Exhibit 10(d)34
U.S. $25,000,000
CREDIT AGREEMENT,
dated as of December 29, 1993
among
RIVER BEND FUEL SERVICES, INC.,
as the Borrower,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
CIBC INC.,
as the Agent for the Lenders.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 29, 1993, among RIVER
BEND FUEL SERVICES, INC., a Delaware corporation (the "Borrower"), the
various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), and CIBC INC., a Delaware corporation
("CIBC"), as agent (the "Agent") for the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower is engaged in the business of owning
Nuclear Fuel and leasing it to GSU; and
WHEREAS, the Borrower desires to obtain Commitments from the
Lenders pursuant to which Loans, in a maximum aggregate principal
amount at any one time outstanding not to exceed $25,000,000, will be
made to the Borrower from time to time prior to the Commitment
Termination Date; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower; and
WHEREAS, the Loans will be secured as part of the Secured
Obligations by the Collateral as provided in the Collateral
Agreements; and
WHEREAS, the proceeds of such Loans will be used for general
corporate purposes and working capital purposes of the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
"Additional Notes" means the notes issued from time to time under
Section 12.2, and as provided in Section 2, of the Trust Indenture,
including the Notes issued under this Agreement and designated the
Series B Notes.
"Affiliate" of any Person means any other Person which, directly
or indirectly, controls, is controlled by or is under common control
with such Person (excluding any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall be deemed
to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" is defined in the preamble and includes each other Person
as shall have subsequently been appointed as the successor Agent
pursuant to Section 9.4.
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Effective Date and as thereafter from time
to time amended, supplemented, amended and restated, or otherwise
modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all
Base Rate Loans, a fluctuating rate of interest per annum equal to the
higher of
(a) the rate of interest most recently announced by the
Agent at its Domestic Office as its prime commercial lending
rate; and
(b) the Federal Funds Rate most recently determined by the
Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest
rate of interest determined by the Agent in connection with extensions
of credit. Changes in the rate of interest on that portion of any
Loans maintained as Base Rate Loans will take effect simultaneously
with each change in the Alternate Base Rate. The Agent will give
notice promptly to the Borrower and the Lenders of changes in the
Alternate Base Rate.
"Applicable Margin" means the number of basis points set forth in
the following chart depending upon the Status and the type of Loan or
the commitment fee:
Commitment LIBO CD Base
Status Fee Rate Loan Rate Loans Rate Loans
Level I Status 20.00 50.00 62.50 --
Level II Status 30.00 62.50 75.00 --
Level III Status 32.50 80.00 90.00 --
Level IV Status 37.50 100.00 112.00 100.00
"Assessment Rate" is defined in Section 3.2.1.
"Assigned Agreement" means a Nuclear Fuel Contract which has been
assigned to Lessor in the manner specified in Section 4 of the Fuel
Lease pursuant to a duly executed and delivered Assignment Agreement.
The term "Assigned Agreement" shall include a Partially Assigned
Agreement.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment Agreement" means an assignment agreement
substantially in the form of Schedule F-1 or F-2 to the Fuel Lease.
"Atomic Energy Act" means the Atomic Energy Act of 1954, as from
time to time amended.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to
the Agent and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.
"Basic Documents" includes the Fuel Lease, the Note Purchase
Agreements, Trust Indenture, Series A Notes, Series B Notes, the
Louisiana Collateral Documents, the Assigned Agreements, the
Assignment Agreements, the Trust Agreement, each Bill of Sale, and
other agreements related or incidental thereto identified therein as
one of the "Basic Documents" and approved by Lessee and the Required
Lenders. The Basic Documents shall also include all Additional Notes,
if any, issued under and in accordance with the Trust Indenture and
Note Purchase Agreements or revolving or other credit agreements
relating to the issuance and purchase of Additional Notes.
"Bill of Sale" means a bill of sale substantially in the form of
either Schedule C or E to the Fuel Lease, pursuant to which title to
all or any portion of the Nuclear Fuel is transferred to Lessor or to
Lessee.
"Borrower" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of
Fixed Rate Loans, having the same Interest Period made by all Lenders
on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.1.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in
the form of Exhibit B hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be
closed in New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the
Borrower and its Subsidiaries for fixed or capital assets made
during such period which, in accordance with GAAP, would be
classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period.
"Capitalized Lease Liabilities" means all monetary obligations of
the Borrower or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other
Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a
penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than
one year after such time, issued or guaranteed by the United
States Government;
(b) commercial paper, maturing not more than nine months
from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated A-l by
Standard & Poor's Corporation or P-l by Moody's Investors
Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is issued
by either
(i) a commercial banking institution that is a
member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less than
$500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender
(or other commercial banking institution of the stature referred
to in clause (c)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any of
clauses (a) through (c); and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such Lender (or other commercial
banking institution) thereunder.
"CD Rate" is defined in Section 3.2.1.
"CD Rate Loan" means a Loan bearing interest, at all times during
an Interest Period applicable to such Loan, at a fixed rate determined
by reference to the CD Rate (Reserve Adjusted).
"CD Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"CD Reserve Requirement" is defined in Section 3.2.1.
"Change in Control" means the failure of the Owner Trustee to
own, free and clear of all Liens or other encumbrances, 100% of the
outstanding shares of voting stock of the Borrower on a fully diluted
basis.
"CIBC" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Collateral" has the meaning set forth in the granting clauses of
the Trust Indenture and includes all property of the Borrower
described in any Collateral Agreement as comprising a part of the
Collateral.
"Collateral Agreements" means, collectively, the Trust Indenture,
all Assignment Agreements, the Louisiana Collateral Documents and any
other assignment, security agreement or instrument executed and
delivered to the Indenture Trustee hereafter relating to property of
the Borrower which is security for the Secured Obligations.
"Commitment" means, relative to any Lender, such Lender's
obligation to make Loans pursuant to Section 2.1.1.
"Commitment Amount" means, on any date, $25,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2.
"Commitment Termination Date" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is terminated
in full or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Commitments shall terminate automatically and without further action.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Agent, acting at the direction of the
Required Lenders, to the Borrower that the Commitments have
been terminated.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss) the indebtedness, obligation or any
other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation
or conversion and certificate duly executed by an Authorized Officer
of the Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"Debt Rating" means a rating of GSU's first mortgage bonds issued
under the Indenture of Mortgage between GSU and The Chase National
Bank of the City of New York, as Trustee, trustee predecessor to
Central Hanover Bank and Trust Company and Manufacturers Hanover Trust
Company (now Chemical Bank), dated as of September 1, 1926, as amended
and supplemented by the various indentures supplemental thereto, and
as further amended and supplemented from time to time.
"Default" means any Event of Default or any condition, occurrence
or event which, after notice or lapse of time or both, would
constitute an Event of Default.
"Disclosure Documents" means the following documents:
(a) the annual report of GSU on Form 10-K for the fiscal year
ended 1992;
(b) GSU's quarterly reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1993;
(c) the periodic reports of GSU on Form 8-K dated March 22,
1993, April 27, 1993, June 21, 1993, July 22, 1993, August 16, 1993,
August 23, 1993, September 21, 1993, October 19, 1993 and December 1,
1993, and any other periodic reports of GSU filed with the Securities
and Exchange Commission which have been delivered to the Lenders
before the Effective Date; and
(d) the Proxy Statement for the 1993 Annual Meeting of
Shareholders of GSU;
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or otherwise
modified from time to time by the Borrower with the written consent of
the Agent and the Required Lenders.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of
such Lender designated as such on Schedule II hereto or designated in
the Lender Assignment Agreement or such other office of a Lender (or
any successor or assign of such Lender) within the United States as
may be designated from time to time by notice from such Lender, as the
case may be, to each other Person party hereto. A Lender may have
separate Domestic Offices for purposes of making, maintaining or
continuing, as the case may be, Base Rate Loans and CD Rate Loans.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to
public health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect
from time to time. References to sections of ERISA also refer to any
successor sections.
"Event of Default" is defined in Section 8.1.
"Excepted Payments" means any indemnity, expense, or other
payment which by the terms of any of the Basic Documents shall be
payable to the Trustor for its own account or to the Owner Trustee for
its own account.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain letter, dated the date hereof
between the Borrower and CIBC relating to certain fees to be paid by
the Borrower.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar
months ending on December 31; references to a Fiscal Year with a
number corresponding to any calendar year (e.g. the "1993 Fiscal
Year") refer to the Fiscal Year ending on December 31 occurring during
such calendar year.
"Fixed Rate Loan" means any CD Rate Loan or any LIBO Rate Loan.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"Fuel Lease" means the Fuel Lease dated as of February 7, 1989
between Lessor and Lessee, as the same may from time to time be
amended, modified or supplemented.
"Fuel Schedule" means an instrument substantially in the form of
schedule D to the Fuel Lease including, unless otherwise indicated,
all annexes thereto.
"GAAP" is defined in Section 1.4.
"GSU" means Gulf States Utilities Company, a Texas corporation.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and
all other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document, as the case may be, as a whole
and not to any particular Section, paragraph or provision of this
Agreement or such other Loan Document.
"Highest Lawful Rate" is defined in Section 10.15(b).
"including" means including without limiting the generality of
any description preceding such term, and, for purposes of this
Agreement and each other Loan Document, the parties hereto agree that
the rule of ejusdem generis shall not be applicable to limit a general
statement, which is followed by or referable to an enumeration of
specific matters, to matters similar to the matters specifically
mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn,
and banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded
as Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP, would
be included as liabilities on the liability side of the balance
sheet of such Person as of the date at which Indebtedness is to
be determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred
purchase price of property or services, and indebtedness
(excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Indenture Trustee" means the institution designated as such in
the Indenture and its permitted successors.
"Interest Period" means, relative to any Fixed Rate Loans, the
period beginning on (and including) the date on which such Fixed Rate
Loan is made or continued as, or converted into, a Fixed Rate Loan
pursuant to Section 2.3 or 2.4 and shall end on (but exclude) the day
which is, in the case of a CD Rate Loan, 30, 60 or 90 days thereafter,
or which, in the case of a LIBO Rate Loan, numerically corresponds to
such date one, two or three months thereafter (or, if such month has
no numerically corresponding day, on the last Business Day of such
month), in either case as the Borrower may select in its relevant
notice pursuant to Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration
dates occurring on more than five different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same
duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on
the next following Business Day (unless, if such Interest Period
applies to LIBO Rate Loans, such next following Business Day is
the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such
numerically corresponding day); and
(d) no Interest Period may end later than the Stated
Maturity Date.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person
in any other Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity thereon
(and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair
market value of such property.
"Lease Event of Default" has the meaning specified therefor in
Section 19 of the Fuel Lease.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit D hereto.
"Lenders" is defined in the preamble.
"Lessee" has the meaning specified therefor in the introduction
to the Fuel Lease.
"Lessor" has the meaning specified therefor in the introduction
to the Fuel Lease.
"Level I Status" exists at any date if, at such date, GSU has a
Debt Rating of higher than BBB+ by S&P and a Debt Rating of higher
than Baa1 by Moody's.
"Level II Status" exists at any date if, at such date, (i) Level
I Status does not exist and (ii) GSU has a Debt Rating of higher than
BBB- by S&P and a Debt Rating of higher than Baa3 by Moody's.
"Level III Status" exists at any date if, at such date, (i)
neither Level I Status nor Level II Status exists and (ii) GSU has a
Debt Rating of BBB- by S&P and a Debt Rating of Baa3 by Moody's.
"Level IV Status" exists at any date if, at such date, none of
Level I Status, Level II Status or Level III Status exists.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of
interest determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such on Schedule II hereto or designated in the
Lender Assignment Agreement or such other office of a Lender as
designated from time to time by notice from such Lender to the
Borrower and the Agent, whether or not outside the United States,
which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property to
secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever
or any "Lien" as defined in the Trust Indenture.
"Loan" is defined in Section 2.1.1.
"Loan Document" means this Agreement, the Notes and the
documents, executed by GSU, substantially in the form of Exhibit J and
Exhibit K hereto.
"Louisiana Collateral Documents" means collectively the
Collateral Chattel Mortgage, dated February 6, 1989, delivered by the
Borrower and Lessee, the Collateral Chattel Mortgage Note dated
February 6, 1989 delivered by the Borrower and Lessee, the Notice of
Security Interest (Chattel Mortgage Records) dated February 6, 1989
delivered by the Borrower and Lessee, and the Pledge and Pawn of
Collateral Chattel Mortgage Note dated February 6, 1989, delivered by
the Borrower and Lessee to the Indenture Trustee, and the Louisiana
Security Agreement, dated July 30, 1990, among the Borrower, the
Lessee and the Indenture Trustee, and any periodic supplements
thereto, as the same may from time to time be amended, modified or
supplemented.
"Manufacturer" means any supplier of Nuclear Fuel (including but
not limited to Delta Fuel Services Corporation and the Lessee) or of
any service (including without limitation, enrichment, fabrication,
financing, transportation, storage, and processing) in connection
therewith, or any agent or licensee of any such supplier.
"Moody's" means Moody's Investors Service, Inc.
"Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal
thereof, in each case as duly authenticated by the Indenture Trustee.
"Note Purchase Agreements" means (i) the several but identical
(except for the name of the purchaser) Note Agreements, each dated as
of February 7, 1989, relating to the issue and sale by the Borrower of
the Series A Notes, as from time to time in effect, and (ii) any
similar agreements hereafter entered into by the Borrower relating to
the issue and sale of its Notes pursuant to the Trust Indenture.
"Note Purchase Agreement Obligations" means the principal of,
premium, if any, and interest on the Series A Notes and the Additional
Notes and all others costs, fees and expenses and amounts required to
be paid by the Borrower on or with respect to the Series A Notes and
the Additional Notes or under the Note Purchase Agreements.
"Nuclear Fuel" means those items which have been purchased by or
on behalf of Lessor for which a duly executed Fuel Schedule has been
delivered to Lessor and which continue to be subject to the Fuel Lease
consisting of (i) the items described in such Fuel Schedules and each
of the components thereof in the respective forms in which such items
exist during each stage of the Nuclear Fuel Cycle, being substances
and materials which, when fabricated and assembled and loaded into a
nuclear reactor, are intended to produce heat through the fission
process, together with all replacements thereof and additions thereto
and (ii) the substances and materials underlying the right, title and
interest of Lessee under any Nuclear Fuel Contract assigned to Lessor
pursuant to the Fuel Lease.
"Nuclear Fuel Contract" means any contract, as from time to time
amended, modified or supplemented, entered into by Lessee with one or
more Manufacturers relating to the acquisition of Nuclear Fuel or any
service in connection with the Nuclear Fuel and assigned to Lessor
pursuant to the Fuel Lease as an Assigned Agreement.
"Nuclear Fuel Cycle" means the various stages in the process,
whether physical or chemical, by which the component parts of the
Nuclear Fuel are designed, mined, milled, processed, converted,
enriched, fabricated into assemblies utilizable for heat production,
loaded or installed into a reactor core, utilized, disengaged, stored
and disposed, together with all incidental processes with respect to
the Nuclear Fuel at any such stage.
"Obligations" means all obligations (monetary or otherwise) of
the Borrower and each other Obligor arising under or in connection
with this Agreement, the Notes and each other Loan Document.
"Obligor" means the Borrower or any other Person (other than the
Agent or any Lender) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, its
certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to any
of its authorized shares of capital stock.
"Outstanding Note Indebtedness" means, at any particular time,
the aggregate principal balance remaining unpaid on the Series A Notes
and the Additional Notes then issued and outstanding.
"Owner Trust" means the River Bend Fuel Services Trust, a New
York Trust created by the Trust Agreement.
"Owner Trust Beneficiary" means Gulf States Utilities Company.
"Owner Trust Estate" means all estate, right, title and interest
of the Owner Trustee in and to the outstanding stock of the Borrower
and in and to all monies, securities, investments, instruments,
documents, rights, claims, contracts, and other property held by the
Owner Trustee under the Trust Agreement; provided, however, that there
shall be excluded from the Owner Trust Estate all Excepted Payments.
"Owner Trustee" means Chemical Bank (formerly Manufacturers
Hanover Trust Company), acting as trustee under and pursuant to the
Trust Agreement, and its permitted successors.
"Partially Assigned Agreement" means a Nuclear Fuel Contract
which has been assigned, in part but not in full, to Lessor in the
manner specified in Section 4 of the Fuel Lease, pursuant to a duly
executed and delivered Assignment Agreement.
"Participant" is defined in Section 10.11.2.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a multiemployer plan as defined in section 4001(a)(3) of ERISA),
and to which the Borrower or any corporation, trade or business that
is, along with the Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at
any time during the preceding five years, or by reason of being deemed
to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set
forth opposite its signature hereto or set forth in the Lender
Assignment Agreement, as such percentage may be adjusted from time to
time pursuant to Lender Assignment Agreement(s) executed by such
Lender and its Assignee Lender(s) and delivered pursuant to Section
10.11.
"Person" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or any other
entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the
next succeeding Business Day.
"Required Lenders" means, at any time, Lenders holding at least
66 2/3% of the then aggregate outstanding principal amount of the
Notes then held by the Lenders, or, if no such principal amount is
then outstanding, Lenders having at least 66 2/3% of the Commitments.
"Secured Obligations" means:
(a) all indemnifications, costs, expenses, fees and other
compensation of the Indenture Trustee provided for, and all other
amounts owed to the Indenture Trustee, under this Trust
Indenture, and
(b) all Note Purchase Agreement Obligations.
"Secured Parties" means the holders from time to time of the Note
Purchase Agreement Obligations.
"Series A Notes" means the Notes issued pursuant to and referred
to in Section 2.1 and Section 12.1 of the Trust Indenture.
"Series B Notes" means the Notes.
"S&P" means Standard & Poor's Corporation.
"Stated Maturity Date" means December 27, 1996, as such date may
be extended pursuant to Section 2.7.
"Status" means Level I Status, Level II Status, Level III Status
or Level IV Status.
"Subsidiary" means any Person of which the Borrower (a) directly
or indirectly owns at the time at least the greater of (i) a majority
of the outstanding stock or shares of beneficial interest having by
the terms thereof ordinary voting power to elect a majority of the
directors (or other persons performing similar functions) of such
Person, irrespective of whether or not at the time shares of any other
class or classes of such Person shall have or might have voting power
by reason of the happening of any contingency, or (ii) such lesser
proportion of such outstanding stock or shares or beneficial interest
as may from time to time constitute a controlling interest in
accordance with GAAP, or (b) is a general partner.
"Taxes" is defined in Section 4.6.
"Terminating Event" shall have the meaning specified therefor in
Section 17(a) of the Fuel Lease.
"Trust Agreement" means the Trust Agreement dated as of February
7, 1989 between United States Trust Company of New York as Trustor and
Chemical Bank (formerly Manufacturers Hanover Trust Company) as the
Owner Trustee thereunder, as the same may be amended, modified or
supplemented from time to time.
"Trust Indenture" or "Indenture" means the Trust Indenture dated
as of February 7, 1989 between the Borrower and the Indenture Trustee,
as the same may from time to time be amended, modified or
supplemented.
"Trustor" means the institution designated as such in the Trust
Agreement and its permitted successors.
"type" means, relative to any Loan, the portion thereof, if any,
being maintained as a Base Rate Loan, a CD Rate Loan or a LIBO Rate
Loan.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure
Schedule and in each Note, Borrowing Request, Continuation/Conversion
Notice, Loan Document, notice and other communication delivered from
time to time in connection with this Agreement or any other Loan
Document.
.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or
Section are references to such Article or Section of this Agreement or
such other Loan Document, as the case may be, and, unless otherwise
specified, references in any Article, Section or definition to any
clause are references to such clause of such Article, Section or
definition.
.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4)
shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with, those
generally accepted accounting principles ("GAAP") applied in the
preparation of the financial statements referred to in Section 6.5.
COMMITMENTS, BORROWING PROCEDURES AND NOTES
.5. Commitments. On the terms and subject to the conditions of this
Agreement (including Article V), each Lender severally agrees to make
Loans pursuant to the Commitments described in this Section 2.1.
1. Commitment of Each Lender. From time to time on any Business Day
occurring prior to the Commitment Termination Date, each Lender will
make loans (relative to such Lender, and of any type, its "Loans") to
the Borrower equal to such Lender's Percentage of the aggregate amount
of the Borrowing requested by the Borrower to be made on such day.
The commitment of each Lender described in this Section 2.1.1 is
herein referred to as its "Commitment". On the terms and subject to
the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow Loans.
2. Lenders Not Permitted or Required To Make Loans. No Lender shall
be permitted or required to make any Loan if, after giving effect
thereto, the aggregate outstanding principal amount of all Loans
(a) of all Lenders would exceed the Commitment Amount, or
(b) of such Lender would exceed such Lender's Percentage of
the Commitment Amount.
.6. Optional Reduction of Commitment Amount. The Borrower may, from
time to time on any Business Day, voluntarily reduce the
Commitment Amount; provided, however, that all such reductions shall
require at least three Business Days' prior notice to the Agent and be
permanent, and any partial reduction of the Commitment Amount shall be
in a minimum amount of $250,000 and in an integral multiple of
$50,000.
.7. Borrowing Procedure. By delivering a Borrowing Request to the
Agent on or before 10:00 a.m., New York City time, on a Business Day,
the Borrower may from time to time irrevocably request, on not less
than three nor more than five Business Days' notice, that a Borrowing
be made in a minimum amount of $250,000 and an integral multiple of
$50,000, or in the unused amount of the Commitments. The Agent shall
promptly notify the Lenders of the terms of such Borrowing Request.
On the terms and subject to the conditions of this Agreement, each
Borrowing shall be comprised of the type of Loans, and shall be made
on the Business Day, specified in such Borrowing Request. On or before
12:00 noon (New York City time) on such Business Day each Lender
shall deposit with the Agent same day or immediately available funds
in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Agent
shall specify from time to time by notice to the Lenders. To the
extent funds are received from the Lenders, the Agent shall make such
funds available to the Borrower by wire transfer to the account the
Borrower shall have specified in its Borrowing Request with the
Indenture Trustee pursuant to the terms of the Trust Agreement. No
Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan.
.8. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Agent on or before 10:00 a.m.,
New York City time, on a Business Day, the Borrower may from time to
time irrevocably elect, on not less than three (or same day, in the
case of Base Rate Loans) nor more than five Business Days' notice that
all, or any portion in an aggregate minimum amount of $250,000 and an
integral multiple of $50,000, of any Loans be, in the case of Base
Rate Loans, converted into Fixed Rate Loans of either type or, in the
case of Fixed Rate Loans of either type, be converted into a Base Rate
Loan or a Fixed Rate Loan of the other type or continued as a Fixed
Rate Loan of such type (in the absence of delivery of a Continuation/
Conversion Notice with respect to any Fixed Rate Loan at least three
Business Days before the last day of the then current Interest Period
with respect thereto, such Fixed Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that
(i) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders, and (ii) no portion of
the outstanding principal amount of any Loans may be continued as, or
be converted into, Fixed Rate Loans when any Default has occurred and
is continuing.
.9. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Fixed Rate Loans hereunder by
causing one of its foreign branches or Affiliates (or an international
banking facility created by such Lender) to make or maintain such
Fixed Rate Loan; provided, however, that such Fixed Rate Loan shall
nonetheless be deemed to have been made and to be held by such Lender,
and the obligation of the Borrower to repay such Fixed Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch,
Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Sections 4.1, 4.2, 4.3 or
4.4, it shall be conclusively assumed that each Lender elected to fund
all Fixed Rate Loans by purchasing, as the case may be, Dollar
certificates of deposit in the U.S. or Dollar deposits in its LIBOR
Office's interbank eurodollar market.
.10. Notes. Each Lender's Loans under its Commitment shall be
evidenced by a Note payable to the order of such Lender in a maximum
principal amount equal to such Lender's Percentage of the original
Commitment Amount. The Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Note (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. The failure of any Lender
to make any such notations shall not limit or otherwise affect any
Obligations of the Borrower or any other Obligor or the effect of any
repayment or prepayment made by the Borrower hereunder.
.11. Termination; Extension of Stated Maturity Date. The
Commitments shall terminate and each Lender shall be relieved of its
obligations to make any Loan on the Commitment Termination Date. On
or before October 15 of each year commencing on October 15, 1994 and
prior to the termination of the Commitments, the Borrower may, at its
option, deliver to the Agent (which shall promptly notify each Lender)
a written request signed by the Borrower for an extension of the
Stated Maturity Date for a period of one year. On or before December
15 of each year that the Borrower has delivered an extension request
to the Agent, each Lender shall have the right, in its sole and
absolute discretion, to consent to or reject such extension. If a
Lender has not replied in writing to the Agent by December 15 of such
year, such Lender shall be deemed not to have consented to the
extension. If all of the Lenders consent to the extension in
accordance with the terms of this Section, the Stated Maturity Date
shall be extended for the year requested and the maturity date of each
of the Notes of the Lenders shall be automatically extended for such
one year period without any further action by the Borrower, the Agent
or the Lenders.
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
.12. Repayments and Prepayments. The Borrower shall repay in full
the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that
(i) any such prepayment shall be made pro rata among
Loans of the same type and, if applicable, having the same
Interest Period of all Lenders;
(ii) no such prepayment of any Fixed Rate Loan may be
made on any day other than the last day of the Interest
Period for such Loan;
(iii) all such voluntary prepayments shall require at
least three but no more than five Business Days' prior
written notice to the Agent; and
(iv) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $250,000 and an integral
multiple of $50,000;
(b) shall, on each date when any reduction in the
Commitment Amount shall become effective, including pursuant to
Section 2.2, make a mandatory prepayment of all Loans equal to
the excess, if any, of the aggregate outstanding principal amount
of all Loans over the Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans pursuant to Section 8.2 or Section
8.3, repay all Loans, unless, pursuant to Section 8.3, only a
portion of all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4.
No voluntary prepayment of principal of any Loans shall cause a
reduction in the Commitment Amount.
.13. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
1. Rates. Pursuant to an appropriately delivered Borrowing Request
or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time
to time in effect plus the Applicable Margin;
(b) on that portion maintained as a CD Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
CD Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin; and
(c) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin.
The "CD Rate (Reserve Adjusted)" means, relative to any Loan to
be made, continued or maintained as, or converted into, a CD Rate Loan
for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula:
CDR(RA) = CDR + AR
(1.00 - CDRR)
where:
CDR(RA) = CD Rate (Reserve Adjusted)
CDR = CD Rate
CDRR = CD Reserve Requirement
AR = Assessment Rate
The CD Rate (Reserve Adjusted) for any Interest Period for CD Rate
Loans will be determined by the Agent on the basis of the CD Reserve
Requirement and Assessment Rate in effect on, and the applicable rates
determined by the Agent, on the first day of such Interest Period.
"CD Rate" means, relative to any Interest Period for CD Rate
Loans, the rate of interest determined by the Agent to be the
arithmetic average (rounded upwards, if necessary, to the nearest 1/16
of 1%) of the prevailing rates per annum bid at 10:00 a.m., New York
City time (or as soon thereafter as practicable), on the first day of
such Interest Period by two or more certificate of deposit dealers of
recognized standing located in New York City for the purchase at face
value from the Agent of its certificates of deposit in an amount
approximately equal to the CD Rate Loan being made or maintained by
the Agent to which such Interest Period applies and having a maturity
approximately equal to such Interest Period.
The "CD Reserve Requirement" means, relative to any Interest
Period for CD Rate Loans, a percentage (expressed as a decimal) equal
to the maximum aggregate reserve requirements (including all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve
requirements), specified under regulations issued from time to time by
the F.R.S. Board and then applicable to the class of banks of which
the Agent is a member, on deposits of the type used as a reference in
determining the CD Rate and having a maturity approximately equal to
such Interest Period.
The "Assessment Rate" means, for any Interest Period for CD Rate
Loans, the net annual assessment rate (rounded upwards, if necessary,
to the next higher 1/100 of 1%) estimated by the Agent to be the then
current annual assessment payable by the Agent to the Federal Deposit
Insurance Corporation (or any successor) for insuring time deposits at
offices of the Agent in the United States.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to
be made, continued or maintained as, or converted into, a LIBO Rate
Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be determined by the Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates determined
by the Agent, two Business Days before the first day of such Interest
Period.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest equal to the average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum at which
Dollar deposits in immediately available funds are offered to the
Agent's LIBOR Office in the London interbank market as at or about
11:00 a.m. London time two Business Days prior to the beginning of
such Interest Period for delivery on the first day of such Interest
Period, and in an amount approximately equal to the amount of the
Agent's LIBO Rate Loan and for a period approximately equal to such
Interest Period.
"LIBOR Reserve Percentage" means, relative to any Interest Period
for LIBO Rate Loans, the reserve percentage (expressed as a decimal)
equal to the maximum aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking
into account any transitional adjustments or other scheduled changes
in reserve requirements) specified under regulations issued from time
to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as
currently defined in Regulation D of the F.R.S. Board, having a term
approximately equal or comparable to such Interest Period.
All Fixed Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the
last day of such Interest Period at the interest rate determined as
applicable to such Fixed Rate Loan.
2. Post-Maturity Rates. After the date any principal amount of any
Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of
the Borrower shall have become due and payable, the Borrower shall
pay, but only to the extent permitted by law, interest (after as well
as before judgment) on such amounts at a rate per annum equal to the
Alternate Base Rate plus a margin of 2.0%.
3. Payment Dates. Interest accrued on each Loan shall be payable,
without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or
in part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial Borrowing
hereunder;
(d) with respect to Fixed Rate Loans, the last day of each
applicable Interest Period (and, if such Interest Period shall
exceed 90 days, on the 90th day of such Interest Period);
(e) with respect to any Base Rate Loans converted into
Fixed Rate Loans on a day when interest would not otherwise have
been payable pursuant to clause (c), on the date of such
conversion; and
(f) on that portion of any Loans the Stated Maturity Date
of which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under
this Agreement or any other Loan Document after the date such amount
is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
.14. Fees. The Borrower agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
1. Commitment Fee. The Borrower agrees to pay to the Agent for the
account of each Lender, for the period (including any portion thereof
when its Commitment is suspended by reason of the Borrower's inability
to satisfy any condition of Article V) commencing on the Effective
Date and continuing through the final Commitment Termination Date, a
commitment fee at the rate of the Applicable Margin per annum on such
Lender's Percentage of the sum of the average daily unused portion of
the Commitment Amount. Such commitment fees shall be payable by the
Borrower in arrears on each Quarterly Payment Date, commencing with
the first such day following the Effective Date, and on the Commitment
Termination Date.
2. Facility Fee. The Borrower agrees to pay to the Agent for the
account of each Lender, a facility fee in an amount as set forth in
the Fee Letter, payable on the Effective Date.
3. Agent's Fee. To the Agent for its own account, a non-refundable
Agent's fee as set forth in the Fee Letter.
CERTAIN CD RATE, LIBO RATE AND OTHER PROVISIONS
.15. Fixed Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and
the Lenders, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law
makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for such Lender to make, continue or
maintain any Loan as, or to convert any Loan into, a Fixed Rate Loan
of a certain type, the obligations of all Lenders to make, continue,
maintain or convert any such Loans shall, upon such determination,
forthwith be suspended until such Lender shall notify the Agent that
the circumstances causing such suspension no longer exist, and all
Fixed Rate Loans of such type shall automatically convert into Base
Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
.16. Deposits Unavailable. If the Agent shall have determined that
(a) Dollar certificates of deposit or Dollar deposits, as
the case may be, in the relevant amount and for the relevant
Interest Period are not available to the Agent in its relevant
market; or
(b) by reason of circumstances affecting the Agent's
relevant market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to Fixed Rate Loans of such
type,
then, upon notice from the Agent to the Borrower and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make
or continue any Loans as, or to convert any Loans into, Fixed Rate
Loans of such type shall forthwith be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
.17. Increased Fixed Rate Loan Costs, etc. The Borrower agrees to
reimburse each Lender for any increase in the cost to such Lender of,
or any reduction in the amount of any sum receivable by such Lender in
respect of, making, continuing or maintaining (or of its obligation to
make, continue or maintain) any Loans as, or of converting (or of
its obligation to convert) any Loans into, Fixed Rate Loans. Such
Lender shall promptly notify the Agent and the Borrower in writing of
the occurrence of any such event, such notice to state, in reasonable
detail, the reasons therefor, the additional amount required fully to
compensate such Lender for such increased cost or reduced amount and
the basis on which such amount was determined. Such additional amounts
shall be payable by the Borrower directly to such Lender within five
days of its receipt of such notice, and such notice shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
.18. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
such Lender to make, continue or maintain any portion of the principal
amount of any Loan as, or to convert any portion of the principal
amount of any Loan into, a Fixed Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any Fixed Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as Fixed Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
Fixed Rate Loans in accordance with the Continuation/ Conversion
Notice therefor,
then, upon the written notice of such Lender to the Borrower (with a
copy to the Agent), the Borrower shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in
the reasonable determination of such Lender) reimburse such Lender for
such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
.19. Increased Capital Costs. If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in
of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank,
regulator or other governmental authority affects or would affect
the amount of capital required or expected to be maintained by any
Lender or any Person controlling such Lender, and such Lender
determines (in its sole and absolute discretion) that the rate
of return on its or such controlling Person's capital as a
consequence of its Commitment or the Loans made by such Lender is
reduced to a level below that which such Lender or such controlling
Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by
such Lender to the Borrower, the Borrower shall immediately pay
directly to such Lender additional amounts sufficient to compensate
such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount
or amounts (including calculations thereof in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender may use any
method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
.20. Taxes. All payments by the Borrower of principal of, and interest
on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees,
duties, withholdings or other charges of any nature whatsoever imposed
by any taxing authority, but excluding franchise taxes and taxes
imposed on or measured by any Lender's net income or receipts (such
non-excluded items being called "Taxes"). In the event that any
withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such
payment to such authority; and
(c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the
net amount actually received by each Lender will equal the full
amount such Lender would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Agent or any
Lender with respect to any payment received by the Agent or such
Lender hereunder, the Agent or such Lender may pay such Taxes and the
Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net
amount received by such person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount
such person would have received had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for the
account of the respective Lenders, the required receipts or other
required documentary evidence, the Borrower shall indemnify the
Lenders for any incremental Taxes, interest or penalties that may
become payable by any Lender as a result of any such failure. For
purposes of this Section 4.6, a distribution hereunder by the Agent or
any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
Upon the request of the Borrower or the Agent, each Lender that
is organized under the laws of a jurisdiction other than the United
States shall, prior to the due date of any payments under the Notes,
execute and deliver to the Borrower and the Agent, on or about the
first scheduled payment date in each Fiscal Year, one or more (as the
Borrower or the Agent may reasonably request) United States Internal
Revenue Service Forms 4224 or Forms 1001 or such other forms or
documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a
payment to such Lender is exempt from withholding or deduction of
Taxes.
.21. Payments, Computations, etc. Unless otherwise expressly provided,
all payments by the Borrower pursuant to this Agreement, the Notes
or any other Loan Document shall be made by the Borrower to the
Agent for the pro rata account of the Lenders entitled to receive such
payment. All such payments required to be made to the Agent shall be
made, without setoff, deduction or counterclaim, not later than 11:00
a.m., New York City time, on the date due, in same day or immediately
available funds, to such account as the Agent shall specify from time
to time by notice to the Borrower. Funds received after that time
shall be deemed to have been received by the Agent on the next
succeeding Business Day. The Agent shall promptly remit in same day
funds to each Lender its share, if any, of such payments received by
the Agent for the account of such Lender. Each such receipt by the
Agent shall discharge the obligation of the Borrower for the payment
of such amount to such Lender and the Borrower shall have no duty to
see to such application by the Agent. All interest and fees shall be
computed on the basis of the actual number of days (including the
first day but excluding the last day) occurring during the period for
which such interest or fee is payable over a year comprised of 360
days (or, in the case of interest on a Base Rate Loan, 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment
shall (except as otherwise required by clause (c) of the definition of
the term "Interest Period" with respect to LIBO Rate Loans) be made on
the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with
such payment.
.22. Sharing of Payments. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to
the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro rata
share of payments then or therewith obtained by all Lenders, such
Lender shall purchase from the other Lenders such participations in
Loans made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each
of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and each Lender which has sold
a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share
(according to the proportion of
(a) the amount of such selling Lender's required repayment
to the purchasing Lender
to
(b) the total amount so recovered from the purchasing
Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section may, to the fullest extent permitted
by law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a
setoff to which this Section applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery on such secured
claim.
.23. Setoff. Each Lender shall, upon the occurrence of any Default
described in clauses (a) through (d) of Section 8.1.9 or any other
Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), and
(as security for such Obligations) the Borrower hereby grants to each
Lender a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Lender; provided, however, that any
such appropriation and application shall be subject to the provisions
of Section 4.8. Each Lender agrees promptly to notify the Borrower
and the Agent after any such setoff and application made by such
Lender; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of
each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or
otherwise) which such Lender may have.
.24. Use of Proceeds. The Borrower shall apply the proceeds of each
Borrowing in accordance with the recitals; without limiting the
foregoing, no proceeds of any Loan will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934 or any "margin stock", as defined in
F.R.S. Board Regulation U.
CONDITIONS TO BORROWING
.25. Initial Borrowing. The obligations of the Lenders to fund the
initial Borrowing shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this
Section 5.1.
1. Resolutions, etc. The Agent shall have received from the
Borrower and GSU a certificate, dated the date of the initial
Borrowing, of its Authorized Officer as to
(a) resolutions of its Board of Directors or a committee
thereof then in full force and effect authorizing the execution,
delivery and performance of this Agreement, the Notes and each
other Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and
each other Loan Document executed by it,
upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of an Authorized Officer of
such Obligor canceling or amending such prior certificate.
2. Delivery of Notes. The Agent shall have received, for the
account of each Lender, its Note duly executed and delivered by the
Borrower and duly authenticated by the Indenture Trustee.
3. Loan Documents. The Agent shall have received Loan Documents,
substantially in the form of Exhibit J and Exhibit K hereto, dated the
date hereof, duly executed by the appropriate Obligor.
4. Basic Documents. The Agent shall have received copies of all
Basic Documents (other than the Loan Documents) in effect on the
Effective Date certified by an Authorized Officer of the Borrower and
GSU, respectively.
5. Opinions of Counsel. The Agent shall have received opinions,
dated the date of the initial Borrowing and addressed to the Agent and
all Lenders, from
(a) Orgain, Bell & Tucker, L.L.P., Texas counsel to GSU,
substantially in the form of Exhibit E hereto;
(b) Taylor, Porter, Brooks & Phillips L.L.P., Louisiana
counsel for GSU, substantially in the form of Exhibit F hereto;
(c) Morgan, Lewis & Bockius, New York counsel for the
Borrower, substantially in the form of Exhibit G hereto; and
(d) Mayer, Brown & Platt, counsel to the Agent,
substantially in the form of Exhibit H hereto.
6. Closing Fees, Expenses, etc. The Agent shall have received for
its own account, or for the account of each Lender, as the case may
be, all fees, costs and expenses due and payable pursuant to Sections
3.3 and 10.3, if then invoiced, along with a duly executed copy of the
Fee Letter.
7. Governmental Approvals. The Agent shall have received certified
copies of all governmental approvals required pursuant to Section 6.3.
8. Trust Indenture. The Agent shall have received an executed
original of each order, certificate and opinion delivered to the
Indenture Trustee by the Borrower under Section 12.2 of the Trust
Indenture.
9. Trust Agreement. The Agent shall have received an executed
original of each instruction, certificate and other document delivered
to the Owner Trustee under the Trust Agreement.
.26. All Borrowings. The obligation of each Lender to fund any Loan
on the occasion of any Borrowing (including the initial Borrowing)
shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
1. Compliance with Warranties, No Default, etc. Both before and
after giving effect to any Borrowing (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect
to any other Indebtedness, without giving effect to the application,
directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.7) shall be
true and correct with the same effect as if then made (unless
stated to relate solely to an early date, in which case such
representations and warranties shall be true and correct as of
such earlier date);
(b) except as disclosed by the Borrower to the Agent and
the Lenders pursuant to Section 6.7
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending
or, to the knowledge of the Borrower, threatened against the
Borrower or any Obligor which would reasonably be expected
to materially adversely affect the Borrower's or such
Obligor's business, operations, assets, revenues, properties
or prospects or which purports to affect the legality,
validity or enforceability of this Agreement, the Notes or
any other Loan Document or any other Basic Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section
6.7 which would reasonably be expected to materially
adversely affect the businesses, operations, assets,
revenues, properties or prospects of the Borrower or any
Obligor; and
(c) no Default shall have then occurred and be continuing,
and neither the Borrower nor any other Obligor are in material
violation of any law or governmental regulation or court order or
decree which would reasonably be expected to materially adversely
affect the businesses, operations, assets, revenues, properties
or prospects of the Borrower or any Obligor.
2. Borrowing Request. The Agent shall have received a Borrowing
Request for such Borrowing. Each of the delivery of a Borrowing
Request and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing (both immediately before
and after giving effect to such Borrowing and the application of the
proceeds thereof) the statements made in Section 5.2.1 are true and
correct.
3. Satisfactory Legal Form. All documents executed or submitted
pursuant hereto by or on behalf of the Borrower or any other Obligor
shall be satisfactory in form and substance to the Agent and its
counsel; the Agent and its counsel shall have received all
information, approvals, opinions, documents or instruments as the
Agent or its counsel may reasonably request.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Loans hereunder, the Borrower represents and
warrants unto the Agent and each Lender as set forth in this Article
VI.
.27. Organization, etc. (a) The Borrower is a corporation validly
organized and existing and in good standing under the laws of the
State of its incorporation, is duly qualified to do business and is in
good standing as a foreign corporation in New York and in each
jurisdiction (other than Louisiana where the Borrower will be in good
standing by December 31, 1993) where the nature of its business
requires such qualification, and has full power and authority and
holds all requisite governmental licenses, permits and other approvals
to enter into and perform its Obligations under this Agreement, the
Notes, each other Loan Document and Basic Document to which it is a
party and to own and hold under lease its property and to conduct its
business substantially as currently conducted by it;
(b) All of the Borrower's outstanding capital stock has been
duly authorized and issued, is fully paid and nonassessable and is
owned by the Owner Trustee free and clear of any Liens or restrictions
on transfer, except for restrictions on transfer imposed by (i)
federal, state and foreign securities laws and (ii) the Trust
Agreement; and
(c) Certified copies of the charter documents and bylaws of the
Borrower as they will be in effect on the Effective Date have
previously been delivered to you and are true, accurate and complete.
.28. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes
and each other Loan Document and Basic Document executed or to be
executed by it, and the execution, delivery and performance by each
other Obligor of each Loan Document executed or to be executed by it
and each such other Obligor's participation in the consummation of the
Basic Documents are within the Borrower's and each such Obligor's
corporate powers, have been duly authorized by all necessary corporate
action, and do not
(a) contravene the Borrower's or any such Obligor's
Organic Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or any such Obligor; or
(c) result in, or require the creation or imposition of,
any Lien on any of the Borrower's or any Obligor's properties
except as provided in the Basic Documents.
.29. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is required
for the due execution, delivery or performance by the Borrower or any
other Obligor of this Agreement, the Notes or any other Loan Document
to which it is a party, or for the Borrower's and each such other
Obligor's participation in the consummation of the Basic Documents,
except as provided in the following sentence, all of which have been
duly obtained or made and are in full force and effect. The Borrower
and GSU have received all approvals of the Public Utility Commission
of Texas, the Louisiana Public Service Commission and the Federal
Energy Regulatory Commission required to be obtained by it or by GSU
in order to enter into the Loan Documents and the Basic Documents, and
to grant the security interests created under the Trust Indenture and
the Louisiana Collateral Documents. No consent, license, approval,
order or authorization of, or filing, registration or declaration
with, any governmental authority, bureau or agency or any court or any
other Person is required to be obtained or made in connection with the
Borrower's or GSU's execution, delivery, performance or enforceability
of the Loan Documents or the Basic Documents or the transactions
contemplated hereby or thereby (provided that no representation is
given with respect to the Nuclear Fuel Contracts insofar as the
respective Manufacturers are concerned), except for a general license
for the Borrower to own Nuclear Fuel from the Nuclear Regulatory
Commission (currently granted under 10 C.F.R. Sections 40.21 and
70.20), which shall be in full force and effect upon the Effective
Date. In addition, the Borrower and the Indenture Trustee will
require a special license to possess Nuclear Fuel from the Nuclear
Regulatory Commission in order to take possession of the Nuclear Fuel
in event of default. No representation is given with respect to
Federal, New York or Texas banking or insurance laws or regulations or
the securities or blue sky laws or regulations of any State. The
Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935,
as amended. Neither the Trust Indenture nor any of the Louisiana
Collateral Documents is required to be qualified under the Trust
Indenture Act of 1939, as amended, and the creation of security
interests in the Collateral by the Trust Indenture and the Louisiana
Collateral Documents does not require an indenture to be qualified
under said Act.
.30. Validity, etc. This Agreement constitutes, and the Notes and
each other Loan Document and Basic Document executed by the Borrower
will, on the due execution and delivery thereof, constitute, the
legal, valid and binding obligations of the Borrower enforceable in
accordance with their respective terms; and each Loan Document and
each Basic Document executed pursuant hereto by each other Obligor
will, on the due execution and delivery thereof by such Obligor, be
the legal, valid and binding obligation of such Obligor enforceable in
accordance with its terms.
.31. Financial Information. The balance sheet of the Borrower as at
December 31, 1992 and the related income statement of the Borrower,
copies of which have been furnished to the Agent and each Lender,
present the financial condition of the Borrower as at the date thereof
and the result of its operations for the period then ended.
.32. No Material Adverse Change. Since December 31, 1992, there has
been no material adverse change in the financial condition,
operations, assets, business, properties or prospects of the Borrower.
.33. Litigation, Labor Controversies, etc. There is no pending or, to
the knowledge of the Borrower, threatened litigation, action,
proceeding, or labor controversy affecting the Borrower, or any of its
properties, businesses, assets or revenues, which may materially
adversely affect the financial condition, operations, assets,
business, properties or prospects of the Borrower or which purports to
affect the legality, validity or enforceability of this Agreement, the
Notes, any other Loan Document or any other Basic Document, except as
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule or in
the Disclosure Documents.
.34. Subsidiaries. The Borrower has no Subsidiaries.
.35. Ownership of Properties. The Borrower owns good and
marketable title to all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement
claims with respect to patents, trademarks, copyrights and the like)
except as permitted pursuant to Section 7.2.3.
.36. Taxes. The Borrower has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes
or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
.37. Pension and Welfare Plans. The Borrower has no Pension Plan or
Welfare Plan.
.38. Environmental Warranties. Except as set forth in Item 6.12
("Environmental Matters") of the Disclosure Schedule the Borrower's
present operations comply in all material respects with all applicable
Environmental Laws.
.39. Regulations G, U and X. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose
which violates, or would be inconsistent with, F.R.S. Board Regulation
G, U or X. Terms for which meanings are provided in F.R.S. Board
Regulation G, U or X or any regulations substituted therefor, as from
time to time in effect, are used in this Section with such meanings.
.40. Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower in writing
to the Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby, true and complete
copies of which were furnished to the Agent and each Lender in
connection with its execution and delivery hereof) is, and all other
such factual information hereafter furnished by or on behalf of the
Borrower to the Agent or any Lender will be, true and accurate in
every material respect on the date as of which such information is
dated or certified and as of the date of execution and delivery of
this Agreement by the Agent and such Lender, and such information is
not, or shall not be, as the case may be, incomplete by omitting to
state any material fact necessary to make such information not
misleading.
.41. Absence of Foreign Status. The Borrower is not (i) a Person
included within the definition of "designated foreign country" or
"national" of a "designated foreign country" in Executive Order No.
9193, as amended, or in the Foreign Assets Control Regulations (31
C.F.R., Chapter V, Part 500, as amended), in the Cuban Assets Control
Regulations (31 C.F.R., Chapter V, Part 515, as amended) or within the
meaning of any of such orders or regulations, or of any regulations,
interpretations or rulings issued thereunder, or in violation of such
orders or regulations or of any regulations, interpretations or
rulings issued thereunder, (ii) an entity listed in Sections 520.101,
545.306 or 550.304 of the Foreign Funds Control Regulations (31
C.F.R., Chapter V, Parts 520, 545 and 550, as amended) or (iii) a
"South African entity" within the meaning of the Comprehensive Anti-
Apartheid Act of 1986.
.42. No Terminating Event of Default under Fuel Lease, etc. To the
best knowledge of the Borrower after due inquiry, (a) no
"Terminating Event" or "Lease Event of Default" or event which with
the giving of notice or lapse of time or both would constitute a
"Terminating Event" or "Lease Event of Default" has occurred and is
continuing under the Fuel Lease and (b) no "Default" or "Event of
Default" has occurred and is continuing under the Trust Indenture.
COVENANTS
.43. Affirmative Covenants. The Borrower agrees with the Agent and
each Lender that, until all Commitments have terminated and all
Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.1.
1. Financial Information, Reports, Notices, etc. The Borrower will
furnish, or will cause to be furnished, to the Agent (with sufficient
copies for each Lender) the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days
after the end of each Fiscal Quarter of each Fiscal Year of the
Borrower, the fuel schedule of the Lessee as of the end of such
Fiscal Quarter, certified by an Authorized Officer of the
Borrower;
(b) as soon as available and in any event within 90 days
after the end of each Fiscal Year of the Borrower, a copy of the
annual unaudited report for such Fiscal Year for the Borrower,
including therein a balance sheet of the Borrower as of the end
of such Fiscal Year and an income statement of the Borrower for
such Fiscal Year certified by an Authorized Officer of the
Borrower;
(c) as soon as available and in any event within 60 days
after the end of each Fiscal Quarter, a certificate, executed by
an Authorized Officer of the Borrower, stating that no Default
has occurred and is continuing as of the end of such Fiscal
Quarter (or if such a Default has occurred and is continuing
a statement setting forth details of such Default and the
action which the Borrower has taken and proposes to take with
respect thereto);
(d) as soon as possible a statement of an Authorized
Officer of the Borrower setting forth details of each Default and
the action which the Borrower has taken and proposes to take with
respect thereto;
(e) as soon as possible after (x) the occurrence of any
adverse development with respect to any litigation, action,
proceeding, or labor controversy described in Section 6.7 or (y)
the commencement of any labor controversy, litigation, action,
proceeding of the type described in Section 6.7, notice thereof
and copies of all documentation relating thereto;
(f) to the extent obtained or received by it, a copy of
each authorization, license, permit, consent, order or approval
of any governmental authority obtained or required to be obtained
in connection with the transactions contemplated by any of the
Loan Documents or the Basic Documents;
(g) as soon as possible, all (i) amendments, modifications
and waivers, (ii) all requests for any such amendment,
modification or waiver, and (iii) any notice of an "Event
of Default" or "Terminating Event" received or delivered by the
Borrower under or with respect to the Fuel Lease, any of the Note
Agreements or any of the other Basic Documents;
(h) upon obtaining knowledge thereof, (i) any Terminating
Event or Lease Event of Default or any event which with the
giving of notice or lapse of time or both would constitute a
Terminating Event or Lease Event of Default under the Fuel Lease,
or (ii) any "Default" or " Event of Default" under the Trust
Indenture; and
(i) such other information respecting the condition or operations,
financial or otherwise, of the Borrower as any Lender through the
Agent may from time to time reasonably request.
2. Compliance with Laws, etc. The Borrower will comply in all
material respects with all applicable laws, rules, regulations and
orders including, without limitation, Environmental Laws, such
compliance to include (without limitation):
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent being diligently contested
in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its
books.
3. Maintenance of Properties. The Borrower will maintain, preserve,
protect and keep its properties in good repair, working order and
condition, and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith
may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of its properties
is no longer economically desirable.
4. Insurance. The Borrower will maintain or cause to be maintained
with responsible insurance companies (or through self-insurance)
insurance with respect to its properties and business (including
business interruption insurance) against such casualties and
contingencies and of such types and in such amounts as is customary in
the case of similar businesses and will, upon request of the Agent,
furnish to each Lender at reasonable intervals a certificate of an
Authorized Officer of the Borrower setting forth the nature and extent
of all insurance maintained by the Borrower in accordance with this
Section.
5. Books and Records. The Borrower will keep books and records
which accurately reflect all of its business affairs and transactions
and permit the Agent and each Lender or any of their respective
representatives, at reasonable times and intervals, to visit all of
its offices, to discuss its financial matters with its officers and to
examine (and, at the expense of the Borrower, photocopy extracts from)
any of its books or other corporate records.
.44. Negative Covenants. The Borrower agrees with the Agent and each
Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.2.
1. Business Activities. The Borrower will not, and will not permit
any of its Subsidiaries to, engage in any business activity, except
those described in the first recital and such activities as may be
incidental or related thereto.
2. Indebtedness. The Borrower will not create, incur, assume or
suffer to exist or otherwise become or be liable in respect of any
Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Loans and other
Obligations;
(b) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(b) ("Ongoing Indebtedness") of the
Disclosure Schedule;
(c) Indebtedness in respect of Additional Notes issued in
accordance with the provisions of the Trust Indenture; provided,
however, that the aggregate principal amount of all Series A
Notes and Additional Notes at any one time outstanding shall not
exceed $250,000,000; provided, further, that if any such
Additional Notes shall evidence the Borrower's Indebtedness,
contingent or direct, in respect of a revolving credit and/or a
letter of credit facility which in either case relates to
so-called commercial paper to be issued by the Borrower,
the documentation relating to such Indebtedness and the
amendments and supplements to the Trust Indenture and any of the
other Collateral Agreements required in connection therewith
shall be reasonably satisfactory to the Required Lenders, and the
Borrower shall have obtained the prior written consent of such
Required Lenders to the incurrence of such Indebtedness; and
provided, further, however, that immediately after giving effect
to the issuance of any Additional Notes (i) there shall not exist
an "Event of Default" or any event which with the giving of
notice or lapse of time or both would constitute an "Event of
Default" under the Trust Indenture and (ii) the aggregate
Stipulated Loss Value (as defined in Exhibit A to the Trust
Indenture) of the Nuclear Fuel plus any amounts in the Collateral
Account shall equal or exceed the Outstanding Note Indebtedness;
(d) unsecured Indebtedness incurred in the ordinary course
of business (including open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and
services, but excluding Indebtedness incurred through the
borrowing of money or Contingent Liabilities);
(e) Indebtedness for taxes, assessments, customs or
supplies to the extent that payment thereof shall not at the time
be required to be made in accordance with Section 6.4 of the
Trust Indenture; and
(f) Indebtedness for judgments or awards which have been in
force for less than the applicable appeal period so long as
execution is not levied, or for which (i) the Borrower shall at
the time in good faith be diligently prosecuting an appeal or
proceedings for review, (ii) a stay of execution shall have been
obtained pending such appeal or review, and (iii) adequate
reserves shall have been provided on the books of the Borrower.
provided, however, that no Indebtedness otherwise permitted by clause
(c) or (f) shall be permitted if, after giving effect to the
incurrence thereof, any Default shall have occurred and be continuing.
3. Liens. The Borrower will not create, incur, assume or suffer to
exist any Lien upon any of its property, revenues or assets, whether
now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations and the
Note Purchase Agreement Obligations granted pursuant to any Loan
Document or any Basic Document;
(b) Liens granted prior to the Effective Date to secure
payment of Indebtedness of the type permitted and described in
clause (b) of Section 7.2.2;
(c) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books;
(d) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for
sums not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(e) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and
contracts (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety or
appeal bonds;
(f) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed
or the payment of which is covered in full (subject to a
customary deductible) by insurance maintained with responsible
insurance companies; and
(g) No Indebtedness in respect of any Additional Notes
permitted under Section 7.2.2(c) shall (i) be secured by any
collateral other than the Collateral, unless the Notes, the
Series A Notes, and any other Additional Notes are secured
equally and ratably by such additional collateral, or (ii)
be guaranteed directly or indirectly by any Person nor shall the
holder thereof be assured against loss or nonpayment, unless the
Notes, the Series A Notes and any other Additional Notes shall
have the benefit of such guaranty or assurance on a pro rata
basis with the Indebtedness in respect of such Additional Notes.
4. [Intentionally Omitted.]
5. Investments. The Borrower will not make, incur, assume or suffer
to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the
Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) other Investments in an aggregate amount at any one
time not to exceed $100,000;
provided, however, that
(f) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such
requirements;
(g) no Investment otherwise permitted by clause (e) or (f)
shall be permitted to be made if, immediately before or after
giving effect thereto, any Default shall have occurred and be
continuing; and
(h) the Borrower shall not have any Subsidiaries.
6. Restricted Payments, etc. On and at all times after the
Effective Date, the Borrower will not declare, pay or make any
dividend or distribution (in cash, property or obligations) on any
shares of any class of capital stock (now or hereafter outstanding) of
the Borrower or on any warrants, options or other rights with respect
to any shares of any class of capital stock (now or hereafter
outstanding) of the Borrower or apply any of its funds, property
or assets to the purchase, redemption, sinking fund or other
retirement of any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower, or warrants, options or other
rights with respect to any shares of any class of capital stock (now
or hereafter outstanding) of the Borrower.
7. Capital Expenditures, etc. The Borrower will not make or commit
to make Capital Expenditures, except Capital Expenditures of Nuclear
Fuel to be leased under the Fuel Lease.
8. Rental Obligations. Except for the Basic Documents, the Borrower
will not enter into at any time any arrangement which involves the
leasing by the Borrower from any lessor of any real or personal
property (or any interest therein).
9. Take or Pay Contracts. The Borrower will not enter into or be a
party to any arrangement for the purchase of materials, supplies,
other property or services if such arrangement by its express terms
requires that payment be made by the Borrower regardless of whether
such materials, supplies, other property or services are delivered or
furnished to it.
10. Consolidation, Merger, etc. The Borrower will not liquidate or
dissolve, consolidate with, or merge into or with, any other or with,
any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division
thereof).
11. Asset Dispositions, etc. The Borrower will not sell, transfer,
lease, contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its
assets to any Person, except as provided in the Basic Documents.
12. Modification of Certain Agreements. The Borrower will not
consent to any amendment, supplement or other modification of any of
the terms or provisions contained in, or applicable to, any Basic
Document.
13. Transactions with Affiliates. The Borrower will not enter into,
or cause, suffer or permit to exist any arrangement or contract (other
than the Basic Documents) with GSU or any of GSU's Affiliates unless
such arrangement or contract is fair and equitable to the Borrower and
is an arrangement or contract of the kind which would be entered into
by a prudent Person in the position of the Borrower with a Person
which is not GSU or one of its Affiliates.
14. Negative Pledges, Restrictive Agreements, etc. The Borrower will
not enter into any agreement (excluding this Agreement, the Basic
Documents any other Loan Document and any agreement governing any
Indebtedness permitted either by clause (b) of Section 7.2.2 as in
effect on the Effective Date or by clause (c) of Section 7.2.2 as to
the assets financed with the proceeds of such Indebtedness)
prohibiting the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of the Borrower to amend or otherwise modify
this Agreement or any other Loan Document.
EVENTS OF DEFAULT
.45. Listing of Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event
of Default".
1. Non-Payment of Obligations. The Borrower shall default in the
payment or prepayment when due of any principal of or interest on any
Loan (and such default shall continue unremedied for a period of three
days), or the Borrower shall default (and such default shall continue
unremedied for a period of five days) in the payment when due of any
commitment fee or of any other Obligation.
2. Breach of Warranty. Any representation or warranty of the
Borrower or any other Obligor made or deemed to be made hereunder or
in any other Loan Document or Basic Document or any other writing or
certificate furnished by or on behalf of the Borrower or any other
Obligor to the Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document or
Basic Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect when made in any material respect.
3. Non-Performance of Certain Covenants and Obligations. The
Borrower shall default in the due performance and observance of any of
its obligations under Section 7.2 (and in the case of any default
under Section 7.2.2, such default shall continue unremedied for a
period of 10 days).
4. Non-Performance of Other Covenants and Obligations.
The Borrower or any other Obligor shall default in the due performance
and observance of any other agreement contained herein or in any other
Loan Document and such default shall continue unremedied for a period
of 30 days after notice thereof shall have been given to the Borrower
by the Agent or any Lender (or if such default is capable of being
remedied and the Borrower is diligently pursuing such remediation,
such default shall continue for a period of 60 days after the
occurrence thereof).
5. Default on Other Indebtedness. A default shall occur in the
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than
Indebtedness described in Section 8.1.1) of the Borrower or any other
Obligor having a principal amount, individually or in the aggregate,
in excess of $1,000,000 in the case of the Borrower or $10,000,000 in
the case of any other Obligor, or a default shall occur in the
performance or observance of any obligation or condition with respect
to such Indebtedness if the effect of such default is to accelerate
the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for
such holders, to cause such Indebtedness to become due and payable
prior to its expressed maturity.
6. Judgments. Any judgment or order for the payment of money in
excess of $1,000,000 shall be rendered against the Borrower or any
judgment or order for the payment of money in excess of $10,000,000
shall be rendered against any other Obligor and either
(a) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order; or
(b) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
7. Basic Documents. (a) Any Terminating Event or Lease Event of
Default under the Fuel Lease shall have occurred and be continuing or
(b) any "Event of Default" under the Trust Indenture shall have
occurred and be continuing.
8. Control of the Borrower. Any Change in Control shall occur.
9. Bankruptcy, Insolvency, etc. The Borrower or any other Obligor
shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they
become due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for the
Borrower or any other Obligor or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for the
Borrower or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator
or other custodian shall not be discharged within 60 days,
provided that the Borrower and each other Obligor hereby
expressly authorizes the Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60-day
period to preserve, protect and defend their rights under the
Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of
the Borrower or any other Obligor, and, if any such case or
proceeding is not commenced by the Borrower or such other
Obligor, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such other Obligor or shall
result in the entry of an order for relief or shall remain for 60
days undismissed, provided that the Borrower and each other
Obligor hereby expressly authorizes the Agent and each Lender to
appear in any court conducting any such case or proceeding during
such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any
of the foregoing.
10. Impairment of Security, etc. Any Collateral Agreement or any
Lien granted thereunder, shall (except in accordance with its terms),
in whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of any Obligor
party thereto; the Borrower, any other Obligor or any other party
shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or any Lien
securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions
expressly permitted by such Loan Document or Basic Document.
.46. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments
(if not theretofore terminated) shall automatically terminate and the
outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and
payable, without notice or demand.
.47. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d)
of Section 8.1.9) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Agent, upon the direction of the
Required Lenders, shall by notice to the Borrower declare all or any
portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid
amount of such Loans and other Obligations which shall be so declared
due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may
be, the Commitments shall terminate.
THE AGENT
.48. Actions. Each Lender hereby appoints CIBC as its Agent under and
for purposes of this Agreement, the Notes and each other Loan
Document. Each Lender authorizes the Agent to act on behalf of such
Lender under this Agreement, the Notes and each other Loan Document
and, in the absence of other written instructions from the Required
enders received from time to time by the Agent (with respect to which
the Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Lender
hereby indemnifies (which indemnity shall survive any termination of
this Agreement) the Agent, pro rata according to such Lender's
Percentage, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Agent in any way relating to or arising out
of this Agreement, the Notes and any other Loan Document, including
reasonable attorneys' fees, and as to which the Agent is not
reimbursed by the Borrower; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from the Agent's gross negligence or wilful
misconduct. The Agent shall not be required to take any action
hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes
or any other Loan Document, unless it is indemnified hereunder to
its satisfaction. If any indemnity in favor of the Agent shall be or
become, in the Agent's determination, inadequate, the Agent may call
for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is
given.
.49. Funding Reliance, etc. Unless the Agent shall have been notified
by telephone, confirmed in writing, by any Lender by 5:00 p.m., New York
City time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Agent may assume that such
Lender has made such amount available to the Agent and, in reliance upon
such assumption, make available to the Borrower a corresponding amount.
If and to the extent that such Lender shall not have made such amount
available to the Agent, such Lender and the Borrower severally agree to
repay the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date the Agent made such
amount available to the Borrower to the date such amount is repaid to
the Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing.
.50. Exculpation. Neither the Agent nor any of its directors, officers,
employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own
wilful misconduct or gross negligence, nor responsible for any recitals
or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other
Loan Document, nor for the creation, perfection or priority of any Liens
purported to be created by any of the Loan Documents or Basic Documents,
or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Borrower of its obligations hereunder
or under any other Loan Document. Any such inquiry which may be made by
the Agent shall not obligate it to make any further inquiry or to take
any action. The Agent shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Agent believes to be genuine and to have
been presented by a proper Person.
.51. Successor. The Agent may resign as such at any time upon at least
30 days' prior notice to the Borrower and all Lenders. If the Agent at
any time shall resign, the Required Lenders may appoint another Lender
as a successor Agent which shall thereupon become the Agent hereunder;
provided, however, that, if no Default has then occurred and is
continuing, the appointment of a successor Agent shall require the
written consent of the Borrower (which consent shall not be unreasonably
delayed or withheld and which consent shall be deemed to have been given
in the absence of a written notice delivered by the Borrower to the
Agent, on or before the fifth Business Day after receipt by the Borrower
of the notice from the Agent and request for consent, stating, in
reasonable detail, the reasons why the Borrower proposes to withhold
such consent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be one of the Lenders or a commercial banking institution
organized under the laws of the U.S. (or any State thereof) or a U.S.
branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall be entitled to receive from the retiring
Agent such documents of transfer and assignment as such successor Agent
may reasonably request, and shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation hereunder as the Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent
under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
.52. Loans by CIBC. CIBC shall have the same rights and powers with
respect to (x) the Loans made by it or any of its Affiliates, and (y)
the Notes held by it or any of its Affiliates as any other Lender and
may exercise the same as if it were not the Agent. CIBC and its
Affiliates may accept deposits from, lend money to, and generally engage
in any kind of business with the Borrower or any Subsidiary or Affiliate
of the Borrower as if CIBC were not the Agent hereunder.
.53. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrower, this
Agreement, the other Loan Documents (the terms and provisions of which
being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own
credit decision to extend its Commitment. Each Lender also acknowledges
that it will, independently of the Agent and each other Lender, and
based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other
Loan Document.
.54. Copies, etc. The Agent shall give prompt notice to each Lender of
each notice or request required or permitted to be given to the Agent by
the Borrower pursuant to the terms of this Agreement (unless
concurrently delivered to the Lenders by the Borrower). The Agent will
distribute to each Lender each document or instrument received for its
account and copies of all other communications received by the Agent
from the Borrower for distribution to the Lenders by the Agent in
accordance with the terms of this Agreement.
MISCELLANEOUS PROVISIONS
.55. Waivers, Amendments, etc. The provisions of this Agreement and of
each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; provided,
however, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall
be effective unless consented to by each Lender;
(b) modify this Section 10.1, change the definition of
"Required Lenders", increase the Commitment Amount or the
Percentage of any Lender, reduce any fees described in Article III,
release any collateral security, except as otherwise specifically
provided in any Loan Document or Basic Document or extend the
Commitment Termination Date shall be made without the consent of
each Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on
any Loan (or reduce the principal amount of or rate of interest on
any Loan) shall be made without the consent of the holder of that
Note evidencing such Loan; or
(d) affect adversely the interests, rights or obligations of
the Agent qua the Agent shall be made without consent of the Agent.
No failure or delay on the part of the Agent, any Lender or the holder
of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other
or further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Borrower in any case shall entitle it to
any notice or demand in similar or other circumstances. No waiver or
approval by the Agent, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar
or dissimilar waiver or approval thereafter to be granted hereunder.
.56. Notices. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in
writing or by Telex or by facsimile and addressed, delivered or
transmitted to such party at its address, Telex or facsimile number set
forth below its signature hereto or on Schedule II hereto or set forth
in the Lender Assignment Agreement or at such other address, Telex or
facsimile number as may be designated by such party in a notice to the
other parties. A copy of all notices and other communications provided
hereunder to any party shall be sent to the Indenture Trustee. Any
notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by Telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the case
of Telexes).
.57. Payment of Costs and Expenses. The Borrower agrees to pay on
demand all reasonable expenses of the Agent (including the reasonable
fees and out-of-pocket expenses of counsel to the Agent and of local
counsel, if any, who may be retained by counsel to the Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Loan Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated,
(b) the filing, recording, refiling or rerecording of the
Collateral Agreements and/or any Uniform Commercial Code financing
statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded
or refiled or rerecorded by the terms hereof or of the Collateral
Agreements, and
(c) the preparation and review of the form of any document
or instrument relevant to this Agreement or any other Loan Document
or Basic Document.
The Borrower further agrees to pay, and to save the Agent and the
Lenders harmless from all liability for, any stamp or other taxes which
may be payable in connection with the execution or delivery of this
Agreement, the borrowings hereunder, or the issuance of the Notes or any
other Loan Documents. The Borrower also agrees to reimburse the Agent
and each Lender upon demand for all reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses) incurred by the Agent or
such Lender in connection with (x) the negotiation of any restructuring
or "work-out", whether or not consummated, of any Obligations and (y)
the enforcement of any Obligations.
.58. Indemnification. In consideration of the execution and delivery of
this Agreement by each Lender and the extension of the Commitments, the
Borrower hereby indemnifies, exonerates and holds the Agent and each
Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from
and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any
of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as
the result of any determination by the Required Lenders pursuant to
Article V not to fund any Borrowing);
(c) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter
relating to the protection of the environment or the release by the
Borrower or any of its Subsidiaries of any hazardous material; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases
from, any real property owned or operated by the Borrower or any
Subsidiary thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted
or arising under any Environmental Law), regardless of whether
caused by, or within the control of, the Borrower or such
Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or wilful misconduct or breach of this
Agreement. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
.59. Survival. The obligations of the Borrower under Sections 4.3, 4.4,
4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of
all Commitments. The representations and warranties made by each
Obligor in this Agreement and in each other Loan Document shall survive
the execution and delivery of this Agreement and each such other Loan
Document.
.60. Severability. Any provision of this Agreement or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or
affecting the validity or enforceability of such provision in any other
jurisdiction.
.61. Headings. The various headings of this Agreement and of each other
Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document
or any provisions hereof or thereof.
.62. Execution in Counterparts, Effectiveness, etc. This Agreement may
be executed by the parties hereto in several counterparts, each of which
shall be executed by the Borrower and the Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower and each Lender (or notice
thereof satisfactory to the Agent) shall have been received by the Agent
and notice thereof shall have been given by the Agent to the Borrower
and each Lender.
.63. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES AND
EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject
matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
.64. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
.65. Sale and Transfer of Loans and Note; Participations in Loans and
Note. Each Lender may assign, or sell participations in, its Loans and
Commitment to one or more other Persons in accordance with this Section
10.11.
1. Assignments. Any Lender,
(a) with the written consents of the Borrower and the Agent
(which consents shall not be unreasonably delayed or withheld and
which consent, in the case of the Borrower, shall be deemed to have
been given in the absence of a written notice delivered by the
Borrower to the Agent, on or before the fifth Business Day after
receipt by the Borrower of such Lender's request for consent,
stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent) may at any time assign and
delegate to one or more commercial banks or other financial
institutions, and
(b) with notice to the Borrower and the Agent, but without
the consent of the Borrower or the Agent, may assign and delegate
to any other Lender
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction of
such Lender's total Loans and Commitment (which assignment and
delegation shall be of a constant, and not a varying, percentage of all
the assigning Lender's Loans and Commitment) in a minimum aggregate
amount of $5,000,000; provided, however, that any such Assignee Lender
will comply, if applicable, with the provisions contained in the final
sentence of Section 4.6 and further, provided, however, that, the
Borrower and the Agent shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests so assigned
and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have been
given to the Borrower and the Agent by such Lender and such
Assignee Lender,
(d) such Assignee Lender shall have executed and delivered
to the Borrower and the Agent a Lender Assignment Agreement,
accepted by the Agent, and
(e) the processing fees described below shall have been
paid.
From and after the date that the Agent accepts such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that
rights and obligations hereunder have been assigned and delegated to
such Assignee Lender in connection with such Lender Assignment
Agreement, shall have the rights and obligations of a Lender hereunder
and under the other Loan Documents, and (y) the assignor Lender, to the
extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement,
shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice
that the Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Agent (for delivery to the
relevant Assignee Lender) a new Note duly authenticated by the Indenture
Trustee evidencing such Assignee Lender's assigned Loans and Commitment
and, if the assignor Lender has retained Loans and a Commitment
hereunder, a replacement Note duly authenticated by the Indenture
Trustee in the principal amount of the Loans and Commitment retained by
the assignor Lender hereunder (such Note to be in exchange for, but not
in payment of, that Note then held by such assignor Lender). Each such
Note shall be dated the date of the predecessor Note. The assignor
Lender shall mark the predecessor Note "exchanged" and deliver it to the
Indenture Trustee in exchange for such new Note(s). Accrued interest on
that part of the predecessor Note evidenced by the new Note(s), and
accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Note
evidenced by the replacement Note shall be paid to the assignor Lender.
Accrued interest and accrued fees shall be paid at the same time or
times provided in the predecessor Note and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee
to the Agent upon delivery of any Lender Assignment Agreement in the
amount of $2,500. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void.
2. Participations. Any Lender may at any time sell to one or more
commercial banks (each of such commercial banks being herein called a
"Participant") participating interests in any of the Loans, its
Commitment, or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section 10.11
shall relieve such Lender from its Commitment or its other
obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the
performance of its Commitment and such other obligations,
(c) the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the other
Loan Documents, and
(d) no Participant, unless such Participant is an Affiliate
of such Lender, or is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree
with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in
clause (b) or (c) of Section 10.1.
The Borrower acknowledges and agrees that each Participant, for purposes
of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be
considered a Lender; provided, however, that the Borrower shall not be
required to pay any amount under Section 4.3, Section 4.5 or Section 4.6
that is greater than the amount which it would have been required to pay
had no participating interest been sold.
.66. Other Transactions. Nothing contained herein shall preclude the
Agent or any other Lender from engaging in any transaction, in addition
to those contemplated by this Agreement or any other Loan Document, with
the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
.67. Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE
LENDERS OR THE BORROWER MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF
THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY
MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH
SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING
OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
.68. Waiver of Jury Trial. THE AGENT, THE LENDERS AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE
LENDERS OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE
LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
.69. Usury Not Intended. (a) Anything in this Agreement or any Note to
the contrary notwithstanding, the Borrower shall never be required to
pay unearned interest on any Note or any other obligation hereunder and
shall never be required to pay interest on such Note or obligation at a
rate in excess of the Highest Lawful Rate (as defined below), and if the
effective rate of interest that would otherwise be payable under this
Agreement and such Note would exceed the Highest Lawful Rate, or if the
holder of such Note shall receive any unearned interest or shall receive
monies that are deemed to constitute interest which would increase the
effective rate of interest payable under this Agreement and such Note to
a rate in excess of the Highest Lawful Rate, then (i) the amount of
interest that would otherwise be payable under this Agreement and such
Note shall be reduced to the amount allowed under applicable law, and
(ii) any unearned interest paid by the Borrower or any interest paid by
the Borrower in excess of the Highest Lawful Rate shall, at the option
of the holder of such Note, be either refunded to the Borrower or
credited on the principal of such Note. It is further agreed that,
without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received by any Lender under its
Note, or under this Agreement, that are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate, shall be
made, to the extent permitted by the applicable law (now or hereafter
enacted) governing the Highest Lawful Rate, by (x) characterizing any
nonprincipal payment as an expense, fee or premium rather than as
interest and (y) amortizing, prorating and spreading in equal parts
during the period of the full stated term of the Loans evidenced by the
Notes all interest at any time contracted for, charged or received by
such Lender in connection therewith. If at any time the effective rate
of interest which would otherwise be payable under this Agreement or on
any principal amount outstanding under any Note exceeds the Highest
Lawful Rate, the rate of interest to accrue under this Agreement or on
such unpaid principal balance during all such times shall be limited to
the Highest Lawful Rate, but any subsequent reductions in such interest
rate shall not become effective to reduce such interest rate below the
Highest Lawful Rate until the total amount of interest accrued hereunder
or on the unpaid principal balance equals the total amount of interest
which would have accrued if the total amount of interest had been
computed without giving effect to this Section.
(b) As used in this Section, the term "Highest Lawful Rate" means
as to any Loan the maximum nonusurious rate of interest permitted from
time to time to be contracted for, taken, charged or received with
respect to such Loan by the Lender making such Loan under applicable
law. At all such times, if any, as Texas law shall establish the
Highest Lawful Rate, the Highest Lawful Rate shall be the "indicated
rate ceiling" (as defined in Chapter One of the Texas Credit Code,
V.T.C.S. Art. 5069-1.04 et seq.) from time to time in effect.
.70. Revolving Credit Statute. If, notwithstanding Section 10.9, Texas
law shall be applied to this Agreement or the obligations of the
Borrower hereunder or under any Note, the Borrower agrees that, pursuant
to Article 15.10(b) of Chapter 15, Title 79, Revised Civil Statutes of
Texas, 1925, as amended, such Chapter 15 shall not govern or in any
manner apply to its obligations hereunder or under such Note.
.71. No Recourse. The Loan Documents and the Basic Documents and any
other document executed and delivered by the Borrower in connection
therewith are intended to be corporate obligations of the Borrower only,
and all of the statements, representations, covenants and agreements
made by the Borrower contained therein are made and intended only for
the purpose of binding the Borrower and establishing the existence of
rights and remedies provided for herein or therein which can be
exercised and enforced against the Borrower. Therefore, anything
contained in the Loan Documents and the Basic Documents and any other
document to the contrary notwithstanding, no recourse may be made by any
Lender against River Bend Fuel Services Trust or Chemical Bank as
trustee or in its individual capacity or any incorporator, shareholder
(direct or indirect), affiliate, director, officer, employee or agent of
the Borrower, River Bend Fuel Services Trust or Chemical Bank with
respect to claims against the Borrower arising under or relating to this
Agreement. Nothing in this Section shall relieve the Borrower from its
corporate obligations under the Loan Documents and the Basic Documents
nor prevent recourse by any Lender against Chemical Bank as trustee or
in its individual capacity with respect to claims arising out of its own
willful misconduct or gross negligence as provided in Section 7.1(b) of
the Trust Agreement or its failure to discharge Liens pursuant to
Section 6.5 of the Trust Agreement, nor prevent recourse by any Lender
or the Indenture Trustee against the Lessee in connection with the
exercise or enforcement by any Lender or the Indenture Trustee of any
rights or remedies under any of the Collateral Agreements as provided
therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as
of the day and year first above written.
RIVER BEND FUEL SERVICES, INC.
By_________________________________
Title:
Address: c/o Chemical Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Facsimile No.: (212) 613-7682
Attention: Jim Foley
CIBC INC., as Agent
By_________________________________
Title: Vice President
PERCENTAGE COMMITMENT LENDERS
100% $25,000,000 CIBC INC.
By________________________________
Title: Vice President
(..continued)
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
None
ITEM 7.2.2(b) Ongoing Indebtedness.
Outstanding Principal Amount
Series A Notes $105,000,000
ITEM 7.2.5(a) Ongoing Investments.
None
NAME OF LENDER: CIBC Inc.
PAYMENT INSTRUCTIONS:
VIA FED FUNDS Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260
ABA #021-000-238
For account of: CIBC, New York Agency
Account Number: 630-00-480
Reference: River Bend Fuel Services,
Inc./Gulf States
Utilities
Attention: The Atlanta Agency
Account Number: 0701610
VIA CHIPS: Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260
CHIPS Routing #023
For account of: CIBC, New York
Agency Account Number: 630-00-480
Reference: River Bend Fuel Services,
Inc./Gulf States
Utilities
Attention: The Atlanta Agency
Account Number: 0701610
CREDIT CONTACT: Peter D. Gaw
Vice President-Utilities Group
Canadian Imperial Bank of Commerce
200 West Madison, Suite 2300
Chicago, Illinois 60606
Telephone Number: 312-855-3255
Fax Number: 312-750-0927
OPERATIONS CONTACT: Clare Coyne
Senior Associate
Canadian Imperial Bank of Commerce
Two Paces West
2727 Paces Ferry Rd., Suite 1200
Atlanta, Georgia 30339
Telephone Number: 404-319-4836
Fax Number: 404-319-4950
Telex Number: 54-2413
DOMESTIC OFFICE AND LIBOR
OFFICE: Canadian Imperial Bank of Commerce
Two Paces West
2727 Paces Ferry Rd., Suite 1200
Atlanta, Georgia 30339
MAILINGS: Peter D. Gaw
Vice President
Canadian Imperial Bank of Commerce
200 W. Madison, Suite 2300
Chicago, Illinois 60606
TAX WITHHOLDINGS: Non Resident Alien - No
Please copy both credit and operations contacts with all notices
EXHIBIT A
NOTE
[BR-________] New York, New York
$___________ ____________, 19___
FOR VALUE RECEIVED, the undersigned, RIVER BEND FUEL SERVICES,
INC., a Delaware corporation (the "Borrower"), promises to pay to the
order of ______________________ (the "Lender") on the Stated Maturity
Date the principal sum of __________________ DOLLARS ($___________)
or, if less, the aggregate unpaid principal amount of all Loans shown
on the schedule attached hereto (and any continuation thereof) made by
the Lender pursuant to that certain Credit Agreement, dated as of
December __, 1993 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the
"Credit Agreement"), among the Borrower, CIBC INC., as Agent, and the
various financial institutions (including the Lender) as are, or may
from time to time become, parties thereto.
The Borrower also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding from the date
hereof until maturity (whether by acceleration or otherwise) and,
after maturity, until paid, at the rates per annum and on the dates
specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in same day or immediately
available funds to the account designated by the Agent pursuant to the
Credit Agreement.
This Note is a Note referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the
terms and conditions on which the Borrower is permitted and required
to make prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be declared
to be immediately due and payable. Unless otherwise defined, terms
used herein have the meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
If the principal of and interest on this Note shall have been
fully paid, this Note shall be surrendered by the holder hereof to the
Indenture Trustee and shall be retired and cancelled. Before any sale
or transfer of this Note, the holder of this Note shall make a
notation hereon of the date to which interest has been paid and of all
principal payments theretofore made hereon and shall in writing notify
the Indenture Trustee referred to below of the name and address of the
transferee.
This Note is one of an issue of notes designated "Additional
Notes" of the Borrower issued in the original aggregate principal
amount of $25,000,000 under the Trust Indenture.
The holder of this Note is entitled to the benefits of the Trust
Indenture and may enforce each of the agreements of the Borrower as
contained therein and may exercise each of the remedies provided
thereby, or otherwise available in respect thereof, against the
Borrower (subject to the limitations on individual actions by
Noteholders contained in the Trust Indenture), but neither this
reference to the Trust Indenture nor any provision thereof shall
affect or impair the absolute and unconditional obligation of the
Borrower to pay the principal amount of and interest on this Note as
provided herein and in the Credit Agreement.
The holder of this Note is also entitled to the benefits of the
Collateral, and the rights of the holder hereof in the Collateral are
subject to and governed by the provisions of the Trust Indenture and
the Collateral Agreements, and the holder hereof shall not have any
right to enforce any remedies with respect to the Collateral except to
the extent and in the manner provided in the Trust Indenture.
Reference is made to the Trust Indenture and the Collateral Agreements
and supplements thereto for a description of the Collateral, the
nature and extent of the security and rights of the Indenture Trustee
in the Collateral and the rights of the holder or holders of the Notes
in respect of the Collateral. Certain Series A Notes and any
Additional Notes which may be issued from time to time under the Trust
Indenture will be, secured equally and ratably with this Note to the
extent provided in the Trust Indenture.
As further provided in the Trust Indenture, upon surrender of
this Note for transfer or exchange, a new Note or new Notes of the
same tenor (except for the name of the holder) dated the date to which
interest has been paid, or dated the date of this Note if no interest
has theretofore been paid hereon, and in an aggregate principal amount
equal to the unpaid principal amount of this Note will be issued to,
and in the name of, the transferee or transferees. The Indenture
Trustee may treat the person in whose name this Note is registered as
the owner hereof for the purpose of receiving payment and for all
other purposes, and the Indenture Trustee shall not be affected by any
notice to the contrary.
This Note shall not be valid until the Indenture Trustee signs
the certificate of authentication on this Note.
As more fully provided in the Trust Indenture and the Credit
Agreement, the institutions or persons acting as Trustor, Owner
Trustee and Indenture Trustee shall not be personally liable to the
holder hereof for any amounts payable under this Note and such holder
shall look solely to the Borrower, the Collateral under the Indenture
and the Collateral Agreements to satisfy the obligations created
hereby.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
Attest: RIVER BEND FUEL SERVICES, INC.
By:________________________ By_____________________________
Title: Title:
DATE OF AUTHENTICATION:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Indenture Trustee,
certifies that this is one of the
Additional Notes referred to in the
Indenture.
By:___________________________
Authorized Officer
LOANS AND PRINCIPAL PAYMENTS
Amount of Unpaid
Amount of Principal Principal
Loan Made Repaid Balance
_____________ Interest _______________ _______________
Base CD LIBO Period (if Base CD LIBO Base CD LIBO Notation
Date Rate Rate Rate applicable) Rate Rate Rate Rate Rate Rate Total Made By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT B
BORROWING REQUEST
[Name of Agent]
[Address]
Attention: [Name]
[Title]
RIVER BEND FUEL SERVICES, INC.
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section
2.3 of the Credit Agreement, dated as of December __, 1993 (together
with all amendments, if any, from time to time made thereto, the
"Credit Agreement"), among RIVER BEND FUEL SERVICES, INC., a Delaware
corporation (the "Borrower"), certain financial institutions and CIBC
INC. (the "Agent"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in
the Credit Agreement.
The Borrower hereby requests that a Loan be made in the aggregate
principal amount of $__________ on __________, 19___ as a [CD Rate
Loan having an Interest Period of ____ days] [LIBO Rate Loan having an
Interest Period of _______ months] [Base Rate Loan].
The Borrower hereby acknowledges that, pursuant to Section 5.2.2
of the Credit Agreement, each of the delivery of this Borrowing
Request and the acceptance by the Borrower of the proceeds of the
Loans requested hereby constitute a representation and warranty by the
Borrower that, on the date of such Loans, and before and after giving
effect thereto and to the application of the proceeds therefrom, all
statements set forth in Section 5.2.1 are true and correct in all
material respects.
The Borrower agrees that if prior to the time of the Borrowing
requested hereby any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so
notify the Agent. Except to the extent, if any, that prior to the
time of the Borrowing requested hereby the Agent shall receive written
notice to the contrary from the Borrower, each matter certified to
herein shall be deemed once again to be certified as true and correct
at the date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing in same day or
immediately available funds to the Account of the Indenture Trustee at
the financial institution indicated:
Amount to be Person to be Paid Name, Address, etc.
Transferred Name of Account Account No. of Indenture Trustee
$___________ River Bend __________ ________________________
Fuel Services,
____________________
Inc. Collateral Attention
________
Account
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be
made, by its duly Authorized Officer this ___ day of ___________,
19___.
RIVER BEND FUEL SERVICES, INC.
By _______________________________
Title:
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
[Name of Agent]
[Address]
Attention: [Name]
[Title]
RIVER BEND FUEL SERVICES, INC.
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant
to Section 2.4 of the Credit Agreement, dated as of December __, 1993
(together with all amendments, if any, from time to time made thereto,
the "Credit Agreement"), among RIVER BEND FUEL SERVICES, INC., a
Delaware corporation (the "Borrower"), certain financial institutions
and CIBC INC. (the "Agent"). Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
The Borrower hereby requests that on ____________, 19___,
II $___________ of the presently outstanding principal
amount of the Loans originally made on __________, 19___ [and
$__________ of the presently outstanding principal amount of the
Loans originally made on __________, 19___],
III and all presently being maintained as *[Base Rate
Loans] [CD Rate Loans] [LIBO Rate Loans],
IV be [converted into] [continued as],
(4) **[CD Rate Loans having an Interest Period of ______
days] [LIBO Rate Loans having an Interest Period of ______
months] [Base Rate Loans].
_______________________________
* Select appropriate interest rate option.
** Insert appropriate interest rate option.
The Borrower hereby:
.1. certifies and warrants that no Default has occurred
and is continuing; and
.2. agrees that if prior to the time of such continuation
or conversion any matter certified to herein by it will not be
true and correct at such time as if then made, it will
immediately so notify the Agent.
Except to the extent, if any, that prior to the time of the
continuation or conversion requested hereby the Agent shall receive
written notice to the contrary from the Borrower, each matter
certified to herein shall be deemed to be certified at the date of
such continuation or conversion as if then made.
The Borrower has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained
herein to be made, by its Authorized Officer this ___ day of
_________, 19___.
RIVER BEND FUEL SERVICES, INC.
By _______________________________
Title:
EXHIBIT D
LENDER ASSIGNMENT AGREEMENT
To: [Name of Borrower]
To: [Name of Agent],
as the Agent
RIVER BEND FUEL SERVICES, INC.
Gentlemen and Ladies:
We refer to clause (d) of Section 10.11.1 of the Credit
Agreement, dated as of December __, 1993 (together with all amendments
and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among RIVER BEND FUEL SERVICES,
INC., a Delaware corporation (the "Borrower"), the various financial
institutions (the "Lenders") as are, or shall from time to time
become, parties thereto, and CIBC INC., as agent (the "Agent") for the
Lenders. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit
Agreement.
This agreement is delivered to you pursuant to clause (d) of
Section 10.11.1 of the Credit Agreement and also constitutes notice to
each of you, pursuant to clause (c) of Section 10.11.1 of the Credit
Agreement, of the assignment and delegation to _______________ (the
"Assignee") of ___% of the Loans and Commitment of _____________ (the
"Assignor") outstanding under the Credit Agreement on the date hereof.
After giving effect to the foregoing assignment and delegation, the
Assignor's and the Assignee's Percentages for the purposes of the
Credit Agreement are set forth opposite such Person's name on the
signature pages hereof.
[Add paragraph dealing with accrued interest and fees with
respect to Loans assigned.]
The Assignee hereby acknowledges and confirms that it has
received a copy of the Credit Agreement and the exhibits related
thereto, together with copies of the documents which were required to
be delivered under the Credit Agreement as a condition to the making
of the Loans thereunder. The Assignee further confirms and agrees
that in becoming a Lender and in making its Commitment and Loans under
the Credit Agreement, such actions have and will be made without
recourse to, or representation or warranty by the Agent.
Except as otherwise provided in the Credit Agreement, effective
as of the date of acceptance hereof by the Agent
V the Assignee
.1. shall be deemed automatically to have become a
party to the Credit Agreement, have all the rights and
obligations of a "Lender" under the Credit Agreement and the
other Loan Documents as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof; and
.2. agrees to be bound by the terms and conditions set
forth in the Credit Agreement and the other Loan Documents
as if it were an original signatory thereto; and
VI the Assignor shall be released from its obligations
under the Credit Agreement and the other Loan Documents to the
extent specified in the second paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Agent the processing fee referred to in
Section 10.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and
Commitment and requests the Agent to acknowledge receipt of this
document:
1. Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback):
LIBOR Office:
Telephone:
Facsimile:
Telex (Answerback):
2. Payment Instructions:
The Assignee agrees to furnish the tax form required by the
second to last sentence of Section 4.6 (if so required) of the Credit
Agreement no later than the date of acceptance hereof by the Agent.
This Agreement may be executed by the Assignor and Assignee in
separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
Adjusted Percentage [ASSIGNOR]
Commitment
and
Loans: ___%
By:__________________________
Title:
Percentage [ASSIGNEE]
Commitment
and
Loans: ___%
By:__________________________
Title:
Accepted and Acknowledged
this ___ day of _______, 19__
____________________________,
as Agent
By:_________________________
Title:
EXHIBIT E
[Opinion of Texas Counsel to GSU]
EXHIBIT F
[Opinion of Louisiana Counsel to GSU]
EXHIBIT G
[Opinion of New York Counsel to Borrower]
EXHIBIT H
[Opinion of Counsel to the Agent]
EXHIBIT I
Certificate of Authorized Officer of Obligor
I, the undersigned, [Assistant] Secretary of ______________, a
_______________ corporation (the "Obligor"), DO HEREBY CERTIFY that:
This Certificate is furnished pursuant to Section 5.1.1 of
that certain Credit Agreement, dated as of _______________, 19___ (the
"Credit Agreement"), among the River Bend Fuel Services, Inc., certain
financial institutions and ______________________ (the "Agent").
Unless otherwise defined herein, capitalized terms used in this
Certificate have the meanings assigned to such terms in the Credit
Agreement.
There have been no amendments to the Articles of
Incorporation of the Obligor since _________, 19__.
Attached hereto as Annex I is a true, correct and complete
copy of the by-laws of the Obligor as in effect on the date hereof.
Attached hereto as Annex II is a true, correct and complete
copy of resolutions duly adopted at a meeting of the Board of
Directors and/or a committee thereof of the Obligor, convened and held
on the ___ day of ____________, 19__ , which resolutions have not been
revoked, modified, amended or rescinded and are still in full force
and effect, and the [Credit Agreement, the Notes and the other Loan
Documents] to which the Obligor is a party are in substantially the
forms of those documents submitted to and approved by the Board of
Directors of the Obligor at such meeting.
_______________________________
* Insert the date of the Secretary of State's Certificate (attached
to which is a copy of the Articles of Incorporation of the
Obligor) furnished to the Agent at the execution of the Credit
Agreement.
The persons named in Annex III attached hereto have been
duly elected, have duly qualified as and at all times since
____________, 19__ (to and including the date hereof), have been
officers of the Obligor holding the respective offices set forth
therein opposite their names, and the signatures set forth therein
opposite their names are their genuine signatures.
I know of no proceeding for the dissolution or liquidation
of the Obligor or threatening its existence.
WITNESS my hand and seal of the Obligor this ____ day of
________________, 19___.
____________________________
[Authorized Officer]
[Affix Corporate Seal]
I, the undersigned, [ ] of the Obligor DO HEREBY
CERTIFY that:
___________________ is [a] the duly elected and qualified [
] of the Obligor and the signature above is his genuine signature.
The representations and warranties on the part of the
Obligor contained in the Loan Documents executed by the Obligor are as
true and correct at and as of the date hereof as though made on and as
of the date hereof.
No Default has occurred and is continuing, or would result
from the consummation of the initial borrowing on this date.
WITNESS my hand on this ____ day of __________________, 19___.
_______________________________
[ ]
Annex I to Exhibit I
[Copy of the by-laws of ______________________]
Annex II to Exhibit I
Resolutions of the Board of Directors of _______________________
WHEREAS, there has been presented to this meeting a form of
Credit Agreement (draft of ________________, 19___) (the "Credit
Agreement"), among this Corporation, certain financial institutions
(the "Lenders") and ____________________ (the "Agent"), providing for
the making by the Lenders of certain Loans (as defined in the Credit
Agreement) to this Corporation; [and]
WHEREAS, it payment of this Corporation's obligations under and
in connection with the Credit Agreement and the promissory notes to be
executed by this Corporation pursuant thereto be secured by the
Collateral Agreements (as defined in the Credit Agreement).
NOW, THEREFORE, BE IT RESOLVED, that the President or any Vice
President of this Corporation, and each of them, be and he hereby is
authorized to execute, in the name and on behalf of this Corporation,
and deliver a credit agreement among this Corporation, the Lenders and
the Agent, substantially in the form of the Credit Agreement presented
to this meeting, except for such changes, additions and deletions as
to any or all of the terms and provisions thereof as the officer
executing the Credit Agreement on behalf of this Corporation shall
deem proper, such execution by such officer of the Credit Agreement to
be conclusive evidence that such officer deems all of the terms and
provisions thereof to be proper;
FURTHER RESOLVED, that the President or any Vice President of
this Corporation, and each of them, be and he hereby is authorized to
borrow from time to time on behalf of this Corporation the amounts
permitted or provided to be borrowed by this Corporation under the
Credit Agreement executed by this Corporation pursuant to these
resolutions, and to execute and deliver on behalf of this Corporation
the promissory notes payable to the order of the Lenders,
substantially in the form provided for as an exhibit to the Credit
Agreement, evidencing such borrowings; [and]
FURTHER RESOLVED, that each and every officer of this Corporation
be and he hereby is authorized in the name and on behalf of this
Corporation from time to time to take such actions and to execute and
deliver such certificates, instruments, notices and documents as may
be required or as such officer may deem necessary, advisable or proper
in order to carry out and perform the obligations of this Corporation
under the Credit Agreement, the Collateral Agreements and the Basic
Documents (as defined in the Credit Agreement) executed by this
Corporation pursuant to these resolutions, or under any other
instrument or document executed pursuant to or in connection with the
Credit Agreement, the Collateral Agreements or the Basic Documents;
all such actions to be performed in such manner, and all such certifi
cates, instruments, notices and documents to be executed and delivered
in such form, as the officer performing or executing the same shall
approve, the performance or execution thereof by such officer to be
conclusive evidence of the approval thereof by such officer and by
this Board of Directors.
Annex III to Exhibit I
Name of Officer Office Signature
|| TABLE OF CONTENTS
Page
I DEFINITIONS AND ACCOUNTING TERMS 1
1.1. Defined Terms 1
1.2. Use of Defined Terms 17
1.3. Cross-References 17
1.4. Accounting and Financial Determinations 18
II COMMITMENTS, BORROWING PROCEDURES AND NOTES 18
2.1. Commitments 18
2.1.1. Commitment of Each Lender 18
2.1.2. Lenders Not Permitted or Required To Make
Loans 18
2.2. Optional Reduction of Commitment Amount 18
2.3. Borrowing Procedure 19
2.4. Continuation and Conversion Elections 19
2.5. Funding 19
2.6. Notes 20
2.7. Termination; Extension of Stated Maturity
Date. 20
III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES 21
3.1. Repayments and Prepayments 21
3.2. Interest Provisions 21
3.2.1. Rates 21
3.2.2. Post-Maturity Rates 24
3.2.3. Payment Dates 24
3.3. Fees 25
3.3.1. Commitment Fee 25
3.3.2. Facility Fee 25
3.3.3. Agent's Fee 25
IV CERTAIN CD RATE, LIBO RATE AND OTHER PROVISIONS 25
4.1. Fixed Rate Lending Unlawful 25
4.2. Deposits Unavailable 25
4.3. Increased Fixed Rate Loan Costs, etc. 26
4.4. Funding Losses 26
4.5. Increased Capital Costs 27
4.6. Taxes 27
4.7. Payments, Computations, etc. 28
4.8. Sharing of Payments 29
4.9. Setoff 30
4.10. Use of Proceeds 30
V CONDITIONS TO BORROWING 30
5.1. Initial Borrowing 30
5.1.1. Resolutions, etc. 30
5.1.2. Delivery of Notes 31
5.1.3. Loan Documents 31
5.1.4. Basic Documents 31
5.1.5. Opinions of Counsel 31
5.1.6. Closing Fees, Expenses, etc. 31
5.1.7. Governmental Approvals 32
5.1.8. Trust Indenture 32
5.1.9. Trust Agreement 32
5.2. All Borrowings 32
5.2.1. Compliance with Warranties, No Default, etc. 32
5.2.2. Borrowing Request 33
5.2.3. Satisfactory Legal Form 33
VI REPRESENTATIONS AND WARRANTIES 33
6.1. Organization, etc. 33
6.2. Due Authorization, Non-Contravention, etc. 34
6.3. Government Approval, Regulation, etc. 34
6.4. Validity, etc. 35
6.5. Financial Information 35
6.6. No Material Adverse Change 35
6.7. Litigation, Labor Controversies, etc. 36
6.8. Subsidiaries 36
6.9. Ownership of Properties 36
6.10. Taxes 36
6.11. Pension and Welfare Plans 36
6.12. Environmental Warranties 36
6.13. Regulations G, U and X 36
6.14. Accuracy of Information 36
6.15. Absence of Foreign Status 37
VII COVENANTS 37
7.1. Affirmative Covenants 37
7.1.1. Financial Information, Reports, Notices, etc. 37
7.1.2. Compliance with Laws, etc. 39
7.1.3. Maintenance of Properties 39
7.1.4. Insurance 39
7.1.5. Books and Records 40
7.2. Negative Covenants 40
7.2.1. Business Activities 40
7.2.2. Indebtedness 40
7.2.3. Liens 41
7.2.4. [Intentionally Omitted.] 42
7.2.5. Investments 42
7.2.6. Restricted Payments, etc. 43
7.2.7. Capital Expenditures, etc. 43
7.2.8. Rental Obligations 43
7.2.9. Take or Pay Contracts 43
7.2.10. Consolidation, Merger, etc. 43
7.2.11. Asset Dispositions, etc. 44
7.2.12. Modification of Certain Agreements 44
7.2.13. Transactions with Affiliates 44
7.2.14. Negative Pledges, Restrictive Agreements, etc. 44
VIII EVENTS OF DEFAULT 44
8.1. Listing of Events of Default 44
8.1.1. Non-Payment of Obligations 44
8.1.2. Breach of Warranty 45
8.1.3. Non-Performance of Certain Covenants and
Obligations 45
8.1.4. Non-Performance of Other Covenants and
Obligations 45
8.1.5. Default on Other Indebtedness 45
8.1.6. Judgments 45
8.1.7. Basic Documents 46
8.1.8. Control of the Borrower 46
8.1.9. Bankruptcy, Insolvency, etc. 46
8.1.10. Impairment of Security, etc. 47
8.2. Action if Bankruptcy 47
8.3. Action if Other Event of Default 47
IX THE AGENT 47
9.1. Actions 47
9.2. Funding Reliance, etc. 48
9.3. Exculpation 48
9.4. Successor 49
9.5. Loans by CIBC 50
9.6. Credit Decisions 50
9.7. Copies, etc. 50
X MISCELLANEOUS PROVISIONS 50
10.1. Waivers, Amendments, etc. 50
10.2. Notices 51
10.3. Payment of Costs and Expenses 52
10.4. Indemnification 52
10.5. Survival 53
10.6. Severability 53
10.7. Headings 54
10.8. Execution in Counterparts, Effectiveness, etc. 54
10.9. Governing Law; Entire Agreement 54
10.10. Successors and Assigns 54
10.11. Sale and Transfer of Loans and Note;
Participations in Loans and Note 54
10.11.1. Assignments 54
10.11.2. Participations 56
10.12. Other Transactions 57
10.13. Forum Selection and Consent to Jurisdiction 57
10.14. Waiver of Jury Trial 57
10.15. Usury Not Intended 58
10.16. Revolving Credit Statute 59
10.17. No Recourse 59
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Name and Address of Lenders
EXHIBIT A - Form of Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Opinion of Texas Counsel to GSU
EXHIBIT F - Form of Opinion of Louisiana Counsel to GSU
EXHIBIT G - Form of Opinion of New York Counsel to the Borrower
EXHIBIT H - Form of Opinion of Counsel to the Agent
EXHIBIT I - Form of Certificate of Authorized Officer of
each Obligor
EXHIBIT J - Form of Letter from GSU to the Lenders
EXHIBIT K - Form of Certificate from GSU