not a "public-utility company," or a "holding
company," or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935,
as amended. The Security Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended,
and the creation of the security interest in the
"Collateral" in favor of the "Secured Parties" under the
Security Agreement does not require an indenture to be
qualified under said Act.
SECTION 5.07. Ownership of Company, Etc.
River Fuel Trust #3 is the owner of all of the issued and
outstanding shares of the capital stock of the Company, all
of which shares have been validly issued, are fully paid and
non-assessable and are, and will continue to be, owned by
River Fuel Trust #3, free and clear of all security
interests, pledges, liens, charges, encumbrances, warrants,
options or rights to purchase. The Company owns no shares
of, or other interest in, any other person.
SECTION 5.08. Lessee's Financial Statements.
The Company has furnished to the Bank copies of the Lessee's
Annual Report on Form 10-K for the year ended December 31,
1999, its Annual Report to Shareholders for the year 1999,
and its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000.
SECTION 5.09. First Perfected Security Interest.
The Security Agreement is effective to create in favor of
the Secured Parties (as defined therein) a legal, valid and
enforceable first lien on and security interest in all of
the collateral purported to be covered thereby, and all
filings, recordings and other actions that are necessary in
order to establish, preserve and perfect the Secured
Parties' lien on, and security interest in, the collateral
as a legal, valid and enforceable first lien and security
interest, shall have been duly effected upon the due filing
of the Uniform Commercial Code financing statements, except
that the foregoing representation shall not be deemed to be
violated as a result of the existence or priority of any
lien permitted under Section 8.02 hereof.
SECTION 5.10. Absence of Certain Events.
No event specified in Section 20(a) of the Fuel Lease has
occurred nor has any event occurred which constitutes or,
with the lapse of time or the giving of notice or both,
would constitute an Event of Default under Section 25 of the
Fuel Lease.
VI. CONDITIONS PRECEDENT
SECTION 6.01. Conditions to Effectiveness.
The effectiveness of this Agreement is subject to the
satisfaction of the following conditions precedent:
(a) Execution. This Agreement shall have been duly
executed and delivered by each of the parties hereto.
(b) B Notes. Each of the Lenders shall have received a B
Note, duly executed by the Company and completed in
accordance herewith.
(c) Consent. The Bank shall have received the Consent duly
executed by the Lessee.
(d) Lessee Certification. The Bank shall have received a
certificate of the Lessee confirming that the financial
statements contained in the documents referred to in Section
5.08 fairly present the financial condition and results of
operations of the Lessee as of the dates and for the periods
indicated therein and have been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis (except as may be otherwise disclosed in
the footnotes thereto).
(e) Opinions. The Bank and the Lenders shall have received
favorable opinions of counsel to the Company, the Lessee and
the Guarantor covering such matters as the Bank may
reasonably request.
SECTION 6.02. Conditions to Certain Credit Events.
The obligation of the Bank to issue or extend a Letter of
Credit or to consent to the issuance of Commercial Paper
Notes and of the Lenders to make Loans hereunder, if the
effect thereof is to increase the amount of Outstandings, is
further subject to the conditions precedent that at the time
of each Credit Event:
(a) Representations and Warranties. The representations
and warranties of the Company set forth in Article V hereof
and of the Lessee in the Fuel Lease and in the certificate
delivered pursuant to Section 6.01(d) hereof shall be true
and correct on and as of the date of such Credit Event,
before and after giving effect to such Credit Event and to
the application of the proceeds, if any, of such Credit
Event, as though such representations and warranties had
been made at and as of such time, except to the extent that
such representations and warranties expressly relate to an
earlier date.
(b) No Default. No Event of Default and no event which,
with the giving of notice or lapse of time, or both, would
constitute an Event of Default shall have occurred and be
continuing on the date of such Credit Event.
(c) Financial Condition. No material adverse change shall
have occurred in the financial condition, business or
properties of the Company, the Lessee or the Guarantor since
September 30, 2000.
(d) Continued Effectiveness of Documents. The Bank shall
have received such documents as the Bank (or its counsel)
shall have requested to confirm the continued effectiveness
of the Trust Agreement, the Depositary Agreement, the Fuel
Lease, the Guaranty and the Security Agreement and any
governmental approvals obtained in connection therewith.
SECTION 6.03. Conditions to Each Credit Event.
The obligation of the Bank to consent to the issuance of
Commercial Paper Notes and of the Lenders to make Loans
hereunder, whether or not the effect thereof is to increase
the amount of Outstandings, is further subject to the
condition precedent that at the time of such Credit Event no
Event of Default shall have occurred and be continuing.
SECTION 6.04. Conditions to Issuance of Commercial Paper
Notes.
In addition to the conditions set forth in Section 6.02 and
6.03 for each Credit Event, on the date of each proposed
issuance of Commercial Paper Notes hereunder the Commercial
Paper Notes shall have received a rating from each rating
organization which rates the Commercial Paper Notes at least
as high as the rating of the Bank's own short-term debt.
VII. AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Bank and
the other Lenders that so long as this Agreement shall
remain in effect or any of the Notes or other obligations of
the Company hereunder shall be unpaid, unless the Bank and
the Required Lenders shall otherwise consent in writing, it
will:
SECTION 7.01. Corporate Existence, Etc.
Do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence,
rights and franchises and to comply with all laws applicable
to it; maintain, preserve and protect all franchises and
preserve all of its property used or useful in the conduct
of its business; exercise its rights under the Fuel Lease in
accordance with the Collateral Agent's instructions to cause
the Lessee to perform all its obligations as Lessee
thereunder; and exercise its rights under the Guaranty in
accordance with the Collateral Agent's instructions to cause
the Guarantor to perform all its obligations thereunder.
SECTION 7.02. Obligations and Taxes.
Pay or discharge or cause to be paid and discharged promptly
all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits before the
same shall become in default; provided, however, that the
Company shall not be required to pay and discharge or cause
to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings.
SECTION 7.03. Financial Statements and Certificates.
Furnish or cause to be furnished to the Bank and, in the
case of clause (c) hereof, to each other Lender:
(a) within 30 days after the end of each calendar quarter,
a statement of receipts and disbursements by the Company
during such calendar quarter, certified by an authorized
officer of the Company;
(b) together with the statements referred to in paragraph
(a) above, a certificate of said officer (i) stating
whether, to his knowledge, any Event of Default, or any
event which with the giving of notice or the lapse of time,
or both, would be such an Event of Default, has occurred,
and, if so, stating the facts with respect thereto and (ii)
stating that, to his knowledge, the representations and
warranties of the Company contained in Article V hereof, in
the Depositary Agreement and in the Security Agreement are
true with the same effect as though such representations and
warranties had been made at and as of the date of such
certificate;
(c) (i) within 120 days after the end of each fiscal year
of the Lessee, the annual report of the Lessee, reported on
by independent certified public accountants selected by the
Lessee, consisting of the balance sheet of the Lessee and
the related statements of income, retained earnings and
statement of cash flows for the twelve-month period then
ended, (ii) within 60 days after the end of each quarter of
each fiscal year of the Lessee, an unaudited balance sheet
of the Lessee and unaudited statements of income and
retained earnings for the quarterly period then ended
certified by a financial officer of the Lessee and (iii)
such additional financial information regarding the Lessee
as the Bank may reasonably request; and
(d) promptly, from time to time, such other information
regarding the operations, business, affairs and financial
condition of the Company as the Bank may reasonably request.
SECTION 7.04. Further Assurances.
At its own cost and expense, execute and deliver to the Bank
all such documents and instruments and do all such other
acts and things as may be reasonably required, in the
opinion of counsel for the Bank, to enable the Bank and the
other Lenders to exercise and enforce their rights under
this Agreement, the Notes, the Depositary Agreement and the
Security Agreement and to collect and receive all moneys due
or to become due under the Fuel Lease, to the extent the
Bank is entitled to do so under the Security Agreement.
SECTION 7.05. Litigation Notice.
Give the Bank prompt notice of (i) any action, suit or
proceeding known to the Company at law or in equity or by or
before any governmental instrumentality or other agency
which, if adversely determined, would materially impair the
right or ability of the Company to carry out its obligations
under this Agreement, the Notes, the Depositary Agreement,
the Fuel Lease or the Security Agreement or would materially
affect its business, operations, properties, assets or
condition, financial or otherwise and (ii) receipt of any
notice from the Lessee which the Lessee is required to
provide to the Company pursuant to Sections 18, 19 or 20 of
the Fuel Lease.
SECTION 7.06. Access to Books and Records.
Upon reasonable notice to the Company, permit reasonable
access by the Bank or any other Lender to the books and
records of the Company.
SECTION 7.07. Compliance with Laws.
Comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any
governmental authority, including, without limitation, any
laws, rules, regulations and orders relating to zoning,
environmental protection (including, without limitation,
hazardous waste disposal), land use, construction and
building restrictions, and employee safety and health
matters relating to its business operations.
SECTION 7.08. Indemnification.
The Company shall pay, and shall protect, indemnify and save
harmless the Bank, BNYCMI and each Lender and their
respective officers, directors, incorporators, shareholders,
partners, employees, affiliates, agents and servants from
and against, all Impositions, all liabilities, taxes,
losses, obligations, claims, damages, penalties, causes of
action, suits, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) or
judgments of any nature arising from any and all of the
following during the term of the Fuel Lease and thereafter
arising in connection with the Fuel Lease: (a) any injury to
or disease, sickness or death of persons, or loss of or
damage to property, occurring through or resulting from any
Nuclear Incident involving or connected in any way with the
Nuclear Fuel or any portion thereof, or in any manner
growing out of or relating to the acquisition, ownership,
possession, disposition, sale, use, nonuse, misuse,
fabrication, design, cycling, recycling, transportation,
containerization, cooling, processing, reprocessing,
storing, condition, operation, construction, maintenance,
management, repair or rebuilding of the Nuclear Fuel or any
portion thereof or resulting from the condition of the land
underlying the Nuclear Fuel, (b) any use, nonuse or
condition of the Generating Facility or the land underlying
the Generating Facility, (c) any violation, or alleged
violation, of the Fuel Lease, or of any contracts or
agreements to which the Lessee is a party or by which it is
bound, or any Legal Requirements, (d) performance of any
labor or services or the furnishing of any materials or
other property in respect of the Nuclear Fuel or any portion
thereof, (e) any infringement or alleged infringement of any
patent, copyright, trade secret or other similar right
relating to the Nuclear Fuel or any portion thereof, and (f)
qualification to do business in any jurisdiction necessary
in connection with its obligations under the Fuel Lease;
provided, that, the Company shall not be required to
indemnify any of the above parties with respect to any of
the above arising out of such party's gross negligence or
wilful misconduct. In the event that any action, suit or
proceeding is brought against any Person indemnified or
intended to be indemnified pursuant to this Section 7.08 by
reason of any such occurrence, the Company will, at the
Company's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by
counsel designated by the Company and reasonably acceptable
to the Person or Persons indemnified or intended to be
indemnified under this Section 7.08. The obligations of the
Company under this Section 7.08 shall survive any
termination of this Agreement or the Fuel Lease, in whole or
in part. Capitalized terms used in this Section 7.08 have
the meanings herein ascribed to such terms in the Fuel
Lease.
VIII. NEGATIVE COVENANTS
The Company covenants and agrees with the Bank and
the other Lenders that so long as this Agreement shall
remain in effect or any of the Notes or other obligations of
the Company hereunder shall be unpaid, unless the Bank and
the Required Lenders shall otherwise consent in writing, it
will not, directly or indirectly:
SECTION 8.01. Indebtedness.
Incur, create, assume or permit to exist Indebtedness,
except Indebtedness evidenced by the Notes and the
Intermediate Term Notes not to exceed the lesser of
(i) $250,000,000 and (ii) the sum of the Stipulated Loss
Value (as defined in the Fuel Lease) of Nuclear Fuel owned
by the Company and cash and investments held by the Company.
SECTION 8.02. Liens.
Incur, create or assume or permit to exist any mortgage,
pledge, lien, charge or other encumbrance of any nature
whatsoever on any of its assets now or hereafter owned,
except:
(i) liens securing the payment of obligations permitted
under Section 7.02 hereof;
(ii) liens imposed by law, such as carrier's, warehousemen's
or mechanics' liens, incurred in good faith in the ordinary
course of business;
(iii) liens granted under the Security Agreement, and
liens, encumbrances, assignments and subleases permitted by
the Fuel Lease; and
(iv) the right, title and interest of any Manufacturer in
and to Nuclear Fuel to be delivered under any Nuclear Fuel
Contract (as such terms are defined in the Fuel Lease) and
any deposit made with any Manufacturers with respect to a
Nuclear Fuel Contract.
SECTION 8.03. Activities.
Engage in any business or activity other than the business
of owning Nuclear Fuel and leasing the same to the Lessee
pursuant to the Fuel Lease, and making the borrowings under
the Notes and the Intermediate Term Notes and otherwise
engaging in activities contemplated by this Agreement and
the Note Purchase Agreements.
SECTION 8.04. Sales, Etc.
(a) Sell, lease, transfer or otherwise dispose of any
portion of its property or assets to any person except in
the ordinary course of business or pursuant to the Fuel
Lease, this Agreement or the Security Agreement or (b)
consolidate with or merge into any other corporation, or
permit another corporation to merge into it, or acquire all
or a substantial portion of the properties or assets of any
other person.
SECTION 8.05. Amendments, Etc.
Amend, revise, alter, modify or change, or consent to an
amendment, revision, alteration, modification or change in,
or grant any waiver under, the provisions of the Commercial
Paper Notes, the Depositary Agreement, the Fuel Lease or the
Guaranty.
SECTION 8.06. Investments.
(a) Make or permit to exist any loans or advances to, or
investments in, any person, (b) purchase any debt
securities, evidences of indebtedness or obligations of any
person other than purchases permitted by Section 3.4 of the
Security Agreement or (c) purchase any stock or other equity
securities of any person. All losses incurred on any
investment permitted by this Section 8.06 shall be for the
account of the Company.
SECTION 8.07. Dividends.
Except as otherwise expressly provided herein, purchase,
redeem or issue any shares of its capital stock, declare any
dividends thereon, make any distribution to stockholders, or
set aside any funds for any such purpose.
SECTION 8.08. Compliance with Securities Act.
Sell any Commercial Paper Notes or Intermediate Term Notes
if such sale would violate the Securities Act of 1933, as
amended, or any other applicable federal or state law
relating to the sale of securities.
SECTION 8.09. Consolidated Tax Returns.
File consolidated tax returns with any person or permit any
consolidated tax returns to be filed with respect to it.
IX. DEFAULTS
SECTION 9.01. Events of Default.
Any one or more of the following events shall constitute an
"Event of Default" under this Agreement:
(a) any representation or warranty made by the Company or
the Lessee in connection with this Agreement, the Fuel
Lease, the Security Agreement, the Depositary Agreement or
any agreement or instrument related to any of the foregoing,
or in any report, certificate, financial statement or other
instrument furnished in connection with this Agreement, the
execution and delivery of the Notes, the issuance of a
Letter of Credit or the borrowings hereunder shall prove to
be false or misleading in any material respect when made;
(b) default in the payment of the principal of, or interest
on, any Loan, when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or
otherwise, or any default in the payment of any amount
payable pursuant to Section 2.08, 2.09 or 2.10 hereof, and,
in the case of default in the payment of interest or fees,
such default shall continue unremedied for five Business
Days;
(c) default in the due observance of any covenant,
condition or agreement on the part of the Company contained
in Article VIII hereof (other than Section 8.02);
(d) default in the due observance or performance of any
other covenant, condition or agreement to be observed or
performed by the Company pursuant to the terms of this
Agreement, the Depositary Agreement, the Fuel Lease or the
Security Agreement, and such default shall continue
unremedied for 30 days after written notice thereof to the
Company by the Bank (which notice shall state that it is a
"notice of default");
(e) the Company shall (i) apply for, consent to, or
acquiesce in the appointment of a receiver, trustee or
liquidator of itself or any of its property or, in the
absence of such application, consent or acquiescence, a
trustee, receiver or liquidator is appointed for the Company
or for a part of its property and is not discharged within
30 days, (ii) become insolvent or admit in writing its
inability to pay its debts as they mature, (iii) make a
general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent or (v) file a voluntary
petition in bankruptcy, or a petition or an answer seeking
reorganization or an arrangement with creditors or to take
advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation law or
statute, or an answer admitting the material allegations of
a petition filed against it in any proceeding under any such
law or if corporate action shall be taken by the Company for
the purpose of effecting any of the foregoing;
(f) an order, judgment or decree shall be entered, without
the application, approval or consent of the Company by any
court of competent jurisdiction, approving a petition
seeking reorganization of the Company or of all or a
substantial part of the assets of the Company or appointing
a receiver, trustee or liquidator of the Company, and such
order, judgment or decree shall continue unstayed for a
period of 60 days;
(g) any petition shall be filed against the Company seeking
the adjudication of the Company as bankrupt or its
reorganization or an arrangement of its debt or its
liquidation or dissolution under any bankruptcy,
reorganization, insolvency, readjustment of debt,
dissolution or liquidation law or statute, and such petition
shall not be dismissed within 60 days after the filing
thereof;
(h) final judgment or judgments for the payment of money in
excess of $500,000 in the aggregate shall be rendered
against the Company and the same shall remain undischarged
for a period of 30 consecutive days, unless execution
thereof shall effectively have been stayed;
(i) an Event of Default under Section 25 of the Fuel Lease
shall have occurred and be continuing;
(j) an Event of Default under a Note Purchase Agreement
shall have occurred and be continuing;
(k) final and irrevocable payment to the Commercial Paper
Account of the proceeds from the sale of any Commercial
Paper Note shall not have been made by the end of business
of the Business Day immediately following the day on which
such Commercial Paper Note was sold;
(l) default in the payment when due, or in the performance
or observance of, any material obligation of, or condition
agreed to by, the Company with or to a Manufacturer (as
defined in the Fuel Lease), except only to the extent that
the existence of any such default is being contested by the
Company in good faith and by appropriate proceedings; or
(m) the Debt Ratio shall at any time exceed 0.70:1.00.
SECTION 9.02. Rights of Bank and Lenders Upon Default.
Upon the happening of any Event of Default and at any time
thereafter during the continuance of such Event of Default,
the Bank may, and upon instructions from the Required
Lenders will, (i) by written notice to the Company, at the
same or different times, take one or more of the following
actions: (x) terminate the obligations of the Lenders to
make further Loans and/or (y) declare any or all outstanding
Loans to be forthwith due and payable, whereupon such Loans
shall become forthwith due and payable, both as to principal
and interest, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the B Notes to the
contrary notwithstanding, and/or (z) exercise any rights it
may have (or instruct the Collateral Agent to act) under the
Security Agreement, and (ii) by written notice to the
Company (with a copy to the Depositary), at the same or
different time, take one or more of the following actions:
(x) instruct the Company to cease issuing Commercial Paper
Notes and/or (y) terminate the Bank's obligation to issue a
Letter of Credit (but no such action by the Bank shall
affect its obligations under a Letter of Credit with respect
to Commercial Paper Notes then outstanding) and/or (z)
require the Company to immediately reimburse the Bank for
any LOC Payments made or which may thereafter be made under
a Letter of Credit; provided, however, that upon the
happening of any of the events specified in clauses (e), (f)
or (g) of Section 9.01 hereof, the obligation of the Lenders
to make further Loans hereunder and of the Bank to issue a
Letter of Credit shall terminate (but such termination shall
not affect the Bank's obligations under a Letter of Credit
with respect to Commercial Paper Notes then outstanding),
the Company shall cease issuing Commercial Paper Notes, all
amounts of principal and accrued interest on the Loans shall
be immediately due and payable and the Company shall
immediately reimburse the Bank for any LOC Payments under a
Letter of Credit without declaration or other notice to the
Company. In the case of an Event of Default, the Bank shall
also be entitled to demand, and the Company shall be
required to deposit in the Commercial Paper Account, an
amount equal to the liabilities of the Bank, contingent or
otherwise, under any outstanding Letter of Credit. The
remedies herein provided in case of an Event of Default
shall not be deemed to be exclusive but shall be cumulative
and shall be in addition to all other remedies existing at
law, in equity or in bankruptcy.
X. THE BANK AS AGENT
SECTION 10.01. The Agency.
Each Lender appoints the Bank as its agent hereunder and
irrevocably authorizes the Bank to take such action on its
behalf and to exercise such powers hereunder and under the
other Credit Documents as are specifically delegated to the
Bank by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto, and the Bank
hereby accepts such appointment subject to the terms hereof.
The relationship between the Bank and the Lenders shall be
that of agent and principal only and nothing herein shall be
construed to constitute the Bank a trustee or fiduciary for
any Lender nor to impose on the Bank duties or obligations
other than those expressly provided for herein.
SECTION 10.02. The Bank's Duties.
The Bank shall promptly forward to each Lender copies, or
notify each Lender as to the contents, of all notices
received from the Company pursuant to the terms of this
Agreement and, in the event that the Company fails to timely
reimburse any LOC Payment or to pay when due the principal
of or interest on any Loan, the Bank shall promptly give
notice thereof to the Lenders. As to any other matter not
expressly provided for herein, the Bank shall have no duty
to act or refrain from acting with respect to the Company,
except upon the instructions of the Required Lenders. The
Bank shall not be bound by any waiver, amendment,
supplement, or modification of this Agreement which affects
its duties hereunder and thereunder, unless it shall have
given its prior written consent thereto. The Bank shall
have no duty to ascertain or inquire as to the performance
or observance of any of the terms, conditions, covenants or
agreements binding on the Company pursuant to this Agreement
or any other Credit Document nor shall the Bank be deemed to
have knowledge of the occurrence of any Default or Event of
Default (other than a failure of the Company to timely
reimburse any LOC Payment or to pay when due the principal
or interest on any Loan), unless it shall have received
written notice from the Company or a Lender specifying such
Default or Event of Default and stating that such notice is
a "Notice of Default".
SECTION 10.03. Limitation of Liabilities.
Each of the Lenders and the Company agree that (i) neither
the Bank nor any of its officers or employees shall be
liable for any action taken or omitted to be taken by any of
them hereunder except for its or their own gross negligence
or wilful misconduct, (ii) neither the Bank nor any of its
officers or employees shall be liable for any action taken
or omitted to be taken by any of them in good faith in
reliance upon the advice of counsel, independent public
accountants or other experts selected by the Bank, and (iii)
the Bank shall be entitled to rely upon any notice, consent,
certificate, statement or other document believed by it to
be genuine and correct and to have been signed and/or sent
by the proper persons.
SECTION 10.04. The Bank as a Lender.
The Bank may, without any liability to account, maintain
deposits or credit balances for, invest in, lend money to
and generally engage in any kind of banking business with
the Company or any affiliate of the Company as if it were
any other borrower and without any duty to account therefor
to the other Lenders.
SECTION 10.05. Lender Credit Decision.
Neither the Bank, BNYCMI nor any of their respective
Affiliates, officers or employees has any responsibility
for, gives any guaranty in respect of, nor makes any
representation to the Lenders as to, (i) the condition,
financial or otherwise, of the Company, the Lessee or the
Guarantor or the truth of any representation or warranty
given or made in this Agreement or any other Credit
Document, or in connection herewith or therewith or (ii) the
validity, execution, sufficiency, effectiveness,
construction, adequacy, enforceability or value of this
Agreement or any other Credit Document or other document or
instrument related hereto or thereto. Except as
specifically provided herein, neither the Bank, BNYCMI nor
any of their officers or employees shall have any duty or
responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information
with respect to the operations, business, property,
condition or creditworthiness of the Company, the Lessee or
the Guarantor, whether such information comes into the
Bank's or BNYCMI's possession on or before the date hereof
or at any time thereafter. Each Lender acknowledges that
(i) it has, independently and without reliance upon the
Bank, BNYCMI or any other Lender, based on such documents
and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement
and (ii) all information reviewed by it in its credit
analysis or otherwise in connection herewith has been
provided solely by or on behalf of the Company, the Lessee
or the Guarantor and the Bank and BNYCMI have no
responsibility for such information. Each Lender also
acknowledges that it will independently and without reliance
upon the Bank, BNYCMI or any other Lender, based on such
documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 10.06. Indemnification.
Each Lender agrees to indemnify the Bank, to the extent not
reimbursed by the Company, ratably in accordance with its
Pro Rata Share (as of the time of the incurrence of the
liability being indemnified against), from and against any
and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Bank in any
way relating to or arising out of any this Agreement or any
other Credit Document, or any action taken or omitted to be
taken by the Bank hereunder or thereunder; provided,
however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of
the Bank or any of its officers or employees. Without
limiting the foregoing, each Lender agrees to reimburse the
Bank promptly upon demand for its ratable share of any out-
of-pocket expenses (including fees and disbursements of
counsel) incurred by the Bank in such capacity in connection
with the enforcement of, or legal advice in respect of
rights or responsibilities under, this Agreement or any
other Credit Document or any amendments or supplements
hereto or thereto, to the extent that the Bank is not
reimbursed for such expenses by the Company. Except for
action expressly required of the Bank hereunder, the Bank
shall in all cases be fully justified in failing or refusing
to act hereunder unless it shall receive further assurances
to its satisfaction from the Lenders of their
indemnification obligations under this Section 10.06 hereof
against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any
such action.
XI. MISCELLANEOUS
SECTION 11.01. Notices.
Any notice shall be deemed to have been given to a party
hereto (or to the Depositary) on the day on which delivered
to such party at the address specified below (or at such
other address as such party shall specify to the other party
in writing) or, if sent by registered or certified mail, on
the day next following the day on which mailed, addressed to
such party at such address:
(a) if to the Company, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of
New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
marked for the attention of ▇▇▇▇▇ ▇▇▇▇▇;
(b) if to the Bank, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, marked for the attention of Agency
Function Administration;
(c) if to any Lender at its address set forth in Schedule
I;
(d) if to the Depositary, at its address set forth in the
Depositary Agreement;
(e) if to the Lessee, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, marked for the attention of Treasurer.
SECTION 11.02. Survival of Agreement.
All covenants, agreements, representations and warranties
made herein, in the Depositary Agreement, in the Security
Agreement and in the certificates delivered pursuant hereto
shall survive (i) the issuance of any Letter of Credit, (ii)
the making by the Lenders of the Loans herein contemplated
and (iii) the execution and delivery to the Lenders of the B
Notes, and shall continue in full force and effect as to the
Bank and the other Lenders so long as the B Notes or any
other obligations of the Company hereunder are outstanding
and unpaid and so long as the Bank or any Lender has any
liability hereunder or under a Letter of Credit.
SECTION 11.03. Assignments and Participations.
(a) This Agreement shall be binding upon and inure to
the benefit of the Company, the Bank and the Lenders and
their respective successors and assigns, except that the
Company may not assign any of its rights hereunder without
the prior written consent of all of the Lenders, and any
purported assignment by the Company without such consent
shall be void.
(b) Any Lender may at any time grant to one or more banks
or other institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In
the event of any such grant by a Lender of a participating
interest to a Participant, whether or not upon notice to the
Company and the Bank, such Lender shall remain responsible
for the performance of its obligations hereunder, and the
Company and the Bank shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement
pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the
sole right and responsibility to enforce the obligations of
the Company hereunder including the right to approve any
amendment, modification or waiver of any provision of this
Agreement; provided, that such participation agreement may
provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clauses
(i) through (iii), inclusive of Section 11.06 without the
consent of the Participant. The Company agrees that each
Participant shall be entitled to the benefits of Section
4.05 with respect to its participating interest; provided,
that all amounts payable to a Lender for the account of a
Participant under Section 4.05 shall be determined as if
such Lender had not granted such participation to the
Participant. An assignment or other transfer which is not
permitted by clause (c) below shall be given effect for
purposes of this Agreement only to the extent of a
participating interest granted in accordance with this
clause (b).
(c) Any Lender may at any time assign to one or more banks
or other institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations
under this Agreement, and such Assignee shall assume such
rights and obligations, pursuant to an instrument
substantially in the form of Exhibit E (an "Assignment and
Acceptance") executed by such Assignee and such transferor
Lender, with (and subject to) the prior consent of the
Company (whose consent shall not be unreasonably withheld)
and the Bank (whose consent may be granted or withheld in
its absolute discretion) provided, that (i) any such
transfer or assignment shall be with respect to at least
$5,000,000 of the transferring Lender's Commitment and Loans
(or if less, such Lender's entire Commitment and Loans) and
(ii) the foregoing requirement relating to the Company's
consent shall not be applicable in the case of, and this
subsection (c) shall not restrict, an assignment or other
transfer by any Lender to an affiliate of such Lender or to
a Federal Reserve Bank or during the continuance of an Event
of Default. Upon execution and delivery of such Assignment
and Acceptance and payment by such Assignee to such
transferring Lender of an amount equal to the purchase price
agreed between such transferring Lender and such Assignee
and payment by the transferring Lender or the Assignee of an
assignment fee of $3,500 to the Bank, such Assignee shall be
a Lender party to this Agreement and shall have all the
rights and obligations of a Lender with a Commitment as set
forth in such Assignment and Acceptance, and the
transferring Lender shall be released from its obligations
hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection
(c), the transferring Lender, the Bank and the Company shall
make appropriate arrangements so that, if required, a new
Note is issued to the Assignee.
SECTION 11.04. Expenses of the Bank, Etc.
(a) The Company will pay all reasonable out-of-pocket
expenses incurred by the Bank and BNYCMI (including the
reasonable fees and out-of-pocket expenses of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇) in connection with the preparation, execution,
delivery and administration of this Agreement (whether or
not the transactions hereby contemplated shall be
consummated), the issuance of any Letter of Credit and the
making of Loans hereunder, and the Company will pay any
costs and expenses of the Bank (including the reasonable
fees of its counsel) in connection with the enforcement and
protection of the rights of the Bank and the Lenders under
this Agreement, the Notes and the Security Agreement. The
Company further agrees to pay, and to save, indemnify and
hold harmless the Bank and each Lender from and against all
liability for, any stamp or other similar taxes which may be
payable in connection with the execution and delivery of
this Agreement, the Notes and the Security Agreement, the
borrowings hereunder or the issuance of the Notes or of any
other instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection
herewith.
(b) The Company further agrees to save, indemnify and hold
harmless the Bank and each Lender and their respective
officers, directors, agents or employees from and against
any and all liabilities (including liabilities for
penalties) incurred by the Bank, any Lender or its officers,
directors, agents or employees hereunder, in connection
herewith or as a consequence of its being a Lender or the
Bank hereunder, unless such liability shall be due to gross
negligence or willful misconduct on the part of the Bank,
such Lender or its respective officers, directors, agents or
employees or breach by the Bank or such Lender of its
obligations hereunder or in connection herewith. In any
suit, proceeding or action brought by the Bank and/or the
Lenders (or any of them) with respect to the Fuel Lease for
any sum owing thereunder, or to enforce any provisions
thereof, the Company will save, indemnify and hold harmless
the Bank and the Lenders from and against all expense, loss
or damage suffered by reason of any defense, set-off,
counterclaim, recoupment or reduction of liability
whatsoever of each other person which is obligated thereon,
arising out of a breach by the Company of any obligation
thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor
of such person or its successors from the Company, and all
such obligations of the Company shall be and remain
enforceable against and only against the Company. If the
Company shall fail to do any act or thing which it has
covenanted to do hereunder or under the Depositary Agreement
or the Security Agreement or any representation or warranty
on the part of the Company contained herein or therein shall
be breached, the Bank or any Lender may (but shall not be
obligated to) do the same or cause it to be done or remedy
any such breach, and may expend its funds for such purpose.
Any and all amounts so expended by the Bank or any Lender
shall be repayable to it by the Company upon its demand
therefor, with interest at a rate equal to the Base Rate in
effect from time to time during the period from and
including the date so expended by the Bank or such Lender to
the date of such demand and with interest at a rate equal to
2% over the Base Rate in effect from time to time during the
period after such demand to the date of repayment.
SECTION 11.05. APPLICABLE LAW.
THIS AGREEMENT, THE B NOTES AND ANY LETTER OF CREDIT SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 11.06. Amendments, Modifications and Waivers.
No failure or delay on the part of the Bank in exercising
any power or right hereunder or under any other Credit
Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power
preclude any other or further exercise thereof or the
exercise of any other right or power hereunder or
thereunder. No amendment, modification or waiver of any
provision of this Agreement, any Note, the Depositary
Agreement or the Security Agreement and no consent to any
departure by the Company therefrom shall in any event be
effective unless the same shall be in writing and signed by
the Bank and the Required Lenders, provided, however, that
without the prior written consent of all Lenders, no such
amendment, modification or waiver shall (i) extend the
Termination Date or otherwise postpone any date fixed for
payment of any portion of the principal of, or interest on,
any Loan, or any reimbursement on account of any LOC
Payment, or the Commitment Fees or the Letter of Credit
Fees, (ii) release Collateral (as defined in the Security
Agreement) other than in the ordinary course of business or
(iii) reduce the principal of, or interest on, any Loan, or
the amount of any reimbursement on account of any LOC
Payment, or the amount of the Commitment Fees or Letter of
Credit Fees. Any such waiver or consent shall be effective
only in the specific instance and for the purpose for which
given. No notice to or demand on the Company in any case
shall, of itself, entitle the Company to any other or
further notice or demand in similar or other circumstances.
The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 11.07. Extension of Maturity.
Should the principal of or interest on any B Note or any
Loan evidenced thereby, or any mandatory prepayment of the
principal thereof, or any other amount payable hereunder,
become due and payable on other than a Business Day, the
maturity thereof shall be extended to the next succeeding
Business Day and, in the case of principal or reimbursement,
interest shall be payable thereon at the rate per annum
herein specified during such extension.
SECTION 11.08. No Recourse.
This Agreement, the Depositary Agreement, the Notes, the
Security Agreement, the Fuel Lease and any other document
executed and delivered by the Company in connection herewith
or therewith is intended to be a corporate obligation of the
Company only, and all of the statements, representations,
covenants and agreements made by the Company contained
herein or therein are made and intended only for the purpose
of binding the Company and establishing the existence of
rights and remedies provided for herein or therein which can
be exercised and enforced against the Company. Therefore,
anything contained in this Agreement, the Depositary
Agreement, the Notes, the Security Agreement, the Fuel Lease
and any other document to the contrary notwithstanding, no
recourse may be made by the Bank or any Lender against River
Fuel Trust #3, United States Trust Company of New York, as
trustee or in its individual capacity or any incorporator,
shareholder (direct or indirect), affiliate, director,
officer, employee or agent of the Company, River Fuel Trust
#3 or United States Trust Company of New York with respect
to claims against the Company arising under or relating to
this Agreement or any Letter of Credit; provided, however,
that nothing in this Section 11.08 shall relieve the Company
from its obligations under this Agreement.
SECTION 11.09. Severability.
In case any one or more of the provisions contained in this
Agreement, the Depositary Agreement, the Security Agreement,
a Letter of Credit or the Notes should be invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
and therein shall not in any way be affected or impaired
thereby.
SECTION 11.10. Table of Contents and Captions.
The table of contents and captions contained in this
Agreement are for convenience of reference only and shall
not limit or define the provisions of this Agreement or
affect the interpretation or construction thereof.
SECTION 11.11. Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but which, when
taken together, shall constitute but one instrument.
SECTION 11.12. LIBOR Lending Office.
LIBOR Rate Loans shall be made by each Lender from such
branch or affiliate as it may hereafter designate to the
Company as its "LIBOR Lending Office", provided, however,
that to the extent that such Lender can do so, it will
designate only a branch or affiliate which will not cause
the Company to incur additional costs.
SECTION 11.13. Authorization of Collateral Agent.
The Bank and the Lenders hereby authorize the Collateral
Agent to enter into and to carry out its duties under and
with respect to the Security Agreement and hereby agree to
accept and be bound by all of the provisions thereof
including without limitation the provisions (a) prohibiting
the enforcement of the Security Agreement without the
direction or consent of the Designated Holders (as that term
is used in the Security Agreement), (b) limiting the duties
of the Collateral Agent thereunder and exonerating it from
certain liabilities, (c) permitting amendments to the
Security Agreement and waivers and releases of Collateral
thereunder and (d) providing that under certain
circumstances the Lenders shall be responsible for their pro
rata share of expenses of the Collateral Agent as set forth
in Section 6.8 of the Security Agreement.
SECTION 11.14. WAIVER OF JURY.
THE COMPANY, THE BANK AND EACH LENDER EACH HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT, ANY OTHER CREDIT DOCUMENT OR THE FUEL LEASE.
SECTION 11.15. Security Agreement.
It is the intent of the parties hereto that the Bank and the
Lenders shall be Secured Parties under and as defined in the
Security Agreement and that the obligations of the Company
hereunder shall constitute "Bank Obligations" as defined in
the Security Agreement and secured by the Collateral
thereunder.
IN WITNESS WHEREOF, the Company, the Bank and the
other Lenders have caused this Agreement to be duly executed
as of the day and year first above written.
The Company: RIVER FUEL FUNDING COMPANY #3, INC.
By_______________________________
The Bank and a Lender: THE BANK OF NEW YORK
By_______________________________
The Syndication Agent BANK ONE, N.A.
and a Lender:
By_______________________________
The Documentation Agent THE FUJI BANK, LIMITED
and a Lender:
By_______________________________
The Lead Arranger and BNY CAPITAL MARKETS, INC.
and Book Manager:
By_______________________________
The Lenders: BANK HAPAOLIM, B.M.
By_______________________________
THE CHASE MANHATTAN BANK
By_______________________________
THE SUMITOMO BANK, LIMITED
By_______________________________
UNION BANK OF CALIFORNIA, N.A.
By_______________________________
CREDIT LYONNAIS
By_______________________________
Schedule I
Commitments
Lender Commitment
The Bank of New York $12,417,777.78
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Function Administration
Bank One, N.A. $15,056,555.56
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Fuji Bank, Limited $15,056,555.56
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
The Chase Manhattan Bank $10,000,000.00
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
The Sumitomo Bank, Limited $9,120,000.00
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Union Bank of California, N.A. $4,656,666.66
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇
Credit Lyonnais $4,656,666.66
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Bank Hapoalim, B.M. $4,035,777.78
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT A
DEPOSITARY AGREEMENT
[to come]
EXHIBIT B
[FORM OF LETTER OF CREDIT]
IRREVOCABLE LETTER OF CREDIT
THE BANK OF NEW YORK
November 30, 2000
Letter of Credit No. S00042219
To The Chase Manhattan Bank,
as Depositary for the benefit
of holders of Commercial Paper Notes
issued by River Fuel Funding Company #3, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
We hereby establish in your favor, in trust for
the holders of the Commercial Paper Notes referred to below,
this irrevocable Letter of Credit for the account of River
Fuel Funding Company #3, Inc. (the "Company"), for an
aggregate amount, available from time to time, equal to the
Face Amount (as hereinafter defined) of certain promissory
notes of the Company (the "Commercial Paper Notes")
authenticated and delivered by you pursuant to and in
compliance with a certain Depositary Agreement dated as of
November 30, 2000, as from time to time amended (the
"Depositary Agreement"), between the Company and you, and
consented to by The Bank of New York (the "Bank"), not to
exceed $[maximum stated amount]. The "Face Amount" of a
Commercial Paper Note means the principal amount thereof
plus, in the case of any Commercial Paper Note issued on an
interest-bearing basis, all interest payable on such
Commercial Paper Note to its stated maturity date.
Notwithstanding any other provision of this Letter of
Credit, the aggregate liability of the Bank under this
Letter of Credit shall not exceed $[maximum stated amount]
at any one time.
Drawings hereunder may be made by you in the
manner hereinafter provided for the payment of matured
Commercial Paper Notes. Such drawings shall be made by your
delivering to the Bank, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, to the attention of: The Manager, Standby Letter
of Credit Department, Floor 8 East, a demand for payment (in
writing or by Telecopy to No. (▇▇▇) ▇▇▇-▇▇▇▇, with
telephonic confirmation of receipt at (▇▇▇) ▇▇▇-▇▇▇▇, or by
any other telecommunication device capable of creating a
record of such demand) in the form of Annex A hereto, with
all blanks appropriately filled in and signed by your
authorized officer.
Provided that such demand is delivered to the Bank
not later than the close of business on such Commercial
Paper Notes' Drawing Deadlines (as hereinafter defined), the
Bank agrees to honor such demand drawn under and in
compliance with this Letter of Credit by transferring to you
for deposit in the Note Redemption Account (as defined in
the Depositary Agreement) immediately available funds equal
to the Face Amount of such Commercial Paper Notes for which
payment is demanded, such funds to be held in the Note
Redemption Account in trust for the holders of the
Commercial Paper Notes for which such demand is made and to
be applied to the payment of such Commercial Paper Notes.
If demand for payment is made by you hereunder at
or prior to 10:00 A.M., New York City time, on a business
day, and provided that such demand for payment conforms to
the terms and conditions hereof, payment shall be made to
you of the amount demanded, in immediately available funds,
not later than 1:00 P.M., New York City time, on the same
business day. If demand for payment is made by you
hereunder after 10:00 A.M. but prior to 2:00 P.M., New York
City time, on a business day, and provided that such demand
for payment and the documents presented in connection
therewith conform to the terms hereof, payment shall be made
to you of the amount demanded, in immediately available
funds, not later than the close of business, New York City
time, on the same business day.
All payments hereunder will be made with the
Bank's own funds and not with funds of the Company.
Except as otherwise expressly provided herein, for
the purposes of this Letter of Credit:
(a) the term "business day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
the City of New York are authorized by law to close; and
(b) the term "Drawing Deadline" with respect to any
Commercial Paper Note shall mean the 16th day after the
stated maturity date of such Commercial Paper Note, or if
such 16th day is not a business day, the next succeeding
business day.
This Letter of Credit is irrevocable with respect
to any issued Commercial Paper Note. This Letter of Credit
shall not be available with respect to any Commercial Paper
Note after the Drawing Deadline thereof, or after full
payment thereof, whichever is earlier; provided, however,
that in no event shall this Letter of Credit remain in
effect after [expiration date].
The obligation of the Bank hereunder with respect
to each drawing hereunder shall be fully discharged upon the
payment by the Bank in accordance herewith of the Face
Amount of the Commercial Paper Notes with respect to which
such drawing is made.
This Letter of Credit has been delivered in New
York, New York and shall be deemed to be a contract made
under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles
of conflicts of law.
This credit is not assignable or transferable and,
except as otherwise expressly stated herein, is subject to
the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce,
Publication No. 500.
Very truly yours,
THE BANK OF NEW YORK
By________________________
Annex A
This Annex Forms an Integral Part the Bank of New York
Irrevocable Letter of Credit No. S00042219
DRAWING CERTIFICATE
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: The Manager, Standby Letter of
Credit Department, Floor 8 East
Re: Drawing Certificate
Gentlemen:
The Chase Manhattan Bank (the "Depositary") hereby
certifies to The Bank of New York (the "Bank") with
reference to Irrevocable Letter of Credit No. S00042219 (the
"Letter of Credit"; the terms "Depositary Agreement", "Face
Amount" and "Commercial Paper Notes" as used herein having
their respective meanings set forth in the Letter of Credit)
that:
1. The Depositary is the Depositary under the Depositary
Agreement.
2. The Depositary is making a demand for payment under the
Letter of Credit of the sum of $ to be used for the
payment of Commercial Paper Notes maturing on or prior to
the date hereof.
3. A schedule showing the serial number, Face Amount, date
of issuance and maturity date of the Commercial Paper Notes
with respect to which such drawing is made is attached
hereto.
4. Each such Commercial Paper Note was authenticated and
delivered by the Depositary pursuant to and in accordance
with the Depositary Agreement.
5. Upon receipt by the Depositary of the amount demanded
hereby, (a) the Depositary will deposit the same in the Note
Redemption Account (as defined in the Depositary Agreement),
(b) no portion of said amount shall be applied by the
Depositary for any other purpose, and (c) no portion of said
amount shall be commingled with other funds held by the
Depositary.
IN WITNESS WHEREOF, the Depositary has executed
and delivered this Certificate as of the ____ day of
____________, ____.
THE CHASE MANHATTAN BANK,
as Depositary
By___________________________
EXHIBIT C
PROMISSORY NOTE
$[Amount of Lender's Commitment] New York, New York
[Insert Date of Note]
FOR VALUE RECEIVED, River Fuel Funding Company #3,
Inc., a Delaware corporation (the "Company"), DOES HEREBY
PROMISE to pay to the order of [Name of Lender] (the
"Lender") on the date or dates specified in the Credit
Agreement referred to below, at the office of The Bank New
York (the "Bank") at One Wall Street, New York, New York,
in lawful money of the United States of America, the
principal amount of [Amount of Lender's Commitment] Dollars
($______________) or, if less than such principal amount,
the aggregate outstanding principal amount of all Loans (as
defined in the Credit Agreement) made to the Company by the
Lender, and to pay interest on the unpaid principal amount
hereof until paid, in like money at said office of the Bank,
at the rate or rates and on the date or dates specified
therefor in the Credit Agreement.
The Lender may record on the schedule attached
hereto the date and principal amount of each Loan and the
date and amount of each repayment of principal of such Loan.
The failure of the Lender to so record shall not relieve the
Company of its obligation to repay outstanding Loans and all
interest thereon in accordance herewith.
This Note is one of the B Notes referred to in a
certain Credit Agreement dated as of November 30, 2000
between the Company, the Bank, the Syndication Agent,
Documentation Agent, Lead Arranger and Book Manager named
therein and various Lenders (including the Lender) (said
Credit Agreement, as from time to time heretofore or
hereinafter amended, herein called the "Credit Agreement"),
and is subject to prepayment and the maturity of the Loans
evidenced hereby may be accelerated in accordance with the
provisions of the Credit Agreement.
This Note is secured by certain collateral
described in the Security Agreement referred to in the
Credit Agreement.
RIVER FUEL FUNDING
COMPANY #3, INC.
By ______________________
Schedule to
Promissory Note dated [insert Date of Note]
of River Fuel Funding Company #3, Inc.
Date Amount of Amount of Balance Notation
Loan Principal Remaining Made By
Paid Unpaid
EXHIBIT D
SYSTEM ENERGY RESOURCES, INC.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
River Fuel Funding Company #3, Inc.
c/o United States Trust Company
of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Pursuant to the requirements of the Fuel Lease,
dated as of February 24, 1989, between River Fuel Funding
Company #3, Inc. and System Energy Resources, Inc., System
Energy Resources, Inc. hereby acknowledges receipt of a copy
of (i) the Credit Agreement, dated as of November 30, 2000
between River Fuel Funding Company #3, Inc., The Bank of New
York and the various Lenders parties thereto and (ii) the
Depositary Agreement, dated as of November 30, 2000, between
River Fuel Funding Company #3, Inc. and The Chase Manhattan
Bank and consented to by The Bank of New York, and consents
to your entry into said Credit Agreement and Depositary
Agreement.
Very truly yours,
SYSTEM ENERGY RESOURCES,
INC.
By__________________________
Title:
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement is made
and entered into as of _________________, 20__, by and
between _____________________ (the "Assignor") and
____________________ (the "Assignee").
R E C I T A L S
A. The Assignor and certain other lenders (the
"Lenders") and The Bank of New York, as letter of credit
issuer and agent for the Lenders (the "Bank"), are parties
to that certain Credit Agreement dated as of November 30,
2000 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") with River Fuel
Company #3, Inc. (the "Company"). Pursuant to the Credit
Agreement, the Lenders have agreed, subject to various
conditions, to participate in letters of credit issued by
the Bank for the account of the Company and to make
revolving credit loans to the Company. The amount of the
Assignor's Commitment (without giving effect to the
assignment effected hereby or to other assignments thereof
which have not yet become effective) is specified in Item 1
of Schedule 1 hereto. The Assignor's Pro Rata Share of the
principal amount of outstanding Loans and LOC Payments
funded by the Assignor (without giving effect to the
assignment effected hereby or to other assignments thereof
which have not yet become effective) is specified in Item 2
of Schedule 1 hereto. All capitalized terms not otherwise
defined herein are used herein as defined in the Credit
Agreement.
B. The Assignor wishes to sell and assign to the
Assignee, and the Assignee wishes to purchase and assume
from the Assignor, (i) the portion of the Assignor's
Commitment specified in Item 3 of Schedule 1 hereto (the
"Assigned Commitment") and (ii) the portion of the
Assignor's Pro Rata Share of the principal amount of
outstanding Loans and LOC Payments funded by the Assignor
specified in Item 4 of Schedule 1 hereto (the "Assigned
Loans"). The percentage of the Assignor's Pro Rata Share of
the principal amount of outstanding Loans and LOC Payments
funded by the Assignor that consists of the Assigned Loans
is specified in Item 5(b) of Schedule 1 hereto.
The parties agree as follows:
1. Assignment. Subject to the terms and
conditions set forth herein and in the Credit Agreement, the
Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor,
without recourse, as of the date specified in Item 6 of
Schedule 1 hereto (the "Assignment Effective Date") (a) all
right, title and interest of the Assignor in and to the
Assigned Loans and (b) all obligations of the Assignor under
the Credit Agreement with respect to the Assigned
Commitment. As full consideration for the sale of the
Assigned Loans and the Assigned Commitment, the Assignee
shall pay to the Assignor on the Effective Date the
principal amount of the Assigned Loans (the "Purchase
Price").
2. Representation and Warranties. Each of the
Assignor and the Assignee represents and warrants to the
other that (a) it has full power and legal right to execute
and deliver this Agreement and to perform the provisions of
this Agreement; (b) the execution, delivery and performance
of this Agreement have been authorized by all necessary
action, corporate or otherwise, and do not violate any
provisions of its charter or by-laws or any contractual
obligations or requirement of law binding on it; and
(c) this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its
terms. The Assignor further represents that it is the legal
and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any
adverse claim created by the Assignor.
3. Confirmations and Agreements of the Assignee.
The Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial
statements delivered on or before the date hereof pursuant
to Section 7.03 thereof and such other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement;
(b) agrees that it will, independently and without reliance
upon the Bank, BNYCMI, the Assignor or any other Lender and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under the
Credit Documents; (c) appoints and authorizes the Bank to
take such action as agent on its behalf and to exercise such
powers under the Credit Documents as are delegated to the
Bank by the terms thereof, together with such powers as are
reasonably incidental thereto; and (d) agrees that it will
perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are
required to be performed by it as a Lender.
4. Effect of Assignment. (a) As of the
Assignment Effective Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this
Agreement, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent
provided in this Agreement, relinquish its rights and be
released from its obligations as a Lender under the Credit
Agreement.
(b) The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit
Agreement for periods prior to the Assignment Effective Date
directly between themselves.
5. Consent of the Company and the Bank; Exchange
of B Notes. Pursuant to Section 11.03 of the Credit
Agreement, the Company and the Bank, by signing below,
consent to this Agreement and to the assignment contemplated
herein. The Company further agrees to execute and deliver
to the Assignor (if applicable) and the Assignee new B Notes
to reflect the assignment contemplated herein upon surrender
of the Assignor's outstanding B Note.
6. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
to be an original and shall be binding upon both parties,
their successors and assigns.
7. Headings. Section headings have been inserted
herein for convenience only and shall not be construed to be
a part hereof.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF,
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused
this Assignment and Acceptance Agreement to be duly executed
and delivered by their proper and duly authorized officers
as of the day and year first above written.
____________________________
(Assignor)
By:_________________________
Name:_______________________
Title:______________________
____________________________
(Assignee)
By:_________________________
Name:_______________________
Title:______________________
Address:
Consented to:
River Fuel Funding Company #3, Inc.
By:_______________________________
Name:_____________________________
Title:____________________________
The Bank of New York
By:_______________________________
Name:_____________________________
Title:____________________________
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
between
___________________________, as Assignor
and
___________________________, as Assignee
relating to
Credit Agreement dated as of November 30, 2000
for
River Fuel Funding Company #3, Inc
Item 1. Assignor's Commitment $____________________
Item 2. Assignor's Loans: $____________________
(a) Assignor's Pro Rata Share
of Loans:
(b) Assignor's Pro Rata Share $____________________
of funded LOC Payments:
Item 3. Amount of Assigned Commitment $____________________
Item 4. Amount of Assigned Loans: $____________________
(a) Assigned Loans:
(b) Assigned LOC Payments $____________________
Item 5. Percentage of Assigned ____________________%
Commitment
(a) As a percentage of the
Total Commitment
(b) As a percentage of ____________________%
Assignor's Commitment
Item 6. Assignment Effective Date _______________, 20__