Exhibit 10.17
EXECUTION COPY
================================================================================
CALPINE CORPORATION
SENIOR SECURED TERM LOANS DUE 2007
CREDIT AGREEMENT
Dated as of July 16, 2003
GOLDMAN SACHS CREDIT PARTNERS L.P.
Sole Lead Arranger, Sole Bookrunner and Administrative Agent
THE BANK OF NOVA SCOTIA
Arranger and Syndication Agent
TD SECURITIES (USA) INC., ING (U.S.) CAPITAL LLC AND
LANDESBANK HESSEN-THURINGEN
Co-Arrangers
CREDIT LYONNAIS NEW YORK BRANCH AND UNION BANK OF
CALIFORNIA, N.A.
Managing Agents
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.................................................................. 3
SECTION 1.02. Other Definitions............................................................ 40
SECTION 1.03. Rules of Construction........................................................ 41
ARTICLE II
THE TERM LOANS
SECTION 2.01. Term Loans................................................................... 42
SECTION 2.02. Pro Rata Shares; Availability of Funds....................................... 43
SECTION 2.03. Use of Proceeds.............................................................. 44
SECTION 2.04. Evidence of Debt; Register; Lenders' Books and Records; Notes................ 44
SECTION 2.05. Interest..................................................................... 45
SECTION 2.06. Conversion/Continuation...................................................... 46
SECTION 2.07. Default Interest............................................................. 47
SECTION 2.08. Fees......................................................................... 47
SECTION 2.09. Scheduled Payments/Commitment Reductions..................................... 47
SECTION 2.10. Voluntary Prepayments........................................................ 49
SECTION 2.11. Mandatory Offers............................................................. 51
SECTION 2.12. Application of Prepayments................................................... 53
SECTION 2.13. General Provisions Regarding Payments........................................ 53
SECTION 2.14. Ratable Sharing.............................................................. 54
SECTION 2.15. Making or Maintaining Eurodollar Rate Loans.................................. 55
SECTION 2.16. Increased Costs; Capital Adequacy............................................ 57
i
SECTION 2.17. Taxes; Withholding, etc...................................................... 59
SECTION 2.18. Removal or Replacement of a Lender........................................... 61
SECTION 2.19. Additional Term Loans........................................................ 62
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Closing Date................................................................. 65
SECTION 3.02. Conditions to Each Term Loan................................................. 70
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
ARTICLE V
COVENANTS
SECTION 5.01. [Intentionally Omitted.]..................................................... 81
SECTION 5.02. [Intentionally Omitted.]..................................................... 81
SECTION 5.03. Reports...................................................................... 81
SECTION 5.04. Compliance Certificate....................................................... 82
SECTION 5.05. Taxes........................................................................ 83
SECTION 5.06. Stay, Extension and Usury Laws............................................... 83
SECTION 5.07. Restricted Payments.......................................................... 83
SECTION 5.08. Dividend and Other Payment Restrictions Affecting Subsidiaries............... 86
SECTION 5.09. Incurrence of Indebtedness and Issuance of Preferred Stock................... 88
SECTION 5.10. Asset Sales.................................................................. 92
SECTION 5.11. Transactions with Affiliates................................................. 95
SECTION 5.12. Liens........................................................................ 97
SECTION 5.13. Limitation on Changes in the Nature of Business.............................. 98
SECTION 5.14. Corporate Existence.......................................................... 98
ii
SECTION 5.15. Offer to Repurchase Upon Change of Control.................................. 99
SECTION 5.16. Limitation on Sale and Leaseback Transactions............................... 100
SECTION 5.17. [Intentionally Omitted.].................................................... 100
SECTION 5.18. [Intentionally Omitted.].................................................... 100
SECTION 5.19. Limitation on Issuances of Guarantees of Indebtedness....................... 100
SECTION 5.20. [Intentionally Omitted.].................................................... 101
SECTION 5.21. Payments for Consent........................................................ 101
SECTION 5.22. Designation of Restricted and Unrestricted Subsidiaries..................... 101
SECTION 5.23. Suspension of Covenants..................................................... 101
ARTICLE VI
SUCCESSORS
SECTION 6.01. Merger, Consolidation, or Sale of Assets.................................... 102
SECTION 6.02. Successor Corporation Substituted........................................... 104
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default........................................................... 104
SECTION 7.02. Acceleration................................................................ 107
SECTION 7.03. Other Remedies.............................................................. 107
SECTION 7.04. Waiver of Past Defaults..................................................... 107
SECTION 7.05. Control by Majority......................................................... 108
SECTION 7.06. [Intentionally Omitted.].................................................... 108
SECTION 7.07. [Intentionally Omitted.].................................................... 108
SECTION 7.08. Collection Suit by Administrative Agent..................................... 108
SECTION 7.09. Priorities.................................................................. 108
ARTICLE VIII
AGENTS
iii
SECTION 8.01. Appointment of Agents....................................................... 109
SECTION 8.02. Powers and Duties........................................................... 109
SECTION 8.03. General Immunity............................................................ 109
SECTION 8.04. Agents Entitled to Act as Lender............................................ 110
SECTION 8.05. Lenders' Representations, Warranties and Acknowledgment..................... 111
SECTION 8.06. Right to Indemnity.......................................................... 111
SECTION 8.07. Successor Administrative Agent.............................................. 112
ARTICLE IX
COLLATERAL AND SECURITY
ARTICLE X
RANKING OF LIENS
ARTICLE XI
COLLATERAL SHARING
SECTION 11.01. Equal and Ratable Lien Sharing by holders of Parity Lien Debt............... 113
SECTION 11.02. Enforcement................................................................. 113
SECTION 11.03. Amendment................................................................... 114
ARTICLE XII
INTENTIONALLY OMITTED
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Notices..................................................................... 114
SECTION 13.02. Expenses.................................................................... 115
SECTION 13.03. Indemnity................................................................... 116
SECTION 13.04. Set-Off..................................................................... 117
SECTION 13.05. Amendments and Waivers...................................................... 117
SECTION 13.06. Successors and Assigns; Participations...................................... 119
iv
SECTION 13.07. Independence of Covenants................................................... 124
SECTION 13.08. Survival of Representations, Warranties and Agreements...................... 124
SECTION 13.09. No Waiver; Remedies Cumulative.............................................. 124
SECTION 13.10. Marshalling; Payments Set Aside............................................. 124
SECTION 13.11. Severability................................................................ 124
SECTION 13.12. Term Loan Obligations Several; Independent Nature of Lenders' Rights........ 125
SECTION 13.13. Headings.................................................................... 125
SECTION 13.14. Applicable Law.............................................................. 125
SECTION 13.15. Consent to Jurisdiction..................................................... 125
SECTION 13.16. Waiver Of Jury Trial........................................................ 125
SECTION 13.17. Confidentiality............................................................. 126
SECTION 13.18. Usury Savings Clause........................................................ 127
SECTION 13.19. Counterparts................................................................ 128
SECTION 13.20. Effectiveness............................................................... 128
SECTION 13.21. Statements Required in Certificate or Opinion............................... 128
v
APPENDICES: A Initial Term Loan Commitments
B Notice Addresses
SCHEDULES: 1.01(a) Mortgaged Properties
1.01(b) Pledged Subsidiaries
4.01(c) Capital Stock Matters
4.01(aa) Subsidiary Companies of Holding Companies
4.01(cc) First-Tier Public Utility Subsidiaries
4.01(dd) Exempt Wholesale Generators
4.01(ee) Texas Subsidiaries
4.01(hh) Retail Service Subsidiaries
4.01(ii) FERC Complaints
EXHIBITS: A Assignment Agreement
B Certificate Re Non-Bank Status
C Conversion/Continuation Notice
D Funding Notice
E Lender Addendum
F Lender Joinder Agreement
G Term Loan Note
vi
This CREDIT AGREEMENT, dated as of July 16, 2003, is entered into by and among
CALPINE CORPORATION, a Delaware corporation (the "Company"), the Lenders party
hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Administrative
Agent (together with its successors in such capacity, the "Administrative
Agent") and as Sole Lead Arranger and Sole Bookrunner (in such capacity, the
"Sole Lead Arranger"), THE BANK OF NOVA SCOTIA, as Arranger and Syndication
Agent, TD SECURITIES (USA) INC., ING (U.S.) CAPITAL LLC and LANDESBANK
HESSEN-THURINGEN, as Co-Arrangers, and CREDIT LYONNAISE NEW YORK BRANCH and
UNION BANK OF CALIFORNIA, N.A., as Managing Agents.
RECITALS:
1. The Company intends to borrow $750,000,000
in aggregate principal amount of Term Loans (the "Initial Term Loans") under
this Agreement.
2. The Company intends to issue (i)
$500,000,000 in aggregate principal amount of Second-Priority Senior Secured
Floating Rate Notes due 2007, (the "2007 Notes") pursuant to the Indenture,
dated as of July 16, 2003 (the "2007 Indenture"), by and among the Company and
Wilmington Trust Company, as Trustee (together with its successors in such
capacity, the "2007 Trustee"), (ii) $1,150,000,000 in aggregate principal of
8.50% Second Priority Senior Secured Notes due 2010, (the "2010 Notes") pursuant
to the Indenture, dated as of July 16, 2003 (the "2010 Indenture"), by and among
the Company and Wilmington Trust Company, as Trustee (together with its
successors in such capacity, the "2010 Trustee") and (iii) $900,000,000 in
aggregate principal amount of 8.75% Second Priority Senior Secured Notes due
2013, (the "2013 Notes", together with the 2007 Notes and the 2010 Notes, the
"Initial Notes") pursuant to the Indenture, dated as of July 16, 2003 (the "2013
Indenture", together with the 2007 Indenture and the 2010 Indenture, the
"Indentures"), by and among the Company and Wilmington Trust Company, as Trustee
(together with its successors in such capacity, the "2013 Trustee", together
with the 2007 Trustee and the 2010 Trustee, the "Trustees").
3. The Company intends to enter into an Amended
and Restated Credit Agreement dated as of July 16, 2003 (as amended, modified,
renewed, restated or replaced from time to time, the "Credit Agreement"), among,
inter alia, the Company, the lenders referred to therein, and The Bank of Nova
Scotia, as administrative agent, relating to a $500,000,000 senior secured
credit facility to be made available in the form of revolving loans and term
loans, including letters of credit to be issued thereunder.
4. Pursuant to the Guarantee and Collateral
Agreement, dated as of July 16, 2003 (the "Guarantee and Collateral Agreement"),
by and among the Company, the Canadian Guarantors (as defined below) and the
Collateral Trustee (as defined below), the Canadian Guarantors shall guarantee,
on a limited basis as provided therein, payment of the Initial Term Loans, all
other Term Loan Obligations and all other Secured Obligations (such terms as
defined below).
5. The Company intends to secure the Initial
Term Loans, all other Term Loan Obligations and all other Secured Obligations,
including its obligations under the Credit Agreement and any future Priority
Lien Debt (as defined below), on a priority basis, and, subject to such
priority, its obligations under the 2007 Notes, 2010 Notes, 2013 Notes and
Initial Term Loans and any future Parity Lien Debt (as defined below) Equally
and Ratably (as defined below), with security interests in all present and
future Collateral (as defined below).
6. The Company has entered into the Collateral
Trust Agreement (as defined below) which sets forth the terms on which the
Company has appointed the Collateral Trustee as trustee for the present and
future holders of the Secured Obligations to receive, hold, maintain,
administer, enforce and distribute all Security Documents, and all guarantees
granted thereunder, at any time delivered to the Collateral Trustee and all
interests, rights, powers and remedies of the Collateral Trustee thereunder and
the proceeds thereof.
2
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Restricted Subsidiary
of such specified Person, whether or not such Indebtedness is incurred
in connection with, or in contemplation of, such other Person merging
with or into, or becoming a Restricted Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
Acquired Debt shall be deemed to be incurred on the date the acquired Person
becomes a Restricted Subsidiary.
"Additional Notes" means, with respect to any series of the Initial
Notes, Notes (other than the Initial Notes) issued under the applicable
Indenture in accordance with Sections 2.02 and 4.09 thereof, as part of the same
series as the applicable Initial Notes.
"Adjusted Eurodollar Rate" means, with respect to a Eurodollar Rate
Loan for the relevant Interest Period, the sum of the quotient of (a) the
Eurodollar Base Rate applicable to such Interest Period, divided by (b) one
minus the Applicable Reserve Requirement (expressed as a decimal) applicable to
such Interest Period.
"Administrative Agent" is defined in the Recitals hereto.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings. For purposes of Section 5.11 herein,
"Affiliate" shall also mean any Person of which the Company owns 10% or more of
any class of Capital Stock or rights to acquire 10% or more of any class of
Capital Stock and any Person who would be an Affiliate of any such Person
pursuant to the first sentence hereof.
"Agents" means the Administrative Agent and the Sole Lead Arranger.
"Agreement" means this Credit Agreement, dated as of July 16, 2003.
"Applicable Reserve Requirement" means, at any time, for any Eurodollar Rate
Loan, the maximum rate, expressed as a decimal, at which reserves (including,
without limitation, any
3
basic marginal, special, supplemental, emergency or other reserves) are required
to be maintained with respect thereto against "Eurocurrency liabilities" (as
such term is defined in Regulation D) under regulations issued from time to time
by the Board of Governors of the Federal Reserve System or other applicable
banking regulator. Without limiting the effect of the foregoing, the Applicable
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (i) any category of liabilities which
includes deposits by reference to which the applicable Adjusted Eurodollar Rate
or any other interest rate of a Term Loan is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar Rate
Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed subject to reserve requirements without
benefits of credit for proration, exceptions or offsets that may be available
from time to time to the applicable Lender. The rate of interest on Eurodollar
Rate Loans shall be adjusted automatically on and as of the effective date of
any change in the Applicable Reserve Requirement.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole shall be governed by
Sections 5.15 and 6.01 of this Agreement and not by Section 5.10; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding the preceding, none of the following items shall be
deemed to be an Asset Sale:
(1)(A) any single transaction or series of related
transactions that involves the sale of uninstalled turbines and related
equipment, and (B) any single transaction or series of related
transactions that involves other assets having a Fair Market Value of
less than $50.0 million, it being understood that, in connection with
any sale, lease, conveyance or other disposition of any Designated
Assets or rights relating thereto in connection with a farm-out
transaction, such transaction shall be valued as at the time of
execution and delivery of binding contractual arrangements relating
thereto;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries,
(3) an issuance of Equity Interests by a Restricted Subsidiary
to the Company or to a Restricted Subsidiary of the Company;
(4) the sale or lease of products, services or accounts
receivable in the ordinary course of business and any sale or other
disposition of damaged, worn-out or obsolete assets in the ordinary
course of business;
4
(5) a Restricted Payment that does not violate Section 5.07 or
a Permitted Investment;
(6) the sale or other disposition of cash or Cash Equivalents;
and
(7) the sale or other disposition of all or any part of the
Company's right to amounts that have or are to become due and payable
by Pacific Gas & Electric Company under that certain Agreement dated as
of July 1, 1999, as amended, between Pacific Gas & Electric Company and
Calpine Gilroy L.P., a California limited partnership (PG&E Log No.
08C002) For Termination and Buy-Out of Standard Offer 4 Power Purchase
Agreement, as such rights were purchased from Calpine Gilroy Cogen L.P.
by the Company pursuant to the Purchase Agreement dated as of March 8,
2002, as amended, between Calpine Gilroy Cogen L.P. and the Company.
"Assignment Agreement" means an Assignment and Assumption Agreement
substantially in the form of Exhibit A with such amendments or modifications as
may be approved by the Administrative Agent.
"Attributable Debt" in respect of a sale and leaseback transaction means, at the
time of determination, the present value of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value
shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP; provided, that if such
sale and leaseback transaction results in a Capital Lease Obligation, the amount
of Indebtedness represented thereby shall be determined in accordance with the
definition of "Capital Lease Obligation."
"Bankruptcy Case" means any case under Title 11 of the United States Code or any
successor bankruptcy law commenced voluntarily or involuntarily against the
Company or any other Obligor.
"Bankruptcy Code" means Title 11, U.S. Code, as amended, or any similar federal
or state law for the relief of debtors.
"Base Rate" means, for any day, a fluctuating rate of interest per annum equal
to the higher of (i) the Prime Rate for such day and (ii) the sum of (a) the
Federal Funds Effective Rate for such day and (b) one-half of one percent (0.5%)
per annum.
"Base Rate Loan" means a Term Loan bearing interest at a rate determined by
reference to the Base Rate.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by
5
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only after the passage of time. The terms
"Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the Board of Directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Business Day" means (i) any day excluding Saturday, Sunday or any day which is
a legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or Eurodollar Rate Loans, the term "Business Day" shall mean any day which
is a Business Day described in clause (i) and which is also a day for trading by
and between banks in Dollar deposits in the London interbank market.
"Calculation Date" shall have the meaning provided in the definition of "Fixed
Charge Coverage Ratio."
"Canadian Gas Assets" means Designated Assets owned by a direct or indirect
Restricted Subsidiary of one or more Canadian Guarantors.
"Canadian Guarantors" means Quintana Minerals (USA) Inc., a Delaware
corporation, JOQ Canada, Inc., a Delaware limited liability company and Quintana
Canada Holdings LLC, a Delaware limited liability company, and any successor to
any of the foregoing.
"Capital Lease Obligation" means, at the time any determination is to be made,
the amount of the liability in respect of a capital lease that would at that
time be required to be capitalized on a balance sheet 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 prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
6
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Cash Equivalents" means:
(1) the lawful currency of any country where the Company owns
or operates a Facility;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any state thereof (or any
agency or instrumentality thereof), by the Canadian government (or any
agency or instrumentality thereof), or by the government of a member
state of the European Union (or any agency or instrumentality thereof),
in each case the payment of which is backed by the full faith and
credit of the United States, Canada or the relevant member state of the
European Union, as the case may be, and having maturities of not more
than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to the Credit Agreement
or with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch or successor rating
agency rating of "B" or better;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's or S&P and maturing within six months after the
date of acquisition; and
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition.
"CCEC" means Calpine Canada Energy Ltd., a Nova Scotia limited
liability company that is wholly-owned by the Canadian Guarantors.
7
"Certificate re Non-Bank Status" means a certificate substantially in the form
of Exhibit B.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as that term is used in Section 13(d)
of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including any merger
or consolidation) the result of which is that any "person" (as defined
above) becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Company, measured by voting power
rather than number of shares;
(4) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of the Company
outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee
Person (immediately after giving effect to such issuance); or
(5) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"Closing Date" means the date on which the Initial Term Loans are made.
"Code" means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.
"Collateral" means all properties and assets at any time owned or acquired by
the Company, except the Excluded Assets, and the Canadian Guarantors' ownership
interest in 65% of the aggregate outstanding Voting Stock of CCEC.
"Collateral Trust Agreement" the Collateral Trust Agreement dated as of July 16,
2003, among the Company, the Trustees, the Administrative Agent and the
Collateral Trustee.
"Collateral Trustee" means The Bank of New York in its capacity as collateral
trustee under the Collateral Trust Agreement, together with its successors in
such capacity.
8
"Company" means Calpine Corporation, and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any specified Person for any
period, the Consolidated Net Income of such Person for such period plus, without
duplication:
(1) an amount equal to any extraordinary loss plus any net loss realized by such
Person or any of its Restricted Subsidiaries in connection with an Asset Sale,
to the extent such losses were deducted in computing such Consolidated Net
Income; plus
(2) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income; plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries for such
period, to the extent that such Fixed Charges were deducted in computing such
Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income;
minus non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of
business;
in each case, on a consolidated basis and determined in accordance with
GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or similar distributions paid in cash to the specified Person
or a Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders; and
9
(3) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to any specified Person as
of any date, the sum of:
(1) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date; plus
(2) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock
(other than Disqualified Stock) that by its terms is not entitled to
the payment of dividends unless such dividends may be declared and paid
only out of net earnings in respect of the year of such declaration and
payment, but only to the extent of any cash received by such Person
upon issuance of such preferred stock.
"Conversion/Continuation Date" means the effective date of a continuation or
conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"Conversion/Continuation Notice" means a Conversion/Continuation Notice
substantially in the form of Exhibit C
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
this Agreement; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
then still in office or with the approval of a majority of Directors
whose election was previously so approved from time to time.
"Control Agreement" means the Designated Asset Sale Proceeds Account Control
Agreement dated July 16, 2003, among the Company, the Collateral Trustee and an
institution reasonably acceptable to the Initial Purchasers, as depository
agent.
"Credit Date" means the date that a Term Loan is made.
"Credit Agreement" is defined in the recitals hereto.
"Credit Agreement Agent" means, at any time, the Person serving at such time as
the "Agent" or "Administrative Agent" under the Credit Agreement or any other
representative of the lenders thereunder then most recently designated by a
majority of such lenders, in a written notice delivered to each Parity Debt
Representative and the Collateral Trustee, as the Credit Agreement Agent for the
purposes of the Parity Lien Debt Documents.
10
"Credit Facilities" means one or more debt facilities (including the Credit
Agreement) with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.
"Default" means any event that is or with the passage of time or the giving of
notice (or both) would be an Event of Default.
"Designated Assets" means all geothermal energy assets (including any related
extraction, processing or similar equipment and geothermal power plants) and all
natural gas assets (including any related extraction, processing or similar
equipment, other than natural gas power plants) owned by the Company or any of
its Restricted Subsidiaries from time to time, including the equity interests of
any Restricted Subsidiary owning any Designated Assets, but excluding (i) any
geothermal energy assets that are both unproven and undeveloped and (ii)
contracts for the purchase or sale of natural gas and natural gas supplied under
such contracts.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the terms
of any security into which it is convertible, or for which it is exchangeable,
in each case at the option of the holder of the Capital Stock), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
of the Capital Stock, in whole or in part, on or prior to the date that is 91
days after the Maturity Date. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Stock. The amount of Disqualified Stock deemed
to be outstanding at any time for purposes of this Agreement shall be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Dollars" and the sign "$" mean the lawful money of the United States of
America.
"Eligible Assignee" means (i) any Lender, any Affiliate of any Lender and any
Related Fund (any two or more Related Funds being treated as a single Eligible
Assignee for all purposes hereof), and (ii) any commercial bank, insurance
company, investment or mutual fund or other entity that is an "accredited
investor" (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans as one of its businesses.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise) by any Governmental Authority or any other
Person arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law, (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity or (iii) in
connection with any
11
actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
"Equally and Ratably" means, in reference to sharing of Liens or proceeds
thereof as between the holders of Parity Lien Obligations with respect to each
outstanding Series of Parity Lien Debt, that such Liens or proceeds:
(1) shall be allocated and distributed first to each Parity
Debt Representative for each outstanding series of Parity Lien Debt,
for account of the holders of such Series of Parity Lien Debt, ratably
in proportion to the principal of and interest and premium (if any)
outstanding on each outstanding Series of Parity Lien Debt when the
allocation or distribution is made, and thereafter
(2) shall be allocated and distributed (if any remain after
payment in full of all of the principal of and interest and premium (if
any) on all outstanding Parity Lien Debt) to each Parity Debt
Representative for each outstanding series of Parity Lien Debt, for
account of the holders of any remaining Parity Lien Obligations with
respect to such outstanding Series of Parity Lien Debt, ratably in
proportion to the aggregate unpaid amount of such remaining Parity Lien
Obligations due and demanded (with written notice to the applicable
Parity Debt Representative and the Collateral Trustee) prior to the
date such distribution is made.
"Equity Interests" means Capital Stock and all warrants, options or other rights
to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
"Eurodollar Base Rate" means, with respect to a Eurodollar Rate Loan for the
relevant Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, if no such British Bankers' Association LIBOR
rate is available to the Administrative Agent, the applicable Eurodollar Base
Rate for the relevant Interest Period shall instead be (a) the rate determined
by the Administrative Agent to be the offered rate on such other page or other
service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period) with
a term equivalent to such period in Dollars, determined as of approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period, or (b) in the event the rates referenced in the preceding
clauses (a) is not available, the rate per annum equal to the offered quotation
rate to first class banks in the London interbank market by GSCP for deposits
(for delivery on the first day of the relevant period) in Dollars of amounts in
same day funds comparable to the principal amount of the applicable Term Loan of
the Administrative Agent, in its capacity as a Lender, for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
period as of approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period.
12
"Eurodollar Rate Loan" means a Term Loan bearing interest at a rate determined
by reference to the Adjusted Eurodollar Rate.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Assets" means:
(1) any lease of property other than (i) a lease of a
geothermal energy or natural gas interest or property, (ii) a lease of
real estate underlying a power generation property or (iii) a capital
lease;
(2) all deposit accounts (as defined in Article 9 of the
Uniform Commercial Code of any relevant jurisdiction) and deposits
therein to the extent not exceeding $50.0 million in the aggregate,
except for the Designated Assets Sale Proceeds Account and any deposit
account and deposits therein holding amounts referred to in clause (7)
of this definition;
(3) the fixtures and equipment relating to any pipeline if, to
the extent that and for so long as (i) the ownership or operation of
such pipeline is regulated by any federal or state regulatory authority
and (ii) under the law applicable to such regulatory authority the
grant of a security interest in such fixtures and equipment is
prohibited or a security interest in such fixtures and equipment may be
granted only after completion of a filing with, or receipt of consent
from, such regulatory authority which has not been effectively
completed or received; provided, that (a) such fixtures and equipment
shall be an Excluded Asset only to the extent and for so long as the
conditions set forth in clauses (i) and (ii) in this clause (3) are and
remain satisfied and to the extent such assets otherwise constitute
Collateral, shall cease to be an Excluded Asset, and shall become
subject to the security interests granted to the Collateral Trustee
under the Security Documents, immediately and automatically at such
time as such conditions cease to exist, including by reason of the
effective completion of any required filing or effective receipt of any
required regulatory approval, and (b) unless prohibited by law, the
proceeds of any sale, lease or other disposition of any such fixtures
or equipment that are Excluded Assets shall not be an Excluded Asset
and shall at all times be and remain subject to the security interests
granted to the Collateral Trustee under the Security Documents except
as such proceeds are applied and used by the Company in the ordinary
course of business and applied in accordance with Section 5.10 herein;
(4) all easements, rights-of-way, licenses and other real
property interests for or pertaining to the construction, operation,
use or maintenance of any pipeline over, upon or under land owned by
another Person;
(5) with respect to personal property, any lease, license,
permit, franchise, power, authority or right if, to the extent that and
for so long as (i) the grant of a security interest therein constitutes
or would result in the abandonment, invalidation or unenforceability of
such lease, license, permit, franchise, power, authority or right or
the termination of or a default under the instrument or agreement by
which such lease, license, permit, franchise,
13
power, authority or right is governed and (ii) such abandonment,
invalidation, unenforceability, termination or default is not rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the
Uniform Commercial Code (or any successor provisions) of any relevant
jurisdiction or any other applicable law (including the United States
bankruptcy code); provided, that (a) such lease, license, permit,
franchise, power, authority or right shall be an Excluded Asset only to
the extent and for so long as the conditions set forth in clauses (i)
and (ii) of this clause (5) are and remain satisfied and to the extent
that such assets otherwise constitute Collateral, shall cease to be an
Excluded Asset, and shall become subject to the security interests
granted to the Collateral Trustee under the Security Documents,
immediately and automatically at such time as such conditions cease to
exist, including by reason of any waiver or consent under the
applicable instrument or agreement, and (b) the proceeds of any sale,
lease or other disposition of any such lease, license, permit,
franchise, power, authority or right that is or becomes an Excluded
Asset shall not be an Excluded Asset and shall at all times be and
remain subject to the security interests granted to the Collateral
Trustee under the Security Documents except as such proceeds are
applied and used by the Company in the ordinary course of business and
applied in accordance with Section 5.10 herein;
(6) with respect to any real property, any lease, license,
permit, franchise, power, authority or right if, to the extent that and
for so long as the grant of a security interest therein (i) requires a
third party consent which has not been obtained or (ii) constitutes or
would result in the abandonment, invalidation or unenforceability of
such lease, license, permit, franchise, power, authority or right or
the termination of or a default under the instrument or agreement by
which such lease, license, permit, franchise, power, authority or right
is governed; provided, that such lease, license, permit, franchise,
power, authority or right shall be an Excluded Asset only to the extent
and for as long as the conditions set forth in clause (i) or (ii) of
this clause (6) are and remain satisfied and to the extent such assets
otherwise constitute Collateral, shall cease to be an Excluded Asset,
and shall become subject to the security interests granted to the
Collateral Trustee under the Security Documents immediately and
automatically at such time as such conditions cease to exist except as
such proceeds are applied and used by the Company in the ordinary
course of business and applied in accordance with Section 5.10 herein;
(7) any cash proceeds (including earnings thereon) of Priority
Lien Debt that are pledged to cash collateralize letters of credit;
(8) any turbines which serve as collateral pursuant to that
certain General Agreement dated as of January 31, 2002 among the
Company, various Subsidiaries of the Company and Siemens Westinghouse
Power Corporation relating to various purchase contracts and letters of
intent for gas turbine generators, steam turbine generators and related
accessories;
(9) proved oil and gas reserves located in Oklahoma and
undeveloped reserves and unproven acreage located in California, Texas,
Wyoming, Montana, Colorado, New
14
Mexico and offshore Louisiana; provided that such reserves and acreage
has a Fair Market Value not exceeding $20.0 million in the aggregate;
(10) Capital Stock of Subsidiaries designated by the Company,
but only for so long as (i) the Capital Stock of such Subsidiaries is
not pledged to any Person (other than the Collateral Trustee on behalf
of all holders of all Secured Debt) and (ii) such Subsidiaries
collectively own less than 5.0% of the Company's total consolidated
assets and collectively account for less than 5.0% of the Company's
Consolidated Cash Flow; and
(11) any other property in which a security interest cannot be
perfected by the filing of a financing statement under the Uniform
Commercial Code of the relevant jurisdiction; provided that such
property has a Fair Market Value not exceeding $25.0 million in the
aggregate.
"Existing Guarantees" means the Guarantees of the Term Loans, the Notes and
certain obligations under the Credit Agreement that exist on the date of this
Agreement.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries in existence on the date of this Agreement, until such amounts are
repaid.
"Existing Senior Secured Credit Facilities" means the 2000 Credit
Agreement and the 2002 Credit Agreement.
"Facility" means a power generation facility or energy producing
facility, including any related fuel reserves.
"Fair Market Value" means the value that would be paid by a willing
buyer to a willing seller in a transaction not involving distress or necessity
of either party, determined in good faith by the Board of Directors of the
Company (unless otherwise provided in this Agreement).
"Federal Funds Effective Rate" means for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent, in its capacity as a Lender, on such day on
such transactions as determined by the Administrative Agent.
"FERC" means the Federal Energy Regulatory Commission.
"Final Offering Circular" means the final offering circular dated July
10, 2003 (such offering circular, as amended or supplemented, and including all
material incorporated by reference therein).
15
"First Amendment Assignment and Security Agreement" means the First Amendment
Assignment and Security Agreement dated as of July 16, 2003, between the Company
and the Collateral Trustee.
"First Amendment Note Pledge Agreement" means the First Amendment Note Pledge
Agreement dated as of July 16, 2003, between the Company and the Collateral
Trustee.
"First Amendment Pledge Agreement" means the First Amendment Pledge Agreement
dated as of July 16, 2003, between the Company and the Collateral Trustee.
"Fixed Charge Coverage Ratio" means, with respect to any specified Person for
any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the specified Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase, redemption, defeasance or other
discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations or acquisitions of assets, or any Person or any of its
Restricted Subsidiaries acquired by merger, consolidation, or the
acquisition of all or substantially all of its assets by the specified
Person or any of its Restricted Subsidiaries, and including any related
financing transactions and including increases in ownership of
Restricted Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation
Date shall be given pro forma effect (in accordance with Regulation S-X
under the Securities Act) as if they had occurred on the first day of
the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded;
(3) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation
Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges shall not be obligations of the
specified Person or any of its Restricted Subsidiaries following the
Calculation Date;
16
(4) any Person that is a Restricted Subsidiary on the
Calculation Date shall be deemed to have been a Restricted Subsidiary
at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on such
Calculation Date shall be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated as if the
rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
"Fixed Charges" means, with respect to any specified Person for any period, the
sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments
made or received pursuant to Hedging Obligations in respect of interest
rates, plus one-third of all payments with respect to operating leases;
plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, except
interest on Indebtedness incurred to finance the development or
construction of a Facility; plus
(3) any interest accruing on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon, but
excluding any such Guarantee or Lien in effect on the date of this
Agreement unless the same is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, times (b) a fraction, the numerator of which
is one and the denominator of which is one minus the effective combined
federal, state and local statutory tax rate of such Person for the
immediately preceding fiscal year, expressed as a decimal, in each
case, on a consolidated basis and in accordance with GAAP.
"Foreign Asset Sale" means an Asset Sale in respect of the Capital
Stock or assets of a Foreign Subsidiary or a Restricted Subsidiary of the type
described in Section 936 of the Code to
17
the extent that the proceeds of such Asset Sale are received by a Person subject
in respect of such proceeds to the tax laws of a jurisdiction other than the
United States of America or any State thereof or the District of Columbia.
"Foreign Subsidiary" means a Subsidiary that is incorporated in a
jurisdiction other than the United States of America or a State thereof or the
District of Columbia.
"Funding Notice" means a notice substantially in the form of Exhibit D
"GAAP" means generally accepted accounting principles set forth in the
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect and, to
the extent optional, adopted by the Company, on the applicable date of
determination.
"Gilroy Agreement" means the Gilroy Receivables Assignment Agreement dated as of
July 16, 2003, between the Company and the Collateral Trustee.
"Governmental Authority" means any federal, state, municipal, national or other
government, governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.
"GSCP" means Goldman Sachs Credit Partners L.P.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness (whether arising by virtue of partnership arrangements,
or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or
otherwise).
"Guarantors" means the Canadian Guarantors and each other Subsidiary of the
Company that Guarantees the Term Loans.
"Guarantee and Collateral Agreement" means the Guarantee and Collateral
Agreement dated as of July 16, 2003, among Quintana Minerals, (USA), Inc., JOQ
Canada, Inc. and Quintana Canada Holdings, LLC, the Company, the Trustees, the
Collateral Trustee, the Administrative Agent and the Bank of Nova Scotia, as
Credit Agreement Agent.
"Hazardous Materials" means any chemical, material or substance, exposure to
which is prohibited, limited or regulated by any Governmental Authority or which
may or could pose a
18
hazard to the health and safety of the owners, occupants or any Persons in the
vicinity of any Facility or the indoor or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed or threatened
activity, event or occurrence involving any Hazardous Materials, including the
use, manufacture, possession, storage, holding, presence, existence, location,
release, threatened release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition, or handling of any Hazardous Materials, and any corrective action
or reponse action with respect to any of the foregoing.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates or commodity
prices.
"Highest Lawful Rate" means the maximum lawful interest rate, if any, that at
any time or from time to time may be contracted for, charged, or received under
the laws applicable to any Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"Indebtedness" means, with respect to any specified Person, any indebtedness of
such Person (excluding accrued expenses and trade payables), whether or not
contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable
Debt in respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed; or
(6) representing any Hedging Obligations,
19
if and to the extent any of the preceding items (other than letters of
credit, Attributable Debt and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term "Indebtedness" includes all
Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such asset at such date of
determination, and
(B) the amount of the Indebtedness of such other Person.
Notwithstanding anything to the contrary in this definition of
Indebtedness, with respect to any contingent obligations (other than
with respect to contractual obligations to repurchase goods sold or
distributed, which shall be included to the extent reflected on the
balance sheet of such Person in accordance with GAAP) of a Person, the
maximum liability of such Indebtedness shall be as determined by such
Person's Board of Directors, in good faith, as, in light of the facts
and circumstances existing at the time, reasonably likely to be
incurred upon the occurrence of the contingency giving rise to such
obligation.
"Indemnified Liabilities" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties,
claims (including Environmental Claims), costs (including the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up or
abate any Hazardous Materials Activity), expenses and disbursements of any kind
or nature whatsoever (including the reasonable fees and disbursements of counsel
for Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
20
arising out of (i) this Agreement or the other Term Loan Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make Term Loans or the use or intended use of the proceeds thereof, or any
enforcement of any of the Term Loan Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the enforcement of any
Guarantee of the Term Loan Obligations)); or (ii) any Environmental Claim or any
Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership or practice
of the Company and any of its Affiliates.
"Indentures" is defined in the Recitals.
"Initial Purchasers" means Goldman, Sachs & Co., Credit Lyonnais (USA) Inc., ING
Financial Markets LLC, Scotia Capital (USA) Inc. and TD Securities (USA) Inc.
"Initial Term Loan" means an Initial Term Loan made by a Lender to the Company
pursuant to Section 2.1(a) (Term Loans).
"Initial Term Loan Commitment" means the commitment of a Lender to make or
otherwise fund an Initial Term Loan and "Initial Term Loan Commitments" means
such commitments of all Lenders in the aggregate. The amount of each Lender's
Initial Term Loan Commitment, if any, is set forth on Appendix A, on Schedule 1
to the Lender Addendum delivered by such Lender or in the applicable Assignment
Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the Initial Term Loan Commitments as
of the Closing Date is $750,000,000.
"Initial Notes" is defined in the Recitals.
"Insolvency Proceeding" means:
(1) any proceeding for the reorganization, recapitalization or
adjustment or marshalling of the assets or liabilities of the Company
or any other Obligor, any receivership or assignment for the benefit of
creditors relating to the Company or any other Obligor or any similar
case or proceeding relative to the Company or any other Obligor or its
creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or
liabilities or other winding up of or relating to the Company or any
other Obligor, in each case whether or not voluntary and whether or not
involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which
substantially all claims of creditors of the Company or any other
Obligor are determined and any payment or distribution is or may be
made on account of such claims.
"Interest Payment Date" means with respect to (i) any Base Rate Loan, each April
15, July 15, October 15 and January 15 of each year, commencing on the first
such date to occur after the Closing Date and the final maturity date of such
Term Loan; and (ii) any Eurodollar Rate Loan,
21
the last day of each Interest Period applicable to such Term Loan; provided, in
the case of each Interest Period of longer than three months "Interest Payment
Date" shall also include each date that is three months, or an integral multiple
thereof, after the commencement of such Interest Period.
"Interest Period" means, in connection with a Eurodollar Rate Loan, an interest
period of one, two, three or six months, as selected by the Company in the
applicable Funding Notice or Conversion/Continuation Notice, (i) initially,
commencing on the Credit Date or Conversion/Continuation Date; and (ii)
thereafter, commencing on the day on which the immediately preceding Interest
Period expires; provided, (a) if an Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day unless no further Business Day occurs in such month, in
which case such Interest Period shall expire on the immediately preceding
Business Day; (b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall, subject to
clause (c), of this definition, end on the last Business Day of a calendar
month; and (c) no Interest shall extend beyond the Maturity Date.
"Interest Rate Determination Date" means, with respect to any Interest Period,
the date that is two Business Days prior to the first day of such Interest
Period.
"Investment Grade Rating" means a rating equal to or higher than Baa3 (or the
equivalent) by Moody's or BBB- (or the equivalent) by S&P.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the Fair Market
Value of the Company's Investments in such Subsidiary that were not sold or
disposed of in an amount determined as provided in Section 5.07. Except as
otherwise provided in this Agreement, the amount of an Investment shall be
determined at the time the Investment is made and without giving effect to
subsequent changes in value.
"Lender" means each financial institution listed on the signature pages hereto
as a Lender, and any other Person that becomes a party hereto pursuant to an
Assignment Agreement or a Lender Joinder Agreement.
22
"Lender Addendum" means with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit E to be executed and delivered by such
Lender on the Closing Date as provided in Section 13.06(j).
"Lender Joinder Agreement" means an agreement substantially in the form of
Exhibit F
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
"Magic Valley Generating Assets" means the Magic Valley Generating Station, a
natural gas fired power plant in commercial operation in Edinburg, Texas.
"Material Adverse Effect" has the meaning in Section 2(o) of the Purchase
Agreement.
"Material Designated Assets" means Designated Assets having a Fair Market Value
in the aggregate in excess of $50.0 million.
"Maturity Date" means the earlier of (i) July 16, 2007, and (ii) the date that
all Term Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.
"Moody's" means Moody's Investors Service, Inc. (or, if such entity ceases to
rate the Term Loans for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any other "nationally recognized
statistical rating organization" (or successor concept) within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act (or successor provision)
selected by the Company as a replacement agency).
"Mortgages" the mortgages or deeds of trust listed on Schedule 1.01(a) hereto.
"Net Income" means, with respect to any specified Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, without duplication:
(1) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with: (a) any Asset Sale; or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment
of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any
related provision for taxes on such extraordinary gain (but not loss).
23
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale, including legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a result of the Asset
Sale, taxes paid or payable as a result of the Asset Sale, in each case, after
taking into account any available tax credits or deductions and any tax sharing
arrangements, and amounts required to be applied to the repayment of
Indebtedness, other than Priority Debt, secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Credit Facility" means the senior secured credit facility provided under
the Credit Agreement providing for up to $500.0 million of revolving credit and
term loan borrowings, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, restated, modified, renewed, refunded, replaced or
refinanced (including by means of sales of debt securities to institutional
investors) in whole or in part from time to time.
"Non-Recourse Debt" means Indebtedness of any Restricted Subsidiary that is
incurred to finance the exploration, drilling, development, construction or
purchase of or by, or repairs, improvements or additions to, property or assets
of the Company or any Restricted Subsidiary; provided that such Indebtedness is
without recourse to the Company (except as permitted by clause (8) of the
definition of Permitted Debt) or any Restricted Subsidiary or to any property or
assets of the Company or any Restricted Subsidiary other than property or assets
(including Capital Stock) of a Restricted Subsidiary subject to a Lien permitted
pursuant to clause (8) of the definition of Permitted Liens or property or
assets (including Capital Stock) of a Restricted Subsidiary subject to a Lien
permitted pursuant to clause (19) of the definition of Permitted Liens.
"Note Documents" means each Indenture, each of the Notes, each Sharing
Confirmation and the Security Documents.
"Note Obligations" means each of the Notes (including any Additional Notes
issued under the applicable Indenture) and all other Obligations of any Obligor
under the applicable Indenture, the applicable Notes (including any Additional
Notes issued under the applicable Indenture) and the Security Documents.
"Notes" means the Initial Notes and any Additional Notes.
"Notice" means a Funding Notice or a Conversion/Continuation Notice.
"Obligations" means any principal, interest (including any interest accruing at
the then applicable rate provided in any applicable Secured Debt Document after
the maturity of the Indebtedness thereunder and any reimbursement obligations
therein and interest accruing at the then applicable rate provided in any
applicable Secured Debt Document after the filing of any
24
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Company, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Obligor" means the Company and each Restricted Subsidiary of the Company (if
any) that at any time guarantees or provides collateral security or credit
support for any Secured Obligations.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company by
two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 13.21
hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Administrative Agent, that meets the requirements of Section
13.21 hereof. The counsel may be an employee of, or counsel to, the Company, any
Subsidiary of the Company or the Administrative Agent.
"Parity Debt Representative" means:
(1) in the case of any of the Notes, the applicable Trustee;
(2) in the case of the Term Loans, the Administrative Agent;
or
(3) in the case of any other Series of Parity Debt, the
trustee, agent or representative of the holders of such Series of
Parity Lien Debt who maintains the transfer register for such Series of
Parity Lien Debt and is appointed as a Parity Debt Representative (for
purposes related to the administration of the Security Documents)
pursuant to the indenture or other agreement governing such Series of
Parity Lien Debt.
"Parity Lien" means a Lien granted by a Security Document to the
Collateral Trustee upon any property of the Company or any other Obligor to
secure Parity Lien Obligations.
"Parity Lien Debt" means:
(1) the Notes;
(2) the Term Loans; and
(3) any other Indebtedness (including Additional Notes and
Additional Term Loans) that:
25
(A) is permitted to be incurred by the covenant described
under Section 5.09 herein; and
(B) is permitted to be secured by Parity Liens by
clause (2) of the definition of Permitted Liens;
provided, in the case of each issue or series of Indebtedness referred
to in this clause (3), that:
(i) on or before the date on which such Indebtedness was
incurred by the Company such Indebtedness is designated by the Company,
in an officers' certificate delivered to each Parity Debt
Representative and the Collateral Trustee on or before such date, as
Parity Lien Debt for the purposes of this Agreement and the Collateral
Trust Agreement,
(ii) such Indebtedness is governed by an indenture or other
agreement that includes a Sharing Confirmation and
(iii) all requirements set forth in the Collateral Trust
Agreement as to the confirmation, grant or perfection of the Collateral
Trustee's Liens to secure such Indebtedness or Obligations in respect
thereof are satisfied
(and the satisfaction of such requirements and the other provisions of
this clause (3) shall be conclusively established, for purposes of
entitling the holders of such Indebtedness to share Equally and Ratably
with the other holders of Parity Lien Debt in the benefits and proceeds
of the Collateral Trustee's Liens on the Collateral, if the Company
delivers to the Collateral Trustee an officers' certificate in the form
required pursuant to the Collateral Trust Agreement stating that such
requirements and other provisions have been satisfied and that such
Indebtedness is Parity Lien Debt, together with an Opinion of Counsel
stating that such officers' certificate has been duly authorized by the
Board of Directors of the Company and has been duly executed and
delivered, and the holders of such Indebtedness and Obligations in
respect thereof shall be entitled to rely conclusively thereon).
"Parity Lien Debt Documents" means, collectively, the Term Loan
Documents, the Note Documents, and the indenture or agreement governing each
other Series of Parity Lien Debt and all agreements binding on any Obligor
related thereto.
"Parity Lien Obligations" means Parity Lien Debt and all other
Obligations in respect thereof.
"Permitted Business" means the business of acquiring, constructing, managing,
developing, improving, owning and operating Facilities, as well as any other
activities reasonably related to the foregoing activities (including acquiring
and holding reserves), including investing in Facilities.
26
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 5.10 herein;
(5) any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than Disqualified
Stock) of the Company;
(6) any Investments received in compromise or resolution of
(A) obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes
with Persons who are not Affiliates;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary course
of business consistent with past practices of the Company or such
Restricted Subsidiary in an aggregate principal amount not to exceed
$5.0 million at any one time outstanding;
(9) repurchases of the Notes and repayments of the Term Loans;
and
(10) other Investments in any Person having an aggregate Fair
Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (10)
that are at the time outstanding not to exceed $100.0 million;
provided that Designated Assets held by the Company may not be invested
in, leased to or otherwise transferred to any Restricted Subsidiary;
provided, however, that the Company may transfer proven undeveloped gas
reserves to its Restricted Subsidiaries in
27
the ordinary course of business for consumption in the power generating
business of such Restricted Subsidiaries during the 12-month period
following transfer.
"Permitted Liens" means:
(1) Liens on assets of the Company or any Canadian Guarantor
securing Obligations of the Company or such Canadian Guarantor under
one or more Credit Facilities in an aggregate amount not exceeding the
Priority Lien Cap;
(2) Liens held by the Collateral Trustee Equally and Ratably
securing the Initial Notes and the Term Loans to be issued on the date
of this Agreement and all future Parity Lien Debt and other Parity Lien
Obligations; provided that the Collateral Trustee's Liens may secure
Parity Lien Debt incurred after the date of this Agreement or
Obligations in respect thereof only if, on the date of the incurrence
of such Parity Lien Debt, after giving pro forma effect to the
incurrence thereof and the application of the proceeds therefrom, the
Secured Leverage Ratio is not greater than 2.75:1.0;
(3) Liens in favor of the Company;
(4) Pledges or deposits made under workers' compensation,
unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for
payment of Indebtedness) or leases to which such Person is a party, and
Liens or deposits to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business;
(5) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of the definition of Permitted
Debt covering only the assets acquired, designed, constructed,
installed or improved with or financed by such Indebtedness;
(6) Liens existing on the date of this Agreement;
(7) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Company or a Restricted Subsidiary;
(8) (A) Liens on assets or property of a Restricted Subsidiary
(other than Material Designated Assets) incurred by any Restricted
Subsidiary to secure Indebtedness of such Restricted Subsidiary
incurred to finance the exploration, drilling, development,
construction or purchase of or by, or repairs, improvements or
additions to, property or assets of the Company or such Restricted
Subsidiary, which Liens may include Liens on the Capital Stock of such
Restricted Subsidiary (other than a Restricted Subsidiary that (i) is a
direct Subsidiary of the Company or (ii) owns, directly or indirectly,
Material Designated Assets), (B) Liens (other than Liens on Material
Designated Assets) incurred by any Restricted Subsidiary that does not
own, directly or indirectly, at the time of original incurrence of such
a Lien under this clause (B) any Material Designated Assets
28
or any operating properties or assets, securing Indebtedness incurred
to finance the exploration, drilling, development, construction or
purchase of or by, or repairs, improvements or additions to, property
or assets of any Restricted Subsidiary that does not, directly or
indirectly, own any operating properties or assets at the time of the
original incurrence of such Lien, which Liens contemplated by this
clause (8) may include Liens on the Capital Stock of one or more
Restricted Subsidiaries that (i) are not direct Subsidiaries of the
Company and (ii) do not, directly or indirectly, own any Material
Designated Assets or operating properties or assets at the time of
original incurrence of such Lien; or (C) without duplication, Liens
(other than Liens on Material Designated Assets) incurred by any
Restricted Subsidiary (which Liens may include Liens on the Capital
Stock of such Restricted Subsidiary so long as the Capital Stock of
such Restricted Subsidiary is not pledged as Collateral) that owns as
of the date of this Agreement one or more of the peaking power plants
(and no other significant assets) constructed for the purpose of
providing peaking capacity and energy to the California Department of
Water Resources; provided, that the Indebtedness secured by any such
Lien contemplated by this clause (8) may not be issued more than 365
days (or, in the case of clause (C) above, two years) after the later
of the exploration, drilling, development, completion of construction,
purchase, repair, improvement, addition or commencement of full
commercial operation of the property or asset being so financed;
(9) Liens on property or shares of Capital Stock of a
Subsidiary at the time such Person becomes a Subsidiary; provided that
any such Lien may not extend to any other property owned by the
Company;
(10) Liens on property at the time a Subsidiary acquires the
property, including any acquisition by means of a merger or
consolidation with or into the Subsidiary; provided that such Liens are
not incurred in connection with, or in contemplation of, such merger or
consolidation; and provided, further, that the Lien may not extend to
any other property owned by the Company or any Restricted Subsidiary;
(11) Liens incurred by a Person other than the Company or any
Subsidiary on assets that are the subject of a Capitalized Lease
Obligation to which the Company or a Subsidiary is a party; provided
that any such Lien may not secure Indebtedness of the Company or any
Subsidiary (except Indebtedness secured by a Lien on any property or
assets of the Company or such Subsidiary incurred in connection with
Indebtedness of another Person), with the amount of such obligation
being deemed to be the lesser of the value of such property or assets
or the amount of the obligation so secured) and may not extend to any
other property owned by the Company or any Restricted Subsidiary;
(12) Liens on assets of the Company Construction Finance
Company, L.P. (and/or any other Restricted Subsidiary that subsequently
owns any such assets) relating to the Magic Valley Generating Station;
29
(13) Liens not in respect of Indebtedness arising from Uniform
Commercial Code financing statements for informational purposes with
respect to leases incurred in the ordinary course of business and not
otherwise prohibited by this Agreement;
(14) Liens not in respect of Indebtedness consisting of the
interest of the lessor under any lease entered into in the ordinary
course of business and not otherwise prohibited by this Agreement; and
Liens on shares of Capital Stock of a subsidiary that does not own any
significant assets other than a lessee's interest in a Facility or on
the Capital Stock of a subsidiary whose only significant asset is its
direct or indirect interest in such lessee subsidiary; provided that in
no event shall this clause (14) allow a lien on any Capital Stock
constituting Collateral;
(15) Liens which constitute banker's liens, rights of set-off
or similar rights and remedies as to deposit accounts or other funds
maintained with any bank or other financial institution, whether
arising by operation of law or pursuant to contract;
(16) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; provided that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor;
(17) Liens imposed by law such as carriers', warehousemen's
and mechanics' Liens, in each case, arising in the ordinary course of
business and with respect to amounts not yet due or being contested in
good faith by appropriate legal proceedings promptly instituted and
diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall
have been made; or other Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be
diligently prosecuting appeal or other proceedings for review;
(18) survey exceptions, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of real property or Liens incidental
to the conduct of the business of the Company or any Restricted
Subsidiary or to the ownership of its properties that were not incurred
in connection with Indebtedness and that do not in the aggregate
materially adversely affect the value of said properties or materially
impair their use in the operation of the business of the Company or any
Restricted Subsidiary;
(19) Liens to secure any refinancing, refunding, extension,
renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses
(6), (8), (9) and (10); provided that (A) such new Lien shall be
limited to all or part of the same property or assets that secured the
original Lien (plus repairs, improvements and additions to such
property or assets and Liens on the stock or other ownership interest
in one or more Restricted Subsidiaries beneficially owning such
property or assets) and (B)
30
the amount of the Indebtedness secured by such Lien at such time (or,
if the amount that may be realized in respect of such Lien is limited,
by contract or otherwise, such limited lesser amount) is not increased
(other than by an amount necessary to pay fees and expenses, including
premiums, related to the refinancing, refunding, extension, renewal or
replacement of such Indebtedness);
(20) Liens on assets of Restricted Subsidiaries to secure
letters of credit issued pursuant to clause (14) of the definition of
Permitted Debt; provided if and to the extent such letters of credit
are drawn upon, such drawing is reimbursed no later than the tenth
Business Day following a demand for reimbursement following payment on
the letter of credit and Liens to secure letters of credit incurred
pursuant to clause (15) of the definition of Permitted Debt on cash
Collateral constituting the proceeds of Priority Lien Debt;
(21) Liens (A) on cash and short-term investments of
Restricted Subsidiaries to secure obligations with respect to (i)
contracts for commercial and trading activities in the ordinary course
of business and contracts (including physical delivery, option (whether
cash or financial), exchange, swap and futures contracts) for the
purchase, transmission, distribution, sale, lease or hedge of any
energy-related commodity or service or (ii) interest rate, commodity
price, or currency rate management contracts or derivatives and (B)
encumbering assets of a Restricted Subsidiary, other than (i) Material
Designated Assets or (ii) accounts or receivables, which Liens arise
out of contracts or agreements relating to the generation, distribution
or transmission or sale of energy and/or fuel; provided that all such
agreements or contracts are entered into in the ordinary course of
business; and
(22) other Liens to secure Indebtedness in an aggregate amount
not to exceed $50.0 million at any time outstanding.
"Permitted Prior Liens" means (a) Liens securing Priority Lien Obligations not
exceeding the Priority Lien Cap, (b) Liens described in clauses (5), (6), (10)
or (11) of the definition of "Permitted Liens" and (c) Liens that arise by
operation of law and are not voluntarily granted, to the extent entitled by law
to priority over the security interests created by the Security Documents.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company or
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
or accumulated interest on the Indebtedness and the amount of
31
all fees, costs, expenses and premiums, including swap breakage and
defeasance costs, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; provided that such
Permitted Refinancing Indebtedness may have such shorter final maturity
date and Weighted Average Life to Maturity as is equal to or greater
than the latest maturity date of any Term Loans borrowed under this
Agreement; and
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Term Loans, such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and is
subordinated in right of payment to, the Term Loans on terms at least
as favorable to the Lenders as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
provided that Permitted Refinancing Indebtedness shall not include (A)
Indebtedness of the Company incurred to refinance Non-Recourse Debt of a
Restricted Subsidiary, (B) Indebtedness of a Restricted Subsidiary of the
Company that refinances Indebtedness of the Company or (C) Indebtedness of the
Company or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Pledged Subsidiaries" means the first-tier subsidiaries listed on Schedule
1.01(b) hereto.
"preferred stock" means any Capital Stock of a Person, however designated, which
entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of the
other Capital Stock issued by such Person.
"Prime Rate" means the rate of interest per annum that Goldman Sachs Credit
Partners L.P. announces from time to time as its prime lending rate, as in
effect from time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
Goldman Sachs Credit Partners L.P. or any other Lender may make commercial loans
or other loans at rates of interest at, above or below the Prime Rate.
"Principal Office" means, for the Administrative Agent, its "Principal Office"
as set forth on Appendix B, or such other office as the Administrative Agent may
from time to time designate in writing to the Company, the Administrative Agent
and each Lender.
32
"Priority Lien" means a Lien granted by a Security Document to the Collateral
Trustee upon any property of the Company or any other Obligor to secure Priority
Lien Obligations not exceeding the Priority Lien Cap.
"Priority Lien Agent" means the Credit Agreement Agent or any other agent for
holders of Priority Lien Debt.
"Priority Lien Cap" means an amount equal to (a) the Indebtedness outstanding
under the Credit Agreement or any other Credit Facility in an aggregate
principal amount not exceeding the greater of (1) $500.0 million, less the
amount of any Net Proceeds of a Sale of Designated Assets applied to repay
Priority Lien Debt and/or cash collateralize letters of credit that constitute
Priority Lien Debt and (2) the dollar amount that, on the date of incurrence of
such Indebtedness, is equal to 50% of the Company's Consolidated Cash Flow for
the then most recent four-quarter period for which financial information is
available, plus (b) any interest (including any interest accruing at the then
applicable rate provided in any applicable Priority Lien Document after the
maturity of the Indebtedness thereunder and any reimbursement obligations
therein and interest accruing at the then applicable rate provided in any
applicable Priority Lien Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), penalties, premiums,
fees, costs, expenses or other Obligations in respect of such Indebtedness. For
purposes of this definition of Priority Lien Cap, all letters of credit shall be
valued at face amount, whether or not drawn, and all letters of credit
denominated in a currency other than U.S. dollars shall be valued at all times
at the Equivalent Amount (as defined in the Credit Agreement) thereof on the
date of issue thereof.
"Priority Lien Debt" means Indebtedness under (a) the Credit Agreement or (b)
any other Credit Facility that is secured by a Priority Lien that was permitted
to be incurred under clause (1) of the definition of "Permitted Liens" but only
if on or before the day on which such Indebtedness under a Credit Facility
described in clause (b) above is incurred by the Company such Indebtedness is
designated by the Company, in an officers' certificate delivered to each Parity
Debt Representative and the Collateral Trustee on or before such date, as
Priority Lien Debt for the purposes of each of the Parity Lien Debt Documents
(including this Agreement) and the Collateral Trust Agreement.
"Priority Lien Documents" means the Credit Agreement or any other Credit
Facility pursuant to which any Priority Lien Debt is incurred and all other
agreements governing, securing or relating to any Priority Lien Obligations.
"Priority Lien Obligations" means the Priority Lien Debt and all other
Obligations in respect of Priority Lien Debt.
"Pro Rata Share" means with respect to all payments, computations and other
matters relating to the Term Loans of any Lender, the percentage obtained by
dividing (A) an amount equal to the aggregate outstanding Term Loans of that
Lender, by (B) an amount equal to the sum of the aggregate amount of outstanding
Term Loans of all Lenders.
33
"Public Equity Offering" means an underwritten primary public offering of the
Company's equity securities pursuant to an effective registration statement
under the Securities Act.
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended.
"Purchase Agreement" means the Purchase Agreement dated July 10, 2003, among the
Company and the Initial Purchasers.
"Regulation A" means Regulation A of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Fund" means, with respect to any Lender that is an investment fund, any
other investment fund that invests in commercial loans and that is managed or
advised by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Requisite Lenders" means one or more Lenders holding more than 50% of the sum
of the aggregate outstanding Term Loans (or, at any time prior to the funding of
the Initial Term Loans, the Initial Term Loan Commitments). For this purpose
only, Term Loans registered in the name of, or beneficially owned by, the
Company or any Affiliate of the Company shall be deemed not to be outstanding.
"Restricted Investment" means an Investment other than a Permitted Investment.
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group (or, if such entity ceases to rate
the Term Loans for reasons outside of the control of the Company, the equivalent
investment grade credit rating from any other "nationally recognized statistical
rating organization" (or successor concept) within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act (or successor provision) selected by
the Company as a replacement agency).
34
"Sale of Designated Assets" means any Asset Sale involving a sale or other
disposition of Designated Assets.
"SEC" means the Securities and Exchange Commission.
"Second Amendment Pledge Agreement" means the Second Amendment Pledge Agreement
dated as of July 16, 2003, between the Company and the Collateral Trustee.
"Secured Debt" means Parity Lien Debt and Priority Lien Debt.
"Secured Debt Documents" means the Parity Lien Debt Documents and the Priority
Lien Documents.
"Secured Debt Representative" means each Parity Debt Representative and the
Priority Lien Agent.
"Secured Leverage Ratio" means, on any date, the ratio of:
(1) the aggregate principal amount of Secured Debt outstanding
on such date (and, for this purpose, letters of credit shall be deemed
to have a principal amount equal to the maximum potential liability of
the Company thereunder) to
(2) the aggregate amount of the Company's Consolidated Cash
Flow for the most recent four-quarter period for which financial
information is available.
In addition, for purposes of calculating the Secured Leverage Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations or acquisitions of assets, or any Person or any of its
Restricted Subsidiaries acquired by merger, consolidation or the
acquisition of all or substantially all of its assets by the specified
Person or any of its Restricted Subsidiaries, and including any related
financing transactions and including increases in ownership of
Restricted Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the date on
which the event for which the calculation of the Secured Leverage Ratio
is made (the "Leverage Calculation Date") shall be given pro forma
effect in accordance with Regulation S-X under the Securities Act) as
if they had occurred on the first day of the four-quarter reference
period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Leverage Calculation Date, shall be excluded;
35
(3) any Person that is a Restricted Subsidiary on the Leverage
Calculation Date shall be deemed to have been a Restricted Subsidiary
at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Leverage Calculation Date shall be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated as if the
rate in effect on the Leverage Calculation Date had been the applicable
rate for the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
"Secured Obligations" means the Parity Lien Obligations and the Priority Lien
Obligations.
"Secured Parties" means any Person, including the Lenders, who is holding a
Secured Obligation (including the Administrative Agent or any other Secured Debt
Representative), at any time.
"Security Documents" means the Guarantee and Collateral Agreement, the First
Amendment Pledge Agreement, the Second Amendment Pledge Agreement, First
Amendment Assignment and Security Agreement, First Amendment Note Pledge
Agreement, the Control Agreement, the Mortgages, the Collateral Trust Agreement
and all other grants or transfers for security, instruments, documents and
agreements delivered by any Obligor pursuant to any Secured Debt Document in
order to grant to the Collateral Trustee for the benefit of the Secured Parties,
a Lien on any Collateral as security for the Secured Obligations, in each case,
as amended, modified, renewed, restated or replaced, in whole or in part, from
time to time, in accordance with its terms.
"Securities Act" means the Securities Act of 1933, as amended.
"Series of Parity Lien Debt" means, severally, each series of the Notes, the
Term Loans and each other issue or series of Parity Lien Debt for which a single
transfer register is maintained.
"Series of Secured Debt" means, severally, each series of Notes, the Term Loans,
each other issue or series of Parity Lien Debt for which a single transfer
register is maintained and each issue or series of Priority Lien Debt for which
a single register is maintained.
"Sharing Confirmation" means, as to any Series of Parity Lien Debt, the written
agreement of the holders of such Series of Parity Lien Debt, as set forth in the
indenture or agreement governing such Series of Parity Lien Debt, for the
enforceable benefit of all holders of each other existing and future Series of
Parity Lien Debt and each existing and future Parity Debt Representative, that
all Parity Lien Obligations shall be and are secured Equally and Ratably by all
Liens at any time granted by the Company or any other Obligor to secure any
Obligations in
36
respect of such Series of Parity Lien Debt, whether or not upon property
otherwise constituting Collateral, that all such Liens shall be enforceable by
the Collateral Trustee for the benefit of all holders of Parity Lien Obligations
Equally and Ratably, and that the holders of Obligations in respect of such
Series of Parity Lien Debt are bound by the provisions in the Collateral Trust
Agreement relating to the order of application of proceeds from enforcement of
the Collateral Trustee's Liens upon the Collateral, and consent to and direct
the Collateral Trustee to perform its obligations under the Collateral Trust
Agreement.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof.
"Sole Lead Arranger" is defined in the Preamble.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of the indenture or other agreement governing
such Indebtedness, and shall not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary" means, as applied to any Person, any corporation, limited or
general partnership, trust, association or other business entity of which an
aggregate of at least 50% of the outstanding Voting Shares, or an equivalent
controlling interest therein, of such Person is, at the time, directly or
indirectly, owned by such Person and/or one or more Subsidiaries of such Person.
"Tax" means any present or future tax, levy, impost, duty, assessment, charge,
fee, deduction or withholding of any nature and whatever called, by whomsoever,
on whomsoever and wherever imposed, levied, collected, withheld or assessed;
provided, "Tax on the overall net income" of a Person shall be construed as a
reference to a tax imposed by the jurisdiction in which that Person is organized
or in which that Person's applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the
case of a Lender, its lending office) is deemed to be doing business on all or
part of the net income, profits or gains (whether worldwide, or only insofar as
such income, profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise) of that Person (and/or, in the case of a
Lender, its applicable lending office).
"Term Loan" means an Initial Term Loan or an Additional Term Loan.
"Term Loan Commitment" means any Initial Term Loan Commitment or Additional Term
Loan Commitment.
"Term Loan Document" means any of this Agreement, the Term Loan Notes, if any,
the Security Documents, each Sharing Confirmation and all other documents,
instruments or agreements
37
executed and delivered by a Obligor for the benefit of any Agent or any Lender
in connection herewith.
"Term Loan Note" means a promissory note in the form of Exhibit G as it may be
amended, supplemented or otherwise modified from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which the Indentures are qualified
under the Trust Indenture Act.
"Trustees" is defined in the Recitals.
"2000 Credit Agreement" means the Second Amended and Restated Credit Agreement,
dated as of May 23, 2000, among the Company, Bayerische Landesbank, as
Co-Arranger and Syndication Agent, The Bank of Nova Scotia, as Lead Arranger and
Administrative Agent, and the Lenders named therein.
"2002 Credit Agreement" means the Credit Agreement, dated as of March 8, 2002,
among the Company, the Lenders named therein, The Bank of Nova Scotia and
Bayerische Landesbank Girozentrale, as lead arrangers and bookrunners, Salomon
Smith Barney Inc. and Deutsche Banc Alex. Brown Inc., as lead arrangers and
bookrunners, Bank of America, National Association, and Credit Suisse First
Boston, Cayman Islands Branch, as lead arrangers and syndication agents, TD
Securities (USA) Inc., as lead arranger, The Bank of Nova Scotia, as joint
administrative agent and funding agent, and Citicorp USA, Inc., as joint
administrative agent .
"Type of Loan" means with respect to any Term Loan, a Base Rate Loan or a
Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is designated
by the Board of Directors as an Unrestricted Subsidiary (and any subsidiary of
an Unrestricted Subsidiary) pursuant to a Board Resolution passed after the date
of this Agreement, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Indebtedness that is
non-recourse to the Company and its Restricted Subsidiaries;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company;
38
(3) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries;
provided, however, that a corporation with no significant
assets created for the sole purpose of serving as a co-obligor to
facilitate a financing by a partnership of a limited liability company
may be designated as an Unrestricted Subsidiary.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Administrative Agent by filing
with the Administrative Agent a certified copy of the Board Resolution
giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the preceding conditions
and was permitted by Section 5.07 herein, regarding Restricted
Payments. If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Agreement and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date and,
if such Indebtedness is not permitted to be incurred as of such date
under Section 5.09 herein, the Company shall be in default of this
Agreement. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (1) such Indebtedness is
permitted under Section 5.09 herein, calculated on a pro forma basis as
if such designation had occurred at the beginning of the four-quarter
reference period; and (2) no Default or Event of Default would be in
existence following such designation.
"U.S." means the United States of America.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years or portion thereof obtained by
dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (b) the number of
years (calculated to the nearest one-twelfth) that shall elapse between
such date and the making of such payment; by
39
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person all of
the outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
- ---------------------------------------------------------------------------------------------------
"Additional Term Loan Borrowing Date".......................................... 2.19
"Additional Term Loan Commitments"............................................. 2.19
"Additional Term Loans"........................................................ 2.19
"Affected Lender".............................................................. 2.15
"Affected Loans"............................................................... 2.15
"Affiliate Transaction" ....................................................... 5.11
"Aggregate Amounts Due"........................................................ 2.14
"Asset Sale Offer"............................................................. 2.11
"Asset Sale Proceeds Account".................................................. 5.10
"Change of Control Offer"...................................................... 5.15
"Change of Control Payment".................................................... 5.15
"Change of Control Payment Date"............................................... 5.15
"Environmental Law"............................................................ 4.01
"ERCOT" ....................................................................... 4.01
"Event of Default"............................................................. 7.01
"EWG" ......................................................................... 4.01
"Exchange Act" ................................................................ 4.01
"Exchange Act Report" ......................................................... 4.01
"Filing Agent"................................................................. 3.01
"Financing Statements"......................................................... 3.01
"FPA" ......................................................................... 4.01
"Funding Guarantor"............................................................ 12.05
"Increased Cost Lenders"....................................................... 2.18
"Indemnitee"................................................................... 13.03
"Installment".................................................................. 2.09
"Installment Date"............................................................. 2.09
"Investment Company Act" ...................................................... 4.01
"Non-Consenting Lender"........................................................ 2.18
"Non-US Lender"................................................................ 2.17
"Offer Amount"................................................................. 2.11
"Offer Period"................................................................. 2.11
"Offering Documents" .......................................................... 4.01
"Oil and Gas Leases" .......................................................... 4.01
"Oil and Gas Properties" ...................................................... 4.01
40
DEFINED IN
TERM SECTION
- ---------------------------------------------------------------------------------------------------
"Payment Default".............................................................. 7.01
"Permitted Debt" .............................................................. 5.09
"Preliminary Offering Circular" ............................................... 4.01
"PUHCA" ....................................................................... 4.01
"PURPA" ....................................................................... 4.01
"QF" .......................................................................... 4.01
"Register"..................................................................... 2.04
"Repayment Date"............................................................... 2.11
"Replacement Lender"........................................................... 2.18
"Restricted Payment" .......................................................... 5.07
"10-K" ........................................................................ 4.01
"Terminated Lender"............................................................ 2.18
"TPUC" ........................................................................ 4.01
"UCC Collateral" .............................................................. 3.01
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(a) A term has the meaning assigned to it;
(b) An accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the plural,
depending on the reference.
(d) Provisions apply to successive events and
transactions.
(e) Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
(f) Any reference to any agreement or instrument shall be
deemed to include a reference to such agreement or instrument as
assigned, amended, amended and restated, supplemented, otherwise
modified from time to time or replaced in accordance with the terms of
this Agreement.
(g) The use in this Agreement or any of the Term Loan
Documents of the word "include" or "including," when following any
general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether
or not nonlimiting language (such as "without limitation" or "but not
limited to" or words
41
of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the
broadest possible scope of such general statement, term or matter. The
word "will" shall be construed to have the same meaning and effect as
the word "shall."
(h) References to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
(i) References to "Sections" and "clauses" shall be to
Sections and clauses, respectively, of this Agreement unless otherwise
specifically provided.
(j) References to "Articles" shall be to Articles of this
Agreement unless otherwise specifically provided.
(k) References to "Exhibits" and "Schedules" shall be to
Exhibits and Schedules, respectively, of this Agreement unless
otherwise specifically provided.
(l) The use in this Agreement of the words "herein,"
"hereof," and "hereunder," and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof.
(m) This Agreement, the other Term Loan Documents and any
documents or instruments delivered pursuant hereto shall be construed
without regard to the identity of the party who drafted the various
provisions of the same. Each and every provision of this Agreement, the
other Term Loan Documents and instruments and documents entered into
and delivered in connection therewith shall be construed as though the
parties participated equally in the drafting of the same. Consequently,
each of the parties acknowledges and agrees that any rule of
construction that a document is to be construed against the drafting
party shall not be applicable either to this Agreement or the other
Term Loan Documents and instruments and documents entered into and
delivered in connection therewith.
ARTICLE II
THE TERM LOANS
SECTION 2.01. Term Loans.
(a) Term Loan Commitments. Subject to the terms and
conditions hereof, each Lender severally agrees to make, on the Closing
Date, an Initial Term Loan to the Company in an amount equal to such
Lender's Initial Term Loan Commitment. The Company may make only one
borrowing under the Initial Term Loan Commitment which shall be on the
Closing Date. Any amount borrowed under this Section and subsequently
42
repaid or prepaid may not be reborrowed. All amounts owed hereunder
with respect to the Initial Term Loans shall be paid in full no later
than the Maturity Date. Each Lender's Initial Term Loan Commitment
shall terminate immediately and without further action on the Closing
Date after giving effect to the funding of such Lender's Initial Term
Loan Commitment on such date.
(b) Borrowing Mechanics for Term Loans.
(i) The Company shall deliver to the
Administrative Agent a fully executed
Funding Notice no later than one Business
Day prior to the Closing Date. Promptly upon
receipt by the Administrative Agent of such
Funding Notice, the Administrative Agent
shall notify each Lender of the proposed
borrowing.
(ii) Each Lender shall make its Term Loan
available to the Administrative Agent not
later than 1:00 p.m. (New York City time) on
the Closing Date, by wire transfer of same
day funds in Dollars, at the Administrative
Agent's Principal Office. Upon satisfaction
or waiver of the conditions precedent
specified herein, the Administrative Agent
shall make the proceeds of the Initial Term
Loans available to the Company on the
Closing Date by causing an amount of same
day funds in Dollars equal to the proceeds
of all such Initial Term Loans received by
the Administrative Agent from Lenders to be
credited to the account of the Company at
the Administrative Agent's Principal Office
or to such other account as may be
designated in writing to the Administrative
Agent by the Company.
(iii) The Term Loans shall be funded on the
Closing Date as Base Rate Loans unless the
Company has requested funding as Eurodollar
Rate Loans upon at least three Business
Days' prior notice and agreed to indemnify
the Lenders for the costs as set forth in
Section 2.15(c) in form and substance
reasonably satisfactory to the
Administrative Agent.
SECTION 2.02. Pro Rata Shares; Availability of Funds.
(a) Pro Rata Shares. All Term Loans shall be made by the
Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in such other Lender's obligation to make a
Term Loan requested hereunder nor shall any Term Loan Commitment of any
Lender be increased or decreased as a result of a default by any other
Lender in such other Lender's obligation to make a Term Loan requested
hereunder.
43
(b) Availability of Funds. Unless the Administrative
Agent shall have been notified by any Lender prior to the applicable
Credit Date that such Lender does not intend to make available to the
Administrative Agent the amount of such Lender's Term Loan requested on
such Credit Date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such
Credit Date and the Administrative Agent may, in its sole discretion,
but shall not be obligated to, make available to the Company a
corresponding amount on such Credit Date. If such corresponding amount
is not in fact made available to the Administrative Agent by such
Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest
thereon, for each day from such Credit Date until the date such amount
is paid to the Administrative Agent, at the customary rate set by the
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. If such Lender does not
pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the
Company and the Company shall immediately pay such corresponding amount
to the Administrative Agent together with interest thereon, for each
day from such Credit Date until the date such amount is paid to the
Administrative Agent, at the rate payable hereunder for Base Rate
Loans. Nothing in this Section 2.02(b) shall be deemed to relieve any
Lender from its obligation to fulfill its Term Loan Commitments
hereunder or to prejudice any rights that the Company may have against
any Lender as a result of any default by such Lender hereunder.
SECTION 2.03. Use of Proceeds. The proceeds of the Initial Term Loans made
on the Closing Date shall be applied by the Company to provide a portion of the
funding required to retire the Existing Senior Secured Credit Facilities, and
the balance of the proceeds shall be applied by the Company for working capital
and general corporate purposes, all in accordance with the terms and provisions
of the Company's then existing credit facilities and indentures. No portion of
the proceeds of any Term Loans shall be used in any manner that causes or might
cause the funding of the Term Loans or the application of such proceeds to
violate Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation thereof or to violate the
Exchange Act.
SECTION 2.04. Evidence of Debt; Register; Lenders' Books and Records; Notes.
(a) Lenders' Evidence of Debt. Each Lender shall maintain
on its internal records an account or accounts evidencing the
Indebtedness of the Company to such Lender, including the amounts of
the Term Loans made by it and each repayment and prepayment in respect
thereof. Any such recordation shall be conclusive and binding on the
Company, absent manifest error; provided, that the failure to make any
such recordation, or any error in such recordation, shall not affect
the Company's Obligations in respect of any Term Loan; and provided
further, in the event of any inconsistency between the Register and any
Lender's records, the recordations in the Register shall govern.
44
(b) Register. The Administrative Agent shall maintain at
its Principal Office a register for the recordation of the names and
addresses of the Lenders and the Term Loans of each Lender from time to
time (the "Register"). The Register shall be available for inspection
by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice. The Administrative Agent shall
record in the Register the Term Loans, and each repayment or prepayment
in respect of the principal amount of the Term Loans, and any such
recordation shall be conclusive and binding on the Company and each
Lender, absent manifest error; provided, that the failure to make any
such recordation, or any error in such recordation, shall not affect
the Company's Obligations in respect of any Term Loan. The Company
hereby designates GSCP to serve as the Company's agent solely for
purposes of maintaining the Register as provided in this Section 2.04,
and the Company hereby agrees that, to the extent GSCP serves in such
capacity, GSCP and its officers, directors, employees, agents and
affiliates shall constitute "Indemnitees."
(c) Term Loan Notes. If so requested by any Lender by
written notice to the Company (with a copy to the Administrative Agent)
at least two Business Days prior to the Closing Date, or at any time
thereafter, the Company shall execute and deliver to such Lender
(and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Lender pursuant to Section 13.06 on
the Closing Date (or, if such notice is delivered after the Closing
Date, promptly after the Company's receipt of such notice)), a Term
Loan Note or Term Loan Notes to evidence such Lender's Initial Term
Loan.
SECTION 2.05. Interest.
(a) Except as otherwise set forth herein (and, in the
case only of Additional Term Loans, except as may be otherwise agreed
pursuant to any written agreement between the Company and the Lenders
funding Additional Term Loans), Term Loans shall bear interest on the
unpaid principal amount thereof from the date made through repayment
(whether by acceleration or otherwise) thereof as follows:
(i) if a Base Rate Loan, at the Base Rate plus
4.75% per annum; or
(ii) if a Eurodollar Rate Loan, at the Adjusted
Eurodollar Rate plus 5.75% per annum.
(b) The basis for determining the rate of interest with
respect to any Term Loan, and the Interest Period with respect to any
Eurodollar Rate Loan, shall be selected by the Company and notified to
the Administrative Agent and the Lenders pursuant to the applicable
Funding Notice or Conversion/Continuation Notice, as the case may be.
If on any day a Term Loan is outstanding with respect to which a
Funding Notice or Conversion/Continuation Notice has not been delivered
to the Administrative Agent in accordance with the terms hereof
specifying the applicable basis for determining the rate of interest,
then for that day such Term Loan shall be a Base Rate Loan.
45
(c) In connection with Eurodollar Rate Loans there shall
be no more than five (5) Interest Periods outstanding at any time. In
the event that the Company fails to specify between a Base Rate Loan or
a Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, such Term Loan (if outstanding as a
Eurodollar Rate Loan) shall be automatically converted into a Base Rate
Loan on the last day of the then-current Interest Period for such Term
Loan (or if outstanding as a Base Rate Loan shall remain as, or (if not
then outstanding) shall be made as, a Base Rate Loan). In the event
that the Company fails to specify an Interest Period for any Eurodollar
Rate Loan in the applicable Funding Notice or Conversion/Continuation
Notice, Company shall be deemed to have selected an Interest Period of
one month. As soon as practicable after 10:00 a.m. (New York City time)
on each Interest Rate Determination Date, the Administrative Agent
shall determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is
then being determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by telephone confirmed in
writing) to the Company and each Lender.
(d) Interest payable pursuant to Section 2.05(a) shall be
computed (i) in the case of Base Rate Loans on the basis of a 365-day
or 366-day year, as the case may be, and (ii) in the case of Eurodollar
Rate Loans, on the basis of a 360-day year, in each case for the actual
number of days elapsed in the period during which it accrues. In
computing interest on any Term Loan, the date of the making of such
Term Loan or the first day of an Interest Period applicable to such
Term Loan or, with respect to a Base Rate Loan being converted from a
Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate
Loan to such Base Rate Loan, as the case may be, shall be included, and
the date of payment of such Term Loan or the expiration date of an
Interest Period applicable to such Term Loan or, with respect to a Base
Rate Loan being converted to a Eurodollar Rate Loan, the date of
conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided, if a Term Loan is repaid on
the same day on which it is made, one day's interest shall be paid on
that Term Loan.
(e) Except as otherwise set forth herein, interest on
each Term Loan shall be payable in arrears on and to (i) each Interest
Payment Date applicable to that Term Loan; (ii) upon any prepayment of
that Term Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid; and (iii) at maturity, including final
maturity; provided, however, with respect to any voluntary prepayment
of a Base Rate Loan, accrued interest shall instead be payable on the
applicable Interest Payment Date.
SECTION 2.06. Conversion/Continuation.
(a) Subject to Section 2.15 and so long as no Default or
Event of Default shall have occurred and then be continuing, the
Company shall have the option:
(i) to convert at any time all or any part of
any Term Loan equal to $5,000,000 and
integral multiples of $1,000,000 in excess
of that
46
amount from one Type of Term Loan to another
Type of Loan; provided, a Eurodollar Rate
Loan may only be converted on the expiration
of the Interest Period applicable to such
Eurodollar Rate Loan unless the Company
shall pay all amounts due under Section 2.15
in connection with any such conversion; or
(ii) upon the expiration of any Interest Period
applicable to any Eurodollar Rate Loan, to
continue all or any portion of such Term
Loan equal to $5,000,000 and integral
multiples of $1,000,000 in excess of that
amount as a Eurodollar Rate Loan.
(b) The Company shall deliver a Conversion/Continuation
Notice to the Administrative Agent no later than 10:00 a.m. (New York
City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and
at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided
herein, a Conversion/Continuation Notice for conversion to, or
continuation of, any Eurodollar Rate Loans (or telephonic notice in
lieu thereof) shall be irrevocable on and after the related Interest
Rate Determination Date, and the Company shall be bound to effect a
conversion or continuation in accordance therewith.
SECTION 2.07. Default Interest. If all or a portion of the principal amount
of the Term Loans shall not be paid when due, such overdue principal amount of
Term Loans shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate that is 2.00% per annum in excess of the interest
rate otherwise payable hereunder with respect to the applicable Term Loans;
provided, in the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate which is 2.00% per
annum in excess of the interest rate otherwise payable hereunder for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in
this Section 2.07 is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any
rights or remedies of the Administrative Agent or any Lender.
SECTION 2.08. Fees. The Company agrees to pay to the Agents such fees in the
amounts and at the times separately agreed upon.
SECTION 2.09. Scheduled Payments/Commitment Reductions.
(a) Scheduled Installments. The principal amounts of the
Initial Term Loans shall be repaid in consecutive quarterly
installments (each, an "Installment") in an amount equal to the
aggregate principal amount of Initial Term Loans made on the
47
Closing Date multiplied by the percentage set forth below opposite the
fiscal quarter on the last day of such fiscal quarter (each, an
"Installment Date"):
- ----------------------------------------------------------
Fiscal Quarter Percentage
- ----------------------------------------------------------
October 15, 2003 0.25%
- ----------------------------------------------------------
January 15, 2004 0.25%
- ----------------------------------------------------------
April 15, 2004 0.25%
- ----------------------------------------------------------
July 15, 2004 0.25%
- ----------------------------------------------------------
October 15, 2004 0.25%
- ----------------------------------------------------------
January 15, 2005 0.25%
- ----------------------------------------------------------
April 15, 2005 0.25%
- ----------------------------------------------------------
July 15, 2005 0.25%
- ----------------------------------------------------------
October 15, 2005 0.25%
- ----------------------------------------------------------
January 15, 2006 0.25%
- ----------------------------------------------------------
April 15, 2006 0.25%
- ----------------------------------------------------------
July 15, 2006 0.25%
- ----------------------------------------------------------
October 15, 2006 0.25%
- ----------------------------------------------------------
January 15, 2007 0.25%
- ----------------------------------------------------------
April 15, 2007 0.25%
- ----------------------------------------------------------
July 15, 2007 96.25%
- ----------------------------------------------------------
48
If any Additional Term Loans are made, such Additional Term Loans shall be
repaid on each Installment Date occurring on or after the applicable date on
which such Additional Term Loans are funded in an amount equal to (i) the
aggregate principal amount of Additional Term Loans, multiplied by (ii) the
ratio (expressed as a percentage) of (y) the amount of all other Initial Term
Loans being repaid on such Installment Date and (z) the total aggregate
principal amount of all other Initial Term Loans outstanding on such funding
date.
Notwithstanding the foregoing, (x) such Installments shall be reduced in
connection with any voluntary or mandatory prepayments of the Initial Term
Loans, in accordance with Sections 2.10, 5.10 and 5.15, as applicable; and (y)
the Term Loans, together with all other amounts owed hereunder with respect
thereto, shall, in any event, be paid in full no later than the Maturity Date.
SECTION 2.10. Voluntary Prepayments.
(a) Voluntary Prepayments.
(i) The Company may not voluntarily prepay Term
Loans except as provided in clause (b)
below. In the event of any voluntary
prepayment in accordance with clause (b),
the Company may prepay any such Term Loans
on any Business Day in whole or in part, in
an aggregate minimum amount of $1,000,000
and integral multiples of $500,000 in excess
of that amount.
(ii) All such prepayments shall be made:
(A) upon not less than one Business
Day's prior written or telephonic notice in the case of Base
Rate Loans;
(B) upon not less than three Business
Days' prior written or telephonic notice in the case of
Eurodollar Rate Loans; and
in each case given to the Administrative Agent by 1:00 p.m. (New York City time)
on the date required and, if given by telephone, promptly confirmed in writing
to the Administrative Agent (and the Administrative Agent shall promptly
transmit such telephonic or original notice for Term Loans, by telefacsimile or
telephone to each Lender). Upon the giving of any such notice, the principal
amount of the Term Loans specified in such notice shall become due and payable
on the prepayment date specified therein. Any prepayment of any Term Loan
pursuant to this Section shall be applied on a pro rata basis among the Lenders
and applied to reduce the scheduled remaining Installments of principal on such
Term Loan in inverse order of maturity.
(b) Term Loan Call Protection.
(i) The Company may not voluntarily prepay the
Term Loans prior to July 15, 2005, except
that the Company may on any one or more
occasions make such prepayment with the
proceeds of one or more Public Equity
Offerings as set forth in this clause (i).
In the event that for any reason the Term
Loans are voluntarily prepaid prior to July
15, 2005, the Company shall pay the Lenders
a prepayment premium equal to a percentage
of the principal amount of the Term
49
Loans being prepaid, such percentage equal
to the lesser of (1) the applicable per
annum interest rate pursuant to Section
2.05(a)(i) for the day on which such
prepayment shall occur and (2) the
applicable per annum interest rate pursuant
to Section 2.05(a)(ii) for a one month
Interest Period beginning on the day on
which such prepayment shall occur; provided
that:
(A) prior to July 15, 2005, the Company
shall not be permitted to prepay the Term Loans having a
principal amount greater than 35% of the aggregate principal
amount of Term Loans extended under this Agreement since the
Closing Date;
(B) the Company may elect to make such
prepayment only with the net cash proceeds of one or more
Public Equity Offerings; and
(C) each such prepayment must occur
within 45 days of the closing of such Public Equity Offering;
In the event that for any reason the Term Loans are voluntarily prepaid
on or after July 15, 2005, the Company shall pay to Lenders a prepayment premium
equal to the percentage set forth below opposite the period in which such
prepayment shall occur multiplied by the principal amount of the Term Loans
being prepaid. Term Loans may be prepaid without prepayment premium after July
15, 2006.
- --------------------------------------------------------
Year Ending on Percentage
- --------------------------------------------------------
July 15, 2006 3.00%
- --------------------------------------------------------
(c) Notwithstanding anything to the contrary contained in
this Section 2.10 or any other provision of this Agreement, so long as
(i) there is no Default or Event of Default and (ii) no Event of
Default or Default would result therefrom, the Company may purchase all
or any portion of any Term Loan of any Lender pursuant to an agreement
between the Company and such Lender and such purchase shall not be
deemed to be a voluntary prepayment hereunder; provided that the
Company promptly provides a copy of such agreement to the
Administrative Agent. The Company shall not make any purchase of a Term
Loan from a Lender otherwise permitted by this Section 2.10(c) if, at
the time of such purchase, a repurchase of outstanding Notes by the
Company without additional disclosure by the Company to the holder of
such Notes would result in a violation by the Company of Rule 10b-5 of
the Exchange Act unless, prior to any such purchase of any Term Loans,
such additional disclosure is made by the Company to such Lender.
Notwithstanding the provisions of the preceding sentence, the Company,
the Lenders and the Agents hereby agree that nothing in this Section
2.10(c) shall be understood to mean or suggest that the Term Loans
constitute "securities" for
50
purposes of either the Securities Act or the Exchange Act. Following
any purchase pursuant to this Section 2.10(c), the Term Loans so
purchased shall be disregarded and not deemed outstanding (as to which
the Company hereby agrees) for purposes of (i) the making of, or the
application of, any payments to the Lenders under this Agreement or any
other Term Loan Documents, (ii) the making of any request, demand,
authorization, direction, notice, consent or waiver under this
Agreement or any other Term Loan Documents or (iii) the determination
of Requisite Lenders, or for any similar or related purpose, under this
Agreement or any other Term Loan Documents. Failure by the Company to
make any payment to a Lender required by an agreement permitted by this
Section 2.10(c) shall not constitute an Event of Default under Section
7.01.
SECTION 2.11. Mandatory Offers.
(a) If the Company is required to prepay any Term Loans
by reason of any Lender's acceptance of an Asset Sale Offer, the amount
payable to such Lender shall be paid to the Administrative Agent for
account of such Lender and credited to the remaining installments to
become due on the Term Loans outstanding to such Lender. Any prepayment
of any Term Loan pursuant hereto shall be applied to reduce the
scheduled remaining Installments of principal on such Term Loan of such
Lender in inverse order of maturity.
(b) In the event that, pursuant to Section 5.10 hereof,
the Company shall be required to commence an offer to all Lenders to
repay Term Loans (an "Asset Sale Offer"), it shall follow the
procedures specified below.
51
(i) The Asset Sale Offer shall remain open for a
period of 20 Business Days following its
commencement and no longer, except to the
extent that a longer period is required by
applicable law (the "Offer Period"). No
later than five Business Days after the
termination of the Offer Period (the
"Repayment Date"), the Company shall repay
the principal amount of Term Loans required
to be purchased pursuant to Section 5.10
hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Term
Loans for which repayment was requested in
response to the Asset Sale Offer. Payment
for any Term Loans shall be made in the same
manner as interest payments are made.
(ii) Upon the commencement of an Asset Sale
Offer, the Company shall send a notice to
the Administrative Agent (for delivery to
each Lender). The notice shall contain all
instructions and materials necessary to
enable such Lenders to request repayment for
the Term Loans pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to
all Lenders. The notice, which shall govern
the terms of the Asset Sale Offer, shall
state:
(A) that the Asset Sale Offer is being
made pursuant to this Section 2.11 and Section 5.10 hereof and
the length of time the Asset Sale Offer shall remain open;
(B) the Offer Amount, the purchase
price and the Repayment Date;
(C) that any Term Loan for which
repayment is not requested or accepted for repayment shall
continue to accrete or accrue interest;
(D) that, unless the Company defaults
in making such payment, any Term Loan accepted for payment
pursuant to the Asset Sale Offer shall cease to accrete or
accrue interest after the Repayment Date;
(E) that Lenders electing to have Term
Loans repaid pursuant to an Asset Sale Offer may only elect to
have all of Term Loans repaid and may not elect to have only a
portion of its Term Loans;
(F) that Lenders shall be entitled to
withdraw their request if the Company, or the Administrative
Agent, as the case may be, receives, not later than the
expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Lender,
the principal amount of the Term Loans for which the Lender
requested repayment and a statement that such Lender is
withdrawing his request to have Term Loans repaid; and
52
(G) that, if the aggregate principal
amount of Term Loans for which repayment is requested by
Lenders exceeds the Offer Amount, the Administrative shall
select the Term Loans to be purchased on a pro rata basis.
(iii) On or before the Repayment Date, the Company
shall, to the extent lawful, accept for
payment, on a pro rata basis to the extent
necessary, the Offer Amount of Term Loans or
portions thereof for which repayment is
requested pursuant to the Asset Sale Offer,
or if repayment for Term Loans in an
aggregate amount less than the Offer Amount
have been requested, all Term Loans for
which repayment is requested, and shall
deliver to the Administrative Agent (for
delivery to the Lenders) an Officers'
Certificate stating that such Term Loans or
portions thereof were accepted for payment
by the Company in accordance with the terms
of this Section 2.11. The Company shall
promptly (but in any case not later than
five days after the Repayment Date) deliver
to the Administrative Agent for the account
of each Lender for which repayment is
requested an amount equal to all outstanding
amounts under the Term Loans for which
repayment is requested by all Lenders that
were accepted by the Company for repayment.
The Administrative Agent shall promptly
forward the appropriate amount to each
Lender being repaid.
SECTION 2.12. Application of Prepayments. Any prepayment of Term Loans shall
be applied first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner which minimizes
the amount of any payments required to be made by the Company pursuant to
Section 2.15(c).
SECTION 2.13. General Provisions Regarding Payments.
(a) All payments by the Company of principal, interest,
fees and other Term Loan Obligations shall be made in Dollars in same
day funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to the Administrative Agent not
later than 1:00 p.m. (New York City time) on the date due at the
Administrative Agent's Principal Office for the account of Lenders.
Funds received by the Administrative Agent after that time on such due
date shall be deemed to have been paid by the Company on the next
succeeding Business Day.
(b) All payments in respect of the principal amount of
any Term Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and,
in any event, any payments in respect of any Term Loan on a date when
interest is due and payable with respect to such Term Loan) shall be
applied to the payment of interest before application to principal.
53
(c) The Administrative Agent shall promptly distribute to
each Lender at such address as such Lender shall indicate in writing,
such Lender's applicable Pro Rata Share of all payments and prepayments
of principal and interest due hereunder, except that prepayment offers
accepted by Lenders pursuant to Section 5.10 or 5.15 shall be allocated
to the accepting Lenders ratably in proportion to the principal amount
of Term Loans outstanding to each accepting Lender (and not to all
Lenders based on Pro Rata Shares), together with all other amounts due
thereto, including, without limitation, all fees payable with respect
thereto, to the extent received by the Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if
any Conversion/Continuation Notice is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, the Administrative Agent
shall give effect thereto in apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition
of "Interest Period", whenever any payment to be made hereunder shall
be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of interest
hereunder.
(f) The Company hereby authorizes the Administrative
Agent to charge the Company's accounts with the Administrative Agent in
order to cause timely payment to be made to the Administrative Agent of
all principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that purpose) upon
the occurrence of any Event of Default in respect of its payment
obligations hereunder.
(g) The Administrative Agent shall deem any payment by or
on behalf of the Company hereunder that is not made in same day funds
prior to 1:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by the
Administrative Agent until the later of (i) the time such funds become
available funds, and (ii) the applicable next Business Day. The
Administrative Agent shall give prompt telephonic notice to the Company
and each applicable Lender (confirmed in writing) if any payment is
non-conforming. Any non-conforming payment may constitute or become a
Default or Event of Default in accordance with the terms of Section
7.01. Interest shall continue to accrue on any principal as to which a
non-conforming payment is made until such funds become available funds
(but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.07 from the date such amount was due and payable
until the date such amount is paid in full.
SECTION 2.14. Ratable Sharing. The Lenders hereby agree among themselves
that, except in the case of prepayments offered to and accepted by any Lender
pursuant to Sections 5.10 or 5.15, if any of them shall, whether by voluntary
payment (other than a voluntary
54
prepayment of Term Loans made and applied in accordance with the terms hereof),
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Term Loan Documents
or otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, fees and other amounts then due and
owing to such Lender hereunder or under the other Term Loan Documents
(collectively, the "Aggregate Amounts Due" to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such proportionately greater
payment shall (a) notify the Administrative Agent and each other Lender of the
receipt of such payment and (b) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; provided, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of the Company
or otherwise, those purchases shall be rescinded and the purchase prices paid
for such participations shall be returned to such purchasing Lender ratably to
the extent of such recovery, but without interest. The Company expressly
consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all monies owing by the Company
to that holder with respect thereto as fully as if that holder were owed the
amount of the participation held by that holder.
SECTION 2.15. Making or Maintaining Eurodollar Rate Loans.
(a) Inability to Determine Applicable Interest Rate. In
the event that the Administrative Agent shall have determined (which
determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect
to any Eurodollar Rate Loans, that by reason of circumstances affecting
the London interbank market adequate and fair means do not exist for
ascertaining the interest rate applicable to such Term Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, the
Administrative Agent shall on such date give notice (by telefacsimile
or by telephone confirmed in writing) to the Company and each Lender of
such determination, whereupon (i) no Term Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as the
Administrative Agent notifies the Company and Lenders that the
circumstances giving rise to such notice no longer exist, and (ii) any
Funding Notice or Conversion/Continuation Notice given by the Company
with respect to the Term Loans in respect of which such determination
was made shall be deemed to be rescinded by the Company.
(b) Illegality or Impracticability of Eurodollar Rate
Loans. In the event that on any date any Lender shall have determined
(which determination shall be final and conclusive and binding upon all
parties hereto but shall be made only after consultation with the
Company and the Administrative Agent) that the making, maintaining or
55
continuation of its Eurodollar Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order
not having the force of law even though the failure to comply therewith
would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and
adversely affect the London interbank market or the position of such
Lender in that market, then, and in any such event, such Lender shall
be an "Affected Lender" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to the Company and
the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each other Lender).
Thereafter (1) the obligation of the Affected Lender to make Term Loans
as, or to convert Term Loans to, Eurodollar Rate Loans shall be
suspended until such notice shall be withdrawn by the Affected Lender,
(2) to the extent such determination by the Affected Lender relates to
a Eurodollar Rate Loan then being requested by the Company pursuant to
a Funding Notice or a Conversion/Continuation Notice, the Affected
Lender shall make such Term Loan as (or continue such Term Loan as or
convert such Term Loan to, as the case may be) a Base Rate Loan, (3)
the Affected Lender's obligation to maintain its outstanding Eurodollar
Rate Loans (the "Affected Loans") shall be terminated at the earlier to
occur of the expiration of the Interest Period then in effect with
respect to the Affected Loans or when required by law, and (4) the
Affected Loans shall automatically convert into Base Rate Loans on the
date of such termination. Notwithstanding the foregoing, to the extent
a determination by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by the Company pursuant to a
Funding Notice or a Conversion/Continuation Notice, the Company shall
have the option, subject to the provisions of Section 2.15(c), to
rescind such Funding Notice or Conversion/Continuation Notice as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to the Administrative Agent of such rescission on the date on
which the Affected Lender gives notice of its determination as
described above (which notice of rescission the Administrative Agent
shall promptly transmit to each other Lender). Except as provided in
the immediately preceding sentence, nothing in this Section 2.15(b)
shall affect the obligation of any Lender other than an Affected Lender
to make or maintain Term Loans as, or to convert Term Loans to,
Eurodollar Rate Loans in accordance with the terms hereof.
(c) Compensation for Breakage or Non-Commencement of
Interest Periods. The Company shall compensate each Lender, upon
written request by such Lender (which request shall set forth the basis
for requesting such amounts), for all reasonable losses, expenses and
liabilities (including any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Rate Loans and any
loss, expense or liability sustained by such Lender in connection with
the liquidation or re-employment of such funds but excluding loss of
anticipated profits) which such Lender may sustain: (i) if for any
reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan
56
does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of
any Eurodollar Rate Loan does not occur on a date specified therefor in
a Conversion/Continuation Notice or a telephonic request for conversion
or continuation; (ii) if any prepayment or other principal payment or
any conversion of any of its Eurodollar Rate Loans occurs on a date
prior to the last day of an Interest Period applicable to that Term
Loan (including, without limitation, pursuant to Section 2.10, 2.11,
5.10 and 5.15 hereof); or (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by the Company.
(d) Booking of Eurodollar Rate Loans. Any Lender may
make, carry or transfer Eurodollar Rate Loans at, to, or for the
account of any of its branch offices or the office of an Affiliate of
such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate
Loans. Calculation of all amounts payable to a Lender under this
Section 2.15 and under Section 2.16 shall be made as though such Lender
had actually funded each of its relevant Eurodollar Rate Loans through
the purchase of a Eurodollar deposit bearing interest at the rate
obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an
offshore office of such Lender to a domestic office of such Lender in
the United States of America; provided, however, each Lender may fund
each of its Eurodollar Rate Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this Section 2.15 and under Section
2.16.
SECTION 2.16. Increased Costs; Capital Adequacy.
(a) Compensation For Increased Costs and Taxes. Subject
to the provisions of Section 2.17 (which shall be controlling with
respect to the matters covered thereby), in the event that any Lender
shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change therein
or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental
rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request
or directive issued or made after the date hereof by any central bank
or other governmental or quasi-governmental authority (whether or not
having the force of law):
57
(i) subjects such Lender (or its applicable
lending office) to any additional Tax (other
than any Tax on the overall net income of
such Lender) with respect to this Agreement
or any of the other Term Loan Documents or
any of its obligations hereunder or
thereunder or any payments to such Lender
(or its applicable lending office) of
principal, interest, fees or any other
amount payable hereunder;
(ii) imposes, modifies or holds applicable any
reserve (including any marginal, emergency,
supplemental, special or other reserve),
special deposit, compulsory loan, FDIC
insurance or similar requirement against
assets held by, or deposits or other
liabilities in or for the account of, or
advances or loans by, or other credit
extended by, or any other acquisition of
funds by, any office of such Lender (other
than any such reserve or other requirements
with respect to Eurodollar Rate Loans that
are reflected in the definition of Adjusted
Eurodollar Rate); or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting
such Lender (or its applicable lending
office) or its obligations hereunder or the
London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Term Loans hereunder or to reduce any
amount received or receivable by such Lender (or its applicable lending office)
with respect thereto; then, in any such case, the Company shall promptly pay to
such Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to the Company (with a copy to the
Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to such Lender under this
Section 2.16(a), which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
(b) Capital Adequacy Adjustment. In the event that any
Lender shall have determined that the adoption, effectiveness, phase-in
or applicability after the Closing Date of any law, rule or regulation
(or any provision thereof) regarding capital adequacy, or any change
therein or in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request
or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling
such Lender as a consequence of, or with reference to, such Lender's
Term Loans, or participations therein or other
58
obligations hereunder with respect to the Term Loans to a level below
that which such Lender or such controlling corporation could have
achieved but for such adoption, effectiveness, phase-in, applicability,
change or compliance (taking into consideration the policies of such
Lender or such controlling corporation with regard to capital
adequacy), then from time to time, within five Business Days after
receipt by the Company from such Lender of the statement referred to in
the next sentence, the Company shall pay to such Lender such additional
amount or amounts as shall compensate such Lender or such controlling
corporation on an after-tax basis for such reduction. Such Lender shall
deliver to the Company (with a copy to the Administrative Agent) a
written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to Lender under this Section
2.16(b), which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
SECTION 2.17. Taxes; Withholding, etc.
(a) Payments to Be Free and Clear. All sums payable by
any Obligor hereunder and under the other Term Loan Documents shall
(except to the extent required by law) be paid free and clear of, and
without any deduction or withholding on account of, any Tax (other than
a Tax on the overall net income of any Lender) imposed, levied,
collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of
America or any other jurisdiction from or to which a payment is made by
or on behalf of any Obligor or by any federation or organization of
which the United States of America or any such jurisdiction is a member
at the time of payment.
(b) Withholding of Taxes. If any Obligor or any other
Person is required by law to make any deduction or withholding on
account of any such Tax from any sum paid or payable by any Obligor to
the Administrative Agent or any Lender under any of the Term Loan
Documents:
(i) the Company shall notify the Administrative
Agent of any such requirement or any change
in any such requirement as soon as the
Company becomes aware of it;
(ii) the Company shall pay any such Tax before
the date on which penalties attach thereto,
such payment to be made (if the liability to
pay is imposed on any Obligor) for its own
account or (if that liability is imposed on
the Administrative Agent or such Lender, as
the case may be) on behalf of and in the
name of the Administrative Agent or such
Lender;
(iii) the sum payable by such Obligor in respect
of which the relevant deduction, withholding
or payment is required shall be increased to
the extent necessary to ensure that, after
the making of that deduction, withholding or
payment, the Administrative Agent or
59
such Lender, as the case may be, receives on
the due date a net sum equal to what it
would have received had no such deduction,
withholding or payment been required or
made; and
(iv) within thirty (30) days after paying any sum
from which it is required by law to make any
deduction or withholding, and within thirty
(30) days after the due date of payment of
any tax which it is required by clause (ii)
above to pay, the Company shall deliver to
the Administrative Agent evidence
satisfactory to the other affected parties
of such deduction, withholding or payment
and of the remittance thereof to the
relevant taxing or other authority;
provided, no such additional amount shall be required to be paid to any Lender
under clause (iii) above except to the extent that any change after the date
hereof (in the case of each Lender listed on the signature pages hereof on the
Closing Date) or after the effective date of the Assignment Agreement pursuant
to which such Lender became a Lender (in the case of each other Lender) in any
such requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date hereof or at the date of such Assignment
Agreement, as the case may be, in respect of payments to such Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Each
Lender that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. federal income tax purposes
(a "Non-US Lender") shall deliver to the Administrative Agent for
transmission to the Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof on the Closing
Date) or on or prior to the date of the Assignment Agreement pursuant
to which it becomes a Lender (in the case of each other Lender), and at
such other times as may be necessary in the determination of the
Company or the Administrative Agent (each in the reasonable exercise of
its discretion):
(i) two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any
successor forms), properly completed and
duly executed by such Lender, and such other
documentation required under the Code and
reasonably requested by the Company to
establish that such Lender is not subject to
deduction or withholding of United States
federal income tax with respect to any
payments to such Lender of principal,
interest, fees or other amounts payable
under any of the Term Loan Documents; or
(ii) if such Lender is not a "bank" or other
Person described in Section 881(c)(3) of the
Code and cannot deliver either Internal
Revenue Service Form W-8BEN or W-8ECI
pursuant to clause (i) above, a Certificate
re Non-Bank Status together with two
original copies of Internal Revenue Service
Form W-8 (or any successor form), properly
completed and duly executed by such Lender,
and
60
such other documentation required under the
Code and reasonably requested by the Company
to establish that such Lender is not subject
to deduction or withholding of United States
federal income tax with respect to any
payments to such Lender of interest payable
under any of the Term Loan Documents.
Each Lender required to deliver any forms, certificates or other evidence with
respect to United States federal income tax withholding matters pursuant to this
Section 2.17(c) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a lapse in
time or change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such Lender shall
promptly deliver to the Administrative Agent for transmission to the Company two
new original copies of Internal Revenue Service Form W-8BEN or W-8ECI , or a
Certificate re Non-Bank Status and two original copies of Internal Revenue
Service Form W-8, as the case may be, properly completed and duly executed by
such Lender, and such other documentation required under the Code and reasonably
requested by the Company to confirm or establish that such Lender is not subject
to deduction or withholding of United States federal income tax with respect to
payments to such Lender under the Term Loan Documents, or notify the
Administrative Agent and the Company of its inability to deliver any such forms,
certificates or other evidence. The Company shall not be required to pay any
additional amount to any Non-US Lender under Section 2.17(b)(iii) if such Lender
shall have failed (1) to deliver the forms, certificates or other evidence
referred to in the second sentence of this Section 2.17(c), or (2) to notify the
Administrative Agent and the Company of its inability to deliver any such forms,
certificates or other evidence, as the case may be; provided, if such Lender
shall have satisfied the requirements of the first sentence of this Section
2.17(c) on the Closing Date or on the date of the Assignment Agreement pursuant
to which it became a Lender, as applicable, nothing in this last sentence of
Section 2.17(c) shall relieve the Company of its obligation to pay any
additional amounts pursuant to Section 2.16(a) in the event that, as a result of
any change in any applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the fact that
such Lender is not subject to withholding as described herein.
SECTION 2.18. Removal or Replacement of a Lender. Anything contained herein
to the contrary notwithstanding, in the event that:
(a) (i) any Lender (an "Increased-Cost Lender") shall
give notice to the Company that such Lender is an Affected Lender or
that such Lender is entitled to receive payments under Section 2.15,
2.16 or 2.17, (ii) the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such
payments shall remain in effect, and (iii) such Lender shall fail to
withdraw such notice within five Business Days after the Company's
request for such withdrawal; or
(b) in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 13.05(b), the consent of
Requisite Lenders shall have been obtained but the consent of
61
one or more of such other Lenders (each a "Non-Consenting Lender")
whose consent is required shall not have been obtained;
then, with respect to each such Increased-Cost Lender or Non-Consenting Lender
(the "Terminated Lender"), the Company may, by giving written notice to the
Administrative Agent and any Terminated Lender of its election to do so, elect
to cause such Terminated Lender (and such Terminated Lender hereby irrevocably
agrees) to assign its outstanding Term Loans in full to one or more Eligible
Assignees (each a "Replacement Lender") in accordance with the provisions of
Section 13.06 and Terminated Lender shall pay any fees payable thereunder in
connection with such assignment; provided,
(i) on the date of such assignment, the
Replacement Lender shall pay to Terminated
Lender an amount equal to
the sum of (A) an amount equal to the
principal of, and all accrued interest on,
all outstanding Term Loans of the Terminated
Lender, and (B) an amount equal to all
accrued, but theretofore unpaid fees owing
to such Terminated Lender pursuant to
Section 2.11;
(ii) on the date of such assignment, the Company
shall pay any amounts payable to such
Terminated Lender pursuant to Section
2.15(c), 2.16 or 2.17 or otherwise as if it
were a prepayment; and
(iii) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such
assignment, to each matter in respect of
which such Terminated Lender was a
Non-Consenting Lender.
Upon the prepayment of all amounts owing to any Terminated Lender, such
Terminated Lender shall no longer constitute a "Lender" for purposes hereof;
provided, any rights of such Terminated Lender to indemnification hereunder
shall survive as to such Terminated Lender.
SECTION 2.19. Additional Term Loans. With the consent of the Administrative
Agent, the Company from time to time after the Closing Date may solicit
commitments ("Additional Term Loan Commitments") for additional Term Loans
("Additional Term Loans") which may become committed and shall be funded on the
following terms:
(a) Additional Term Loans shall be committed and funded
on the terms and conditions set forth in this Agreement applicable to
Term Loans (other than those expressly applicable only to Initial Term
Loans), except that the margins at which interest accrues pursuant to
Section 2.05(a) in excess of the Base Rate on Base Rate Loans and in
excess of the Adjusted Eurodollar Rate on Eurodollar Rate Loans may be
changed with the consent of the Company as set forth in the Additional
Term Loan Commitments. Without limiting the generality of the
foregoing, Additional Term Loans shall be payable in full on the
Maturity Date and shall be secured Equally and Ratably with the Initial
Term Loans and all other Parity Lien Obligations by all security
interests granted to the Collateral Trustee pursuant to the Security
Documents.
62
(b) On each occasion on which Additional Term Loan
Commitments are solicited, Additional Term Loan Commitments shall be
solicited and delivered for simultaneous funding in a single drawdown
on a single Business Day (an "Additional Term Loan Borrowing Date") in
a minimum amount of $25,000,000. Additional Term Loans that are repaid
may not be reborrowed.
(c) With the consent of the Company and the
Administrative Agent, Additional Term Loans may be funded at a discount
or premium to the stated principal amount thereof, and the compensation
paid or promised by the Company or any Subsidiary or Affiliate of the
Company for the arrangement, solicitation, delivery or funding of
Additional Term Loans shall not be restricted.
(d) Additional Term Loan Commitments shall not be
solicited, delivered or funded:
(i) in an amount which the Company is not then
permitted to incur under Section 5.09;
(ii) in a stated principal amount which would,
after giving effect to any simultaneous
issuance of Additional Notes under the
Indentures and any simultaneous incurrence
of any other Parity Lien Debt and any
simultaneous use of the proceeds of any such
funding or issuance, result in a violation
of clause (2) of the definition of
"Permitted Liens"; or
(iii) unless the Company and Guarantors deliver to
the Administrative Agent, for the benefit of
the Collateral Trustee, the Administrative
Agent and the Lenders:
(A) an Officers' Certificate to the
effect that, on the Additional Term Loan Borrowing Date for
such Additional Term Loans, (1) no Default or Event of Default
has occurred and is continuing or resulted from the funding of
such Additional Term Loans; (2) no "Default" or "Event of
Default", as defined in each of the Parity Lien Debt
Documents, has occurred and is continuing and (3) the
requirements set forth in Section 2.19(d)(i) and (ii) are
satisfied (and each Lender funding an Additional Term Loan
shall be entitled to rely conclusively upon such Officers'
Certificate as to all of the matters therein set forth for all
purposes, including the right of such Additional Term Loan to
share Equally and Ratably in the Collateral and all benefits
thereof); and
(B) such representations and
warranties, Opinions of Counsel, confirmations and
certificates as may reasonably be requested by the
Administrative Agent.
63
(e) Neither of the Administrative Agent nor any Lender
shall have any obligation whatsoever to arrange, commit to make, or
fund any Additional Term Loan Commitment.
(f) If and whenever it wishes to solicit Additional Term
Loan Commitments, the Company shall, in consultation with the
Administrative Agent, offer the opportunity to deliver such Additional
Term Loan Commitments first to the then existing Lenders, which shall
have five Business Days to accept such offer, with any such acceptances
allocated ratably to accepting Lenders. To the extent such Additional
Term Loan Commitments are not fully subscribed by accepting Lenders
within the five Business Day period, the Company may solicit and accept
such Additional Term Loan Commitments, in compliance with all
applicable laws and legal requirements, from any Eligible Assignee
reasonably satisfactory to the Administrative Agent.
(g) All Additional Term Loan Commitments shall be
delivered to the Administrative Agent prior to the relevant Additional
Term Loan Borrowing Date. Each Eligible Assignee that delivers an
Additional Term Loan Commitment shall also deliver to the
Administrative Agent, prior to the relevant Additional Term Loan
Borrowing Date, the duly executed Lender Joinder Agreement of such
Eligible Assignee to be bound by and to perform, in respect of the
Additional Term Loans funded by it, all of the obligations of a Lender
under this Agreement; and thereupon, but only if and when such
Additional Term Loans are funded by such Eligible Assignee, such
Eligible Assignee shall become entitled to enjoy the rights of a Lender
under this Agreement and such Additional Term Loans shall constitute
Term Loans for all purposes of this Agreement.
(h) Additional Term Loans shall be Base Rate Loans until
the last day of the first Interest Period for any Eurodollar Rate Loans
expiring after the relevant Additional Term Loan Borrowing Date, at
which time the outstanding Base Rate Loans and Eurodollar Rate Loans
shall be adjusted so that all Base Rate Loans and all Eurodollar Rate
Loans are allocated to the Lenders ratably to their Pro Rata Shares. If
so requested by the Company, the Administrative Agent may make such
adjustment on any earlier Business Day, by resetting any Interest
Period that has not then expired, and the Company shall pay
compensation pursuant to Section 2.15(c) as if such reset constituted a
prepayment of the affected Eurodollar Rate Loans.
(i) Subject to the foregoing provisions of this Section
2.19, Additional Term Loans may be solicited, committed to and funded
without need for any amendment or supplement to this Agreement and
without need for consent from any other Lenders.
64
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Closing Date. The obligation of any Lender to make a
Term Loan on the Closing Date is subject to the accuracy of the representations
and warranties on the part of the Company herein on the Closing Date, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and the satisfaction, or waiver in accordance with Section 13.05, of
the following additional conditions precedent on or before the Closing Date:
(a) [Intentionally Omitted.]
(b) The Chief Financial Officer of the Company shall have
furnished a certificate, dated the Closing Date, in form and substance
satisfactory to the Administrative Agent, stating to the effect that:
65
(i) The Company does not intend to or believe
that it has incurred or shall incur debts
that will be beyond its ability to pay as
they mature;
(ii) No Pledged Subsidiary intends to or believes
that it has incurred or shall incur debts
that will be beyond its ability to pay as
they mature;
(iii) No Guarantor intends to or believes that it
has incurred or shall incur debts that will
be beyond its ability to pay as they mature;
(iv) The present fair saleable value of the
assets of the Company exceeds the amount
that will be required to pay the probable
liability on its existing debts (whether
matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent)
as they become absolute and matured;
(v) The present fair saleable value of the
assets of each Pledged Subsidiary exceeds
the amount that will be required to pay the
probable liability on its existing debts
(whether matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent)
as they become absolute and matured;
(vi) The Company does not have unreasonably small
capital for it to carry on its businesses as
proposed to be conducted.;
(vii) No Pledged Subsidiary has unreasonably small
capital for it to carry on its business as
proposed to be conducted;
(viii) The Company is not incurring obligations or
making transfers under any evidence of
indebtedness with the intent to hinder,
delay or defraud any entity to which it is
or will become indebted; and
(ix) No Pledged Subsidiary is incurring
obligations or making transfers under any
evidence of indebtedness with the intent to
hinder, delay or defraud any entity to which
it is or will become indebted.
(c) The Collateral Trustee shall have received (with a
copy for the Lenders) at the Closing Date:
(i) appropriately completed copies, which have
been duly authorized for filing by the
appropriate Person, of Uniform Commercial
Code Financing Statements naming the Company
as a debtor and the Collateral Trustee as
the secured party, or other similar
instruments or documents to be filed under
the UCC of all jurisdictions as may be
necessary or, in the reasonable opinion of
the Administrative
66
Agent and its counsel, desirable to perfect
the security interests of the Collateral
Trustee pursuant to the Security Documents;
(ii) appropriately completed copies, which have
been duly authorized for filing by the
appropriate Person, of Uniform Commercial
Code Form UCC-3 termination statements, if
any, necessary to release all Liens (other
than Permitted Prior Liens) of any Person in
any Collateral described in the Security
Documents previously granted by any Person;
(iii) certified copies of Uniform Commercial Code
Requests for Information or Copies (Form
UCC-11), or a similar search report
certified by a party acceptable to the
Administrative Agent, dated a date
reasonably near to the Closing Date, listing
all effective Financing Statements which
name the Company (under its present name and
any previous names) as the debtor, together
with copies of such Financing Statements
(none of which shall cover any Collateral
described in the Security Documents, other
than such Financing Statements that evidence
Permitted Prior Liens);
(iv) such releases, reconveyances, satisfactions
or other instruments as it may request to
confirm the release, satisfaction and
discharge in full of all mortgages and deeds
of trust at any time delivered by the
Company to secure any Obligations in respect
of the Existing Senior Secured Credit
Facilities, duly executed, delivered and
acknowledged in recordable form by the
grantee named therein or its of record
successors or assigns;
(v) evidence reasonably satisfactory to the
Lenders that (i) the 2000 Credit Agreement
and all commitments thereunder shall have
been terminated and all commitments
thereunder shall have been paid in full and
(ii) except to the extent continued under
the New Credit Facility, all amounts
outstanding under the 2002 Credit Agreement
shall have been paid in full;
(vi) evidence that all liens granted to the agent
under the 2002 Credit Agreement have been
assigned in a manner reasonably satisfactory
to the Lenders and the Collateral Trustee;
(vii) a copy of the Collateral Trust Agreement
executed by the Credit Agreement Agent under
the New Credit Facility;
(viii) a certificate of insurance satisfactory to
the Lenders confirming that all insurance
requirements of the Guarantee and Collateral
Agreement are satisfied; and
67
(ix) such other approvals, opinions or documents
as the Administrative Agent, Lenders or the
Collateral Trustee may reasonably request in
form and substance satisfactory to each of
them.
(d) All Uniform Commercial Code Financing Statements or
other similar Financing Statements and Uniform Commercial Code Form
UCC-3 termination statements required pursuant to clauses (c)(i) and
(ii) above (collectively, the "Financing Statements") shall have been
delivered to CT Corporation System or another similar filing service
company acceptable to the Administrative Agent (the "Filing Agent").
The Filing Agent shall have acknowledged in a writing reasonably
satisfactory to the Administrative Agent and its counsel (i) the Filing
Agent's receipt of all Financing Statements, (ii) that the Financing
Statements have either been submitted for filing in the appropriate
filing offices or shall be submitted for filing in the appropriate
offices within ten days following the Closing Date and (iii) that the
Filing Agent shall notify the Administrative Agent and its counsel of
the results of such submissions within 30 days following the Closing
Date.
(e) The Company shall have (i) consummated the New Credit
Facility, and such New Credit Facility shall have been funded prior to,
or shall be funded simultaneously with, the Closing Date on
substantially the terms described in the Final Offering Circular and
other terms satisfactory to the Administrative Agent, and the
Administrative Agent shall have received counterparts, conformed as
executed, of the Credit Agreement and such other documentation as they
deem necessary to evidence the consummation thereof and (ii)
consummated the offering of the Notes, and such Notes shall have been
issued prior to, or shall be issued simultaneously with, the Closing
Date on substantially the terms described in the Final Offering
Circular and other terms satisfactory to the Administrative Agent, and
the Administrative Agent shall have received counterparts, conformed as
executed, of the Indentures and such other documentation as they deem
necessary to evidence the consummation thereof.
(f) Prior to or simultaneously with the Closing Date, the
Company shall have received cash proceeds from borrowings under the New
Credit Facility and this Agreement in an amount sufficient, when added
to the cash proceeds from the sale of the Notes (net of underwriting
discounts and commissions), to pay in full in cash the payout amounts
and all other fees, costs and expenses payable by the Company in
connection with the closing of the financing transaction and shall have
authorized disbursement of such cash proceeds directly to pay the
payout amounts and such fees, costs and expenses pursuant to a
disbursement authorization letter (in form and substance reasonably
satisfactory to the Adminstrative Agent) executed and delivered by the
Company, and the Administrative Agent shall have received such other
confirmation as any of them may reasonably request as to the amendment
and restatement of the Existing Senior Secured Credit Facilities in the
form of the New Credit Facility.
(g) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective
68
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole which, in the judgment of the Administrative Agent, is material
and adverse and makes it impractical or inadvisable to proceed with the
borrowing of the Term Loans hereunder; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company to CCC+
or below by S&P or Caa1 or below by Moody's; (iii) any suspension or
material limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) a general
moratorium on commercial banking activities declared by either Federal
or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United
States which, in the judgment of the Administrative Agent, makes it
impracticable or inadvisable to proceed with the borrowing of the Term
Loans hereunder; or (vi) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the judgment the Administrative Agent, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with the
completion of the borrowing of the Term Loans hereunder.
(h) The Lenders shall have received an opinion, in form
and substance reasonably satisfactory to the Lenders and their counsel,
dated such Closing Date, of Covington & Burling, counsel for the
Company, including those matters described in Section 6(i) of the
Purchase Agreement, as appropriately modified to reflect the borrowing
of the Term Loans hereunder.
The Lenders shall have received an opinion, in form and substance reasonably
satisfactory to the Lenders and their counsel, dated such Closing Date, of Lisa
Bodensteiner, Vice President and General Counsel of the Company, including those
matters described in Section 6(j) of the Purchase Agreement, as appropriately
modified to reflect the borrowing of the Term Loans hereunder.
(i) [Intentionally Omitted.]
(j) The Administrative Agent shall have received a
certificate, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to the
Closing Date; and, subsequent to the date of the most recent financial
statements in the Offering Documents (as defined below), there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of
69
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Offering Document or as
described in such certificate.
(k) [Intentionally Omitted.]
(l) Local counsel to the Company in California, Colorado,
Louisiana, New Mexico and Texas shall have furnished to the Lenders
their written opinions, dated the Closing Date, in form and substance
reasonably satisfactory to the Lenders and their counsel as agreed as
of the date hereof, as to such matters under the laws of their
respective states as the Lenders may reasonably request, it being
understood that such opinions shall be substantively similar to the
opinions provided in connection with the closing of the Existing Senior
Secured Credit Facilities.
The Company shall furnish the Lenders with conformed copies of such other
opinions, certificates, letters and documents as the Lenders reasonably request.
The Lenders may in their sole discretion waive compliance with any conditions to
the obligations of the Lenders hereunder.
SECTION 3.02. Conditions to Each Term Loan.
(a) Conditions Precedent. The obligation of each Lender
to make any Term Loan on any Credit Date, including the Closing Date,
are subject to the satisfaction, or waiver in accordance with Section
13.05, of the following conditions precedent:
(i) the Administrative Agent shall have received
a fully executed and delivered Funding
Notice; and
(ii) as of such Credit Date, no event shall have
occurred and be continuing or would result
from the consummation of the applicable Term
Loan that would constitute an Event of
Default or a Default.
The Administrative Agent is entitled, but not obligated to, request and receive,
prior to the making of any Term Loan, additional information reasonably
satisfactory to the requesting party confirming the satisfaction of any of the
foregoing if, in the good faith judgment of the Administrative Agent such
request is warranted under the circumstances.
(b) Notices. Any Notice shall be executed by an Officer
in a writing delivered to the Administrative Agent. In lieu of
delivering a Notice, the Company may give the Administrative Agent
telephonic notice by the required time of any proposed borrowing or
conversion/continuation; provided each such notice shall be promptly
confirmed in writing by delivery of the applicable Notice to the
Administrative Agent on or before the applicable date of borrowing or
continuation/conversion. Neither the Administrative Agent nor any
Lender shall incur any liability to the Company in acting upon any
telephonic notice referred to above that the Administrative Agent
believes in good faith to have been given by a duly authorized officer
or other Person authorized on behalf of the Company or for otherwise
acting in good faith.
70
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make the
Initial Term Loans to be made hereby, the Company represents and warrants to,
and agrees with, each Lender that:
(a) A preliminary offering circular dated July 3, 2003
(such offering circular, as amended or supplemented, and including all
material incorporated by reference therein, the "Preliminary Offering
Circular") and a Final Offering Circular relating to the Notes to be
offered by the Initial Purchasers have been prepared by the Company and
delivered to the Initial Purchasers at such place or places as they may
direct, at or prior to such time as the Initial Purchasers request.
Such Preliminary Offering Circular and Final Offering Circular,
together with any other document approved by the Company for use in
connection with the contemplated resale of the Notes, are hereinafter
collectively referred to as the "Offering Documents." The Offering
Documents did not and shall not, as of their respective dates, include
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from
the Offering Document based upon written information furnished to the
Company by the Initial Purchasers specifically for use therein. Except
as disclosed in the Offering Documents, on the date of this Agreement,
the Company's Annual Report on Form 10-K (the "10-K") most recently
filed with the SEC and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Company with the
Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") do not include any untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. Such documents, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Documents; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification.
(c) Each subsidiary of the Company (x) other than those
subsidiaries specified in clause (y) of this subparagraph has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Documents; or (y) that is not a corporation
is a limited
71
partnership, a limited liability company or business trust, has been
duly formed and is validly existing as a limited partnership, a limited
liability company or a business trust, as the case may be, in good
standing under the laws of the jurisdiction of its formation, and has
full power and authority to own its properties and conduct its business
as described in the Offering Documents; each subsidiary of the Company
is duly qualified to do business as a foreign corporation, limited
partnership, limited liability company or business trust, as the case
may be, in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification; all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; except as set forth on
Schedule 4.01(c) hereto, the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects; and the Company is not a general
partner in any partnership.
(d) The Indentures have been duly authorized and conform
to the description thereof contained in the Final Offering Circular;
the Notes have been duly authorized, and when the Notes are delivered
and paid for pursuant to the Purchase Agreement on the Closing Date,
the Indentures shall have been duly executed and delivered, such Notes
shall have been duly executed, authenticated, issued and delivered and
shall conform to the description thereof contained in the Final
Offering Circular and the Indentures and such Notes shall constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(e) Each of the Security Documents has been duly
authorized by the Company and the Guarantors (as applicable), when
executed and delivered, shall conform in all material respects to the
description thereof contained in the Final Offering Circular. Each of
the Security Documents, when validly executed and delivered by the
Company and the Guarantors (as applicable), shall constitute a valid
and legally binding obligation of the Company and shall be enforceable
against the Company and the Guarantors (as applicable) in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(f) The Purchase Agreement has been duly authorized,
executed and delivered by the Company and conforms in all material
respects to the description thereof contained in the Final Offering
Circular.
(g) When executed and delivered to the Collateral Trustee
at the Closing Date, (i) the Security Documents shall grant and create,
in favor of the Collateral Trustee for the benefit of the Secured
Parties as security for all of the Secured Obligations, a valid
second-priority security interest in the personal property Collateral
defined in each of such instruments and (ii) each Mortgage shall grant
and create, in favor of the Collateral Trustee for the benefit of the
Secured Parties as security for all of the Secured
72
Obligations, a valid second-priority mortgage lien and/or security
interest in the collateral defined in each of such instruments; and
when the filings referred to in the following sentences are made, such
second-priority security interests shall be perfected security
interests and/or mortgage liens (subject only to Permitted Prior Liens
and the provisions with respect to priority set forth in the Collateral
Trust Agreement). When delivered at the Closing Date, each Mortgage
shall be delivered, duly acknowledged and, if required for recordation,
attested and otherwise shall be in recordable form. At the Closing
Date, (i) all pledged Collateral shall be represented by certificated
securities and (ii) all such certificated securities and all promissory
notes and other instruments then evidencing or representing any
Collateral shall be delivered to the Collateral Trustee in pledge for
the benefit of the Secured Parties (and the lenders under the New
Credit Facility) as security for all of the Secured Obligations, duly
endorsed by an effective endorsement.
(h) At the Closing Date, the representations and
warranties contained in the Security Documents shall be true and
correct in all respects.
(i) Except as shall be disclosed in the Offering
Documents, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim
against the Company or the Initial Purchasers for a brokerage
commission, finder's fee or other like payment in connection with the
offering of the Notes.
(j) Except as (i) set forth on Schedule 4.01(c) hereto
and (ii) provided for in the Purchase Agreement there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities with any other
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act
(k) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this
Agreement, the Indentures, the Security Documents or the Purchase
Agreement or otherwise in connection with the borrowing of the Term
Loans by the Company or the grant and perfection of the security
interests in the Collateral pursuant to the Security Documents, except
(i) such consents, approvals, authorizations and orders as have already
been obtained, (ii) filings required to perfect the Collateral
Trustee's security interests granted pursuant to the Security Documents
and (iii) as would not, in the aggregate, have a Material Adverse
Effect.
(l) The execution, delivery and performance of this
Agreement, the Indentures, the Security Documents and the Purchase
Agreement by the Company and the Guarantors (as applicable), the
borrowing of the Term Loans by the Company, the grant and perfection of
the security interests in the Collateral pursuant to the Security
Documents, compliance with the terms and provisions of each of the
foregoing by the
73
Company and the consummation by the Company and the Guarantors (as
applicable) of the transactions contemplated herein and therein shall
not result in a breach or violation of any of the terms and provisions
of, or conflict with or constitute a default under, or result in the
imposition or creation of (or the obligation to create or impose) a
Lien (other than in favor of the Secured Parties or the lenders under
the New Credit Facility and in connection with the $150 million cash
collateralization of certain letters of credit and liens on certain
turbines owned directly by the Company that may arise as a result of
the transactions contemplated hereby), any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement
or instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject, or the
charter, by-laws or other organizational document of the Company or any
such subsidiary, except in each case as would not have a Material
Adverse Effect, and the Company has full power and authority to borrow
the Term Loans as contemplated by this Agreement.
(m) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(n) Except as disclosed in the Offering Documents, the
Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as shall be disclosed in the
Offering Documents, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them. No Financing Statements (as defined below) in
respect of any property or assets of the Company shall be on file in
favor of any person other than those in respect of Permitted Prior
Liens and those to be terminated with respect to existing indebtedness.
(o) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
74
(q) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(r) Except as shall be disclosed in the Final Offering
Circular, neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "Environmental Laws"), owns or operates any real
property contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to any
claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(s) Except as shall be disclosed in the Final Offering
Circular, there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under, or
contemplated by, this Agreement, the Indentures, the Security Documents
or the Purchase Agreement, or which are otherwise material in the
context of the borrowing of the Term Loans; and no such actions, suits
or proceedings are threatened or, to the knowledge of the Company,
contemplated.
(t) The financial information included in the Final
Offering Circular present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except
as otherwise shall be disclosed in the Offering Documents, such
financial statements shall have been prepared in conformity with the
GAAP applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements included in the Final
Offering Circular shall provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments shall give
appropriate effect to those assumptions, and the pro forma columns
therein shall reflect the proper application of those adjustments to
the corresponding historical financial statement amounts.
75
(u) The statistical and market-related data (other than
market-related data and statistical data provided by the Company)
included in the Final Offering Circular shall be based on or derived
from sources which the Company believes to be reliable and accurate, it
being understood, however, that the Company has conducted no
independent investigation of the accuracy thereof.
(v) Except as shall be disclosed in the Final Offering
Circular, since the date of the latest audited financial statements
that shall be included in the Final Offering Circular there shall have
been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Final Offering Circular, there has been no change
in the capital stock or long-term debt of the Company or any of its
subsidiaries and no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(w) The Company is not an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940, as amended (the "Investment Company
Act"); the Company is not and, after giving effect to the offering, the
borrowing of the Term Loans and the application of the proceeds thereof
as described in the Offering Documents, and the consummation of the
transactions contemplated by this Agreement, the Indentures, the
Security Documents and the Purchase Agreement, shall not be an
"investment company" as defined in the Investment Company Act of 1940.
(x) [Intentionally Omitted.]
(y) [Intentionally Omitted.]
(z) [Intentionally Omitted.]
(aa) Neither the Company nor any "subsidiary company" as
that term is defined in the Public Utility Holding Company Act of 1935
("PUHCA"), of the Company is, or after giving effect to the borrowing
of the Term Loans, shall be, subject to regulation (i) as a "holding
company," a "subsidiary company" of a holding company or a
"public-utility company," as those terms are defined in PUHCA (except
that Calpine Cogeneration Corporation and the other "subsidiary
companies" of the Company listed on Schedule 4.01(aa), each of which is
an EWG (as defined herein) or a QF (as defined herein), are "subsidiary
companies" of holding companies); (ii) under the Federal Power Act, as
amended ("FPA"), other than (A) as a power marketer or an "exempt
wholesale generator" ("EWG"), as that term is defined Section 32 of
PUHCA, that is a "public utility" with market-based rate authority
under Section 205 of the FPA, or (B) as a "qualifying facility" ("QF")
under the Public Utility Regulatory Policies Act of 1978, as amended
("PURPA"), as contemplated by 18 C.F.R. Section 292.601(c); or (iii)
under any
76
state law or regulation with respect to rates or the financial or
organizational regulation of electric utilities, other than, with
respect to subsidiaries of the Company that are QFs, as contemplated by
18 C.F.R. Section 292.602(c).
(bb) Each of the power generation projects in which the
Company or its subsidiaries has an interest which is subject to the
requirements under PURPA and the regulations of FERC promulgated
thereunder, as amended from time to time, necessary to be a "qualifying
cogeneration facility" and/or a "qualifying small power production
facility" meets such requirements.
(cc) Each of the Company's subsidiaries listed on Schedule
4.01(cc) hereto has validly-issued orders from the FERC, not subject to
any pending challenge, investigation, or proceeding (other than the
FERC's generic proceeding initiated in Docket No. EL01-118-000), (i)
authorizing such subsidiary to engage in wholesale sales of
electricity, ancillary services and, to the extent permitted under its
market-based rate tariff, other services at market-based rates, and
(ii) granting such waivers and blanket authorizations as are
customarily granted to entities with market-based rate authority. With
respect to each such subsidiary, the FERC has not imposed any rate caps
or mitigation measures other than rate caps and mitigation measures
generally applicable to similarly situated marketers or generators
selling electricity, ancillary services or other services at wholesale
in the geographic market where such subsidiary conducts its business.
(dd) All of the Company's subsidiaries listed on Schedule
4.01(dd) hereto own and/or operate Eligible Facilities within the
meaning of Section 32 of PUHCA, and each such subsidiary has received a
determination from FERC, not subject to any pending challenge or
appeal, that it is an Exempt Wholesale Generator, within the meaning of
Section 32 of PUHCA.
(ee) Each of the Company's subsidiaries listed on Schedule
4.01(ee) hereto providing retail electric service in the Electric
Reliability Council of Texas, Inc. ("ERCOT") has validly issued orders
from the Texas Public Utilities Commission ("TPUC"), not subject to any
pending challenge, investigation, or proceeding, authorizing such
subsidiary to engage in sales of electricity at retail under the laws
of the State of Texas. Each of the Company's subsidiaries listed on
Schedule 4.01(ee) that are participating in the Texas wholesale
electric market has registered with the TPUC and the TPUC has not
imposed on any such subsidiary any specific rate cap or mitigation
measures
(ff) No consent, approval, authorization, or order of, or
filing with the applicable state public utility commission under any
public utility law of the State or any regulation promulgated pursuant
to such law with respect to the rates or the financial or
organizational regulation of electric utilities is required for the
consummation of the merger of Goldendale Energy, Inc., Otay Mesa
Generating Company, LLC, Metcalf Energy Center, LLC, Santa Rosa Energy,
LLC, Washington Parish Energy Center, LLC, Deer Park Energy Center, LP
and Augusta Energy LLC into the Company.
77
(gg) No consent, approval, authorization, or order of, or
filing with any governmental agency or body or any court under the FPA,
PUHCA or PURPA, or any regulation promulgated pursuant to such laws, is
required for the consummation of the merger of Goldendale Energy, Inc.,
Otay Mesa Generating Company, LLC, Metcalf Energy Center, LLC, Santa
Rosa Energy, LLC, Washington Parish Energy Center, LLC, Deer Park
Energy Center, LP and Augusta Energy LLC into the Company, except such
filings as could not be expected to delay or hinder such mergers.
(hh) Each of the Company's subsidiaries listed on Schedule
4.01(hh) hereto providing retail energy services has full authorization
to provide retail energy services to retail industrial, commercial and
residential customers in its applicable states under the applicable
Energy Laws. "Energy Laws" shall mean any state and local energy laws
and regulations, in each of the states, regions or other applicable
jurisdictions in which the Company and its subsidiaries are organized
or otherwise conduct business, applicable to: (i) the ownership,
operation, or control of electric generation, transmission, and
distribution facilities; (ii) the purchase, sale, transmission,
distribution, marketing or trading of electric energy; and (iii)
organizational, financial and rate regulation of entities engaged in
(i) and (ii) above.
(ii) Other than the proceedings listed in Schedule
4.01(ii), there are no pending complaints filed with the FERC seeking
abrogation or modification of a contract for the sale of power by the
Company or any of its subsidiaries.
(jj) Except as described in the Final Offering Circular
(i) all royalties, rentals, deposits and other amounts due on the oil
and gas properties of the Company have been properly and timely paid,
and no proceeds from the sale or production attributable to the oil and
gas properties of the Company are currently being held in suspense by
any purchaser thereof, and (ii) there are no claims under take-or-pay
contracts pursuant to which natural gas purchasers have any make-up
rights affecting the interests of the Company in its oil and gas
properties, except in any event under (i) or (ii) as would not have a
Material Adverse Effect.
(kk) As of the date hereof, the aggregate undiscounted
monetary liability of the Company for oil or natural gas taken or
received under any operating or other agreement relating to its oil and
gas properties that permits any person to receive any portion of the
interest of the Company in oil and natural gas or to receive cash or
other payments to balance any disproportionate allocation of oil or
natural gas could not have a Material Adverse Effect.
(ll) To the Company's knowledge, each of the Company's and
the Company's subsidiaries' surface and mineral leases (the "Oil and
Gas Leases") is in full force and effect and all rentals, royalties,
shut-in well payments, bonuses and other payments due or payable from
or by the Company or the Company's subsidiaries under Oil and Gas
Leases and applicable laws, rules and regulations, have been properly
and timely paid, except where the failure to have in full force and
effect or to pay properly and timely
78
would not have a Material Adverse Effect, and all conditions necessary
to keep the Oil and Gas Leases in full force and effect in accordance
with their terms as of the date hereof, except where the failure to
satisfy such conditions would not have a Material Adverse Effect.
(mm) The Company and its subsidiaries are entitled to
receive (and are currently receiving with respect to producing Oil and
Gas Leases), without present suspense or presently required indemnity
against asserted or known defects or disputes regarding the Company's
and any of the Company's subsidiaries' ownership, from each purchaser
of its production, or from the person receiving payments from any such
purchasers, the proceeds attributable to the net revenue interest in
production from each of the Oil and Gas Leases, except where the
failure to receive such proceeds would not have a Material Adverse
Effect.
(nn) All production from the wells operated by the Company
has been properly accounted for and all proceeds attributable thereto
have been properly paid in the ordinary course of business consistent
with past practices.
(oo) The reserve report issued by Netherland, Sewell &
Associates, Inc. dated February 11, 2003 is accurate in all material
respects and reflects all proved reserves and future revenues in the
Company's oil and gas properties (the "Oil and Gas Properties") located
in the United States, and the Mortgages shall create valid and first
priority mortgage liens on all of the interests of the Company referred
to in such Reserve Report. The reserve report issued by Gilbert
Laustsen Jung Associates Ltd. dated February 26, 2003 is accurate in
all material respects and reflects all proved reserves and future
revenues in the Company's oil and gas properties located in Canada.
(pp) At the Closing Date, the Company shall own the Oil
and Gas Properties free and clear of all Liens (other than Permitted
Liens), and no Financing Statements (as defined below) in respect of
any property or assets of the Company shall be on file in favor of any
person other than those in respect of Permitted Prior Liens and those
to be terminated with respect to existing indebtedness.
(qq) Prior to the date hereof, neither the Company nor any
of its subsidiaries has entered into a contract pursuant to which oil
and gas assets would be sold to any party other than subsidiaries or
purchasers for fair market value.
(rr) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
(ss) None of the transactions contemplated by this
Agreement (including, without limitation, the use of the proceeds from
the borrowing of the Term Loans) shall violate or result in a violation
of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations G, T, U, and X
of the Board of Governors of the Federal Reserve System
79
(tt) Prior to the date hereof, neither the Company nor any
of its affiliates has taken any action which is designed to or which
has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the borrowing of the Term Loans.
(uu) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other material agreement or instrument to which it
is a party or by which it or any of its properties may be bound.
(vv) The statements set forth in the Final Offering
Circular under the captions "Description of Certain Indebtedness" and
"Description of the Notes," insofar as they purport to describe the
provisions of the documents referred to therein, are accurate, complete
and fair in all material respects.
(ww) The description of the Collateral set forth in the
Final Offering Circular under the caption "Description of the
Collateral" is accurate and complete.
(xx) Deloitte & Touche LLP and Pricewaterhouse Coopers
LLP, who have certified certain financial statements of the Company and
its subsidiaries, are each independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder.
(yy) Each of Netherland, Sewell & Associates Inc. and
Gilbert Laustsen Jung Associates Ltd. is an independent petroleum
engineering firm and nothing has come to the Company's attention to
cause it to believe that either such firm is not qualified to pass on
questions relating to the reserves and production of the Company's oil
and gas properties as set forth or incorporated by reference in the
Final Offering Circular.
(zz) The present fair saleable value of the assets of the
Company and each of its subsidiaries exceeds the amount required to pay
the probable liability on its and their existing debts, respectively
(whether matured or unmatured, liquidated or unliquidated, absolute,
fixed or contingent), as they become absolute and matured, and as a
result of consummation of the transactions contemplated herein and in
the Final Offering Circular, shall continue to exceed such amount.
(aaa) The Company and each of its subsidiaries, does not,
and, as a result of consummation of the transactions contemplated
herein and in the Final Offering Circular, shall not, have unreasonably
small capital for it to carry on its business as proposed to be
conducted.
(bbb) Neither the Company nor any of its subsidiaries are
incurring obligations or making transfers under any evidence of
indebtedness with the intent to hinder, delay or defraud any entity to
which it is or shall become indebted.
80
ARTICLE V
COVENANTS
SECTION 5.01. [Intentionally Omitted.]
SECTION 5.02. [Intentionally Omitted.]
SECTION 5.03. Reports.
(a) Whether or not required by the SEC's rules and
regulations, so long as any Term Loan Obligations are outstanding, the
Company shall furnish to the Administrative Agent, within the time
periods specified in the SEC's rules and regulations:
(i) all quarterly and annual reports that would
be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were
required to file such reports; and
(ii) all current reports that would be required
to be filed with the SEC on Form 8-K if the
Company were required to file such reports.
(b) All such reports shall be prepared in all material
respects in accordance with all of the rules and regulations applicable
to such reports. Each annual report on Form 10-K shall include a report
on the Company's consolidated financial statements by the Company's
certified independent accountants. In addition, the Company shall file
a copy of each of the reports referred to in clauses (i) and (ii) above
with the SEC for public availability within the time periods specified
in the rules and regulations applicable to such reports (unless the SEC
shall not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
(c) If, at any time, the Company is no longer subject to
the periodic reporting requirements of the Exchange Act for any reason,
the Company shall nevertheless continue filing the reports specified in
Section 5.03(a) with the SEC within the time periods specified above
unless the SEC shall not accept such a filing. The Company agrees that
it shall not take any action for the purpose of causing the SEC not to
accept any such filings. If, notwithstanding the foregoing, the SEC
shall not accept the Company's filings for any reason, the Company
shall post the reports referred to in Section 5.03(a) on its website
within the time periods that would apply if the Company were required
to file those reports with the SEC.
(d) If the Company has designated any of its Subsidiaries
as Unrestricted Subsidiaries, then the quarterly and annual financial
information required by Section 5.03(a) shall include a reasonably
detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in the Final
Offering Memorandum, of
81
the financial condition and results of operations of the Company and
its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
(e) In addition, the Company agrees that, for so long as
any Term Loan Obligations remain outstanding, at any time it is not
required to file the reports required by Section 5.03(a) with the
Commission, it shall furnish to the Administrative Agent, upon its
request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
SECTION 5.04. Compliance Certificate.
(a) The Company shall deliver to the Administrative Agent
(for delivery to each Lender), within 90 days after the end of each
fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing officers
with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Agreement, and
further stating, as to each such Officer signing such certificate, that
to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this
Agreement and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Agreement (or, if a
Default or Event of Default has occurred, describing all such Defaults
or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Term Loans borrowed under this
Agreement is prohibited or if such event has occurred, a description of
the event and what action the Company is taking or proposes to take
with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
Section 5.03(a) above shall be accompanied by a written statement of
the Company's independent public accountants (who shall be a firm of
established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has
come to their attention that would lead them to believe that the
Company has violated any provisions of Article V or Article VI hereof
or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) So long as any of the Term Loan Obligations are
outstanding, the Company shall deliver to the Administrative Agent,
forthwith upon any Officer becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default
82
or Event of Default and what action the Company is taking or proposes
to take with respect thereto.
SECTION 5.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the
Lenders.
SECTION 5.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Administrative Agent,
but shall suffer and permit the execution of every such power as though no such
law has been enacted.
SECTION 5.07. Restricted Payments.
(a) The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any
other payment or distribution on account of
the Company's or any of its Restricted
Subsidiaries' Equity Interests (including
any payment in connection with any merger or
consolidation involving the Company or any
of its Restricted Subsidiaries) or to the
direct or indirect holders of the Company's
or any of its Restricted Subsidiaries'
Equity Interests in their capacity as such
(other than dividends or distributions
payable in Equity Interests (other than
Disqualified Stock) of the Company or
dividends or distributions payable to the
Company or a Restricted Subsidiary of the
Company);
(ii) purchase, redeem or otherwise acquire or
retire for value (including in connection
with any merger or consolidation involving
the Company) any Equity Interests of the
Company or any direct or indirect parent of
the Company;
(iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness
of the Company that is contractually
subordinated to the Term Loans
83
(excluding any intercompany Indebtedness
between or among the Company and any of its
Restricted Subsidiaries and excluding the
purchase, repurchase or other acquisition of
such subordinated Indebtedness purchased in
anticipation of satisfying a sinking fund
obligation, principal installment or final
maturity, in each case due within one year
of the date of acquisition), except a
payment of interest or principal at the
Stated Maturity thereof; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in these clauses (i) through (iv)
above being collectively referred to as "Restricted Payments"), unless after
giving effect to such Restricted Payment:
(v) no Default or Event of Default has occurred
and is continuing or would occur as a
consequence of such Restricted Payment
(other than any Default or Event of Default
that is cured as a result of such Restricted
Payment);
(vi) the Company would, after giving pro forma
effect thereto as if such Restricted Payment
had been made at the beginning of the
applicable four-quarter period, have been
permitted to incur at least $1.00 of
additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth
in Section 5.09(a) herein; and
(vii) such Restricted Payment, together with the
aggregate amount of all other Restricted
Payments made by the Company and its
Restricted Subsidiaries since the date of
this Agreement (excluding Restricted
Payments permitted by clauses (2), (3), (4),
(5), (6), and (9) of the next succeeding
paragraph), is less than the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income
of the Company for the period (taken as one accounting period)
from the beginning of the first fiscal quarter commencing
after the date of this Agreement to the end of the Company's
most recently ended fiscal quarter for which internal
financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus
(B) 100% of the aggregate net cash
proceeds received by the Company since the date of this
Agreement as a contribution to its common equity capital or
from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible
or exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other
than
84
Equity Interests (or Disqualified Stock or debt securities)
sold to a Subsidiary of the Company), plus
(C) to the extent that any Restricted
Investment that was made after the date of this Agreement is
sold for cash or otherwise liquidated or repaid for cash, the
lesser of (i) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any)
and (ii) the initial amount of such Restricted Investment,
plus
(D) to the extent that any Unrestricted
Subsidiary of the Company designated as such after the date of
this Agreement is redesignated as a Restricted Subsidiary
after the date of this Agreement, the Fair Market Value of the
Company's Investment in such Subsidiary as of the date of such
redesignation, plus
(E) 100% of any payments of interest on
Indebtedness, dividends, repayments of loans or advances, or
other transfers of assets received by the Company or a
Restricted Subsidiary of the Company after the date of this
Agreement from an Unrestricted Subsidiary of the Company, to
the extent that such payments, dividends, repayments or
transfers were not otherwise included in Consolidated Net
Income of the Company for such period, plus
(F) $628.3 million (which is the amount
currently available for Restricted Payments under the
Company's indentures entered into prior to August 10, 2000).
The preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date
of declaration of the dividend, if at the date of declaration the dividend
payment would have complied with the provisions of this Agreement;
(2) the making of any Restricted Payment in exchange for, or
out of the net cash proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Company) of, Equity Interests of the Company (other than
Disqualified Stock) or from the substantially concurrent contribution of common
equity capital to the Company; provided that the amount of any such net cash
proceeds that are utilized for any such Restricted Payment shall be excluded
from clause (3)(B) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other
acquisition of Indebtedness of the Company that is contractually subordinated to
the Term Loans with the net cash proceeds from a substantially concurrent
incurrence of Permitted Refinancing Indebtedness, so long as no Default has
occurred and is continuing or would be caused thereby;
85
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by a
Restricted Subsidiary of the Company to the holders of any class or series of
such Restricted Subsidiary's Equity Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any Restricted
Subsidiary of the Company held by any current or former officer, direct or
employee of the Company (or any of its Restricted Subsidiaries) pursuant to any
equity subscription agreement, stock option agreement, shareholders' agreement
or similar agreement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests may not exceed $5.0
million in any twelve-month period, so long as no Default has occurred and is
continuing or would be caused thereby;
(6) the repurchase of Equity Interests deemed to occur upon
the exercise of stock options to the extent such Equity Interests represent a
portion of the exercise price of those stock options;
(7) the declaration and payment of dividends to holders of any
class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Agreement in
accordance with the Fixed Charge Coverage test described under Section 5.09
herein; provided that no Default has occurred and is continuing or would be
caused thereby (other than any Default or Event of Default that is cured as a
result of such Restricted Payment); and
(8) any purchase, redemption, defeasance or other acquisition
or retirement for value of subordinated Indebtedness upon a Change of Control or
an Asset Sale to the extent required by the indentures or other agreement
pursuant to which such subordinated Indebtedness was issued, but only if the
Company (a) in the case of a Change of Control, has made an offer to repay the
Term Loans as described under Section 5.15 herein or (b) in the case of an Asset
Sale, has applied the Net Proceeds from such Asset Sale in accordance with the
provisions described under Section 5.10 herein, so long as no Default has
occurred and is continuing or would be caused thereby.
(b) The amount of all Restricted Payments (other than
cash) shall be the Fair Market Value on the date of the Restricted
Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may
be, pursuant to the Restricted Payment.
SECTION 5.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create or
permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other
distributions on its Capital Stock to the
Company or any of its Restricted
Subsidiaries, or with
86
respect to any other interest or
participation in, or measured by, its
profits, or pay any indebtedness owed to the
Company or any of its Restricted
Subsidiaries;
(ii) make loans or advances to the Company or any
of its Restricted Subsidiaries; or
(iii) transfer any of its properties or assets to
the Company or any of its Restricted
Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances or
restrictions existing under or by reason of:
(A) agreements governing Existing
Indebtedness and Credit Facilities as in effect on the date of
this Agreement and any amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements; provided
that the amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or
refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than
those contained in those agreements on the date of this
Agreement;
(B) this Agreement, any of the
Indentures and any of the Notes issued pursuant to the
Indentures or any other indenture governing letters of credit,
loans or debt securities issued by or on behalf of the Company
that are no more restrictive, taken as a whole, with respect
to such dividend, distribution or other payment restrictions
and loan or investment restrictions than those contained in
this Agreement, the Indentures, and the Initial Notes as in
effect on the date of this Agreement;
(C) applicable law, rule, regulation or
order;
(D) customary non-assignment provisions
in leases, contracts and licenses entered into in the ordinary
course of business and consistent with past practices;
(E) purchase money obligations for
property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions on the
property purchased or leased of the nature described in clause
(iii) of the preceding paragraph;
(F) any agreement for the sale or other
disposition of a Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending the sale
or other disposition;
87
(G) Permitted Refinancing Indebtedness;
provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced;
(H) Liens securing Indebtedness
otherwise permitted to be incurred under the provisions of the
covenant described above under Section 5.12 herein that limit
the right of the debtor to dispose of the assets subject to
such Liens;
(I) provisions limiting or prohibiting
the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback
agreements, stock sale agreements and other similar agreements
entered into with the approval of the Company's Board of
Directors, which limitation or prohibition is applicable only
to the assets that are the subject of such agreements;
(J) any encumbrance or restriction
imposed pursuant to the terms of any Non-Recourse Debt
incurred pursuant to clause (vi) of the definition of
Permitted Debt described in Section 5.09(b) or any preferred
stock issued pursuant to clause (vii) of the definition of
Permitted Debt described in Section 5.09(b); provided that
such encumbrance or restriction, in the written opinion of the
President, Vice Chairman, Chief Operating Officer or Chief
Financial Officer of the Company, (x) is required in order to
obtain such financing or to place such preferred stock, (y) is
customary for such financings or placements and (z) applies
only to the assets or revenues of the applicable Restricted
Subsidiary;
(K) any encumbrance or restriction with
respect to a Restricted Subsidiary pursuant to an agreement
relating to any Acquired Debt incurred pursuant to clause (x)
of the definition of Permitted Debt described in Section
5.09(b); provided that such encumbrance or restriction was not
incurred in connection with or in contemplation of such
Restricted Subsidiary becoming a Restricted Subsidiary; and
(L) restrictions on cash or other
deposits or net worth imposed by customers or suppliers under
contracts entered into in the ordinary course of business.
SECTION 5.09. Incurrence of Indebtedness and Issuance of Preferred
Stock.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt), and the Company
shall not issue any Disqualified Stock and shall not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company
88
may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.0 to 1, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred or the
Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.
(b) Section 5.09(a) shall not prohibit the incurrence of
any of the following items (collectively, "Permitted Debt"):
89
(i) the incurrence by the Company and the
Guarantee by the Canadian Guarantors of
additional Indebtedness and letters of
credit under Credit Facilities in an
aggregate principal amount at any one time
outstanding under this clause (i) (with
letters of credit being deemed to have a
principal amount equal to the maximum
potential liability of the Company
thereunder) not to exceed on any date of
incurrence the greater of (A) $500.0 million
or (B) the dollar amount that is equal to
50% of the Company's Consolidated Cash Flow
for the then most recent four-quarter period
for which financial information is
available;
(ii) the incurrence by the Company and its
Restricted Subsidiaries of the Existing
Indebtedness;
(iii) the incurrence by the Company and the
Canadian Guarantors of Indebtedness
represented by the 2007 Notes, the 2010
Notes and the 2013 Notes and the Term Loans
to be issued on the date of this Agreement,
and in each case the related Guarantees;
(iv) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations,
mortgage financings or purchase money
obligations, in each case, incurred for the
purpose of financing all or any part of the
purchase price or cost of design,
construction, installation or improvement of
property, plant or equipment used in the
business of the Company or any of its
Restricted Subsidiaries, in an aggregate
principal amount (or accreted value, as
applicable), including all Permitted
Refinancing Indebtedness incurred to extend,
refund, refinance, renew, replace or defease
any Indebtedness incurred pursuant to this
clause (iv), not to exceed $100.0 million at
any one time outstanding;
(v) Indebtedness of the Company which is owed to
and owned by a Restricted Subsidiary and
Indebtedness of a Restricted Subsidiary that
is owed to and owned by the Company or a
Restricted Subsidiary; provided that any
subsequent issuance or transfer of any
Capital Stock that results in any such
Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any transfer of
such Indebtedness (other than to the Company
or a Restricted Subsidiary) shall be deemed,
in each case, to constitute the incurrence
of such Indebtedness by the Company or by a
Restricted Subsidiary, as the case may be;
90
(vi) the incurrence of Non-Recourse Debt by any
Restricted Subsidiary of the Company (other
than a Restricted Subsidiary that owns,
directly or indirectly, any Material
Designated Assets);
(vii) the issuance of preferred stock by a
Restricted Subsidiary of the Company (other
than a Restricted Subsidiary that owns,
directly or indirectly, any Material
Designated Assets), the net proceeds of
which are applied to finance the
exploration, drilling, development,
construction or purchase of or by, or
repairs or improvements or additions to,
property or assets of the Company or any
Restricted Subsidiary;
(viii) the incurrence by the Company of Guarantees
of Indebtedness of Restricted Subsidiaries
which, but for such Guarantees, would be
permitted to be incurred pursuant to clause
(vi) of this Section 5.09(b); provided that
the aggregate principal amount of
Indebtedness incurred pursuant to this
clause (viii) does not exceed $100.0 million
at any one time outstanding;
(ix) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to
refund, refinance, replace, defease or
discharge Indebtedness (other than
intercompany Indebtedness) that was
permitted by this Agreement to be incurred
under the first paragraph of this covenant
or clauses (ii), (iii), (iv), (v), (vi),
(viii) or (x) of this Section 5.09(b) or
this clause (ix);
(x) the incurrence of Acquired Debt by any
Restricted Subsidiary of the Company at the
time such Restricted Subsidiary becomes a
Restricted Subsidiary of the Company so long
as such Acquired Debt was not incurred in
connection with or in contemplation of such
Person becoming a Restricted Subsidiary of
the Company; provided that the Company would
have been able to incur such Indebtedness at
the time of incurrence thereof by the
Restricted Subsidiary pursuant to Section
5.09(a);
(xi) the incurrence of Indebtedness pursuant to
Hedging Obligations incurred in the ordinary
course of business and not for speculative
purposes;
(xii) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness in
respect of workers' compensation claims,
self-insurance obligations, bankers'
acceptances and performance and surety bonds
in the ordinary course of business;
91
(xiii) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness
arising from the honoring by a bank or other
financial institution of a check, draft or
similar instrument inadvertently drawn
against insufficient funds, so long as such
Indebtedness is covered within five business
days;
(xiv) the incurrence by any Restricted Subsidiary
of Indebtedness represented by letters of
credit (or Guarantees thereof) entered into
in the ordinary course of business to the
extent that such letters of credit are not
drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later
than the tenth Business Day following a
demand for reimbursement following payment
on the letter of credit; provided that such
letters of credit shall not constitute
Permitted Debt pursuant to this clause (xiv)
if they are issued in support of
Indebtedness;
(xv) the incurrence of Indebtedness by the
Company represented by letters of credit
cash collateralized with the proceeds of
Priority Lien Debt; and
(xvi) the incurrence by the Company or any of its
Restricted Subsidiaries of additional
Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at
any time outstanding, including all
Permitted Refinancing Indebtedness incurred
to extend, refinance, renew, replace,
defease or refund any Indebtedness incurred
pursuant to this clause (xvi), not to exceed
$100.0 million.
The Company shall not incur any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the
Company unless such Indebtedness is also contractually subordinated in right of
payment to the Term Loans on substantially identical terms; provided, however,
that no Indebtedness of the Company shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company solely
by virtue of being unsecured or by virtue of being secured on a junior basis.
SECTION 5.10. Asset Sales.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale (including a
Sale of Designated Assets) unless:
92
(i) the Company (or the Restricted Subsidiary,
as the case may be) receives consideration
at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or
Equity Interests issued or sold or otherwise
disposed of;
(ii) at least 75% of the consideration received
in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash
or Cash Equivalents. For purposes of this
provision, each of the following shall be
deemed to be cash:
(A) any liabilities, as shown on the
Company's most recent consolidated balance sheet, of the
Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms
subordinated to the Term Loans) that are assumed by the
transferee of any such assets pursuant to a customary novation
or similar agreement that releases the Company or such
Restricted Subsidiary from further liability;
(B) any securities, notes or other
obligations received by the Company or any such Restricted
Subsidiary from such transferee that are promptly, subject to
ordinary settlement periods, converted by the Company or such
Restricted Subsidiary into cash, to the extent of the cash
received in that conversion; and
(C) except in the case of a Sale of
Designated Assets, any stock or assets of the kind referred to
in clauses (iv) or (vi) of Section 5.10(b); and
(iii) in the case of a Sale of Designated Assets
other than Canadian Gas Assets, the Company
(or the Restricted Subsidiary, as the case
may be) shall deposit the Net Proceeds as
cash collateral in a segregated account (a
"Designated Asset Sale Proceeds Account")
held by the Collateral Trustee or its agent
to secure the Secured Obligations; provided,
that for so long as the terms of any of the
Company's senior unsecured notes that were
issued prior to August 10, 2000 would
prevent such a pledge by a Restricted
Subsidiary, the Company shall deposit with
the Collateral Trustee or its agent an
amount of cash equal to the Net Proceeds as
cash collateral to secure the Secured
Obligations, and the applicable Restricted
Subsidiary shall not be obligated to do so.
(b) Within 365 days after the receipt of any Net Proceeds
from an Asset Sale, other than a Sale of Designated Assets that are not
Canadian Gas Assets, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply those Net Proceeds:
93
(i) to repay Priority Lien Debt and/or cash
collateralize letters of credit constituting
Priority Lien Debt;
(ii) in the case of an Asset Sale by a Restricted
Subsidiary, to repay or repurchase
Indebtedness of Calpine Canada Energy
Finance ULC and/or Calpine Canada Energy
Finance II ULC existing on the date of this
Agreement;
(iii) in the case of an Asset Sale by a Restricted
Subsidiary, to repay or repurchase
Indebtedness of any Restricted Subsidiary
and, if such Indebtedness is revolving
credit Indebtedness, to correspondingly
reduce commitments with respect thereto;
(iv) to acquire all or substantially all of the
assets of, or any Capital Stock of, another
Permitted Business, if, after giving effect
to any such acquisition of Capital Stock,
the Permitted Business is or becomes a
Restricted Subsidiary of the Company;
(v) to make a capital expenditure; or
(vi) to acquire other assets that are not
classified as current assets under GAAP and
that are used or useful in a Permitted
Business.
(c) Within 180 days after the receipt of any Net Proceeds
from an Asset Sale that constitutes a Sale of Designated Assets other
than Canadian Gas Assets, the Company (or the Restricted Subsidiary
that disposed of those Designated Assets, as the case may be) may apply
those Net Proceeds to purchase other assets that would constitute
Designated Assets or to repay Priority Lien Debt and/or cash
collateralize letters of credit constituting Priority Lien Debt and, if
such Priority Lien Debt is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto.
(d) Any Net Proceeds from Asset Sales (including Sales of
Designated Assets) that are not applied or invested as provided in the
preceding clauses of this Section 5.10 shall constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $50.0
million, or at such earlier point as may be elected by the Company, the
Company shall make an offer to all Lenders and all holders of other
Indebtedness that is pari passu with the Term Loans Equally and Ratably
secured with the Term Loans containing provisions similar to those set
forth in this Agreement with respect to offers to prepay, purchase or
redeem with the proceeds of sales of assets, including the Notes and
each series of Existing Indebtedness that contains similar asset sale
provisions, when applicable, to prepay the maximum principal amount of
Term Loans and such other pari passu Indebtedness that may be prepaid,
purchased or redeemed out of the Excess Proceeds (including each series
of Existing Indebtedness that contains similar asset sale provisions).
The offer price in any Asset Sale Offer shall be equal to 100% of
principal amount plus accrued and unpaid interest, if any, to the date
of prepayment or purchase, and shall be payable in cash in accordance
with the procedures
94
set forth in Section 2.11 hereof. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess
Proceeds for any purpose not otherwise prohibited by this Agreement. If
the aggregate principal amount of Term Loans and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Company shall select the Term Loans and such other
pari passu Indebtedness to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero.
(e) Notwithstanding the foregoing, to the extent that any
or all of the Net Proceeds of any Foreign Asset Sale is prohibited or
delayed by applicable local law from being repatriated to the United
States, the portion of such Net Proceeds so affected shall not be
required to be applied at the time provided above, but may be retained
by the applicable Restricted Subsidiary so long, but only so long, as
the applicable local law shall not permit repatriation to the United
States. The Company shall promptly take or cause the applicable
Restricted Subsidiary to promptly take all actions required by the
applicable local law to permit such repatriation. Once such
repatriation of any of the affected Net Proceeds is permitted under the
applicable local law, the repatriation shall be immediately effected
and the repatriated Net Proceeds shall be applied in the manner set
forth in this Section 5.10 as if the Asset Sale had occurred on the
date of such repatriation.
(f) Notwithstanding the foregoing, to the extent that the
Board of Directors determines, in good faith, that repatriation of any
or all of the Net Proceeds of any Foreign Asset Sale would have a
material adverse tax consequence to the Company, the Net Proceeds so
affected may be retained outside of the United States by the applicable
Restricted Subsidiary for so long as such material adverse tax
consequence would continue.
SECTION 5.11. Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend
any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company
(each, an "Affiliate Transaction"), unless:
95
(i) the Affiliate Transaction is on terms that
are no less favorable to the Company or the
relevant Restricted Subsidiary than those
that would have been obtained in a
comparable transaction by the Company or
such Restricted Subsidiary with an unrelated
Person; and
(ii) the Company delivers to the Administrative
Agent:
(A) with respect to any Affiliate
Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $2.5 million,
an Officers' Certificate certifying that such Affiliate
Transaction complies with this covenant; and
(B) with respect to any Affiliate
Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $10.0 million,
a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate
Transaction complies with this covenant and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors or, if there
are no disinterested members of the Board of Directors, the
Board of Directors shall have received a written opinion of an
accounting, appraisal or investment banking firm of national
standing stating that such Affiliate Transaction or series of
Affiliate Transactions is fair to the Company or such
Restricted Subsidiary from a financial point of view.
(b) The following items shall not be deemed to be
Affiliate Transactions and, therefore, shall not be subject to the
provisions of Section 5.11(a):
96
(i) any employment agreement, employee benefit
plan, stock option plan, officer and
director indemnification agreement or any
similar arrangement entered into by the
Company or any of its Restricted
Subsidiaries in the ordinary course of
business;
(ii) transactions between or among the Company
and its Restricted Subsidiaries and between
or among the Company's Restricted
Subsidiaries;
(iii) transactions with a Person (other than an
Unrestricted Subsidiary of the Company) that
is an Affiliate of the Company solely
because the Company owns, directly or
through a Restricted Subsidiary, an Equity
Interest in, or controls, such Person;
(iv) payment of reasonable directors' fees to
Persons who are not otherwise Affiliates of
the Company;
(v) any issuance of Equity Interests (other than
Disqualified Stock) of the Company to
Affiliates of the Company;
(vi) Restricted Payments that do not violate the
provisions of this Agreement as described in
Section 5.07 hereof;
(vii) loans or advances to employees in the
ordinary course of business;
(viii) any repurchase, redemption or other
retirement of Capital Stock of the Company
held by employees of the Company or any of
its Subsidiaries upon death, disability or
termination of employment at a price not in
excess of the Fair Market Value thereof
approved by the Board of Directors;
(ix) any transaction between or among the Company
and any of its Subsidiaries in the ordinary
course of business and consistent with past
practices of the Company and its
Subsidiaries; and
(x) any agreement to do any of the foregoing.
(c) Any transaction which has been determined, in the
written opinion of an independent nationally recognized investment
banking firm, to be fair, from a financial point of view, to the
Company or the applicable Restricted Subsidiary shall be deemed to be
in compliance with this Section 5.11.
97
SECTION 5.12. Liens.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind on any asset now owned
or hereafter acquired, except Permitted Liens.
(b) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, grant or permit to exist a Lien upon
any property (whether then held by it or to be acquired by it at a
future time) as security for any Priority Lien Debt, unless (1) such
Lien secures all Priority Lien Debt on an equal and ratable basis and
(2) the Collateral Trustee holds an enforceable and perfected Lien upon
such property as security Equally and Ratably for all Parity Lien
Obligations in second priority to Priority Lien Debt.
SECTION 5.13. Limitation on Changes in the Nature of Business.
The Company and its Restricted Subsidiaries shall engage only in
Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole. In addition, the
Company shall, and shall cause its Subsidiaries, to conduct their respective
businesses in a manner so as to maintain the exemption of the Company and its
Subsidiaries from treatment as a public utility holding company under PUHCA or
an electric utility or public utility under any federal, state or local law;
provided to the extent that any such law is amended following the date of this
Agreement in such a manner that would (absent application of this proviso) make
non-compliance with this Section 5.13 not result in a material adverse effect on
the Company's results of operations or financial condition, then the Company
shall not be required to comply with this Section 5.13, but only to the extent
of actions or failures to act that would (absent application of this Section
5.13) constitute violations of this Section 5.13 solely as a result of such
amendment.
SECTION 5.14. Corporate Existence.
Subject to Article 6 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect:
(i) its corporate existence, and the corporate,
partnership or other existence of each of
its Subsidiaries, in accordance with the
respective organizational documents (as the
same may be amended from time to time) of
the Company or any such Subsidiary; and
(ii) the rights (charter and statutory), licenses
and franchises of the Company and its
Subsidiaries; provided, however, that the
Company shall not be required to preserve
any such right, license or franchise, or the
corporate, partnership or other existence of
any of its Subsidiaries, if the Board of
Directors shall determine that the
preservation thereof is no longer desirable
in the conduct of the business of the
Company and its Subsidiaries, taken as a
whole,
98
and that the loss thereof is not adverse in
any material respect to the Lenders.
SECTION 5.15. Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Lender shall have
the right to require the Company to repay all or any part (equal to
$1,000 or an integral multiple of $1,000) of that Lender's Term Loans
pursuant to the offer described below (the "Change of Control Offer")
on the terms set forth in this Agreement. In the Change of Control
Offer, the Company shall offer a payment in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest,
(the "Change of Control Payment"), to but excluding the date of
repayment. Within 30 days following any Change of Control, the Company
shall mail a notice to the Administrative Agent (for delivery to each
Lender) describing the transaction or transactions that constitute the
Change of Control and offering to repay all Term Loans on the change of
control payment date (the "Change of Control Payment Date") specified
in the notice, which date shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed, pursuant to the
procedures required by this Agreement and described in such notice.
(b) On the Change of Control Payment Date, the Company
shall, to the extent lawful:
(i) transfer to the Administrative Agent in
immediately available funds an amount equal
to the Change of Control Payment in respect
of all Term Loans or portions thereof for
which repayment has been requested; and
(ii) deliver or cause to be delivered to the
Adminstrative Agent an Officers' Certificate
stating the aggregate principal amount of
Term Loans or portions thereof being repaid
by the Company.
(c) The Administrative Agent shall promptly mail to each
Lender so requesting the Change of Control Payment for such Term Loans.
(d) The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(e) The provisions described above that require the
Company to make a Change of Control Offer following a Change of Control
shall be applicable whether or not any other provisions of this
Agreement are applicable.
(f) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if (i) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Agreement applicable
to a Change of Control Offer made by the Company and repays all Term
Loans not withdrawn under the Change of Control Offer or (ii) notice of
voluntary
99
prepayment has been given in accordancy with Section 2.10 unless and
until there is a default in payment of the applicable prepayment price.
SECTION 5.16. Limitation on Sale and Leaseback Transactions.
(a) The Company shall not enter into any sale and
leaseback transaction; provided that the Company may enter into a sale
and leaseback transaction if:
(i) the Company could have (a) incurred
Indebtedness in an amount equal to the
Attributable Debt relating to such sale and
leaseback transaction under the Fixed Charge
Coverage Ratio test in Section 5.09 (a)
herein and (b) incurred a Lien to secure
such Indebtedness pursuant to Section 5.12
herein;
(ii) the gross cash proceeds of that sale and
leaseback transaction are at least equal to
the Fair Market Value, as determined in good
faith by the Board of Directors and set
forth in an Officers' Certificate delivered
to the Administrative Agent, of the property
that is the subject of that sale and
leaseback transaction; and
(iii) the transfer of assets in that sale and
leaseback transaction is permitted by, and
the Company applies the proceeds of such
transaction in compliance with, Section 5.10
herein.
(b) This Section 5.16 shall not apply to the Company's
Subsidiaries.
SECTION 5.17. [Intentionally Omitted.]
SECTION 5.18. [Intentionally Omitted.]
SECTION 5.19. Limitation on Issuances of Guarantees of
Indebtedness.
The Company shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company (other than the Existing Guarantees by the Canadian
Guarantors) unless such Restricted Subsidiary simultaneously executes and
delivers (1) supplemental agreements providing for the Guarantees of the payment
of the Term Loans by such Restricted Subsidiary, which Guarantees shall be
senior to such Restricted Subsidiary's Guarantee of or pledge to secure such
other Indebtedness unless the Indebtedness of the Company so Guaranteed or
secured is senior Indebtedness of the Company, in which case the Guarantees of
the Term Loans may be pari passu with such Restricted Subsidiary's Guarantee of
or pledge to secure such other Indebtedness of the Company, and (2) a pledge or
security agreement providing for a pledge of such assets to secure the Term
Loans and all other Parity Lien Debt on an Equal and Ratable basis (subject only
to Permitted Prior Liens).
100
SECTION 5.20. [Intentionally Omitted.]
SECTION 5.21. Payments for Consent.
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration, whether
by way of interest, fee or otherwise, to any Lender for or as an inducement to
any consent, waiver or amendment of any of the terms or provisions of this
Agreement or any other Term Loan Document unless such consideration is offered
to be paid or agreed to be paid to all Lenders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
SECTION 5.22. Designation of Restricted and Unrestricted
Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as Unrestricted shall be
deemed to be an Investment made as of the time of the designation and shall
reduce the remaining amount available for Restricted Payments under Section 5.07
herein or under one or more clauses of the definition of Permitted Investments,
as determined by the Company. That designation shall only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if that redesignation would not cause a Default.
SECTION 5.23. Suspension of Covenants.
(a) If on any date following the date of this Agreement:
(i) the Term Loans are rated Baa3 or better by
Moody's and BBB--or better by S&P; and
(ii) no Default or Event of Default shall have
occurred and be continuing, then, beginning
on that day and subject to the provisions of
the following paragraph, the Company and its
Restricted Subsidiaries shall no longer be
subject to Sections 5.07, 5.08, 5.09, 5.10
(provided that the provisions of Section
5.10 relating to the Sale of Designated
Assets and the application of the proceeds
therefrom shall remain in full force and
effect and shall not be suspended), 5.11,
5.13, 5.22 and 6.01(iv) hereof (the
"Suspended Covenants"); provided that all
other provisions of this Agreement shall
continue to be in full force and effect.
Notwithstanding the foregoing, if the rating assigned by either such
rating agency should subsequently decline to below Baa3 or BBB--, respectively,
the Suspended Covenants shall be
101
reinstituted as of and from the date of such rating decline. Calculations under
the reinstated Section 5.07 shall be made as if the covenant set forth in
Section 5.07 had been in effect since the date of this Agreement except that no
Default shall be deemed to have occurred solely by reason of a Restricted
Payment made while Section 5.07 was suspended. The covenant suspension
provisions of this Section 5.23 shall continue to be applicable following any
such reinstatement.
ARTICLE VI
SUCCESSORS
SECTION 6.01. Merger, Consolidation, or Sale of Assets.
The Company may not, directly or indirectly: (1) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person; unless:
(i) either:
(A) the Company is the surviving
corporation; or
(B) the Person formed by or surviving
any such consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, conveyance or
other disposition has been made is a corporation organized or
existing under the laws of the United States, any state of the
United States or the District of Columbia;
102
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the
Company) or the Person to which such sale,
assignment, transfer, conveyance or other
disposition has been made assumes all the
obligations of the Company under this
Agreement and the other Term Loan Documents
pursuant to agreements reasonably
satisfactory to the Administrative Agent and
the Collateral Trustee;
(iii) immediately after such transaction, no
Default or Event of Default exists;
(iv) the Company or the Person formed by or
surviving any such consolidation or merger
(if other than the Company), or to which
such sale, assignment, transfer, conveyance
or other disposition has been made:
(A) shall have Consolidated Net Worth
immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding
the transaction; and
(B) shall, on the date of such
transaction after giving pro forma effect thereto and any
related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 5.09(a) herein; and
(v) such transaction shall not impair the
ability of the Company or any of its
Subsidiaries to conduct their respective
businesses in a manner so as to maintain the
exemption of the Company and its
Subsidiaries from treatment as a public
utility holding company under PUHCA or an
electric utility or public utility under any
federal, state or local law, unless such
exemption is no longer material to the
Company and its Restricted Subsidiaries
taken as a whole or to the Person formed by
or surviving any such consolidation or
merger (if other then the Company) and its
Restricted Subsidiaries taken as a whole.
In addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
Notwithstanding the foregoing:
(A) the Company may merge with an
Affiliate solely for the purpose of reincorporating the
Company in another jurisdiction; and
103
(B) the Company and its Restricted
Subsidiaries may sell, assign, transfer, lease, convey or
otherwise dispose of assets between or among each other
(including by way of merger).
SECTION 6.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in a transaction that is subject to, and that complies with the
provisions of, Section 6.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Agreement referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Agreement with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Term Loans except in the case of a sale of all
of the Company's assets in a transaction that is subject to, and that complies
with the provisions of, Section 6.01 hereof.
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default.
Each of the following is an "Event of Default":
(i) default for 30 days in the payment when due
of interest on the Term Loans;
(ii) default in payment when due of the principal
of, or premium, if any, on the Term Loans;
(iii) failure to comply with Section 5.10 or 5.15;
(iv) failure by the Company or any of its
Restricted Subsidiaries for 30 days after
written notice from the Administrative Agent
or Lenders holding at least 25% in
outstanding aggregate principal amount of
the Term Loans then outstanding to comply
with any of the other agreements in this
Agreement or the other Term Loan Documents;
(v) default under any mortgage, indenture or
instrument under which there may be issued
or by which there may be secured or
104
evidenced any Indebtedness for money
borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of
its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is
created after the date of this Agreement, if
that default:
(A) is caused by a failure to pay
principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a
"Payment Default"); or
(B) results in the acceleration of such
Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $50.0 million or more, and such default shall not have
been cured or waived or any such acceleration rescinded, or such Indebtedness
repaid, within 20 days of the Company or such Restricted Subsidiary becoming
aware of such default; provided that the provisions of this clause (v) shall not
apply to any default on Non-Recourse Debt;
105
(vi) failure by the Company or any of its
Significant Subsidiaries to pay final
judgments (not covered by insurance)
aggregating in excess of $50.0 million,
which judgments are not paid, discharged or
stayed for a period of 30 days;
(vii) the repudiation by the Company or any of its
Restricted Subsidiaries of any of its
obligations under the Security Documents or
the unenforceability of the Security
Documents against the Company or any of its
Restricted Subsidiaries for any reason;
provided that such breach, repudiation or
unenforceability relates to Collateral
having an aggregate Fair Market Value of
$50.0 million or more;
(viii) except as permitted by this Agreement, any
Guarantee of the Term Loan Obligations shall
be held in any judicial proceeding to be
unenforceable or invalid or shall cease for
any reason to be in full force and effect or
any Canadian Guarantor, or any Person acting
on behalf of any Canadian Guarantor, shall
deny or disaffirm its obligations under its
Guarantee of the Term Loan Obligations and
such condition shall not have been cured
within 30 days of written notice from the
Administrative Agent or Lenders holding at
least 25% in outstanding aggregate principal
amount of the Term Loans then outstanding;
and
(ix) (a) the Company or any of its Significant
Subsidiaries or any group of Subsidiaries
that, when take together, would consitute a
Significant Subsidiary pursuant to or within
the meaning of the Bankruptcy Code: (1)
commences a voluntary case, (2) consents to
the entry of an order for relief against it
in an involuntary case, (3) consents to the
appointment of a custodian of it or for all
or substantially all of its property, (4)
makes a general assignment for the benefit
of its creditors or (5) generally is not
paying its debts as they become due or (b) a
court of competent jurisdiction enters an
order or decree under the Bankruptcy Code
that: (1) is for relief against the Company
or any of its Significant Subsidiaries or
any group of Subsidiaries that, when taken
together, would constitute a Significant
Subsidiary, in an involuntary case, (2)
appoints a custodian of the Company or any
of its Significant Subsidiaries or any group
of Subsidiaries that, when taken together,
would constitute a Significant Subsidiary,
or for all or substantially all of the
property of the Company or any of its
Significant Subsidiaries or any group of
Subsidiaries that, when taken together,
would constitute a Significant Subsidiary or
(3) orders the liquidation of the Company or
any of its Significant Subsidiaries or any
group of Subsidiaries that, when taken
together, would constitute a
106
Significant Subsidiary, and in any case
under this clause (b) the order or decree
remains unstayed and in effect for 60
consecutive days.
SECTION 7.02. Acceleration.
(a) In the case of an Event of Default specified in
clause (ix) of Section 7.01 hereof, with respect to the Company or any
of its Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary, all
outstanding Term Loans shall become due and payable immediately without
further action or notice. If any other Event of Default occurs and is
continuing, the Administrative Agent or Lenders holding at least 25% in
outstanding aggregate principal amount of the Term Loans then
outstanding may declare all the Term Loans to be due and payable
immediately.
(b) Upon any such declaration, the Term Loans shall
become due and payable immediately. Notwithstanding the foregoing, if
an Event of Default specified in clause (ix) of Section 7.01 hereof
occurs with respect to the Company, any of its Significant Subsidiaries
or any group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, all outstanding Term Loans shall be due and
payable immediately without further action or notice. Lenders holding
at least 25% in outstanding aggregate principal amount of the Term
Loans then outstanding by written notice to the Administrative Agent
may on behalf of all of the Lenders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of
the acceleration) have been cured or waived.
SECTION 7.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the
Administrative Agent may pursue any available remedy to collect the
payment of principal, premium, if any, and interest on the Term Loans
or to enforce the performance of this Agreement.
(b) The Administrative Agent may maintain a proceeding
even if it does not possess any of the Term Loans. A delay or omission
by the Administrative Agent or any Lender in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by law.
SECTION 7.04. Waiver of Past Defaults.
The Requisite Lenders by notice to the Administrative Agent may on behalf of the
Lenders waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest on, the Term Loans (including in
connection with an offer to purchase); provided, however, that the Requisite
Lenders may rescind an acceleration and its consequences, including
107
any related payment default that resulted from such acceleration. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Agremeent; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 7.05. Control by Majority.
The Requisite Lenders may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Administrative Agent or
exercising any trust or power conferred on it. However, the Administrative Agent
may refuse to follow any direction that conflicts with law or this Agreement
that the Administrative Agent determines may be unduly prejudicial to the rights
of other Lenders or that may involve the Administrative Agent in personal
liability.
SECTION 7.06. [Intentionally Omitted.]
SECTION 7.07. [Intentionally Omitted.]
SECTION 7.08. Collection Suit by Administrative Agent.
If an Event of Default specified in Section 7.01(1) or (2) occurs and is
continuing, the Administrative Agent is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the
Term Loans and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent, its agents and counsel.
SECTION 7.09. Priorities.
If the Administrative Agent collects any money pursuant to this Article 7, it
shall pay out the money in the following order:
First: to the Administrative Agent, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Administrative Agent and the
costs and expenses of collection;
Second: to the Lenders for amounts due and unpaid on the Term Loans for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Term Loans
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction
shall direct.
108
The Administrative Agent may fix a record date and payment date for any payment
to Lenders pursuant to this Section 7.10.
ARTICLE VIII
AGENTS
SECTION 8.01. Appointment of Agents. The Company and the Lenders
acknowledge and agree that GSCP has acted and shall be credited as sole lead
arranger and sole bookrunner of the Initial Term Loans and that GSCP is hereby
appointed Administrative Agent hereunder and under the other Term Loan
Documents. Each Lender hereby authorizes the Sole Lead Arranger and the
Administrative Agent to act as its agent in accordance with the terms hereof and
the other Term Loan Documents. The Administrative Agent hereby agrees to act
upon the express conditions contained herein and the other Term Loan Documents,
as applicable. The provisions of this Article VIII are solely for the benefit of
Agents and Lenders and no Obligor shall have any rights as a third party
beneficiary of any of the provisions thereof. In performing its functions and
duties hereunder, the Administrative Agent shall act solely as an agent of
Lenders and no Agent does or shall assume or be deemed to have assumed any
obligation towards or relationship of agency or trust with or for the Company or
any of its Restricted Subsidiaries. The Sole Lead Arranger, without consent of
or notice to any party hereto, may assign any and all of its rights or
obligations hereunder to any of its Affiliates. GSCP in its capacity as the Sole
Lead Arranger shall not have any duties, liabilities or obligations under the
Term Loan Documents but shall be entitled to all benefits of this Article VIII.
SECTION 8.02. Powers and Duties. Each Lender irrevocably authorizes
each Agent to take such action on such Lender's behalf and to exercise such
powers, rights and remedies hereunder and under the other Term Loan Documents as
are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably
incidental thereto. Each Agent shall have only those duties and responsibilities
that are expressly specified herein and the other Term Loan Documents. Each
Agent may exercise such powers, rights and remedies and perform such duties by
or through its agents or employees. No Agent shall have, by reason hereof or any
of the other Term Loan Documents, a fiduciary relationship in respect of any
Lender; and nothing herein or any of the other Term Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon any Agent any
obligations in respect hereof or any of the other Term Loan Documents except as
expressly set forth herein or therein.
SECTION 8.03. General Immunity.
(a) No Responsibility for Certain Matters. No Agent shall
be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency
hereof or any other Term Loan Document or for any representations,
warranties, recitals or statements made herein or therein or made in
any
109
written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished
or made by any Agent to Lenders or by or on behalf of any Obligor to
any Agent or any Lender in connection with the Term Loan Documents and
the transactions contemplated thereby or for the financial condition or
business affairs of any Obligor or any other Person liable for the
payment of any Term Loan Obligations, nor shall any Agent be required
to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in
any of the Term Loan Documents or as to the use of the proceeds of the
Term Loans or as to the existence or possible existence of any Event of
Default or Default or to make any disclosures with respect to the
foregoing. Anything contained herein to the contrary notwithstanding,
the Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Term Loans or the component
amounts thereof.
(b) Exculpatory Provisions. No Agent nor any of its
officers, partners, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by any Agent under or in
connection with any of the Term Loan Documents except to the extent
caused by such Agent's gross negligence or willful misconduct. Each
Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith
or any of the other Term Loan Documents or from the exercise of any
power, discretion or authority vested in it hereunder or thereunder
unless and until such Agent shall have received instructions in respect
thereof from Requisite Lenders (or such other Lenders as may be
required to give such instructions under Section 13.05) and, upon
receipt of such instructions from Requisite Lenders (or such other
Lenders, as the case may be), such Agent shall be entitled to act or
(where so instructed) refrain from acting, or to exercise such power,
discretion or authority, in accordance with such instructions. Without
prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper Person or
Persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys
for the Company and its Restricted Subsidiaries), accountants, experts
and other professional advisors selected by it; and (ii) no Lender
shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting
hereunder or any of the other Term Loan Documents in accordance with
the instructions of Requisite Lenders (or such other Lenders as may be
required to give such instructions under Section 13.05).
SECTION 8.04. Agents Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, any Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the Term Loans, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as if it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" shall, unless the context
clearly otherwise indicates, include each Agent in its individual capacity. Any
Agent and its Affiliates may accept deposits
110
from, lend money to, own securities of, and generally engage in any kind of
banking, trust, financial advisory or other business with the Company or any of
its Affiliates as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Company for services in connection
herewith and otherwise without having to account for the same to Lenders.
SECTION 8.05. Lenders' Representations, Warranties and
Acknowledgment.
(a) Each Lender represents and warrants that it has made
its own independent investigation of the financial condition and
affairs of the Company and its Restricted Subsidiaries in connection
with its Term Loans hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Company and
its Restricted Subsidiaries. No Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any
such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the
Term Loans or at any time or times thereafter, and no Agent shall have
any responsibility with respect to the accuracy of or the completeness
of any information provided to Lenders.
(b) Each Lender, by delivering its signature page to this
Agreement and funding its Initial Term Loan on the Closing Date, shall
be deemed to have acknowledged receipt of, and consented to and
approved, each Term Loan Document and each other document required to
be approved by any Agent, Requisite Lenders or Lenders, as applicable
on the Closing Date.
SECTION 8.06. Right to Indemnity. Each Lender, in proportion to its
Pro Rata Share, severally agrees to indemnify each Agent, to the extent that
such Agent shall not have been reimbursed by any Obligor, for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against such Agent in exercising its powers, rights and remedies
or performing its duties hereunder or under the other Term Loan Documents or
otherwise in its capacity as such Agent in any way relating to or arising out of
this Agreement or the other Term Loan Documents; provided, no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Agent's gross negligence or willful misconduct. If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this sentence
require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in
excess of such Lender's Pro Rata Share thereof; and provided further, this
sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence.
111
SECTION 8.07. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving thirty (30) days' prior written notice
thereof to Lenders and the Company, and the Administrative Agent may be removed
at any time with or without cause by an instrument or concurrent instruments in
writing delivered to the Company and the Administrative Agent and signed by the
Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days' notice to the
Company, to appoint a successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and the retiring or removed Administrative Agent
shall promptly transfer to such successor Administrative Agent all sums,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Administrative
Agent under the Term Loan Documents, whereupon such retiring or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring or removed Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent hereunder.
ARTICLE IX
COLLATERAL AND SECURITY
The Collateral Trustee's Liens upon the Collateral shall no longer
secure the Term Loan Obligations outstanding under this Agreement, and the right
of Lenders to the benefits and proceeds of the Collateral Trustee's Liens on
Collateral shall terminate and be discharged:
(1) upon payment in full and discharge of all outstanding Term Loans
and all other Term Loan Obligations that are outstanding, due and payable at
the timeall of the Term Loans are paid in full and discharged; or
(2) with the prior written consent of each Lender.
ARTICLE X
RANKING OF LIENS
Notwithstanding: (i) anything to the contrary contained in the Security
Documents; (ii) the time of incurrence of any Series of Secured Debt; (iii) the
order or method of attachment or perfection of any Liens securing any Series of
Secured Debt; (iv) the time or order of filing or recording of financing
statements, mortgages or other documents filed or recorded to perfect any Lien
upon any Collateral; (v) the time of taking possession or control over any
Collateral or (vi)
112
the rules for determining priority under any law governing relative priorities
of Liens, all Liens at any time granted by the Company or any other Obligor to
secure any of the Parity Lien Debt shall be subject and subordinate to Priority
Liens securing Priority Lien Obligations up to the Priority Lien Cap.
The foregoing provision is intended for the benefit of, and shall be
enforceable as a third party beneficiary by, each present and future holder of
Priority Lien Obligations, each present and future Priority Lien Agent and the
Collateral Trustee as holder of Priority Liens. No other Person shall be
entitled to rely on, have the benefit of or enforce this provision.
In addition, the foregoing provision is intended solely to set forth
the relative ranking, as Liens, of the Liens securing Parity Lien Debt as
against the Priority Liens. Neither the Notes nor the Term Loans nor any other
Parity Lien Obligations nor the exercise or enforcement of any right or remedy
for the payment or collection thereof are intended to be, or shall ever be by
reason of the foregoing provision, in any respect subordinated, deferred,
postponed, restricted or prejudiced.
ARTICLE XI
COLLATERAL SHARING
SECTION 11.01. Equal and Ratable Lien Sharing by holders of Parity
Lien Debt.
Notwithstanding (i) anything to the contrary contained in the Security
Documents; (ii) the time of incurrence of any Series of Parity Lien Debt; (iii)
the order or method of attachment or perfection of any Liens securing any Series
of Parity Lien Debt; (iv) the time or order of filing or recording of financing
statements, mortgages or other documents filed or recorded to perfect any Lien
upon any Collateral; (v) the time of taking possession or control over any
Collateral or (vi) the rules for determining priority under any law governing
relative priorities of Liens:
(a) all Liens at any time granted by the Company or any
other Obligor to secure any Parity Lien Obligations shall secure
Equally and Ratably all present and future Parity Lien Obligations and
(b) all proceeds of all Liens at any time granted by the
Company or any Obligor to secure any of the Parity Lien Debt and other
Parity Lien Obligations shall be allocated and distributed Equally and
Ratably on account of the Parity Lien Debt and other Parity Lien
Obligations; provided that, for the avoidance of doubt, in the absence
of an Event of Default, the Company shall be entitled to utilize cash
proceeds of Collateral in the ordinary course of its business.
113
SECTION 11.02. Enforcement.
The provisions of Section 11.01 are binding upon and intended for the benefit of
the Collateral Trustee and each present and future holder of Parity Lien
Obligations, each of whom shall be entitled to enforce such provisions as a
third party beneficiary thereof.
SECTION 11.03. Amendment.
(a) No amendment or supplement to the provisions of this
Article XI that adversely affects the right of any holder of Parity
Lien Obligations to share in the Collateral Equally and Ratably shall
become effective without the consent of each such holder.
(b) Any such amendment or supplement that imposes any
obligation upon the Collateral Trustee or adversely affects the rights
of the Collateral Trustee in its individual capacity shall become
effective only with the consent of the Collateral Trustee.
(c) No waiver of the provisions of this Article XI shall
in any event be effective unless set forth in a writing signed and
consented to, as required for an amendment under this Section 11.03, by
the party to be bound thereby.
ARTICLE XII
INTENTIONALLY OMITTED
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Notices. Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given to any Obligor, the Sole Lead Arranger, the Collateral Trustee or the
Administrative Agent shall be sent to such Person's address as set forth on
Appendix B or in the other relevant Term Loan Document, and in the case of any
Lender, the address as indicated on Appendix B or otherwise indicated to the
Administrative Agent in writing. Each notice hereunder shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed; provided, no
notice to any Agent shall be effective until received by such Agent. Documents,
notices or reports required to be delivered to the Lenders pursuant to Sections
2.11, 5.03(a), 5.04 and 5.15 may be delivered electronically and posted
electronically on IntraLinks/IntraAgency or other relevant website to which the
Lenders have access (whether a commercial, third-party website or whether
sponsored by Administrative Agent), if any; provided that (i) the Administrative
Agent shall deliver paper copies of such reports to any Lender upon written
request therefor; and (ii) the Administrative Agent shall notify (which may be
by facsimile or electronic mail) each Lender of
114
the posting of any such reports and provide to each Lender by email electronic
versions (i.e. soft copies) of such reports.
SECTION 13.02. Expenses. Whether or not the transactions
contemplated hereby shall be consummated, the Company agrees to pay promptly:
(a) all expenses associated with the creation and
perfection of security interests and associated documents, including,
without limitation, the Security Documents and all Financing
Statements, including filing fees and the reasonable fees and
disbursements of Latham & Watkins LLP, counsel to the Sole Lead
Arranger, incurred in connection therewith and the fees and
disbursements of local counsel incurred in connection therewith, in
each case, prior to the Closing Date;
(b) all the actual and reasonable costs and expenses
incurred after the Closing Date of preparation of the Term Loan
Documents and any consents, amendments, waivers or other modifications
thereto;
(c) all the costs incurred after the Closing Date of
furnishing all opinions by counsel for the Company and the other
Obligors;
(d) after the Closing Date, the reasonable fees, expenses
and disbursements of counsel to Agents in connection with the
negotiation, preparation, execution and administration of the Term Loan
Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by the Company;
(e) all the actual costs and reasonable expenses of
creating and perfecting Liens in favor of Collateral Trustee, for the
benefit of Lenders pursuant hereto, including filing and recording
fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses and
disbursements of counsel to each Agent and of counsel providing any
opinions that any Agent or Requisite Lenders may request in respect of
the Collateral or the Liens created pursuant to the Security Documents;
(f) all the actual costs and reasonable fees, expenses
and disbursements of any auditors, accountants, consultants or
appraisers;
(g) all the actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any
appraisers, consultants, advisors and agents employed or retained by
Collateral Trustee and its counsel) in connection with the custody or
preservation of any of the Collateral;
(h) all other actual and reasonable costs and expenses
incurred by each Agent in connection with the syndication of the Term
Loans and Term Loan Commitments and the negotiation, preparation and
execution of the Term Loan Documents and any
115
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and
(i) after the occurrence of a Default or an Event of
Default, all costs and expenses, including reasonable attorneys' fees
and costs of settlement, incurred by any Agent and Lenders in enforcing
any Term Loan Obligations of or in collecting any payments due from any
Obligor hereunder or under the other Term Loan Documents by reason of
such Default or Event of Default (including in connection with the sale
of, collection from, or other realization upon any of the Collateral or
the enforcement of the Term Loan Guarantee) or in connection with any
refinancing or restructuring of the credit arrangements provided
hereunder in the nature of a "work-out" or pursuant to any insolvency
or bankruptcy cases or proceedings.
SECTION 13.03. Indemnity.
(a) In addition to the payment of costs and expenses
pursuant to Section 13.02, whether or not the transactions contemplated
hereby shall be consummated, the Company agrees to defend (subject to
Indemnitees' selection of counsel), indemnify, pay and hold harmless
the Administrative Agent and Lender and each of their respective
Affiliates and each and all of the directors, officers, partners,
trustees, employees, attorneys and agents, and (in each case) their
respective heirs, representatives, successors and assigns (each of the
foregoing, an "Indemnitee") from and against any and all Indemnified
Liabilities; provided, no Indemnitee shall be entitled to
indemnification hereunder with respect to any Indemnified Liability to
the extent such Indemnified Liability is found by a final and
nonappealable decision of a court of competent jurisdiction to have
resulted directly and primarily from the gross negligence or willful
misconduct of such Indemnitee.
(b) All amounts due under Section 13.03(a) shall be
payable not later than 10 days after written demand therefor.
(c) To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in Section 13.03(a) may be
unenforceable in whole or in part because they are violative of any law
or public policy, the Company shall contribute the maximum portion that
it is permitted to pay and satisfy under applicable law to the payment
and satisfaction of all Indemnified Liabilities incurred by Indemnitees
or any of them.
(d) The Company shall not assert any claim against any
Indemnitee, on any theory of liability, for any lost profits or
special, indirect or consequential damages or (to the fullest extent
lawful) any punitive damages arising out of, in connection with, or as
a result of, this Agreement or any other Term Loan Document or any
agreement or instrument or transaction contemplated hereby or relating
in any respect to any Indemnified Liability, and the Company hereby
forever waives, releases and agrees not to sue upon any claim for any
such lost profits or special, indirect, consequential or (to the
116
fullest extent lawful) punitive damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
(e) The agreements in this Section 13.03 shall survive
repayment of the Term Loans and all other amounts payable hereunder.
SECTION 13.04. Set-Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default each Lender is hereby authorized by
each Obligor at any time or from time to time subject to the consent of the
Administrative Agent, without prior written notice to any Obligor or to any
other Person (other than the Administrative Agent), any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by such Lender to or for the
credit or the account of any Obligor against and on account of the obligations
and liabilities of any Obligor to such Lender hereunder, and under the other
Term Loan Documents, including all claims of any nature or description arising
out of or connected hereto, or with any other Term Loan Document, irrespective
of whether or not (a) such Lender shall have made any demand hereunder or (b)
the principal of or the interest on the Term Loans or any other amounts due
hereunder shall have become due and payable pursuant to Article II and although
such obligations and liabilities, or any of them, may be contingent or
unmatured. Each Obligor hereby further grants to the Administrative Agent and
each Lender a security interest in all deposit accounts maintained with the
Administrative Agent or such Lender as security for the Term Loan Obligations.
SECTION 13.05. Amendments and Waivers.
(a) Requisite Lenders' Consent. Subject to Section
13.05(e), no amendment, modification, termination or waiver of any
provision of the Term Loan Documents, or consent to any departure by
any Obligor therefrom, shall in any event be effective without the
written concurrence of the Requisite Lenders and any additional
consents required by Sections 13.05(b) and (c).
(b) Affected Lenders' Consent. No amendment,
modification, termination, or consent shall be effective if the effect
thereof would:
(i) extend the scheduled final maturity of any
Term Loan or Term Loan Note outstanding to
any Lender without the prior written consent
of that Lender;
(ii) waive, reduce or postpone any scheduled
repayment (but not prepayment) due to any
Lender without the prior written consent of
that Lender;
(iii) reduce the rate of interest on any Term Loan
(other than any waiver of any increase in
the interest rate applicable to any Term
117
Loan pursuant to Section 2.07) payable to
any Lender or reduce or extend any fee
payable hereunder to any Lender without the
prior written consent of that Lender;
(iv) reduce the principal amount of any Term Loan
outstanding to any Lender without the prior
written consent of that Lender;
(v) amend, modify, terminate or waive any
provision of this Section 13.05(b), as it
applies to any Lender without the prior
written consent of that Lender;
(vi) amend the definition of "Requisite Lenders"
or "Pro Rata Share"; provided, without the
consent of the Requisite Lenders as set
forth in Section 2.19 hereof and otherwise
with the consent of the Requisite Lenders
additional extensions of credit pursuant
hereto may be included in the determination
of "Requisite Lenders" or "Pro Rata Share"
on substantially the same basis as the
Initial Term Loan Commitments and the
Initial Term Loans are included on the
Closing Date;
(vii) (x) release all or substantially all of the
Collateral or all or substantially all of
the Guarantors from the Guarantee under the
Guarantee and Collateral Agreement without
the prior written consent of all Lenders or
(y) release any Collateral from the Liens
created by the Security Documents except as
specifically provided for in this Agreement
and the Security Documents; or
(viii) consent to the assignment or transfer by any
Obligor of any of its rights and obligations
under any Term Loan Document without the
prior written consent of all Lenders.
(c) Other Consents. No amendment, modification,
termination or waiver of any provision of the Term Loan Documents, or
consent to any departure by any Obligor therefrom, shall amend, modify,
terminate or waive any provision of Article VIII as the same applies to
the Administrative Agent, or any other provision hereof as the same
applies to the rights or obligations of any Agent, in each case without
the consent of the Administrative Agent.
(d) Execution of Amendments, etc. The Administrative
Agent may, but shall have no obligation to, with the concurrence of any
Lender, execute amendments, modifications, waivers or consents on
behalf of such Lender. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was
given. No notice to or demand on any Obligor in any case shall entitle
any Obligor to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this
118
Section 13.05 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Obligor, on such
Obligor.
(e) Certain Amendments. Notwithstanding the preceding
provisions of this Section 13.05, the Company and the Administrative
Agent may amend or supplement the Term Loan Documents without the
consent of any Lender:
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to provide for the assumption of the
Company's obligations to the Lenders by a
successor to the Company pursuant to Article
V hereof;
(iii) to make any change that would provide any
additional rights or benefits to the Lenders
or that does not adversely affect the legal
rights hereunder of any Lender;
(iv) to allow any Guarantor to execute a
supplemental Guarantee with respect to the
Term Loans;
(v) to make, complete or confirm any grant of
Collateral permitted or required by this
Agreement or any of the Security Documents
or any release of Collateral that becomes
effective as set forth in this Agreement or
any of the Security Documents;
(vi) to conform the text of this Agreement, the
Term Loan Notes or the Security Documents to
any provision of the Description of the
Notes section of the Offering Circular to
the extent that such provision of the
Description of the Notes section of the
Offering Circular was intended to be a
verbatim recitation of a provision of this
Agreement, the Term Loan Notes or the
Security Documents; or
(vii) to reflect any waiver or termination of any
right arising under the provisions of this
Agreement that otherwise would be
enforceable by any holder of the Initial
Notes, if such waiver or termination is set
forth in the indentures governing such
Initial Notes, provided that no such waiver
or amendment shall adversely affect the
rights of the Lenders.
SECTION 13.06. Successors and Assigns; Participations.
(a) Generally. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors and
assigns of Lenders and the other parties hereto. No Obligor's rights or
obligations hereunder nor any interest therein may be assigned or
delegated by
119
any Obligor without the prior written consent of all Lenders. Nothing
in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, Affiliates of each of the Agents and the Lenders)
any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Register. The Company, the Administrative Agent and
Lenders shall deem and treat the Persons listed as Lenders in the
Register as the holders and owners of the corresponding Term Loan
Commitments and Term Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Term Loan Commitment or Term Loan
shall be effective, in each case, unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
delivered to and accepted by the Administrative Agent and recorded in
the Register as provided in Section 13.06(e). Prior to such
recordation, all amounts owed with respect to the applicable Term Loan
Commitment or Term Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee
of the corresponding Term Loan Commitments or Term Loans.
(c) Right to Assign. Each Lender shall have the right at
any time to sell, assign or transfer all or a portion of its rights and
obligations under this Agreement, including, without limitation, all or
a portion of its Term Loan Commitment or Term Loans owing to it or
other Term Loan Obligation (provided, however, that each such
assignment shall be of a uniform, and not varying, percentage of all
rights and obligations under and in respect of any Term Loan and any
related Term Loan Commitments):
(i) to any Person meeting the criteria of clause
(i) of the definition of the term of
"Eligible Assignee" upon the giving of
notice to the Company and the Administrative
Agent; and
(ii) to any Person meeting the criteria of clause
(ii) of the definition of the term of
"Eligible Assignee";
provided, further each such assignment pursuant to this Section 13.06(c) shall
be in an aggregate amount of not less than $1,000,000 (or such lesser amount as
may be agreed to by the Company and the Administrative Agent or as shall
constitute the aggregate amount of the Term Loan Commitments and Term Loans
outstanding to the assigning Lender).
(d) Mechanics. The assigning Lender and the assignee
thereof shall execute and deliver to the Administrative Agent an
Assignment Agreement, together with such forms, certificates or other
evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may
be required to deliver to the Administrative Agent pursuant to Section
2.17(c).
120
(e) Notice of Assignment. Upon its receipt of a duly
executed and completed Assignment Agreement (and any forms,
certificates or other evidence required by this Agreement in connection
therewith), the Administrative Agent shall record the information
contained in such Assignment Agreement in the Register, shall give
prompt notice thereof to the Company and shall maintain a copy of such
Assignment Agreement.
(f) Representations and Warranties of Assignee. Each
Lender, upon execution and delivery hereof or upon executing and
delivering an Assignment Agreement, as the case may be, represents and
warrants as of the Closing Date or as of the applicable Effective Date
(as defined in the applicable Assignment Agreement) that (i) it is an
Eligible Assignee; (ii) it has experience and expertise in the making
of or investing in commitments or loans such as the applicable Term
Loan Commitments or Term Loans, as the case may be; and (iii) it shall
make or invest in, as the case may be, its Term Loan Commitments or
Term Loans for its own account in the ordinary course of its business
and without a view to distribution of such Term Loan Commitments or
Term Loans within the meaning of the Securities Act or the Exchange Act
or other federal securities laws (it being understood that, subject to
the provisions of this Section 13.06, the disposition of such Term Loan
Commitments or Term Loans or any interests therein shall at all times
remain within its exclusive control).
(g) Effect of Assignment. Subject to the terms and
conditions of this Section 13.06, as of the "Effective Date" specified
in the applicable Assignment Agreement:
121
(i) the assignee thereunder shall have the
rights and obligations of a "Lender"
hereunder to the extent such rights and
obligations hereunder have been assigned to
it pursuant to such Assignment Agreement and
shall thereafter be a party hereto and a
"Lender" for all purposes hereof;
(ii) the assigning Lender thereunder shall, to
the extent that rights and obligations
hereunder have been assigned thereby
pursuant to such Assignment Agreement,
relinquish its rights (other than any rights
which survive the termination hereof under
Section 13.08 and be released from its
obligations hereunder (and, in the case of
an Assignment Agreement covering all or the
remaining portion of an assigning Lender's
rights and obligations hereunder, such
Lender shall cease to be a party hereto;
provided, anything contained in any of the
Term Loan Documents to the contrary
notwithstanding, such assigning Lender shall
continue to be entitled to the benefit of
all indemnities hereunder as specified
herein with respect to matters arising out
of the prior involvement of such assigning
Lender as a Lender hereunder);
(iii) the Term Loan Commitments shall be modified
to reflect the Term Loan Commitment of such
assignee; and
(iv) if any such assignment occurs after the
issuance of any Term Loan Note hereunder,
the assigning Lender shall, upon the
effectiveness of such assignment or as
promptly thereafter as practicable,
surrender its applicable Term Loan Notes to
the Administrative Agent for cancellation,
and thereupon the Company shall issue and
deliver new Term Loan Notes, if so requested
by the assignee and/or assigning Lender, to
such assignee and/or to such assigning
Lender, with appropriate insertions, to
reflect the new outstanding Term Loans of
the assignee and/or the assigning Lender.
(h) Participations. Each Lender shall have the right at
any time to sell one or more participations to any Person (other than
the Company, any of its Restricted Subsidiaries or any of its
Affiliates) in all or any part of its Term Loan Commitments, Term Loans
or in any other Term Loan Obligation. The holder of any such
participation, other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to take or
omit to take any action hereunder except with respect to any amendment,
modification or waiver that would:
(i) extend the final scheduled maturity of any
Term Loan or Term Loan Note in which such
participant is participating, or reduce the
rate or extend the time of payment of
interest or fees thereon (except in
connection with a waiver of applicability of
any post-
122
default increase in interest rates) or
reduce the principal amount thereof, or
increase the amount of the participant's
participation over the amount thereof then
in effect (it being understood that a waiver
of any Default or Event of Default or of a
mandatory reduction in the Term Loan
Commitment shall not constitute a change in
the terms of such participation, and that an
increase in any Term Loan Commitment or Term
Loan shall be permitted without the consent
of any participant if the participant's
participation is not increased as a result
thereof);
(ii) consent to the assignment or transfer by any
Obligor of any of its rights and obligations
under this Agreement; or
(iii) release all or substantially all of the
Collateral under the Security Documents
(except as expressly provided in the Term
Loan Documents) supporting the Term Loans
hereunder in which such participant is
participating.
The Company agrees that each participant shall be entitled to the benefits of
Sections 2.15(c), 2.16 and 2.17 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (c) of this
Section; provided, (i) a participant shall not be entitled to receive any
greater payment under Section 2.16 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
participant, unless the sale of the participation to such participant is made
with the Company's prior written consent and (ii) a participant that would be a
Non-US Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the Company is notified of the participation sold to such
participant and such participant agrees, for the benefit of the Company, to
comply with Section 2.17 as though it were a Lender. To the extent permitted by
law, each participant also shall be entitled to the benefits of Section 13.04 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.14 as though it were a Lender.
(i) Certain Other Assignments. In addition to any other
assignment permitted pursuant to this Section 13.06, any Lender may
assign and/or pledge all or any portion of its Term Loans, the other
Term Loan Obligations owed by or to such Lender, and its Term Loan
Notes, if any, to secure obligations of such Lender including, without
limitation, (i) to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any operating circular issued by such Federal
Reserve Bank and (ii) with respect to any Lender that is a fund that
invests in bank loans, to any trustee or holder of obligations owed, or
securities issued by, such fund as security for such obligations or
securities or to any other representative of such holders; provided, no
Lender, as between the Company and such Lender, shall be relieved of
any of its obligations hereunder as a result of any such assignment and
pledge, and provided further, in no event shall the applicable Federal
Reserve Bank, trustee or such holder of obligations be considered to be
a "Lender" or be entitled to require the assigning Lender to take or
omit to take any action hereunder.
123
(j) Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative
Agent a Lender Addendum duly executed by such Lender, the Borrower and
the Administrative Agent.
SECTION 13.07. Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that it would be permitted by
an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 13.08. Survival of Representations, Warranties and
Agreements. All representations, warranties and agreements made herein shall
survive the execution and delivery hereof and the making of any Term Loan.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Obligor set forth in Sections 2.15(c), 2.16, 2.17, 13.02,
13.03, 13.04, 13.15, 13.16 and 13.17 and the agreements of Lenders set forth in
Sections 2.14, 8.03(b) and 8.06 shall survive the payment of the Term Loans and
the termination hereof.
SECTION 13.09. No Waiver; Remedies Cumulative. No failure or delay
on the part of any Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Term Loan Document shall impair such
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. The rights, powers and remedies given to each
Agent and each Lender hereby are cumulative and shall be in addition to and
independent of all rights, powers and remedies existing by virtue of any statute
or rule of law or in any of the other Term Loan Documents. Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
SECTION 13.10. Marshalling; Payments Set Aside. Neither any Agent
nor any Lender shall be under any obligation to marshal any assets in favor of
any Obligor or any other Person or against or in payment of any or all of the
Term Loan Obligations. To the extent that any Obligor makes a payment or
payments to the Administrative Agent or Lenders (or to the Administrative Agent,
on behalf of Lenders), or the Administrative Agent or Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
SECTION 13.11. Severability. In case any provision in or obligation
under any Term Loan Document shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and
124
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
SECTION 13.12. Term Loan Obligations Several; Independent Nature of
Lenders' Rights. The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Term Loan Commitment of any other
Lender hereunder. Nothing contained herein or in any other Term Loan Document,
and no action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out hereof and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 13.13. Headings. Section headings herein are included
herein for convenience of reference only and shall not constitute a part hereof
for any other purpose or be given any substantive effect.
SECTION 13.14. Applicable Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York
without regard to conflict of laws principles thereof.
SECTION 13.15. Consent to Jurisdiction. All judicial proceedings
brought against any party hereto arising out of or relating hereto or any other
Term Loan Document, or any of the Term Loan Obligations, may be brought in any
state or federal court of competent jurisdiction in the State, County and City
of New York. By executing and delivering this agreement, each party hereto, for
itself and in connection with its properties, irrevocably (a) accepts generally
and unconditionally the nonexclusive jurisdiction and venue of such courts; (b)
waives any defense of forum non conveniens; (c) agrees that service of all
process in any such proceeding in any such court may be made by registered or
certified mail, return receipt requested, to the applicable Obligor at its
address provided in accordance with Section 13.01; (d) agrees that service as
provided in clause (c) above is sufficient to confer personal jurisdiction over
the applicable Obligor in any such proceeding in any such court, and otherwise
constitutes effective and binding service in every respect; and (e) agrees
Agents and Lenders retain the right to serve process in any other manner
permitted by law or to bring proceedings against any Obligor in the courts of
any other jurisdiction.
SECTION 13.16. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER TERM
LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING
ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT
125
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER
IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 13.16 AND EXECUTED BY EACH OF THE PARTIES
HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER TERM LOAN DOCUMENTS OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN
THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
SECTION 13.17. Confidentiality. Each Lender shall hold all non-
public information regarding the Company and its business identified as such by
the Company and obtained by such Lender pursuant to the requirements hereof in
accordance with such Lender's customary procedures for handling confidential
information of such nature, it being understood and agreed by the Company that,
in any event, a Lender may make:
(i) disclosures of such information to Affiliates of such
Lender and to their agents and advisors (and to other
Persons authorized by a Lender or Agent to organize,
present or disseminate such information in connection
with disclosures otherwise made in accordance with
this Section 13.17);
(ii) disclosures of such information reasonably required
by any bona fide or potential assignee, transferee or
participant in connection with the contemplated
assignment, transfer or participation by such Lender
of any Term Loans or any participations therein or by
any direct or indirect contractual counterparties (or
the professional advisors thereto) in Commodity Hedge
Agreements and Financial Hedge Agreements (provided,
such assignee, transferee, participant,
counterparties and advisors are advised of and agree
to be bound by the provisions of this Section 13.17);
(iii) disclosure to any rating agency when required by it,
provided that, prior to any disclosure, such rating
agency shall undertake in writing to preserve the
confidentiality of any confidential
126
information relating to the Obligors received by it
from any of the Agents or any Lender, and
(iv) disclosures required or requested by any governmental
agency or representative thereof or by the NAIC or
pursuant to legal or judicial process; provided,
unless specifically prohibited by applicable law or
court order, each Lender shall make reasonable
efforts to notify the Company of any request by any
governmental agency or representative thereof (other
than any such request in connection with any
examination of the financial condition or other
routine examination of such Lender by such
governmental agency) for disclosure of any such
non-public information prior to disclosure of such
information.
Notwithstanding anything to the contrary set forth herein or in any other
written or oral understanding or agreement to which the parties hereto are
parties or by which they are bound, the parties acknowledge and agree that (i)
any obligations of confidentiality contained herein and therein do not apply and
have not applied from the commencement of discussions between the parties to the
tax treatment and tax structure of this Agreement, the Indentures, the Credit
Agreement and the transactions contemplated hereby or thereby (and any related
transactions or arrangements), and (ii) each party (and each of its employees,
representatives, or other agents) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of this Agreement,
the Indentures, the Credit Agreement and the transactions contemplated hereby or
thereby and all materials of any kind (including opinions or other tax analyses)
that are provided to such party relating to such tax treatment and tax
structure, all within the meaning of Treasury Regulations Section 1.6011-4;
provided, however, that each party recognizes that the privilege each has to
maintain, in its sole discretion, the confidentiality of a communication
relating to this Agreement, the Indentures, the Credit Agreement and the
transactions contemplated hereby or thereby, including a confidential
communication with its attorney or a confidential communication with a federally
authorized tax practitioner under Section 7525 of the Code, is not intended to
be affected by the foregoing.
SECTION 13.18. Usury Savings Clause. Notwithstanding any other
provision herein, the aggregate interest rate charged with respect to any of the
Term Loan Obligations, including all charges or fees in connection therewith
deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate, the outstanding amount of the Term Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Term Loans made hereunder are repaid in full
the total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Company shall pay
to the Administrative Agent an amount equal to the difference between the amount
of interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate
127
had at all times been in effect. Notwithstanding the foregoing, it is the
intention of Lenders and the Company to conform strictly to any applicable usury
laws. Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender's option be applied to the outstanding amount of the Term
Loans made hereunder or be refunded to the Company.
SECTION 13.19. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. The delivery of an executed signature page of this
Agreement, or any Joinder Agreement in connection herewith, by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
SECTION 13.20. Effectiveness. This Agreement shall become effective
upon the execution of a counterpart hereof by each of the parties hereto and
receipt by the Company and the Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
SECTION 13.21. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement must include:
(i) a statement that the Person making such
certificate or opinion has read such
covenant or condition;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon
which the statements or opinions contained
in such certificate or opinion are based;
(iii) a statement that, in the opinion of such
Person, he or she has made such examination
or investigation as is necessary to enable
him or her to express an informed opinion as
to whether or not such covenant or condition
has been satisfied; and
(iv) a statement as to whether or not, in the
opinion of such Person, such condition or
covenant has been satisfied.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
128
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
CALPINE CORPORATION
By: /s/ Michael Thomas
-------------------------
Name: Michael Thomas
Title: SVP and Treasurer
S-1
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Sole Lead Arranger
and a Lender
By: /s/ RT Wagner
---------------------------------------
Authorized Signatory
ROBERT WAGNER
Authorized Signatory
S-2
APPENDIX A
TO TERM LOAN AGREEMENT
INITIAL TERM LOAN COMMITMENTS
===========================================================================================
Pro
Lender Term Loan Commitment Rata Share
===========================================================================================
Goldman Sachs Credit Partners L.P. $750,000,000.00 100%
- -------------------------------------------------------------------------------------------
Total $750,000,000.00 100%
===========================================================================================
APPENDIX B
to Term Loan Agreement
NOTICE ADDRESSES
Administrative Agent's
Principal Office: Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, NY 10004
Attention: Pedro Ramirez
Sole Lead Arranger: Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, NY 10004
Attention: Pedro Ramirez
Obligors: Calpine Corporation
50 West San Fernando Street
San Jose, CA 95113
Attention: General Counsel
Collateral Trustee: The Bank of New York
101 Barclay Street
Floor 8 West
New York, NY 10286
Attention: Corporate Trust
Administration
4
SCHEDULE 1.01(a)
MORTGAGED PROPERTIES
5
SCHEDULE 1.01(b)
PLEDGED SUBSIDIARIES
6
SCHEDULE 4.01(c)
CAPITAL STOCK MATTERS
7
SCHEDULE 4.01(aa)
SUBSIDIARY COMPANIES OF HOLDING COMPANIES
8
SCHEDULE 4.01(cc)
FIRST-TIER PUBLIC UTILITY SUBSIDIARIES
9
SCHEDULE 4.01(dd)
EXEMPT WHOLESALE GENERATORS
10
SCHEDULE 4.01(ee)
TEXAS RETAIL SERVICE SUBSIDIARIES
11
SCHEDULE 4.01(hh)
RETAIL SERVICE SUBSIDIARIES
12
SCHEDULE 4.01(ii)
FERC COMPLAINTS
13
EXHIBIT A
TO THE TERM LOAN AGREEMENT
FORM OF
ASSIGNMENT AGREEMENT
Date: _______ __, ____
Goldman Sachs Credit Partners L.P.,
as the Administrative Agent
85 Broad Street
New York, New York 10004
Attention: Pedro Ramirez
Calpine Corporation
50 West San Fernando Avenue
San Jose, CA 95113
Attention: Senior Vice President-Finance
Re: Assignment Agreement
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of July 16, 2003 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Term Loan Agreement"), among Calpine Corporation, a Delaware corporation (the
"Company"), the lenders from time to time parties thereto, Goldman Sachs Credit
Partners L.P., as sole lead arranger and solebook runner, and Goldman Sachs
Credit Partners L.P., as administrative agent. Unless otherwise defined herein,
terms defined in the Term Loan Agreement and used herein shall have the meanings
given to them in the Term Loan Agreement.
As of [INSERT EFFECTIVE DATE OF ASSIGNMENT] (the "Effective Date"), [INSERT NAME
OF ASSIGNOR] (the "Assignor") irrevocably sells, transfers, conveys and assigns,
without recourse, representation or warranty (except as expressly set forth
herein), to [INSERT NAME OF ASSIGNEE] (the "Assignee"), and the Assignee
irrevocably purchases from the Assignor and assumes (as more particularly
described in Schedule I hereto), [INSERT PERCENTAGE OF TERM LOANS TO BE
ASSIGNED]% of (a) the Term Loans under the Term Loan Agreement and (b) all
related rights,
14
benefits, obligations, liabilities, and indemnities under and in connection with
the Term Loan Agreement and the other Term Loan Documents (the "Assigned
Portion") (which represents $[INSERT AMOUNT TO BE ASSIGNED WHICH AGGREGATE
AMOUNT MUST BE NOT LESS THAN $1,000,000] (OR SUCH LESSER AMOUNT AS SHALL BE
AGREED BY THE COMPANY AND THE ADMINISTRATIVE AGENT OR AS SHALL CONSTITUTE THE
AGGREGATE AMOUNT OF THE ASSIGNOR'S TERM LOANS AND OTHER OBLIGATIONS OWED TO THE
ASSIGNOR)]). After giving effect to the foregoing assignment and delegation, the
Assignor's and the Assignee's outstanding Term Loans for the purposes of the
Term Loan Agreement and each other Term Loan Document will be as set forth in
Schedule I hereto.
In addition, this Agreement constitutes notice to the Administrative Agent,
pursuant to Section 13.06 of the Term Loan Agreement, of the assignment and
delegation to the Assignee of the Assigned Portion of the Term Loans of the
Assignor outstanding under the Term Loan Agreement as of the Effective Date,
subject to its written consents (as evidenced by your execution of this
Agreement).
All accrued and unpaid interest, fees and other amounts payable with respect to
the Assigned Portion for any period of time prior to the Effective Date shall be
payable to the Assignor, and all accrued and unpaid interest, fees and other
amounts payable with respect to the Assigned Portion for any period from and
after the Effective Date shall be payable to the Assignee. The Assignor and
Assignee each agree to hold in trust for the other any such amounts that it
receives pursuant to any Term Loan Document and to which the other party is
entitled.
The Assignee confirms and agrees that in becoming a Lender and in making its
Term Loans under the Term Loan Agreement, such actions have and will be made
without recourse to, or representation or warranty by, the Administrative Agent,
except for the representations expressly set forth below.
The Assignor represents and warrants that it is legally authorized to enter into
and deliver this Agreement, that its existing aggregate Term Loans is as set
forth on Schedule I hereto, that it is the legal and beneficial owner of the
Assigned Portion and that it has not created any adverse claim on its interest
in the Assigned Portion. Except as set forth in the previous sentence, the
Assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made pursuant to or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the Term
Loan Agreement, any other Term Loan Document or any other instrument or document
furnished pursuant hereto or thereto, including the financial condition of the
Company or any of their Subsidiaries or the performance or observance by any
Lender or any of the Agents of any of its obligations under the Term Loan
Agreement, any other Term Loan Document or any other instrument or document
furnished pursuant hereto or thereto.
The Assignee (a) represents and warrants that (i) it is an Eligible Assignee and
that it is legally authorized to enter into and deliver this Agreement, (ii) it
has experience and expertise in the making of or investing in commitments or
loans such as the applicable Term Loan Commitments
15
or Term Loans, as the case may be and (iii) it will make or invest in, as the
case may be, its Term Loan Commitments or Term Loans for its own account in the
ordinary course of business and without a view to the distribution of such Term
Loan Commitments or Term Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws, (b) confirms that it has received
a copy of the Term Loan Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.03 of the Term Loan
Agreement and copies of the documents which were required to be delivered under
the Term Loan Agreement as a condition to the making of Term Loans thereunder
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement, (c) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Term Loan Agreement and the other Term Loan Documents are
required to be performed by it as a Lender, and (d) attaches the forms
prescribed by applicable Governmental Authorities as to the Assignee's status
for purposes of determining exemption from withholding taxes with respect to all
payments to be made to the Assignee under any of the Term Loan Documents or such
other documents as are necessary to indicate that all such payments are subject
to such rates at a rate reduced by an applicable tax treaty. In addition, the
Assignee, independently and without reliance upon the Assignor, the
Administrative Agent, any other Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, shall
continue to make its own credit decisions in taking or not taking action under
the Term Loan Agreement, the other Term Loan Documents and the other instruments
and documents delivered in connection therewith.
Following the execution of this Agreement, it will be delivered to the
Administrative Agent for recording by the Administrative Agent pursuant to
Section 13.06 of the Term Loan Agreement, effective as of the Effective Date.
The Assignor attaches hereto the Term Note held by it, if any, evidencing the
Assigned Portion and (i) upon request by the Assignee, will request that the
Administrative Agent exchange the attached Note for a new Note payable to the
Assignee and (ii) if the Assignor has retained any interest, may request that
the Administrative Agent exchange the attached Note for a new Note payable to
the Assignor, in each case in amounts which reflect the assignment being made
hereby and after giving effect to any other assignments which have become
effective on the Effective Date.
Except as otherwise provided in the Term Loan Agreement, effective as of the
Effective Date:
(a) the Assignee:
(i) shall be deemed automatically to have become a party
to the Term Loan Agreement, have all the rights and obligations of a "Lender"
under the Term Loan Agreement and the other Term Loan Documents as if it were an
original signatory thereto to the extent specified in the second paragraph of
this Agreement, and hereby expressly confirms its undertakings regarding its
appointments and indemnity obligations provided for in Article XIII of the Term
Loan Agreement; and
(ii) agrees to be bound by the terms and conditions set
forth in the Term Loan Agreement and the other Term Loan Documents as if it were
an original signatory thereto; and
16
(b) the Assignor shall be released from its obligations and shall
relinquish its rights under the Term Loan Agreement and the other Term Loan
Documents to the extent specified in the second paragraph of this
Agreement, except with regard to those provisions that expressly survive
the termination of the Term Loan Agreement to the extent such provisions
relate to the time prior to the Effective Date.
The Assignee hereby advises each of you of the following administrative details
with respect to the assigned Term Loan Commitments and Term Loans:
(A) Address for Notices:
-------------------------------------------------------
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
(B) Payment Instructions:
The Assignee has attached hereto the forms, certificates or other evidence
required by Section 2.17(c) of the Term Loan Agreement no later than the date of
acceptance hereof by the Administrative Agent. The Assignee has also attached
hereto any powers of attorney or other public or private documents requested by
the Collateral Agent which are necessary to enable the Collateral Agent to
enforce any of the Security Documents on behalf of the Secured Parties.
The Administrative Agent shall notify the Company of any such assignments.
This Agreement may be executed by the Assignor and Assignee in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same agreement. The delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. The parties hereto hereby agree to execute and deliver such
other documents or instruments as shall be necessary to effect the purposes of
this Agreement.
This agreement shall be governed by the laws of the state of New York without
regard to the conflicts of law provisions thereof, other than sections 5-1401
and 5-1402 of the General Obligations Law of the State of New York.
(Signature Page Follows)
17
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Assignment and Acceptance Agreement as of the date first written above.
[INSERT NAME OF ASSIGNOR]
By:____________________________
Name:
Title:
[INSERT NAME OF ASSIGNEE]
By:___________________
Name:
Title:
Accepted and acknowledged
for recording in the Register
this ____ day of ________, ___
S-1
[INCLUDE THE FOLLOWING ACKNOWLEDGEMENTS AND AGREEMENTS IN RESPECT OF ASSIGNMENTS
FOR LESS THAN $1,000,000 IF SUCH ASSIGNMENT IS FOR AN AMOUNT DOES NOT CONSTITUTE
THE AGGREGATE AMOUNT OF THE TERM LOAN COMMITMENTS AND TERM LOANS OUTSTANDING TO
THE ASSIGNING LENDER]
Acknowledged and Agreed
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: __________________________________
Name:
Title:
CALPINE CORPORATION
By: __________________________________
Name:
Title:
SCHEDULE I
to Assignment Agreement
A. Assigned Portion:
Term Loans and Applicable Percentage with respect thereto $________
________%
B. Assignor's Adjusted Total Term Loans (after giving effect to the assignment
contemplated hereby):
Term Loans and Applicable Percentage with respect thereto $________
________%
C. Assignee's Adjusted Total Term Loans (after giving effect to the assignment
contemplated hereby):
Term Loans and Applicable Percentage with respect thereto $________
________%
3
EXHIBIT B
to the Term Loan Agreement
[LETTERHEAD OF NON-US LENDER]
FORM OF CERTIFICATE RE: NON-BANK STATUS
Certificate Date: _______ __, ____
Goldman Sachs Credit Partners L.P.
as the Administrative Agent
85 Broad Street
New York, New York 10004
Attention: Pedro Ramirez
Re: Non-Bank Status
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of July 16, 2003 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Term Loan Agreement"), by and among Calpine Corporation, a Delaware corporation
(the "Company"), the Lenders party hereto from time to time, Goldman Sachs
Credit Partners L.P., as sole lead arranger and sole bookrunner, and Goldman
Sachs Credit Partners L.P., as Administrative Agent (together with its
successors in such capacity, the "Administrative Agent). Unless otherwise
defined herein, terms defined in the Term Loan Agreement and used herein shall
have the meanings given to them in the Term Loan Agreement.
[INSERT NAME OF NON-U.S. LENDER] (the "Non-U.S. Lender") is providing this
certificate pursuant to Section 2.17(c) of the Term Loan Agreement. The Non-U.S.
Lender hereby represents and warrants as follows:
(c) The Non-U.S. Lender is the sole record and beneficial
owner of the Term Loans or the obligations evidenced by Term Loan Note
in respect of which it is providing this certificate.
(d) The Non-U.S. Lender is not a "bank" for purposes of
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended
(the "Code"). In this regard, the Non-U.S. Lender further represents
and warrants that:
(1) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
4
(2) the Non-U.S. Lender has not been treated as a bank for purposes of
any tax, securities law or other filing or submission made to any Governmental
Authority, any application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements.
(e) The Non-U.S. Lender is not a 10 percent shareholder
of the Company within the meaning of Section 881(c)(3)(B) of the Code.
(f) The Non-U.S. Lender is not a controlled foreign
corporation receiving interest from a related person within the meaning
of Section 881(c) (3)(C) of the Code.
(Signature Page Follows)
5
IN WITNESS WHEREOF, the undersigned has duly executed this certificate by its
respective authorized representative as of the day and year first above written.
[INSERT NAME OF NON-U.S. LENDER]
By: ________________________________________________
Name:
Title:
EXHIBIT C
to the Term Loan Agreement
[LETTERHEAD OF COMPANY]
FORM OF
CONVERSION/CONTINUATION NOTICE
Date: _____ __, ____
Goldman Sachs Credit Partners L.P.
as the Administrative Agent
85 Broad Street
New York, New York 10004
Attention: Pedro Ramirez
Re: Conversion/Continuation Notice
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of July 16, 2003 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Term Loan Agreement"), by and among Calpine Corporation, a Delaware corporation
(the "Company"), the Lenders party hereto from time to time, Goldman Sachs
Credit Partners L.P., as sole lead arranger and sole bookrunner, and Goldman
Sachs Credit Partners L.P., as administrative agent (together with its
successors in such capacity, the "Administrative Agent"). Unless otherwise
defined herein, terms defined in the Term Loan Agreement and used herein shall
have the meanings given to them in the Term Loan Agreement.
The Company hereby gives you notice, irrevocably, pursuant to Section 2.06 of
the Term Loan Agreement, that the Borrower hereby requests a [CONVERSION]
[CONTINUATION] of Term Loans under the Term Loan Agreement and, in connection
therewith, sets forth below the information relating to such [CONVERSION]
[CONTINUATION] (the "Proposed [Conversion][Continuation]") as required by
Section 2.06 of the Term Loan Agreement. The Borrower hereby requests that Term
Loans be [CONVERTED] [CONTINUED] as follows:
(i) The effective date of the proposed
[CONVERSION][CONTINUATION] is ______, _______ (which is a Business Day). (ii)
$___________ of the currently outstanding principal amount of Term Loans
currently being maintained as Eurodollar Rate Loans with an Interest Period of
__________ month(s), the last day of which is the date of the Proposed
Conversion/Continuation referred to in clause (i) above, should be:
2
(A) continued as $__________ of Eurodollar Rate
Loans with an Interest Period of ________ month(s); and
(B) converted into $__________ of Base Rate
Loans.
(iii) $__________ of the currently outstanding principal amount of
Term Loans currently being maintained as Base Rate Loans should be:
(A) continued as $__________ of Base Rate Loans;
(B) converted into $_________ of Eurodollar Rate
Loans with an Interest Period of ________ month(s); and
(C) converted into $__________ of Eurodollar
Rate Loans with an Interest Period of _______ month(s).
[(b) [INCLUDE THE FOLLOWING IF THE PROPOSED CONVERSION OR CONTINUATION IS A
CONVERSION TO, OR A CONTINUATION OF, A EURODOLLAR RATE LOAN] The Company hereby
certifies that, as of the date hereof, no Default or Event of Default has
occurred or is continuing.]
(Signature Page Follows)
3
IN WITNESS WHEREOF, the Company has caused this Continuation/Conversion Notice
to be executed and delivered by an Officer of the Company on the date first
written above.
CALPINE CORPORATION
By:
Name:
Title:
1
EXHIBIT D
to the Term Loan Agreement
[LETTERHEAD OF THE COMPANY]
FORM OF
FUNDING NOTICE
Certificate Date: _______ __, ____
Goldman Sachs Credit Partners L.P.
as the Administrative Agent
85 Broad Street
New York, New York 10004
Attention: Pedro Ramirez
Re: Funding Notice
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of July 16, 2003 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Term Loan Agreement"), by and among Calpine Corporation, a Delaware corporation
(the "Company"), the Lenders party hereto from time to time, Goldman Sachs
Credit Partners L.P., as Administrative Agent (together with its successors in
such capacity, the "Administrative Agent") and as Sole Lead Arranger and Sole
Bookrunner, The Bank of Nova Scotia, as Arranger and Syndication Agent, TD
Securities (USA) Inc., ING (U.S.) Capital LLC and Landesbank Hessen-Thuringen,
as Co-Arrangers, and Credit Lyonnaise New York Branch and Union Bank of
California, N.A., as Managing Agents. Unless otherwise defined herein, terms
defined in the Term Loan Agreement and used herein shall have the meanings given
to them in the Term Loan Agreement.
The Company hereby gives you notice in accordance with Section 2.01 of
the Credit Agreement that the Company irrevocably requests that the following
Term Loans be made on July __, 2003 (which date satisfies the requirements set
forth in Section 2.01 of the Credit Agreement), in each case, as described
below:
(a) The Company hereby requests that a Term Loan be made in an
aggregate principal amount of [$_________] with an initial Interest
Period of [____] months.
[(b) The Company hereby requests that a Term Loan be made in an
aggregate principal amount of [$_________] with an initial Interest
Period of [____] months.]
(Signature Page Follows)
2
IN WITNESS WHEREOF, on behalf of the Company, this certificate is
delivered as of the date first above written.
CALPINE CORPORATION
By: __________________________________________
Name:
Title:
3
EXHIBIT E
to the Term Loan Agreement
[INSERT LENDER NAME]
LENDER ADDENDUM
Reference is made to the Credit Agreement, dated as of July 16, 2003 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Term Loan Agreement"), among Calpine Corporation, a Delaware corporation, the
Lenders party hereto from time to time, Goldman Sachs Credit Partners L.P., as
sole lead arranger and sole bookrunner, and Goldman Sachs Credit Partners L.P.,
as administrative agent. Unless otherwise defined herein, terms defined in the
Term Loan Agreement and used herein shall have the meanings given to them in the
Term Loan Agreement.
Upon execution and delivery of this Lender Addendum by the parties hereto as
provided in Section 13.06(j) of the Term Loan Agreement, the undersigned hereby
becomes a Lender thereunder having the Commitments set forth in Schedule 1
hereto, effective as of the Closing Date.
This Lender Addendum shall be governed by, and construed and interpreted in
accordance with, the laws of the state of New York.
This Lender Addendum may be executed by one or more of the parties hereto on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page hereof by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
(Signature Pages Follow)
4
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be
duly executed and delivered by their proper and duly authorized officers as of
this ____ day of July, 2003.
______________________________________________
Name of Lender
By: _________________________________________
Name:
Title:
Accepted and agreed:
CALPINE CORPORATION
By: ____________________________________________
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent
By: _________________________________
Name:
Title:
5
COMMITMENTS AND NOTICE ADDRESS
1. Name of Lender:
Notice Address:
Attention:
Telephone:
Facsimile:
2. Term Loan Commitment:
EXHIBIT F
to the Term Loan Agreement
Goldman Sachs Credit Partners L.P.,
85 Broad Street
New York, New York 10004
Attention: Pedro Ramirez
LENDER JOINDER AGREEMENT
The undersigned, [INSERT LENDER'S NAME] (the "New Term Loan
Lender"), hereby agrees to become party to the Credit Agreement, dated as of
July 16, 2003 (as amended, supplemented, replaced or otherwise modified from
time to time, the "Term Loan Agreement"), among Calpine Corporation, a Delaware
corporation (the "Company"), the Lenders party hereto from time to time, Goldman
Sachs Credit Partners L.P., as sole lead arranger and sole bookrunner, and
Goldman Sachs Credit Partners L.P., as administrative agent (together with its
successors in such capacity, the "Administrative Agent"). Upon the funding of
the Additional Term Loans, the New Term Loan Lender agrees to be bound by, and
to perform in respect of the Additional Term Loans, all of the Obligations of a
Lender under the Term Loan Agreement.
The amount of Additional Term Loan Commitment of the New Term
Loan Lender shall be $[__________]. Except as otherwise set forth herein, the
Additional Term Loans shall bear interest on the unpaid principal amount thereof
from the date made through repayment (whether by acceleration or otherwise)
thereof as follows:
(a) if a Base Rate Loan, at the Base Rate plus [___]% per
annum; or
(b) if a Eurodollar Rate Loan, at the Adjusted Eurodollar
Rate plus [___]% per annum.
The New Term Loan Lender hereby advises you of the following
administrative details with respect to the Additional Term Loan Commitments and
Additional Term Loans:
(a) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
(b) Payment Instructions
The provisions of Article XIII of said Term Loan Agreement
shall apply with like effect to this Lender Joinder Agreement.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Joinder as of ___________________, 20____.
[__________________________________]
By: ______________________________
Name:
Title:
EXHIBIT G
to the Term Loan Agreement
FORM OF TERM LOAN NOTE
$____________ ______________________,
FOR VALUE RECEIVED, the undersigned, Calpine Corporation (the "Company"), hereby
unconditionally promises to pay to the order of [ ] (the "Lender") the
principal sum in immediately available funds, of [ ] or, if less, the
aggregate unpaid principal amount of all Term Loans made by the Lender to the
Company pursuant to Section 2.01 of the Term Loan Agreement. The Company further
agrees to pay interest in like money at the Principal Office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in Section 2.05 of the Term Loan Agreement.
The holder of this Term Loan Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Term Loan
made pursuant to the Term Loan Agreement and the date and amount of each payment
or prepayment of principal thereof, each continuation thereof, each conversion
of all or a portion thereof and, in the case of Eurodollar Rate Loans, the
length of each Interest Period with respect thereto. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed. The
failure to make any such endorsement or any error in any such endorsement shall
not affect the obligations of the Company in respect of any Term Loan.
This Term Loan Note (a) is one of the Term Loan Notes referred to in the Credit
Agreement, dated as of July 16, 2003 (as amended, supplemented, replaced or
otherwise modified from time to time, the "Term Loan Agreement"), by and among
the Company, the Lenders party hereto from time to time, Goldman Sachs Credit
Partners L.P., as sole lead arranger and sole bookrunner, and Goldman Sachs
Credit Partners L.P., as administrative agent; (b) is subject to the provisions
of the Term Loan Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Term Loan Agreement. This Term
Loan Note is secured and guaranteed as provided in the Term Loan Documents.
Reference is hereby made to the Term Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Term Loan Note in respect thereof.
Upon the occurrence of any Event of Default, all principal and all accrued
interest then remaining unpaid on this Term Loan Note shall become, or may be
declared to be, immediately due and payable, all as provided in, and subject to,
the Term Loan Agreement.
All parties now and hereafter liable with respect to this Term Loan Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Term Loan Agreement and
used herein shall have the meanings given to them in the Term Loan Agreement.
This Term Loan Note has been delivered in New York, New York and shall be deemed
to be a contract made under, governed by and construed in accordance with the
laws of the State of New York without regard to the conflict of law provisions
thereof (other than sections 5-1401 and 5-1402 of the general obligations law of
the state of New York).
CALPINE CORPORATION
By:______________________________
Name:
Title:
Schedule A
to Term Loan Note
LOANS, CONVERSIONS AND REPAYMENTS OF TERM LOANS
- ----------------------------------------------------------------------------------------------------------
Interest Period
Date Amount of Term Loans (if applicable) Amount of Principal Repaid
----------------------------- ---------------------------
Euro Dollar Notation Made
Base Rate Euro Dollar Rate Base Rate Rate By
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
A-1