REVOLVING CREDIT
AND PARTICIPATION AGREEMENT
DATED AS OF MARCH 14, 2001
AMONG
COVANTA ENERGY CORPORATION AND CERTAIN OF ITS SUBSIDIARIES,
as Borrowers,
THE LENDERS LISTED HEREIN,
as Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent, Co-Arranger and Co-Book Runner,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent, Co-Arranger and Co-Book Runner
TABLE OF CONTENTS
Page No.
Section 1. DEFINITIONS..........................................................................................2
1.1 Certain Defined Terms................................................................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement..................39
1.3 Other Definitional Provisions and Rules of Construction.............................................40
Section 2. AMOUNTS AND TERMS OF POOLED PARTICIPATIONS AND REVOLVING LOANS......................................40
2.1 Pooled Facility.....................................................................................40
2.2 Revolving Loans.....................................................................................47
2.3 Recordation of Indebtedness.........................................................................50
2.4 Interest and Default Interest on the Revolving Loans................................................51
2.5 Fees................................................................................................54
2.6 Repayments, Prepayments and Reductions in Commitments; General Provisions Regarding
Payments; Application of Proceeds of Collateral and Payments Under Subsidiary Guaranty..............57
2.7 Use of Proceeds.....................................................................................62
2.8 Special Provisions Governing Eurodollar Rate Loans..................................................63
2.9 Increased Costs; Taxes; Capital Adequacy............................................................65
2.10 Statement of Lenders; Obligation of Lenders and Issuing Lenders to Mitigate.........................68
2.11 Covenants of the Pooled Facility Lenders and Opt-Out Facility Lenders...............................69
2.12 Joint and Several Liability; Payment Indemnifications...............................................73
2.13 Defaulting Lenders..................................................................................74
2.14 Replacement of a Lender.............................................................................76
Section 3. LETTERS OF CREDIT AND CASH COLLATERAL ACCOUNT.......................................................77
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein.......................77
3.2 Letter of Credit Fees...............................................................................79
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit..................................80
3.4 Obligations Absolute................................................................................83
3.5 Indemnification; Nature of Issuing Lenders' Duties..................................................84
3.6 Withdrawals from the Cash Collateral Account........................................................85
Section 4. CONDITIONS TO LOANS, LETTERS OF CREDIT, AND WITHDRAWALS FROM THE CASH COLLATERAL ACCOUNT............86
4.1 Conditions to Pooled Facility Participation.........................................................86
4.2 Conditions to All Revolving Loans...................................................................92
4.3 Conditions to Letters of Credit.....................................................................93
4.4 Conditions to Withdrawals from Cash Collateral Account..............................................94
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES............................................................95
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries.......................95
5.2 Authorization of Borrowing, etc.....................................................................96
5.3 Financial Condition.................................................................................97
5.4 No Material Adverse Change; No Restricted Payments..................................................97
5.5 Title to Properties; Liens; Real Property; Intellectual Property....................................97
5.6 Litigation; Adverse Facts...........................................................................98
5.7 Payment of Taxes....................................................................................98
5.8 Performance of Agreements; Materially Adverse Agreements; Material Contracts........................99
5.9 Governmental Regulation.............................................................................99
5.10 Securities Activities...............................................................................99
5.11 Employee Benefit Plans.............................................................................100
5.12 Certain Fees.......................................................................................101
5.13 Environmental Protection...........................................................................101
5.14 Employee Matters...................................................................................102
5.15 Solvency...........................................................................................102
5.16 Matters Relating to Collateral.....................................................................102
5.17 Disclosure.........................................................................................103
5.18 Subordinated Indebtedness..........................................................................104
5.19 Commitments Under Pooled Facility Documents........................................................104
5.20 Matters Relating to Loan Parties...................................................................104
5.21 Identified Investment Spending.....................................................................105
Section 6. COMPANY'S AFFIRMATIVE COVENANTS....................................................................106
6.1 Financial Statements and Other Reports.............................................................106
6.2 Existence, etc.....................................................................................110
6.3 Payment of Taxes and Claims; Tax...................................................................111
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/ Condemnation Proceeds..........111
6.5 Inspection Rights; Lender Meeting..................................................................113
6.6 Compliance with Laws, etc..........................................................................113
6.7 Environmental Matters..............................................................................113
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral Documents After the
Closing Date.......................................................................................115
6.9 Matters Relating to Additional Real Property Collateral............................................118
6.10 Deposit Accounts...................................................................................118
6.11 Most Favored Nations Payments......................................................................119
6.12 Security Interest in Unsold Assets.................................................................119
6.13 Establishment of Cash Management System............................................................120
6.14 Payment of Opt-Out Facilities......................................................................120
6.15 Opinions of Local Counsel..........................................................................121
6.16 Execution of Opt-Out Facility Guaranties after the Closing Date....................................121
Section 7. BORROWERS' NEGATIVE COVENANTS......................................................................122
7.1 Indebtedness.......................................................................................122
7.2 Liens and Related Matters..........................................................................124
7.3 Investments; Acquisitions..........................................................................126
7.4 Contingent Obligations; Performance Guaranties.....................................................129
7.5 Restricted Payments................................................................................130
7.6 Financial Covenants................................................................................132
7.7 Restriction on Fundamental Changes; Asset Sales....................................................133
7.8 Monthly Budget Covenants...........................................................................136
7.9 Transactions with Shareholders and Affiliates......................................................137
7.10 Restriction on Leases..............................................................................137
7.11 Sales and Lease-Backs..............................................................................137
7.12 Conduct of Business................................................................................138
7.13 Amendments to Debt Documentation and Organizational Documents......................................138
7.14 End of Fiscal Years; Fiscal Quarters...............................................................138
7.15 No Additional Commitments..........................................................................138
Section 8. EVENTS OF DEFAULT..................................................................................139
8.1 Failure to Make Payments When Due..................................................................139
8.2 Default in Other Agreements........................................................................139
8.3 Breach of Certain Covenants........................................................................140
8.4 Breach of Warranty.................................................................................140
8.5 Other Defaults Under Financing Documents...........................................................140
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc...............................................140
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.................................................141
8.8 Judgments and Attachments..........................................................................141
8.9 Dissolution........................................................................................141
8.10 Employee Benefit Plans.............................................................................141
8.11 Material Adverse Effect............................................................................142
8.12 Change in Control..................................................................................142
8.13 Invalidity of Intercreditor Agreement or Subsidiary Guaranty; Failure of Security;
Repudiation of Obligations.........................................................................142
Section 9. AGENTS.............................................................................................143
9.1 Appointment........................................................................................143
9.2 Powers and Duties; General Immunity................................................................145
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal of Creditworthiness..........146
9.4 Right to Indemnity.................................................................................147
9.5 Successor Agents...................................................................................147
9.6 Intercreditor Agreement, Collateral Documents and Guaranties.......................................147
9.7 Administrative Agent May File Proofs of Claim......................................................148
9.8 Indemnification of Existing Pooled Facility Agents.................................................149
Section 10. MISCELLANEOUS......................................................................................149
10.1 Successors and Assigns; Assignments and Participations in Loans and Letters of Credit..............149
10.2 Expenses...........................................................................................153
10.3 Indemnity..........................................................................................154
10.4 Set-Off; Security Interest in Deposit Accounts.....................................................155
10.5 Ratable Sharing....................................................................................155
10.6 Amendments and Waivers.............................................................................157
10.7 Independence of Covenants..........................................................................160
10.8 Notices............................................................................................160
10.9 Survival of Representations, Warranties and Agreements.............................................161
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative..............................................161
10.11 Marshalling; Payments Set Aside....................................................................161
10.12 Severability.......................................................................................161
10.13 Obligations Several; Independent Nature of Lenders' Rights.........................................162
10.14 Headings...........................................................................................162
10.15 Applicable Law.....................................................................................162
10.16 Construction of Agreement..........................................................................162
10.17 Consent to Jurisdiction and Service of Process.....................................................162
10.18 Waiver of Jury Trial...............................................................................163
10.19 Confidentiality....................................................................................164
10.20 No Fiduciary Duty..................................................................................164
10.21 Release of Parties.................................................................................164
10.22 Counterparts; Effectiveness........................................................................165
10.23 No Third Party Beneficiaries.......................................................................165
10.24 Fee and Covenant Acknowledgements..................................................................166
10.25 Name Change........................................................................................166
SCHEDULES
A OTHER BORROWERS
1.1(a) APPROVED ASSET SALES
1.1(b) CERTAIN EXCLUDED SUBSIDIARIES
1.1(c) EXISTING POOLED LOANS
1.1(d) EXISTING PROJECT DEBT
1.1(e) MONTHLY BUDGET
1.1(f) OPT-OUT FACILITIES
1.1(g) PERFORMANCE LETTERS OF CREDIT
1.1(h) POOLED FACILITIES
1.1(i) POOLED LETTERS OF CREDIT
1.1(j) SPRINGING LETTERS OF CREDIT
1.1(k) STANDBY LETTERS OF CREDIT
1.1(l) SCHEDULED PROJECT L/CS
2.1 POOLED FACILITY LOAN PARTICIPATIONS AND POOLED FACILITY L/C PARTICIPATIONS
2.2 REVOLVING LENDERS' REVOLVING LOAN COMMITMENTS AND PRO RATA SHARES
2.5F METHODOLOGY FOR INCREASED FEES FOR CLASS B PALLADIUM DPS FACILITY
2.6A(iii)(e) CERTAIN DEPOSIT ACCOUNTS
2.11(a) REPLACED POOLED FACILITY COVENANTS
2.11(b) ADDITIONAL COVENANTS
4.1J REAL PROPERTY ASSETS
4.1N GECC AND SEMPRA PAYMENTS
4.1O COLLATERAL IN RESPECT OF CERTAIN PALLADIUM DISTRESS PREFERRED SHARES
5.1A SUBSIDIARIES OF COMPANY
5.5B REAL PROPERTY
5.5C INTELLECTUAL PROPERTY
5.6 LITIGATION
5.8 MATERIAL CONTRACTS
5.11 CERTAIN EMPLOYEE BENEFIT PLANS
5.13 ENVIRONMENTAL LIABILITY
6.13 CASH MANAGEMENT SYSTEM
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3(v) CERTAIN EXISTING INVESTMENTS
7.3(vi) CERTAIN APPROVED INVESTMENTS
7.4(iv) EXISTING PERFORMANCE GUARANTIES
7.4(v) CERTAIN CONTINGENT OBLIGATIONS
7.5 MATERIAL ADVERSE CHANGE
7.11 CERTAIN SALE-LEASE BACK TRANSACTIONS
EXHIBITS
I(a) FORM OF NOTICE OF BORROWING
I(b) FORM OF NOTICE OF WITHDRAWAL
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE
IV FORM OF REVOLVING NOTE
V FORM OF COMPLIANCE CERTIFICATE
VI FORMS OF OPINIONS
VII FORM OF ASSIGNMENT AGREEMENT
VIII FORM OF FINANCIAL CONDITION CERTIFICATE
IX FORM OF SUBSIDIARY GUARANTY
X FORM OF SECURITY AGREEMENT
XI FORM OF MORTGAGE
XII FORM OF INTERCREDITOR AGREEMENT
EXECUTION
COVANTA ENERGY CORPORATION
REVOLVING CREDIT AND PARTICIPATION AGREEMENT
This REVOLVING CREDIT AND PARTICIPATION AGREEMENT is dated as of
March 14, 2001 and entered into by and among COVANTA ENERGY CORPORATION, a
Delaware corporation ("Covanta" or "Company") formerly known as Ogden
Corporation, and THE SUBSIDIARIES OF COMPANY LISTED ON THE SIGNATURE PAGES
HEREOF (collectively, Company and such Subsidiaries of Company (other than OFMC
Anaheim and Ogden Argentina S.A.) are "Borrowers" and each a "Borrower"); THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF AS POOLED FACILITY
LENDERS AND REVOLVING LENDERS (each, in its capacity as Pooled Facility Lender,
individually referred to herein as a "Pooled Facility Lender" and collectively
as "Pooled Facility Lenders", and in its capacity as Revolving Lender,
individually referred to herein as a "Revolving Lender" and collectively as
"Revolving Lenders"); THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES
HEREOF AS OPT-OUT LENDERS (each individually referred to herein as an "Opt-Out
Lender" and collectively as "Opt-Out Lenders"); THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE PAGES HEREOF AS EXISTING POOLED FACILITY AGENTS (each,
in its capacity as an agent for the lenders in respect of a relevant Pooled
Facility under the Pooled Facility Documents, individually referred to as an
"Existing Pooled Facility Agent" and collectively as "Existing Pooled Facility
Agents"); THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF AS
EXISTING OPT-OUT FACILITY AGENTS (each, in its capacity as an agent for the
lenders in respect of a relevant Opt-Out Facility under the Opt-Out Facility
Documents, individually referred to as an "Existing Opt-Out Facility Agent" and
collectively as "Existing Opt-Out Facility Agents"); BANK OF AMERICA, N.A.
("BofA"), as Administrative Agent for Lenders (in such capacity "Administrative
Agent"); and DEUTSCHE BANK AG, NEW YORK BRANCH ("Deutsche Bank"), as
Documentation Agent for Lenders (in such capacity "Documentation Agent").
R E C I T A L S
WHEREAS, Borrowers, the Pooled Facility Lenders and the Opt-Out
Lenders have agreed (i) to adopt certain common covenants under the Pooled
Facilities and the Opt-Out Facilities (this and other capitalized terms used in
this introduction have the meanings assigned to such terms in subsection 1.1
hereof), (ii) that Pooled Facility Lenders shall purchase participations in the
credit exposures of other Pooled Facility Lenders under other Pooled Facilities
according to the Pro Rata Shares of such Pooled Facility Lenders, (iii) to cause
the maturity of each of the Pooled Facilities and each of the Opt-Out Facilities
to occur on May 31, 2002, and (iv) that the Revolving Lenders shall extend
$145,885,689.06 of secured revolving loan and letter of credit facilities to
Borrowers pursuant to the Revolving Loan Commitments, which facilities shall be
utilized (a) to provide letters of credit to meet Borrowers' obligations under
certain contractual requirements and (b) to provide financing for working
capital purposes, capital expenditures and general corporate purposes of
Borrowers and their Subsidiaries, in each case on the terms and subject to the
conditions set forth herein; and
WHEREAS, Borrowers desire to secure all of the Secured Obligations by
granting to Administrative Agent, on behalf of Lenders (and to the extent
required by the 9.25% Debenture Indenture, for the holders of the 9.25%
Debentures), a First Priority Lien on substantially all of their unencumbered
real, personal and mixed property, all of the unencumbered capital stock held by
Borrowers in each of their Domestic Subsidiaries, and up to 65% of the
unencumbered capital stock held directly by Borrowers in each of their Foreign
Subsidiaries, in each case subject to the exceptions and on the terms set forth
herein and in the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders and Agents agree
as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
---------------------
The following terms used in this Agreement shall have the following
meanings:
"Additional Mortgaged Property" has the meaning set forth in
subsection 6.9.
"Additional Mortgage" has the meaning assigned to that term in
subsection 6.9.
"Adjusted EBIT" means, for any period, the sum of the amounts for
such period of (i) "Consolidated Operating Income," (ii) "Equity in Net Income
of Investees and Joint Ventures," and (iii) "Minority Interests," in each case
whether such items are so titled or otherwise titled, as each of such items are
reflected in the "Consolidated Statement of Income and Comprehensive Income"
(whether so titled or otherwise titled) of Company and its Subsidiaries prepared
in conformity with GAAP and reported in Company's quarterly or annual report (as
the case may be) on Form 10Q or 10K, respectively, in a manner consistent with
Company's reporting of such amounts prior to the Closing Date, (iv) to the
extent deducted in calculating the amounts described in clause (i), (ii) or
(iii) for such period, LOC Fees, plus (solely with respect to the first Fiscal
Quarter of 2001 for any calculation of Adjusted EBIT including such Fiscal
Quarter) the amount of LOC Fees which would have been incurred with respect to
Letters of Credit serving as Springing Letters of Credit for the Montgomery and
Onondaga Projects had such Letters of Credit been issued and outstanding during
the entirety of such Fiscal Quarter, (v) to the extent deducted in calculating
the amounts described in clause (i), (ii) or (iii) for such period, any losses
attributable to the application of Statement #84 of the Financial Accounting
Standards Board to (or other accounting principles under GAAP having the effect
of requiring Company and its Subsidiaries to recognize a non-cash loss as a
result of) the Exchange Offer for the Convertible Subordinated Debentures and/or
the 9.25% Debentures, and (vi) any Senators Sale Losses.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5.
"Affected Lender" has the meaning assigned to that term in subsection
2.8C.
"Affected Loans" has the meaning assigned to that term in subsection
2.8C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person (other than exclusively as a result of such Person's
role as a Project manager or operator), whether through the ownership of voting
securities or by contract or otherwise.
"Agents" means Administrative Agent and Documentation Agent, and
"Agent" means either one of them.
"Agreement" means this Revolving Credit and Participation Agreement
dated as of March 14, 2001, as it may be amended, restated, supplemented or
otherwise modified from time to time.
"Approved Asset Sales" means, collectively, the sales of the
Subsidiaries, divisions or businesses of Company and its Subsidiaries (including
the equity interests of certain Subsidiaries and their assets or of Company's or
any of its Subsidiaries' interests in Projects) described on Schedule 1.1(a)
annexed hereto.
"Asset Sale" means the sale by Company or any of its Subsidiaries to
any Person of (i) any of the stock of any of Company's Subsidiaries, (ii)
substantially all of the assets of any division or line of business of Company
or any of its Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Company or any of its Subsidiaries (other than (a) inventory sold
in the ordinary course of business and (b) any such other assets to the extent
that the aggregate value of such assets sold in any single transaction or
related series of transactions is equal to $1,000,000 or less and the aggregate
value of all such other assets since the Closing Date is equal to $5,000,000 or
less), and shall include any Approved Asset Sale; provided, however, that Asset
Sales shall not include (1) any sale or discount, in each case without recourse,
of accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof, (2) any sale or exchange
of specific items of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 90 days of such sale or exchange in
the acquisition of) replacement items of equipment which are the functional
equivalent of the item of equipment so sold or exchanged, or (3) disposals of
obsolete, uneconomical, negligible, worn out or surplus property in the ordinary
course of business.
"Assignment Agreement" means an Assignment Agreement in substantially
the form of Exhibit VII annexed hereto.
"Bank of New York Credit Agreement" mean the Credit Agreement dated
June 30, 1997 by and among, inter alia, Company and The Bank of New York as
agent for the banks and other financial institutions or entities from time to
time parties thereto, as amended, restated and supplemented or otherwise
modified from time to time.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (i) the Prime Rate or
(ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.4A.
"Base Rate Margin" means a per annum rate equal to 1.75%.
"Borrower" and "Borrowers" have the meanings assigned to such terms
in the introduction of this Agreement.
"Borrower Recourse Obligations" means, with respect to any Project to
which Company or any of its Subsidiaries has made a contractual commitment, (i)
any Performance Guaranty incurred by a Borrower and (ii) any Contingent
Obligation incurred by a Borrower unless, in the case of either clause (i) or
(ii), recourse of the obligee or beneficiary of such Performance Guaranty or
Contingent Obligation is limited to (a) assets associated with such Project
(which in any event shall not include assets held by any Borrower other than a
Borrower described in clause (b)) and/or (b) the Borrower (or the equity
interests in such Borrower) incurring such Performance Guaranty or Contingent
Obligation, but in the case of clause (b) only if such Borrower's sole business
is the ownership and/or operation of such Project and substantially all of its
assets are associated with such Project.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and 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 Eurodollar Rate or
any Eurodollar Rate Loans, any day that is a Business Day described in clause
(i) above and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Canadian Loss Sharing Lenders" has the meaning assigned to that term
in the Intercreditor Agreement.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" means the capital stock or other equity interests of
a Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Collateral Account" has the meaning assigned to that term in
the Security Agreement.
"Cash Management System" means the cash management arrangements of
Company and its Subsidiaries consisting of certain blocked foreign and domestic
accounts, including without limitation any Deposit Accounts, established or to
be established to fund domestic and foreign operating needs of Company and its
Subsidiaries, described more fully on Schedule 6.13.
"CDN$" means the lawful money of Canada.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), or any
successor statute, and all implementing regulations promulgated thereunder.
"CGS Credit Facility" means the Contractual Obligations of Compania
General de Sandeos CGS, S.A., an indirect Subsidiary of Company, in the
aggregate outstanding principal amount of 87,198,135 pesetas as of the Closing
Date owed to Banco Santander Central Hispano, S.A., as such Contractual
Obligations have been amended, supplemented or otherwise modified to the date
hereof and as they may hereafter be amended, supplemented or otherwise modified
to the extent permitted under this Agreement.
"Change in Control" means the acquisition of beneficial ownership or
control, directly or indirectly, by any Person acting alone or in concert with
one or more other Persons, of Securities of Company (or other Securities
convertible into such Securities) representing 30% or more of the combined
voting power of all Securities of Company entitled to vote in the election of
members of the Governing Body of Company, other than Securities having such
power only by reason of the happening of a contingency.
"China Project Swap" means the exchange by Subsidiaries of Company of
their rights and interests held on the Closing Date in that certain pulverized
coal cogeneration Project located in the People's Republic of China (Jiangsu
Province) and held through Taixing Ogden-Madian Cogen Co., Ltd. for the rights
and interests of certain other Persons held on the Closing Date in that certain
pulverized coal cogeneration Project located in the Yanjiang, People's Republic
of China (Jiangsu Province), such that after such exchange Subsidiaries of
Company, through Taixing Ogden-Yanjiang Cogen Co., Ltd., hold approximately 96%
of the ownership interests in the latter Project.
"Class A Palladium DPS Facility" means, collectively, the Contractual
Obligations of Company and its Subsidiaries with respect to 135,800,000 Class A
preference shares issued by Palladium Finance Corporation I on December 30, 1997
with respect to a CDN$135,800,000 senior loan, as such Contractual Obligations
have been amended, supplemented or otherwise modified to the date hereof and as
they may hereafter be amended, supplemented or otherwise modified to the extent
permitted under this Agreement.
"Class B Palladium DPS Facility" means, collectively, the Contractual
Obligations of Company and its Subsidiaries with respect to 62,000,000 Class B
preference shares issued by Palladium Finance Corporation II on December 30,
1997 with respect to a CDN$62,000,000 senior subordinated loan, as such
Contractual Obligations have been amended, supplemented or otherwise modified to
the date hereof and as they may hereafter be amended, supplemented or otherwise
modified to the extent permitted under this Agreement.
"Closing Date" means the date on which each of the conditions
described in subsection 4.1 have been satisfied or waived by Requisite Lenders.
"Closing Date Mortgage" has the meaning assigned to that term in
subsection 4.1J(i). "Closing Date Mortgaged Property" has the meaning assigned
to that term in subsection 4.1J(i).
"Closing Date Paydown" means the repayment in full on the Closing
Date of all Existing Pooled Loans, together with all accrued and unpaid interest
and fees thereon and expenses relating thereto payable under the relevant Pooled
Facility Documents.
"Closing Letter" means that certain letter agreement executed and
delivered by Borrowers and Agents on the Closing Date.
"Collateral" means, collectively, all of the real, personal and mixed
property (including capital stock and similar equity interests) in which Liens
are purported to be granted pursuant to the Collateral Documents as security for
the Secured Obligations.
"Collateral Agent" means the Person acting as Administrative Agent
hereunder, in its capacity as "Collateral Agent" under and as defined in the
Intercreditor Agreement.
"Collateral Documents" means the Security Agreement, the foreign
pledge agreements, the Mortgages and all other instruments or documents
delivered by any Loan Party pursuant to this Agreement or any of the other Loan
Documents in order to grant to Administrative Agent, on behalf of Lenders, a
Lien on any real, personal or mixed property of that Loan Party as security for
the Secured Obligations.
"Commodities Agreement" means any long-term or forward purchase
contract or option contract to buy, sell or exchange commodities or similar
agreement or arrangement to which Company or any of its Subsidiaries is a party
unless, under the terms of such contract, option contract agreement or
arrangement Company expects to make or take delivery of the commodities which
are the subject thereof.
"Common Stock" means the common stock of Company, par value of $0.50
per share.
"Company" has the meaning assigned to that term in the introduction
to this Agreement.
"Competitor" means any Person (and their respective Affiliates)
primarily engaged in the business of the generation and sale of electricity.
"Compliance Certificate" means a certificate substantially in the
form of Exhibit V annexed hereto.
"Consolidated Debt Service Expense" means, for any period, (i) total
interest expense, net of interest income, of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries to the extent such Indebtedness is or is required to be
reflected on the consolidated balance sheet of Company and its Subsidiaries in
conformity with GAAP, but excluding any Indebtedness consisting of Limited
Recourse Debt, and (ii) to the extent not included in the calculation of the
amount described in clause (i), all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, from
clauses (i) and (ii) any amounts referred to in subsection 2.5 payable to
Administrative Agent and Lenders on or before the Closing Date.
"Consolidated Leverage Ratio" means, as at any date of determination,
the ratio of (a) Net Senior Recourse Indebtedness as at such date to (b)
Adjusted EBIT for the four-Fiscal Quarter Period most recently ended prior to
such date; provided, however, that Adjusted EBIT (1) for the four-Fiscal Quarter
period ending March 31, 2001 shall equal Adjusted EBIT for the Fiscal Quarter
ending March 31, 2001 multiplied by 4, (2) for the four-Fiscal Quarter period
ending June 30, 2001 shall equal Adjusted EBIT for the two-Fiscal Quarter period
ending June 30, 2001 multiplied by 2, and (3) for the four-Fiscal Quarter period
ending September 30, 2001 shall equal Adjusted EBIT for the three-Fiscal Quarter
period ending September 30, 2001 multiplied by 4/3.
"Consolidated Maintenance Capital Expenditures" means, for any
period, (i) the sum of the aggregate of all cash expenditures by Company and its
Subsidiaries during that period that, in conformity with GAAP, would be included
in "additions to property, plant or equipment" or comparable items reflected in
the consolidated statement of cash flows of Company and its Subsidiaries for
that or any other period, less (ii) to the extent otherwise included in the
calculation of the amount described in clause (i), any such expenditures in
connection with independent power Projects of Company and its Subsidiaries the
construction of which has not been completed at the time of such expenditure.
"Consolidated Net Income" means, for any period, "Comprehensive
Income (Loss)", whether such item is so titled or otherwise titled, as reflected
in the "Consolidated Statement of Income and Comprehensive Income" (whether so
titled or otherwise titled) of Company and its Subsidiaries prepared in
conformity with GAAP and reported in Company's quarterly or annual report (as
the case may be) on Form 10Q or 10K, respectively, in a manner consistent with
Company's reporting of such amount prior to the Closing Date.
"Consolidated Net Worth" means, as at any date of determination, the
sum of the capital stock and additional paid-in capital plus retained earnings
(or minus accumulated deficits) of Company and its Subsidiaries on a
consolidated basis, as such amounts are or are required to be reflected on the
consolidated balance sheet of Company and its Subsidiaries in conformity with
GAAP.
"Contingent Obligation", as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person (i) with respect
to any Indebtedness, lease, dividend or other obligation of another if the
primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Hedge Agreements. Contingent Obligations shall include
(a) the direct or indirect guaranty, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another, (b)
the obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (2) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (1) or (2) of this
sentence, the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be equal to the amount
(if stated) of the obligation so guaranteed or otherwise supported or, if less,
the amount to which such Contingent Obligation is specifically limited, or, if
the amount of any Contingent Obligation is not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
Company in good faith based upon reasonable assumptions. No obligations under
Performance Guaranties shall constitute Contingent Obligations.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Convertible Subordinated Debentures" means, collectively, (i) the
5.75% Convertible Subordinated Debentures due October 20, 2002 issued by Company
in the principal amount of $75,000,000 and (ii) the 6.00% Convertible
Subordinated Debentures due June 1, 2002 issued by Company in the aggregate
principal amount of $85,000,000, in each case as in effect on the Closing Date
and as such debentures may hereafter be amended, supplemented or otherwise
modified to the extent permitted under this Agreement.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, or option contract to buy, sell or exchange currencies or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization (including without limitation the Cash Collateral Account), other
than an account evidenced by a negotiable certificate of deposit.
"Designated Borrower" means any of Company, Covanta Energy Group,
Inc., Ogden Financial Services, Inc., Ogden Management Services, Inc., Ogden
Services Corporation, Covanta Projects, Inc., Covanta Energy International,
Inc., Covanta Energy Americas, Inc., Covanta Energy West, Inc., Ogden
Environmental & Energy Services Co., Inc., Covanta Systems, Inc., Covanta Waste
to Energy, Inc., Covanta Water Holdings, Inc., Covanta Water, Inc. and Covanta
Energy Services, Inc.
"Development Amount" means, with respect to any Project to which
Company or any of its Subsidiaries has made or proposes to make a contractual
commitment at any time after the Closing Date, (i) the aggregate amount of cash
expenditures made by Company or any of its Subsidiaries to fund operating
expenses payable to Persons other than Company and its Subsidiaries in
connection with the development of such Project prior to the date of financial
closing for such Project (but not including expenditures related to the purchase
of equipment or improvements), minus (ii) the aggregate amount of such cash
operating expenses which have been reimbursed in cash to Company and its
Subsidiaries. Amounts included in the calculation of the Invested Amount with
respect to a Project shall not be included in the Development Amount with
respect to such Project.
"Documentation Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Documentation Agent appointed pursuant to subsection 9.5A.
"Dollar Participation Obligations" has the meaning assigned to that
term in subsection 2.1D.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Domestic Subsidiary" means any Subsidiary of Company that is
incorporated or organized under the laws of the United States of America, any
state or territory thereof or in the District of Columbia.
"Domestic Cash Equivalents" means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's ("S&P") or Moody's Investors Service,
Inc. ("Moody's"); (iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates
of deposit or bankers' acceptances maturing within one year after such date and
issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia that (a) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000; (v) shares of
any money market mutual fund that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii)
above, (b) has net assets of not less than $500,000,000, and (c) has the highest
rating obtainable from either S&P or Moody's; and (vi) such other securities as
Company and Agents may agree on from time to time.
"Eligible Assignee" means (i) (a) a commercial bank organized under
the laws of the United States or any state thereof; (b) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (c) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (1) such bank is
acting through a branch or agency located in the United States or (2) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (d) any other financial institution that extends credit or buys
loans as one of its businesses; (ii) any Lender and any Affiliate of any Lender;
provided that neither Company nor any Affiliate of Company nor any Competitor
shall be an Eligible Assignee; and provided further that, in order to be an
Eligible Assignee, a Person must have at the time of determination a long term
senior unsecured debt rating of "A2" or better from Moody's and/or "A" or better
from S&P or, solely in the case of assignees of Opt-Out Obligations under the
Class B Palladium DPS Facility which are Canadian Persons, a long term senior
unsecured debt rating of "A" or better from Dominion Bond Rating Service.
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is maintained or contributed to by Company, any
of its Subsidiaries or any of their respective ERISA Affiliates.
"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 Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, or (ii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
"Environmental Laws" means any and all current or future statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any Facility.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment of a material amount under Section 412(m) of the Internal Revenue
Code with respect to any Pension Plan or the failure to make any required
contribution of a material amount to a Multiemployer Plan; (iii) the provision
by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA
of a notice of intent to terminate such plan in a distress termination described
in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan
with two or more contributing sponsors or the termination of any such Pension
Plan resulting in liability of Company or any of its Subsidiaries pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition would
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of liability on Company, any of its Subsidiaries or any of
their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if it would reasonably be
expected that Company or any of its Subsidiaries will incur material liability
therefor, or the receipt by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (ix)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or of the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Internal Revenue Code; or (x) the imposition of a Lien on the property of the
Company or any of its Subsidiaries pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) the rate per annum (rounded upward to the nearest
1/16 of one percent) that appears on the Dow Jones Markets (Telerate) page 3750
(or such other comparable page as may, in the opinion of Administrative Agent,
replace such page for the purpose of displaying such rate) with maturities
comparable to such Interest Period as of approximately 10:00 a.m. (London time)
on such Interest Rate Determination Date by (ii) a percentage equal to 100%
minus the stated maximum rate of all reserve requirements (including any
marginal, emergency, supplemental, special or other reserves) applicable on such
Interest Rate Determination Date to any member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Eurodollar Rate Loans" means Revolving Loans bearing interest at
rates determined by reference to the Eurodollar Rate as provided in subsection
2.4A.
"Eurodollar Rate Margin" means a per annum rate equal to 2.75%.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Exchange Offer" means any one or more of (i) the exchange of equity
securities or substantially identical debt securities (with a lower conversion
price) of Company for the Convertible Subordinated Debentures and/or (ii) the
exchange of equity securities of Company for the 9.25% Debentures.
"Exchange Rate" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Opt-Out
Facility Exposure, the rate quoted by Administrative Agent in accordance with
its customary procedures as the spot rate for the purchase by Administrative
Agent of such currency in exchange for Dollars through its foreign exchange
trading office in New York at 12:00 noon (New York time) one Business Day prior
to such date for delivery one Business Day later, expressed as a number of units
of such currency per one Dollar.
"Excluded Gross Receipts" means Gross Receipts to the extent in
excess of $5,000,000 in the aggregate from those Approved Asset Sales described
on Schedule 1.1(a) as "Interest in Isla Magica", "Land in South Africa", "Land
outside Yellowstone Park", "Interest in IMAX Theatre in Tempe, Arizona" and
"Receivables from the discontinued business, OSSI".
"Excluded Subsidiary" means each Domestic Subsidiary of Company which
is any one or more of the following: (i) a Shell Subsidiary, so long as such
Subsidiary has no material assets and is not engaged in any business; (ii) a
non-Material Subsidiary; (iii) a Subsidiary (including OFMC Anaheim) for which
becoming a Borrower or a Subsidiary Guarantor would constitute a material
violation of (a) a valid and enforceable Contractual Obligation in favor of a
Person other than Company or any of its Subsidiaries for which the required
consents have not been obtained or (b) applicable law affecting such Subsidiary,
provided that any such Subsidiary of Company shall cease to be an Excluded
Subsidiary by virtue of this clause (iii) at such time as such Subsidiary's
becoming a Borrower or a Subsidiary Guarantor would no longer constitute a
material violation of such Contractual Obligation or applicable law, whether as
a result of obtaining the required consents or otherwise; (iv) Three Mountain
Power, LLC, a Delaware limited liability company, unless Company and its
Subsidiaries shall have failed to make the Investments in the Three-Mountain
Power Project identified on Schedule 7.3(vi) annexed hereto on or prior to May
31, 2002; (v) NRG/Recovery Group, Inc. and Warren Energy Resource Co., L.P.,
provided that either of such Subsidiaries of Company shall cease to be an
Excluded Subsidiary by virtue of this clause (v) at such time as Agents or
Requisite Lenders shall reasonably request; or (vi) any of the Subsidiaries of
Company described on Schedule 1.1(b) annexed hereto, until such time as such
Subsidiary ceases to be an Excluded Subsidiary pursuant to subsection 6.12. A
Domestic Subsidiary of Company which is not an Excluded Subsidiary may become an
Excluded Subsidiary if the Company notifies the Administrative Agent that (i)
such Subsidiary has no material assets other than contracts, permits, licenses
and similar contracts and instruments connected to the development of a Project
otherwise permitted under this Agreement and (ii) in connection with such
Project it is necessary to enter into a valid and enforceable Contractual
Obligation in favor of a Person other than Company or any of its Subsidiaries
for which the required consents have not been obtained. Upon such notice the
Administrative Agent shall promptly take such actions as are necessary to
relinquish the security interest in such Subsidiary.
"Existing Pooled Facility Agent" and "Existing Pooled Facility
Agents" have the meanings assigned to such terms in the introduction of this
Agreement.
"Existing Pooled Loans" means, collectively, the loans under the
Pooled Facilities outstanding immediately prior to the Closing Date described on
Schedule 1.1(c) annexed hereto, in the principal amount as of the Closing Date
set forth on such Schedule; provided that each reference herein to an Existing
Pooled Loan of a Pooled Facility Lender arising under any of the Quezon
Facilities shall mean and be limited to that portion of drawn but unreimbursed
amounts under a letter of credit included in any of the Quezon Facilities with
respect to which amounts OPD would be liable (as of immediately prior to the
Closing Date) to make equity contributions to Quezon Equity Funding in the event
that Quezon Equity Funding were to repay such unreimbursed amounts.
"Existing Project Debt" means each of the credit facilities described
on Schedule 1.1(d) annexed hereto, as such credit facilities are in effect on
the Closing Date.
"Facilities" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Company or any of its Subsidiaries
or any of their respective predecessors or Affiliates.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C. Section 136 et seq.), or any successor statute, and
all implementing regulations promulgated thereunder.
"Financing Documents" means collectively the Loan Documents, the
Pooled Facility Documents and the Opt-Out Facility Documents.
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien on such Collateral and (ii) such Lien is
the only Lien (other than Permitted Encumbrances and Liens permitted pursuant to
subsection 7.2A) to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31st of each calendar year.
"Flood Hazard Property" means a Closing Date Mortgaged Property or an
Additional Mortgaged Property located in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide hazards.
"Foreign Cash Equivalents" means, as at any date of determination,
(i) securities issued or directly and fully guaranteed by the government of the
country within which an Investment by the Company or any of its Subsidiaries has
been or is being made and (ii) time deposits and certificates of deposit of
commercial banks having offices in such country, in each case with a long term
unsecured debt rating of at least equal to (a) the rating of the relevant
government, in the event that such government is rated below investment grade by
either Moody's or S&P, or when there is no Moody's or S&P rating of such
government, (b) investment grade in the event that the relevant government is
rated above investment grade by either Moody's or S&P, or (c) "A" or better to
the extent that the relevant government is rated better than "A" by either
Moody's or S&P, and (iii) such other securities as Company and Administrative
Agent may agree on from time to time.
"Foreign Subsidiary" means any Subsidiary of Company other than a
Domestic Subsidiary.
"Fraudulent Transfer Laws" has the meaning assigned to that term in
subsection 2.12.
"Funding and Payment Office" means (i) the office of Administrative
Agent located at 1 Independence Center, 101 North Tryon Street, Charlotte, N.C.
28255 or (ii) such other office of Administrative Agent as may from time to time
hereafter be designated as such in a written notice delivered by Administrative
Agent to Company and each Lender.
"Funding Borrower" has the meaning assigned to that term in
subsection 2.12.
"Funding Date" means the date of the funding of a Revolving Loan.
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, accounting principles generally accepted in the
United States of America set forth in opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as are approved
by the American Institute of Certified Public Accountants.
"GECC Credit Facilities" means, collectively, (i) the Promissory Note
dated December 28, 1999 issued by Heber Geothermal Company to General Electric
Capital Corporation, (ii) the Promissory Note dated December 28, 1999 issued by
Heber Field Company to General Electric Capital Corporation, and (iii) the
guaranties of Company dated December 28, 1999 with respect to each such
promissory note, in each case as such promissory note or guaranty, as the case
may be, has been amended, supplemented or otherwise modified to the date hereof
and as it may hereafter be amended, supplemented or otherwise modified to the
extent permitted under this Agreement.
"Governing Body" means the board of directors or other body having
the power to direct or cause the direction of the management and policies of a
Person that is a corporation, partnership, trust or limited liability company.
"Government Authority" means any political subdivision or department
thereof, any other governmental or regulatory body, commission, central bank,
board, bureau, organ or instrumentality or any court, in each case whether
federal, state, local or foreign.
"Governmental Authorization" means any permit, license, registration,
authorization, plan, directive, consent order or consent decree of or from, or
notice to, any Government Authority.
"Gross Receipts" means, in respect of any Asset Sale, the total Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale minus any repayment of debt related to
the assets sold in such Asset Sale which is made in connection therewith and is
not prohibited under this Agreement.
"Hazardous Materials" means (i) any chemical, material or substance
at any time defined as or included in the definition of (a) "hazardous wastes"
or "mixed wastes" as defined in RCRA or in any other Environmental Law; (b)
"hazardous substances", "pollutants" or "contaminants" as defined in CERCLA or
in any other Environmental Law; (c) "chemical substances" or "mixtures" as
defined in TSCA or any other substance which is tested pursuant to TSCA or any
other Environmental Law, or the manufacture, processing, distribution, use or
disposal of which is regulated or prohibited pursuant to TSCA or any other
Environmental Law, including without limitation polychlorinated biphenyls and
electrical equipment which contains any oil or dielectric fluid containing
regulated concentrations of polychlorinated biphenyls; (d) "insecticides",
"fungicides", "pesticides" or "rodenticides" as defined in FIFRA or any other
Environmental Law; or (e) "infectious waste" or "biohazardous waste" as defined
in any Environmental Law; (ii) asbestos or any asbestos-containing materials;
(iii) urea formaldehyde foam insulation; (iv) any oil, petroleum, petroleum
fraction or petroleum derived substance; (v) any drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (vi) any flammable
substances or explosives; (vii) any radioactive materials; and (viii) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Government Authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the vicinity of any
Facility or to 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 response action with respect to any of
the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"Indebtedness", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services received by such Person (excluding any such obligations
incurred under ERISA), which purchase price is (a) due more than six months from
the date of incurrence of the obligation in respect thereof or (b) evidenced by
a promissory note or similar written instrument, but excluding in either case
current trade payables incurred in the ordinary course of business and payable
in accordance with customary practices, and (v) all indebtedness secured by any
Lien on any property or asset owned by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person. Any obligations under Interest Rate
Agreements and Currency Agreements constitute (1) in the case of Hedge
Agreements, Contingent Obligations, and (2) in all other cases, Investments, and
in neither case constitute Indebtedness. For purposes of this Agreement, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer,
unless the Indebtedness of such partnership or joint venture is expressly
Limited Recourse Debt of such partnership or joint venture.
"Indemnitee" has the meaning assigned to that term in subsection
10.3.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, software, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries as currently
conducted that are material to the financial condition, business or operations
of Company and its Subsidiaries, taken as a whole.
"Intercompany Notes" means promissory notes evidencing Indebtedness
of Company or any of its Subsidiaries which (a) to the extent the Indebtedness
evidenced thereby is owed to any Borrower or any Subsidiary Guarantor, is
pledged pursuant to the Collateral Documents, (b) to the extent the Indebtedness
evidenced thereby is owed by a Subsidiary of Company, is senior Indebtedness of
such Subsidiary (except to the extent that requiring such Indebtedness to be
senior would breach a contractual obligation binding on such Subsidiary), except
that any such Indebtedness owed by any Borrower or Subsidiary Guarantor to any
Subsidiary which is not a Borrower shall be subordinated in right of payment to
the payment in full of the Obligations and the Opt-Out Obligations pursuant to
the terms of the applicable notes, and (c) provide that any payment by any
Subsidiary Guarantor under any guaranty of the Obligations or the Opt-Out
Obligations shall result in a pro tanto reduction of the aggregate amount of the
intercompany Indebtedness owed by such Subsidiary Guarantor to Borrowers or to
any of its Subsidiaries for whose benefit such payment is made.
"Intercreditor Agreement" means that certain Intercreditor Agreement
executed and delivered by Borrowers and Lenders on the Closing Date, in the form
of Exhibit XII annexed hereto, as it may thereafter be amended, restated,
supplemented or otherwise modified from time to time.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
the first day of each month, commencing on the first such date to occur after
the Closing Date, and (ii) with respect to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Loan; provided that in the case
of each Interest Period of six months "Interest Payment Date" shall also include
the date that is three months after the commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in subsection
2.4B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"Interest Rate Determination Date" means, with respect to any
Interest Period, the second Business Day prior to the first day of such Interest
Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Invested Amount" means, with respect to any Project to which Company
or any of its Subsidiaries has made a contractual commitment, the sum of (i) the
aggregate amount of any Investments (or commitments to make such Investments) by
Company and its Subsidiaries therein or with respect thereto, and (ii) the
aggregate maximum amount of all Borrower Recourse Obligations (or commitments to
incur Borrower Recourse Obligations) incurred by any Borrower with respect
thereto; provided that the Invested Amount with respect to any Project shall not
include the amount of any Scheduled Project L/C which would otherwise be
included in the calculation thereof. If any Investment, Contingent Obligation,
Indebtedness or Performance Guaranty (or commitment to make or incur the same)
of Company or any Subsidiary is included in the calculation of the Invested
Amount with respect to a particular Project, then any Contingent Obligation,
Indebtedness or Performance Guaranty (or commitment to make or incur the same)
by Company or another Subsidiary of Company the sole purpose of which is to
support such Investment, Contingent Obligation or Performance Guaranty (or
commitment to make or incur the same) shall not be included in the calculation
of the Invested Amount with respect to such Project. For purposes of calculating
the Invested Amount, the amount of any Investment or Borrower Recourse
Obligation shall be measured at the time the commitment to make or incur the
same becomes effective and without giving effect to subsequent changes in value
for any reason whatsoever, including the sale, repayment or cancellation of any
such Investment or Borrower Recourse Obligation, except as set forth in the
following sentence. If any commitment to make or incur an Investment, Contingent
Obligation, Indebtedness or Performance Guaranty which is included in the
Invested Amount with respect to a Project is, prior to the making or incurrence
thereof, sold to a Person other than Company or any of its Subsidiaries, or the
Person in which such a commitment has been made to make an Investment issues
(prior to the making of such Investment) additional equity to a Person other
than Company or any of its Subsidiaries, and such sale or issuance has the
effect of reducing or canceling the commitment of Company and its Subsidiaries
to make or incur the relevant Investment or Borrower Recourse Obligation, the
Invested Amount with respect to such Project shall be reduced by the amount of
such reduction or cancellation. The amount of such reduction shall not be deemed
Net Asset Sales Proceeds or Net Securities Proceeds. Amounts included in the
calculation of the Development Amount with respect to a Project shall not be
included in the Invested Amount with respect to such Project.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course
of business, (iv) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements, or (v) Commodities Agreements. The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment.
"IP Collateral" means, collectively, the Intellectual Property that
constitutes Collateral under the Security Agreement.
"Issuing Lender" means, with respect to any Letter of Credit, either
Administrative Agent or Documentation Agent as determined in accordance with
subsection 3.1B(ii), and with respect to any Pooled Letter of Credit, the Pooled
Facility Lender who has issued such Pooled Letter of Credit pursuant to the
relevant Pooled Facility Documents or Administrative Agent or Documentation
Agent if such Agent has issued a Replacement Letter of Credit for such Pooled
Letter of Credit pursuant to subsection 2.1E.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"Landlord Consent and Estoppel" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, satisfactory in form and substance to Administrative
Agent, pursuant to which such lessor agrees, for the benefit of Administrative
Agent, (i) that without any further consent of such lessor or any further action
on the part of the Loan Party holding such Leasehold Property, such Leasehold
Property may be encumbered pursuant to a Mortgage and may be assigned to the
purchaser at a foreclosure sale or in a transfer in lieu of such a sale (and to
a subsequent third party assignee if Administrative Agent, any Lender, or an
Affiliate of either so acquires such Leasehold Property), (ii) that such lessor
shall not terminate such lease as a result of a default by such Loan Party
thereunder without first giving Administrative Agent notice of such default and
at least 60 days (or, if such default cannot reasonably be cured by
Administrative Agent within such period, such longer period as may reasonably be
required) to cure such default, and (iii) to such other matters relating to such
Leasehold Property and the Collateral located thereon as Administrative Agent
may reasonably request.
"Leasehold Property" means any leasehold interest of any Loan Party
(other than a Foreign Subsidiary) as lessee under any lease of real property,
other than any such leasehold interest designated from time to time by
Administrative Agent in its sole discretion as not being required to be included
in the Collateral.
"Lender" means any Pooled Facility Lender, Opt-Out Lender or
Revolving Lender, and "Lenders" means all such Lenders, collectively.
"Letter of Credit" or "Letters of Credit" means Performance Letters
of Credit and Standby Letters of Credit issued or to be issued by Issuing
Lenders for the account of Borrowers pursuant to subsection 3.1. In no event
shall Pooled Letters of Credit or Replacement Letters of Credit be considered
Letters of Credit hereunder.
"Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Lenders and not theretofore reimbursed out of the proceeds of Revolving
Loans pursuant to subsection 3.3B or otherwise reimbursed by Borrowers.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Limited Recourse Debt" means, with respect to any Subsidiary of
Company, Indebtedness of such Subsidiary with respect to which the recourse of
the holder or obligee of such Indebtedness is limited to (i) assets associated
with the Project (which in any event shall not include assets held by any
Borrower other than a Borrower, if any, meeting the criteria set forth in clause
(b) of the definition of Borrower Recourse Obligation) in respect of which such
Indebtedness was incurred and/or (ii) such Subsidiary or the equity interests in
such Subsidiary, but in the case of clause (ii) only if such Subsidiary's sole
business is the ownership and/or operation of such Project and substantially all
of such Subsidiary's assets are associated with such Project. For purposes of
this Agreement, Indebtedness of a Subsidiary of Company shall not fail to be
Limited Recourse Debt solely by virtue of the fact that the holders of such
Limited Recourse Debt have recourse to Company or another Subsidiary of Company
pursuant to a Contingent Obligation supporting such Limited Recourse Debt or a
Performance Guaranty, so long as such Contingent Obligation or Performance
Guaranty is permitted under subsection 7.4 of this Agreement.
"Loan Documents" means this Agreement, the Revolving Notes, the
Letters of Credit (and any applications for, or reimbursement agreements or
other documents or certificates executed by Company in favor of an Issuing
Lender relating to, the Letters of Credit), the Intercreditor Agreement, the
Subsidiary Guaranties, the Collateral Documents and the Closing Letter.
"Loan Party" means each Borrower and any of Company's Subsidiaries
from time to time executing the Subsidiary Guaranty, and "Loan Parties" means
all such Persons, collectively.
"Loss Sharing Indemnity" has the meaning assigned to that term in the
Intercreditor Agreement.
"LOC Fees" means, for any period, Consolidated Debt Service Expense
with respect to Pooled Letters of Credit, Letters of Credit and Opt-Out
Facilities consisting of letters of credit.
"Mandatory Payment" means any amount described in subsections
2.6A(iii)(a)-(g) to be applied as a (i) prepayment of the Revolving Loans or
(ii) payment into the Cash Collateral Account, as determined pursuant to
subsection 2.6A(iv)(a).
"Margin Stock" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"Material Adverse Effect" means (i) a material adverse effect upon
the business, operations, properties, assets or financial condition of Company
and its Subsidiaries, taken as a whole, or (ii) the impairment of the ability of
Loan Parties taken as a whole to perform, or of Administrative Agent or Lenders
to enforce, the Obligations or the Opt-Out Obligations.
"Material Contract" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Loan Documents)
for which breach, nonperformance, cancellation or failure to renew could have a
Material Adverse Effect.
"Material Leasehold Property" means a Leasehold Property reasonably
determined by Administrative Agent to be of material value as Collateral or of
material importance to the operations of Company or any of its Subsidiaries.
"Material Subsidiary" means each Subsidiary of Company now existing
or hereafter acquired or formed by Company which, on a consolidated basis for
such Subsidiary and all of its Subsidiaries, (i) for the most recent Fiscal Year
accounted for more than 1% of the consolidated revenues of Company and its
Subsidiaries, (ii) as at the end of such Fiscal Year, was the owner of more than
1% of the consolidated assets of Company and its Subsidiaries, or (iii) is
capitalized with more than $500,000 of equity.
"Maturity Date" means the earlier of (i) May 31, 2002, (ii) the
maturity of the Revolving Loans whether by acceleration or otherwise, and (iii)
the date on which all Revolving Loan Commitments shall have terminated, all
Revolving Loans shall have been permanently repaid, all Pooled Letters of Credit
and Letters of Credit shall have been permanently cancelled, cash collateralized
or otherwise supported in a manner satisfactory to the Pooled Facility Lenders,
Revolving Lenders and Opt-Out Lenders and all Obligations and Opt-Out
Obligations shall have been paid in full.
"Maximum Investment Amount" means, subject to the remaining
provisions of this definition, (i) $40,000,000 during Fiscal Year 2001, and (ii)
$10,000,000 during the period from January 1, 2002 through the Maturity Date
(each such amount being the "Annual Maximum Investment Amount" for such period);
provided, however, that (a) the Annual Maximum Investment Amount for each of the
foregoing periods shall be increased by an amount equal to the excess, if any,
of the Annual Maximum Investment Amount for the previous applicable period (as
adjusted in accordance with this proviso) over the Invested Amounts with respect
to all Projects to which Company and its Subsidiaries have made no contractual
commitment on or prior to the Closing Date and which are not identified on
Schedule 7.3(vi) annexed hereto for such previous applicable period, and (b) the
Annual Maximum Investment Amount for any period shall be increased by (1) 40% of
the amount of any Net Asset Sale Proceeds (to the extent retained by (and
permitted hereunder to be retained by) Borrowers) from any Asset Sales other
than Approved Asset Sales, (2) 40% of the amount of any Net Securities Proceeds
(to the extent retained by Borrowers) from any issuances of equity securities of
Company or any of its Subsidiaries and (3) 25% of the amount of any Permanent
Springing Letter of Credit Reduction, at the time of receipt by Borrowers of
such Net Asset Sale Proceeds and such Net Securities Proceeds and at the time
such Permanent Springing Letter of Credit Reduction reduces the Revolving Loan
Commitments hereunder, as the case may be; provided further, however, that the
aggregate net increase to the Annual Maximum Investment Amounts for all periods,
taken as a whole, pursuant to clause (b) of the immediately preceding proviso
shall not exceed $25,000,000. Notwithstanding any provision contained in the
preceding sentence to the contrary, (A) the Maximum Investment Amount which
would otherwise be in effect pursuant to the first sentence of this definition
shall be automatically, immediately and irrevocably reduced by the amount of any
cash expenditures made in accordance with and in reliance on subsection 7.8D
(such reduction to be applied to the Annual Maximum Investment Amount for the
period in which such cash expenditures are made); (B) the Annual Maximum
Investment Amount shall be no greater than $30,000,000 for Fiscal Year 2001 and
zero for the period from January 1, 2002 through the Maturity Date unless and
until (x) Company and its Subsidiaries shall have sold or released their
interests in or claims against the Senators Hockey Club and the assets related
thereto pursuant to a Permitted Senators Transaction or such other transaction
as may be consented to by the Requisite Lenders and (y) the Pooled Letter of
Credit supporting the Class II preference shares of Senators Finance Corporation
II shall have been returned and cancelled and all honored drawings thereunder,
if any, together with any accrued interest thereon, shall have been repaid or
reimbursed by Borrowers in full in cash; and (C) if any drawing under the Pooled
Letter of Credit supporting the Class II preference shares of Senators Finance
Corporation II shall have been honored, the Maximum Investment Amount which
would otherwise be in effect pursuant to the first sentence of this definition
shall be automatically, immediately and irrevocably reduced (to the full extent
thereof) by an amount equal to (1) the amount of such honored drawing plus any
accrued interest thereon, minus (2) that portion of the amounts described in the
immediately preceding clause (1) which is repaid or reimbursed in cash from
proceeds from the sale or transfer of the Senators Hockey Club and the assets
related thereto (such reduction to be applied first, to the Annual Maximum
Investment Amount for the period from January 1, 2002 through the Maturity Date,
and second, to the Annual Maximum Investment Amount for Fiscal Year 2001).
"Minimum Sales Price" means, with respect to any Project (other than
the interest in and claim against the business, operations and Indebtedness of
Senators Hockey Club and its Subsidiaries held by Company and its Subsidiaries)
to which an Opt-Out Facility relates, (i) the amount set forth in the Closing
Letter or (ii) such amount as shall otherwise be agreed to from time to time
after the Closing Date by Agents, Requisite Lenders, Company and Lenders having
or holding at least that percentage of the aggregate Opt-Out Facility Exposure
with respect to the Opt-Out Facility which relates to such Project that would be
required under the terms of the relevant Opt-Out Facility Documents (as in
effect on the Closing Date) to approve any sale or release of Company's and its
Subsidiaries' rights and interests in such Project.
"Mortgage" means (i) a security instrument (whether designated as a
deed of trust or a mortgage or by any similar title) executed and delivered by
any Loan Party, substantially in the form of Exhibit XI annexed hereto or in
such other form as may be approved by Administrative Agent in its sole
discretion, in each case with such changes thereto as may be recommended by
Administrative Agent's local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at Administrative Agent's option,
in the case of an Additional Mortgaged Property, an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage, in either case as such security instrument or amendment may be
amended, restated, supplemented or otherwise modified from time to time.
"Mortgages" means all such instruments, including the Closing Date Mortgages and
any Additional Mortgages, collectively.
"Monthly Budget" means the cash usage budget delivered by Company to
Lenders on or prior to the Closing Date attached hereto as Schedule 1.1(e),
setting forth, for each calendar month from the Closing Date through the
Maturity Date, cash expenditures for Company and its Subsidiaries.
"Multiemployer Plan" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale,
Gross Receipts received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset
Sale, (ii) additional Taxes actually payable upon the closing of such Asset Sale
(including any transfer Taxes or Taxes on gross receipts), (iii) reasonable
out-of-pocket fees and expenses (including reasonable legal fees) paid to
Persons other than Company and its Subsidiaries and their respective Affiliates
(except to the extent that legal fees are paid to a law firm with which
Directors of Company may be affiliated) in connection with such Asset Sale
(including fees necessary to obtain any required consents of such Persons to
such Asset Sale), and (iv) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than the
Revolving Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms of such Indebtedness as a
result of such Asset Sale (without duplication of amounts deducted in
calculating the Gross Receipts from such Asset Sale); provided, however, that
Net Asset Sale Proceeds shall not include any cash payments received from any
Asset Sale by a Foreign Subsidiary unless such proceeds may be repatriated (by
reason of a repayment of an intercompany note or otherwise) to the United States
without (in the reasonable judgment of Company) resulting in a material tax
liability to Company.
"Net Insurance/Condemnation Proceeds" means any Cash payments or
proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Company or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Company or such Subsidiary in respect thereof provided, however, that Net
Insurance/Condemnation Proceeds shall be reduced in an amount equal to the
amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to agreements in effect on the Closing Date, or which were entered into
after the Closing Date with respect to the financing or acquisition of a
Project, to use for purposes other than a Mandatory Payment, and shall not
include any cash payments of the type described in clauses (i) and (ii) of this
definition received by a Foreign Subsidiary unless such proceeds may be
repatriated (by reason of a repayment of an intercompany note or otherwise) to
the United States without (in the reasonable judgment of Company) resulting in a
material tax liability to Company.
"Net Securities Proceeds" means the cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the (i)
issuance of Capital Stock of or incurrence of Indebtedness by Company or any of
its Subsidiaries and (ii) capital contributions made to Company or its
Subsidiaries by a holder of Capital Stock of Company.
"Net Senior Recourse Indebtedness" means, as at any date of
determination, (i) the aggregate amount of all Indebtedness of Company and its
Subsidiaries, to the extent reflected or required to be reflected as
"indebtedness" on the consolidated balance sheet of Company and its Subsidiaries
in conformity with GAAP, less (ii) Cash and Domestic Cash Equivalents, less
(iii) to the extent otherwise included in the amount referred to in clause (i),
the outstanding principal amount of the Convertible Subordinated Debentures and
the principal amount of any Limited Recourse Debt permitted to be maintained or
incurred by Subsidiaries of Company under this Agreement.
"NHL Priority Loan Letter Agreement" means the letter agreement by
and among the National Hockey League, Senators Hockey Club, Fleet National Bank,
Canadian Imperial Bank of Commerce and the other "Secured Parties" named therein
regarding, inter alia, certain priority loans by the National Hockey League to
Senators Hockey Club, in the form delivered to Agents prior to the Closing Date.
"9.25% Debenture Indenture" means the Indenture dated as of March 1,
1992, between Company and Wells Fargo Bank Minnesota, National Association, as
Trustee (as successor in such capacity to The Bank of New York) for the holders
of the 9.25% Debentures, pursuant to which the 9.25% Debentures were issued, as
such indenture has heretofore been and as it may hereafter be amended,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.13.
"9.25% Debentures" means the 9.25% Senior Debentures due 2022 issued
by Company under the 9.25% Debenture Indenture.
"Non-Pooled L/C Portion" has the meaning assigned to that term in
subsection 2.1G.
"Non-Springing Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Letters of Credit
then outstanding which are not serving as Springing Letters of Credit plus (ii)
the aggregate amount of all drawings under Letters of Credit which are not
serving as Springing Letters of Credit honored by Issuing Lenders and not
theretofore reimbursed out of the proceeds of Revolving Loans pursuant to
subsection 3.3B or otherwise reimbursed by Borrowers.
"Non-US Lender" has the meaning assigned to that term in subsection
2.9B(iii).
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I(a) annexed hereto.
"Notice of Conversion/Continuation" means a notice substantially in
the form of Exhibit II annexed hereto.
"Notice of Withdrawal" means a notice substantially in the form of
Exhibit I(b) annexed hereto.
"Obligations" means all obligations of every nature of each Loan
Party from time to time owed to Agents, Lenders or any of them under the Loan
Documents and the Pooled Facility Documents, whether for principal, interest,
reimbursement of amounts drawn under Letters of Credit or Pooled Letters of
Credit, fees, expenses, indemnification or otherwise.
"Officer" means the president, chief executive officer, a senior vice
president, chief financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
"Officer's Certificate" means, as applied to any Person that is a
corporation, partnership, trust or limited liability company, a certificate
executed on behalf of such Person by one or more Officers of such Person or one
or more Officers of a general partner or a managing member if such general
partner or managing member is a corporation, partnership, trust or limited
liability company; provided, that any Officer's Certificate delivered pursuant
to subsection 2.6A(iii)(g), 4.1F, 4.1K. 4.2C(vi), 4.4C(ii), 4.4C(vi) or 6.1(v)
shall be executed by a senior financial officer of Company reasonably acceptable
to Administrative Agent.
"OFMC Anaheim" means Ogden Facility Management Corporation of
Anaheim, Inc., and any successor thereto.
"OPD" means Ogden Power Development Cayman, Inc., and any successor
thereto.
"Operating Lease" means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"Opt-Out Facilities" means those credit facilities of Company and its
Subsidiaries described more fully on Schedule 1.1(f) annexed hereto, as such
credit facilities may from time to time hereafter be amended, restated,
supplemented or otherwise modified to the extent permitted under subsections
2.11C and 2.11D.
"Opt-Out Facility Documents" means the documentation relating to the
Opt-Out Facilities, including any Opt-Out Facility Guaranties and any Collateral
Documents to the extent such Collateral Documents secure the Opt-Out
Obligations; provided that in the case of the Opt-Out Facilities described on
Schedule 1.1(f) annexed hereto as relating to the "Ottawa (Senators)" Project,
the relevant Opt-Out Facility Documents shall be limited to those guaranties and
put agreements described on such Schedule, the relevant Opt-Out Facility
Guaranties and any Collateral Documents to the extent such Collateral Documents
secure the relevant Opt-Out Obligations.
"Opt-Out Facility Exposure" means, with respect to any Opt-Out Lender
as of any date of determination, (i) the aggregate outstanding principal amount
of all participations purchased by that Opt-Out Lender in any Opt-Out Facility
which is a letter of credit facility or any unreimbursed drawings under such
letters of credit, (ii) the aggregate principal amount of any Preferred Shares
held by that Opt-Out Lender, (iii) without duplication of clause (ii), the
aggregate principal amount of any outstanding and liquidated claim held by that
Opt-Out Lender against Company or its Subsidiaries as a result of a call or put
of any Preferred Shares, (iv) without duplication of clause (i), the maximum
amount available for drawing under an outstanding letter of credit which
constitutes an Opt-Out Facility if such letter of credit is issued by that
Opt-Out Lender (net of any participations purchased by other Opt-Out Lenders in
such letter of credit), (v) without duplication of any of the preceding clauses,
the aggregate amount of any claim held by that Opt-Out Lender arising under or
in connection with a guaranty made by Company in favor of that Opt-Out Lender
under the relevant Opt-Out Facilities, and (vi) any amounts rescinded or
recovered directly or indirectly from that Opt-Out Lender, to the extent such
amounts are not repaid. Notwithstanding anything to the contrary contained
herein, solely for purposes of calculating fees payable to the Canadian Loss
Sharing Lenders under subsections 2.5D and 2.5E and for purposes of computing a
Canadian Loss Sharing Lender's Opt-Out Facility Exposure with respect to the
Class B Palladium DPS Facility for calculating voting amongst Lenders or groups
of Lenders, a Canadian Loss Sharing Lender's Opt-Out Facility Exposure with
respect to the Class B Palladium DPS Facility shall be (1) reduced by the amount
such Canadian Loss Sharing Lender would be owed by the Pooled Facility Lenders
under the Loss Sharing Indemnity if the Loss Sharing Indemnity were calculated
assuming each relevant date of determination were a Shortfall Determination
Date, and (2) increased by the amount such Canadian Loss Sharing Lender would
owe to the Pooled Facility Lenders under the Loss Sharing Indemnity if the Loss
Sharing Indemnity were so calculated.
"Opt-Out Facility Guaranty" has the meaning assigned to that term in
subsection 6.16.
"Opt-Out Lender" and "Opt-Out Lenders" have the meanings assigned to
such terms in the introduction of this Agreement and also means and includes
their successors and permitted assigns pursuant to subsection 10.1, in each case
solely in their capacity as lenders under the Opt-Out Facilities.
"Opt-Out Obligations" means all obligations of every nature of
Company and its Subsidiaries from time to time owed to Opt-Out Lenders or any of
them under the Opt-Out Facility Documents, whether for principal, interest,
reimbursement of amounts drawn under letters of credit in relation to the
Opt-Out Facilities, payments in respect of a call or put, fees, expenses,
indemnification or otherwise.
"Organizational Documents" means the documents (including Bylaws, if
applicable) pursuant to which a Person that is a corporation, partnership, trust
or limited liability company is organized.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Performance Guaranty" means any guaranty or similar agreement
entered into by Company or any of its Subsidiaries under which Company or any
such Subsidiary is obligated to support or make payments of Indebtedness if
Company or any of its Subsidiaries breaches any agreement to construct or
operate a Project, and such obligation to support or make payments would, if it
were Indebtedness, not be Limited Recourse Debt.
"Performance Letter of Credit" means any letter of credit to the
extent that the "credit conversion factor" for such letter of credit determined
in accordance with guidelines published by the Federal Reserve Bank and
applicable to member banks of the Federal Reserve System is 50% (it being
understood that the Pooled Letters of Credit and Springing Letters of Credit
described on Schedule 1.1(g) annexed hereto shall be Performance Letters of
Credit to the extent described on such Schedule).
"Permanent Springing Letter of Credit Reduction" means, with respect
to any Springing Letter of Credit, (i) an irrevocable reduction in the amount
of, or an irrevocable termination of, the relevant contractual requirement that
Company or any of its Subsidiaries obtain the issuance of such Springing Letter
of Credit, other than any such reduction or termination resulting from a drawing
under a letter of credit issued to respond to such requirement or resulting from
the grant by Company or any of its Subsidiaries of a Lien on assets in lieu of
obtaining the issuance of such Springing Letter of Credit, and (ii) to the
extent such Springing Letter of Credit has been issued and is outstanding, an
irrevocable cancellation, or irrevocable corresponding reduction in the amount,
as the case may be, of such Springing Letter of Credit, which in either case is
effective until all Obligations hereunder shall have been paid in full, together
with a corresponding reduction or termination of the relevant contractual
requirement described in clause (i) of this definition; provided that no such
reduction or termination shall be deemed a Permanent Springing Letter of Credit
Reduction unless and until (a) Administrative Agent shall be reasonably
satisfied that the requirements of this definition have been met, (b)
Administrative Agent shall have notified Lenders of such determination, and (c)
Requisite Lenders shall not have notified Administrative Agent and Company
within 10 Business Days of such notice that such Lenders disagree that the
requirements of this definition have been met and such disagreement is based on
reasonable grounds.
"Permitted Encumbrances" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim, and any such Lien expressly prohibited
by any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens and rights of
set-off of banks, statutory Liens of carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by law, in each
case incurred in the ordinary course of business (a) for amounts not yet
overdue or (b) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of 5 days) are being contested
in good faith by appropriate proceedings, so long as (1) such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall
have been made for any such contested amounts, and (2) in the case of a
Lien with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to third parties in accordance with
any applicable terms of the Collateral Documents and not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries or resulting in a material diminution in the value
of any Collateral as security for the Secured Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and other
minor defects or irregularities in title to the real property of Company
and its Subsidiaries, in each case which do not and will not interfere in
any material respect with the ordinary conduct of the business of Company
or any of its Subsidiaries or result in a material diminution in the value
of any Collateral as security for the Secured Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any
lease not prohibited by this Agreement, (b) restriction or encumbrance that
the interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease
to any restriction or encumbrance referred to in the preceding clause (b),
so long as the holder of such restriction or encumbrance agrees to
recognize the rights of such lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or
similar agreements entered into in the ordinary course of business of
Company and its Subsidiaries; and
(xii) licenses of Intellectual Property granted by Company or any of
its Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of Company
or such Subsidiary.
Other Liens on assets of Borrowers and their Subsidiaries permitted
under this Agreement (which are not Permitted Encumbrances) are described in
subsection 7.2A.
"Permitted Senators Transaction" has the meaning assigned to that
term in subsection 7.7(xi).
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Pledged Collateral" means, collectively, the "Pledged Collateral" as
defined in the Security Agreement.
"Pool Participant" has the meaning assigned to that term in
subsection 2.1A.
"Pooled Facilities" means those credit facilities of Company and its
Subsidiaries described more fully on Schedule 1.1(h) annexed hereto, as such
credit facilities may from time to time hereafter be amended, restated,
supplemented or otherwise modified to the extent permitted under subsections
2.11B and 10.6.
"Pooled Facility Documents" means the documentation relating to the
Pooled Facilities, the Pooled Letters of Credit, and any Replacement Letters of
Credit.
"Pooled Facility Exposure" means, with respect to any Pooled Facility
Lender as of any date of determination, (i) immediately prior to giving effect
to subsections 2.1A(i), (ii) and (iii) (and for purposes of calculating the Pro
Rata Shares of Pooled Facility Lenders for purposes of such subsections), the
sum of (a) the aggregate outstanding amount of the Existing Pooled Loans of such
Lender, (b) the maximum amount available for drawing under all outstanding
Pooled Letters of Credit issued by such Pooled Facility Lender (in each case net
of any participations purchased by other Pooled Facility Lenders in such Pooled
Letters of Credit), and (c) the aggregate amount of all participations purchased
by such Pooled Facility Lender in any outstanding Pooled Letters of Credit; and
(ii) thereafter, the aggregate outstanding principal amount of all
participations purchased by that Lender in (a) any outstanding Pooled Letters of
Credit or any unreimbursed drawings under any Pooled Letters of Credit, (b) any
outstanding Existing Pooled Loans and (c) any amounts rescinded or recovered
directly or indirectly from that Pooled Facility Lender, to the extent such
amounts are not repaid by Loan Parties. Notwithstanding anything to the contrary
contained herein, solely for purposes of calculating fees payable to the Pooled
Facility Lenders under subsections 2.5D and 2.5E and for purposes of computing a
Lender's Pooled Facility Exposure for calculating voting amongst Lenders or
groups of Lenders, a Pooled Facility Lender's Pooled Facility Exposure shall be
(1) reduced by the amount such Pooled Facility Lender would be owed by the
Canadian Loss Sharing Lenders under the Loss Sharing Indemnity if the Loss
Sharing Indemnity were calculated assuming each relevant date of determination
were a Shortfall Determination Date, and (2) increased by the amount such Pooled
Facility Lender would owe to the Canadian Loss Sharing Lenders under the Loss
Sharing Indemnity if the Loss Sharing Indemnity were so calculated. For purposes
of this definition, any amount described in clause (i) or (ii) of the first
sentence of this definition which is denominated in CDN$ shall be valued based
on the Exchange Rate as of the applicable date of determination.
"Pooled Facility L/C Participation" has the meaning assigned to that
term in subsection 2.1A.
"Pooled Facility Lender" and "Pooled Facility Lenders" have the
meanings assigned to such terms in the introduction of this Agreement, and also
means and includes their successors and permitted assigns pursuant to subsection
10.1, in each case solely in their capacity as lenders under the Pooled
Facilities provided that each Pooled Facility Lender shall also be a Revolving
Lender.
"Pooled Facility Loan Participation" has the meaning assigned to that
term in subsection 2.1A.
"Pooled L/C Rights" has the meaning assigned to that term in
subsection 2.1A(ii).
"Pooled Lender Paydown Amount" has the meaning assigned to that term
in subsection 2.1B.
"Pooled Letter of Credit" means each letter of credit issued by the
Pooled Facility Lenders pursuant to the Pooled Facility Documents in the amounts
(as of the Closing Date) and with respect to the Projects set forth on Schedule
1.1(i) annexed hereto and upon the replacement thereof with Replacement Letters
of Credit, any such Replacement Letters of Credit, in each case as such letter
of credit or Replacement Letter of Credit may be amended, extended or reissued
pursuant to subsection 2.11A, and "Pooled Letters of Credit" means all such
letters of credit, collectively; provided, however, that each reference herein
to a Pooled Letter of Credit issued under the Quezon Facilities shall mean and
be limited to that portion of such letter of credit with respect to which OPD
would be liable (as of immediately prior to the Closing Date) to make equity
contributions to Quezon Equity Funding in the event that Quezon Equity Funding
were to reimburse drawings honored under such letter of credit.
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
"Preferred Shares" shall have the meaning assigned to that term in
the Intercreditor Agreement.
"Prime Rate" means the rate that BofA announces from time to time as
its prime lending rate in effect for commercial borrowers in the United States,
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.
BofA or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Proceedings" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"Project" means any waste-to-energy facility, hydroelectric power
plant, cogeneration plant or other facility for the generation of electricity or
engaged in another line of business in which Company and its Subsidiaries are
permitted to be engaged hereunder for which a Subsidiary or Subsidiaries of
Company was, is or will be (as the case may be) an owner, operator, manager or
builder, and shall also mean any two or more of such plants or facilities in
which an interest has been acquired in a single transaction, so long as such
interest constitutes an Investment permitted under this Agreement; provided that
"Project" also means and includes the rights and obligations of Company and its
Subsidiaries relating to the business, operations, Indebtedness and Contingent
Obligations of the Senators Hockey Club and its Subsidiaries.
"Pro Rata Share" means (i) with respect to all payments, computations
and other matters relating to the Pooled Facility Loan Participations or the
Pooled Facility L/C Participations by or in respect of any Pooled Facility
Lender, the percentage obtained by dividing (x) the Pooled Facility Exposure of
that Lender by (y) the aggregate Pooled Facility Exposure of all Lenders, (ii)
with respect to all payments, computations and other matters relating to the
Revolving Loan Commitment or the Revolving Loans of any Revolving Lender or any
Letters of Credit issued or participations therein purchased by any Revolving
Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of
that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders, and
(iii) for all other purposes with respect to each Pooled Facility Lender and
Revolving Lender, the percentage obtained by dividing (x) the sum of the Pooled
Facility Exposure of that Lender plus the Revolving Loan Exposure of that Lender
by (y) the sum of the aggregate Pooled Facility Exposures of all Lenders plus
the aggregate Revolving Loan Exposure of all Lenders, in any such case as the
applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1. The initial Pro Rata Share of each Pooled Facility Lender for
purposes of clause (i) of the preceding sentence is set forth opposite the name
of that Lender in Schedule 2.1 annexed hereto, and the initial Pro Rata Share of
each Pooled Facility Lender and Revolving Lender for purposes of each of clauses
(ii) and (iii) of the preceding sentence is set forth opposite the name of that
Lender in Schedule 2.2 annexed hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"PURPA" means the Public Utility Regulatory Policies Act of 1978, as
amended.
"Quezon Equity Funding" means Quezon Equity Funding, Ltd., an
exempted corporation incorporated in the Cayman Islands, and any successor
thereto in its capacity as an obligor to reimburse drawings under the Pooled
Letters of Credit issued under the Quezon Facilities.
"Quezon Facilities" means the Pooled Facilities relating to the
Quezon Project described more fully on Annex 3 to the Intercreditor Agreement.
"Quezon L/C" has the meaning assigned to that term in subsection
2.1G.
"Quezon Lenders" means Pooled Facility Lenders which participated
immediately prior to the Closing Date in the Pooled Letters of Credit issued
under the Quezon Facilities.
"Ratable Paydown" has the meaning assigned to that term in the
Intercreditor Agreement.
"RCRA" means the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Section 6901 et seq.), or any successor statute, and all implementing
regulations promulgated thereunder.
"Realized Deficiency" has the meaning assigned to that term in the
Intercreditor Agreement.
"Realized Ratable Share" has the meaning assigned to that term in the
Intercreditor Agreement.
"Real Property Asset" means, at any time of determination, any
interest then owned by any Loan Party in any real property.
"Recorded Leasehold Interest" means a Leasehold Property with respect
to which a Record Document (as hereinafter defined) has been recorded in all
places necessary or desirable, in Administrative Agent's reasonable judgment, to
give constructive notice of such Leasehold Property to third-party purchasers
and encumbrances of the affected real property. For purposes of this definition,
the term "Record Document" means, with respect to any Leasehold Property, (a)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (b)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Administrative Agent.
"Register" has the meaning assigned to that term in subsection 2.3A.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing or migrating of Hazardous Materials into the indoor or
outdoor environment (including the abandonment, discarding or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.
"Replacement Letter of Credit" has the meaning assigned to that term
in subsection 2.1E.
"Request for Issuance" means a request substantially in the form of
Exhibit III annexed hereto delivered by Borrowers to Administrative Agent
pursuant to subsection 3.1B(i) with respect to the proposed issuance of a Letter
of Credit.
"Requisite Lenders" means Lenders having or holding at the relevant
time more than 50% of the sum of the aggregate Pooled Facility Exposure of all
Lenders plus the aggregate Revolving Loan Exposure of all Lenders plus the
aggregate Opt-Out Facility Exposure of all Lenders; provided that (i) subject to
the provisions of subsection 2.11B, with respect to matters involving an
amendment, modification or waiver of the terms of the Loan Documents or Pooled
Facility Documents relating to the Pooled Facility Exposure which does not
adversely affect the rights of the Revolving Lenders or the Opt-Out Lenders
(other than the Canadian Loss Sharing Lenders), "Requisite Lenders" shall mean
Lenders having or holding at the relevant time more than 50% of the aggregate
Pooled Facility Exposure of all Lenders plus the aggregate amount outstanding
under the Class B Palladium DPS Facility, (ii) with respect to matters involving
an amendment, modification or waiver of the terms of the Loan Documents relating
to Revolving Loans and Revolving Loan Commitments which does not adversely
affect the rights of the Pooled Facility Lenders or the Opt-Out Lenders,
"Requisite Lenders" shall mean Revolving Lenders having or holding at the
relevant time more than 50% of the aggregate Revolving Loan Exposure, and (iii)
with respect to matters involving an amendment, modification or waiver of the
terms of the Loan Documents relating to the Revolving Loans and Revolving Loan
Commitments or of the Loan Documents or Pooled Facility Documents relating to
the Pooled Facility Exposure which does not adversely affect the rights of the
Opt-Out Lenders (other than the Canadian Loss Sharing Lenders), "Requisite
Lenders" shall mean Lenders having or holding at the relevant time more than 50%
of the sum of the Revolving Loan Exposure of all Lenders plus the aggregate
Pooled Facility Exposure of all Lenders plus the aggregate amount outstanding
under the Class B Palladium DPS Facility.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Indebtedness of Company and
its Subsidiaries or any Opt-Out Facilities other than (a) the Revolving Loans
and the other Obligations, (b) the Existing Pooled Loans, (c) Indebtedness owed
by a Subsidiary to a Borrower, (d) amounts required to be paid to the Opt-Out
Lenders pursuant to the terms of the Intercreditor Agreement, (e) amounts paid
in respect of the Opt-Out Facilities pursuant to subsection 6.14 and (f) other
amounts required to be paid under this Agreement.
"Revolving Lender" and "Revolving Lenders" have the meanings assigned
to such terms in the introduction of this Agreement and also means and includes
their successors and permitted assigns pursuant to subsection 10.1, in each case
solely in their capacity as lenders with Revolving Loan Exposure; provided that
each Revolving Lender shall also be a Pooled Facility Lender.
"Revolving Loan Commitment" means the commitment of a Revolving
Lender to make Revolving Loans to Borrowers pursuant to subsection 2.2A and
3.3B, and "Revolving Loan Commitments" means such commitments of all Revolving
Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means May 31, 2002.
"Revolving Loan Exposure" means, with respect to any Revolving Lender
as of any date of determination (i) prior to the termination of the Revolving
Loan Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender plus (b) in
the event that Lender is an Issuing Lender, the aggregate Letter of Credit Usage
in respect of all Letters of Credit issued by that Lender (in each case net of
any participations purchased by other Lenders in such Letters of Credit or in
any unreimbursed drawings thereunder) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit.
"Revolving Loans" means the Loans made by Revolving Lenders to
Borrowers pursuant to subsection 2.2A.
"Revolving Notes" means any promissory notes of Borrowers issued
pursuant to subsection 2.3B to evidence the Revolving Loans of any Revolving
Lenders, substantially in the form of Exhibit IV annexed hereto, as they may be
amended, restated, supplemented or otherwise modified from time to time.
"Scheduled Project L/Cs" means any letters of credit which may be
issued after the Closing Date in the amounts and with respect to the Projects
identified on Schedule 1.1(l).
"Secured Obligations" means the obligations secured by the Collateral
pursuant to the Collateral Documents.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Security Agreement" means the Security Agreement executed and
delivered by certain Borrowers on the Closing Date and by any Subsidiary
Guarantors from time to time thereafter, substantially in the form of Exhibit X
annexed hereto, as such Security Agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time.
"Sempra Credit Facilities" means, collectively, (i) the note dated
September 30, 1997 in the original principal amount of $21,700,000 issued by
Ogden Power Corporation to Pacific Enterprises Energy Management Services, (ii)
the note dated September 30, 1997 in the original principal amount of
$17,700,000 issued by Ogden Power Corporation to Pacific Enterprises Energy
Management Services, and (iii) the Guaranties of Company dated September 30,
1997 with respect to each such note, in each case as such note or guaranty, as
the case may be, has been amended, supplemented or otherwise modified to the
date hereof and as it may hereafter be amended, supplemented or otherwise
modified to the extent permitted under this Agreement.
"Senators Hockey Club" means Ottawa Senators Hockey Club Corporation
(as successor in interest to the Ottawa Senators Hockey Club Limited
Partnership).
"Senators Lease" means the License Agreement dated as of April 30,
1994, among Palladium Corporation, Ogden Palladium Services (Canada) Inc. and
Senators Hockey Club, as such agreement is in effect on the Closing Date and as
it may hereafter be amended, supplemented or otherwise modified from time to
time to the extent permitted hereunder.
"Senators Sale Losses" means (i) for purposes of calculating Adjusted
EBIT in any period, any losses in such period recognized by Company and its
Subsidiaries as a result of a sale or transfer of the Senators Hockey Club and
related assets, to the extent such losses are deducted in calculating the
amounts described in clause (i), (ii) or (iii) of the definition of Adjusted
EBIT for such period, provided that the aggregate amount of any such losses
which shall be included in calculating Adjusted EBIT shall be limited to the
amount of any irrevocable reduction to the Maximum Investment Amount pursuant to
clause (C) of the definition of Maximum Investment Amount; and (ii) for purposes
of determining compliance with subsection 7.6C as at the end of any Fiscal
Quarter (and for any period) ending after a sale or transfer of the Senators
Hockey Club and related assets, any after-tax reduction to Consolidated Net
Income and any resulting reduction in Consolidated Net Worth attributable to
such sale or transfer, provided that the amount of any such reduction which
shall not be taken into account for purposes of determining compliance with
subsection 7.6C shall be limited to the amount of any irrevocable reduction to
the Maximum Investment Amount pursuant to clause (C) of the definition of
Maximum Investment Amount.
"Senators Senior Subordination Agreement" means the Senior
Subordination and Postponement Agreement dated as of January 13, 1999, among,
inter alia, Company, Ogden Palladium Services (Canada) Inc., Senators Hockey
Club, Canadian Imperial Bank of Commerce and Fleet National Bank (each as agents
under certain credit facilities), as such agreement is in effect on the Closing
Date.
"Series A Preferred Certificate of Designations" means the provisions
of the Restated Certificate of Incorporation of Company relating to the Series A
Preferred Stock, as in effect on the Closing Date.
"Series A Preferred Stock" means the preferred stock of Company
designated "$1.875 Cumulative Convertible Preferred Stock (Partially
Participating)" in the Restated Certificate of Incorporation of the Company,
issued prior to the Closing Date with the terms set forth in the Series A
Preferred Certificate of Designations.
"Shared Collateral" has the meaning assigned to that term in the
Security Agreement.
"Shell Subsidiaries" means, collectively, Analytical Technologies,
Inc., J.R. Jack's Construction Corp., Ogden Brandywine Operations, Inc., Ogden
Constructors, Inc. (f/k/a Ogden Engineering and Construction, Inc., f/k/a Ogden
Remediation Services Co., Inc.), Ogden Energy Channelview (Delaware) Inc., Ogden
Energy Channelview Holdings, Inc., Ogden Energy Engineering, Inc. (f/k/a Ogden
Projects Americas, Inc.), Ogden Martin Systems of Huntington Resource Recovery
Six Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp.,
Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin
Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of
Huntington Resource Recovery Two Corp., Covanta Huntington, Inc., Ogden Martin
Systems of Mercer, Inc., Ogden Martin Systems of Tampa, Inc., Ogden Yorkshire
Water Company, SIGC Holdings, Inc., Ogden Energy Channelview (Texas) Inc. and
Yorkshire USA, Inc.
"Solvent" means, with respect to any Person, that as of the date of
determination both (i)(a) the then fair saleable value of the property of such
Person is (1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and due considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Springing Letter of Credit" means a letter of credit or cash
collateral deposit described more fully in Schedule 1.1(j) required to be posted
as a result of a downgrade in Company's long term senior unsecured debt rating
or under certain other circumstances previously disclosed to Lenders.
"Springing Letter of Credit Sublimit" means $122,310,000; provided
that such amount shall be reduced by the amount of any reduction in the
Springing Letter of Credit Sublimit pursuant to subsection 2.6A(iii).
"Springing Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Letters of Credit
serving as Springing Letters of Credit plus (ii) the aggregate amount of all
drawings made on or prior to such date under the Letters of Credit described in
clause (i) which are honored by Issuing Lenders.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument (other than a Performance Letter of Credit) issued for the
purpose of supporting (i) Indebtedness of Company or any of its Subsidiaries in
respect of industrial revenue or development bonds or financings, (ii) workers'
compensation liabilities of Company or any of its Subsidiaries, (iii) the
obligations of third party insurers of Company or any of its Subsidiaries
arising by virtue of the laws of any jurisdiction requiring third party
insurers, (iv) obligations with respect to Capital Leases or Operating Leases of
Company or any of its Subsidiaries, and (v) payment, deposit or surety
obligations of Company or any of its Subsidiaries, in any case if required by
law or governmental rule or regulation or in accordance with custom and practice
in the industry; provided that Standby Letters of Credit may not be issued for
the purpose of supporting (a) trade payables or (b) any Indebtedness
constituting "antecedent debt" (as that term is used in Section 547 of the
Bankruptcy Code). Notwithstanding anything to the contrary contained herein, (1)
any Letter of Credit and (2) any Replacement Letter of Credit or Pooled Letter
of Credit which is, in the case of clause (1) or (2), not a Performance Letter
of Credit shall be considered a Standby Letter of Credit, and without limiting
the foregoing the Pooled Letters of Credit and Springing Letters of Credit
described on Schedule 1.1(k) annexed hereto shall be Standby Letters of Credit
to the extent described on such Schedule.
"Subordinated Indebtedness" means, collectively, (i) the Convertible
Subordinated Debentures, (ii) Indebtedness issued in exchange for all or any
portion of the Convertible Subordinated Debentures pursuant to the Exchange
Offer permitted under subsection 7.1(vi), and (iii) any other Indebtedness of
any Borrowers incurred from time to time and subordinated in right of payment to
the Obligations and the Opt-Out Obligations.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, trust, limited liability company, association, joint venture or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof;
provided, however, that Senators Hockey Club and its Subsidiaries shall not be
deemed Subsidiaries of Company.
"Subsidiary Guarantor" means any Subsidiary of a Borrower that
executes and delivers a counterpart of the Subsidiary Guaranty or from time to
time thereafter pursuant to subsection 6.8.
"Subsidiary Guaranty" means the Subsidiary Guaranty to be executed
and delivered by additional Subsidiaries of Borrowers from time to time after
the Closing Date in accordance with subsection 6.8, substantially in the form of
Exhibit IX annexed hereto, as such Subsidiary Guaranty may be amended, restated,
supplemented or otherwise modified from time to time.
"Supermajority Lenders" means Lenders having or holding at the
relevant time more than 66-2/3% of the sum of the aggregate Pooled Facility
Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all
Lenders plus the aggregate Opt-Out Facility Exposure of all Lenders.
"Supplemental Collateral Agent" has the meaning assigned to that term
in subsection 9.1B.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed, including interest, penalties, additions to tax and any similar
liabilities with respect thereto; except that, in the case of a Lender, there
shall be excluded franchise taxes and all taxes that are imposed on the overall
income or profits of such Lender by the United States or by any other Government
Authority under the laws of which Lender is organized or has its principal
office or maintains its applicable lending office.
"Title Company" means one or more title insurance companies
reasonably satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the Letter of Credit Usage.
"TSCA" means the Toxic Substances Control Act of 1976, as amended (15
U.S.C. Section 2601 et seq.), or any successor statute, and all implementing
regulations promulgated thereunder.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"Withdrawal Date" means the date of a withdrawal from the Cash
Collateral Account.
"Working Capital Amount" means, for any period with respect to any
Subsidiary in respect of any Projects, the aggregate amount received by or
advanced to such Subsidiary from Company or any of its other Subsidiaries
(whether such amounts are received as the proceeds of Indebtedness incurred by
such Subsidiary or as the proceeds of equity contributions or both) which are
applied by such Subsidiary to fund working capital requirements of such
Subsidiary. Amounts included in the calculation of the Development Amount or
Invested Amount with respect to a Project shall not be included in the Working
Capital Amount with respect to such Project.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
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Under Agreement.
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Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (ii) and
(iii) of subsection 6.1 shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(vi)). Except as otherwise permitted by
this Agreement, calculations in connection with the definitions, covenants and
other provisions of this Agreement shall utilize GAAP as in effect on the date
of determination, applied in a manner consistent with that used in preparing the
financial statements referred to in subsection 5.3. If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and Company, Administrative Agent or Requisite
Lenders shall so request, Administrative Agent, Lenders and Company shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of Requisite Lenders), provided that, until so amended, such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and Company shall provide to Administrative Agent and Lenders
reconciliation statements provided for in subsection 6.1(vi).
1.3 Other Definitional Provisions and Rules of Construction.
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A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the 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 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.
D. For purposes of determining the Dollar amount of any Opt-Out
Lender's Opt-Out Facility Exposure denominated in a currency other than Dollars
on any date of determination, the amount of such Opt-Out Facility Exposure shall
be converted to its Dollar equivalent at the Exchange Rate.
Section 2. AMOUNTS AND TERMS OF POOLED PARTICIPATIONS AND REVOLVING LOANS
2.1 Pooled Facility.
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A. Purchase of Pooled Facility Participations. On the Closing Date,
immediately prior to the Closing Date Paydown:
(i) each Pooled Facility Lender (referred to herein as a "Pool
Participant") shall be deemed to have irrevocably purchased, and such Pool
Participant hereby agrees to so purchase, from each other Pooled Facility
Lender a participation in such other Pooled Facility Lender's Existing
Pooled Loans in an amount equal to such Pool Participant's Pro Rata Share
of such other Pooled Facility Lender's Existing Pooled Loans (each such
participation being a "Pooled Facility Loan Participation"; the aggregate
amount of the Pooled Facility Loan Participations of each Pool Participant
are set forth on Schedule 2.1 annexed hereto);
(ii) (a) each Pooled Facility Lender's existing participation in any
Pooled Letter of Credit under the applicable Pooled Facility Documents
shall terminate and be of no further force and effect, (b) any rights or
obligations of such Pooled Facility Lender to reimburse or participate in
honored drawings under, or to participate in payments made by Company or
any of its Subsidiaries or Quezon Equity Funding with respect to, any
Pooled Letter of Credit under any of the Pooled Facility Documents shall be
superseded by this Agreement, and (c) any and rights, titles, claims
(including "claims" within the meaning of Section 101(5) of the Federal
Bankruptcy Reform Act of 1978 (11 U.S.C. Section 101, et seq.)), interests,
powers and privileges of the issuer of any Pooled Letter of Credit under
the Pooled Facility Documents pursuant to which such Pooled Letter of
Credit was issued (the "Pooled L/C Rights") shall be deemed to have
reverted back to the Issuing Lender of such Pooled Letter of Credit; and
(iii) immediately after giving effect to the foregoing clause (ii),
each Pool Participant shall be deemed to have irrevocably purchased, and
such Pool Participant hereby agrees to so purchase, from each Issuing
Lender of each Pooled Letter of Credit a participation in such Pooled
Letter of Credit (and any drawings honored thereunder on or after the
Closing Date) in an amount equal to such Pool Participant's Pro Rata Share
(each such participation being a "Pooled Facility L/C Participation"; the
aggregate amount of the Pooled Facility L/C Participation of each Pool
Participant is set forth on Schedule 2.1) of the maximum amount which is or
at any time may become available to be drawn thereunder.
In accordance with this subsection 2.1A, (i) each Pooled Facility
Lender hereby irrevocably agrees to sell and grant the Pooled Facility Loan
Participations to each of the Pool Participants and (ii) each Issuing Lender
hereby irrevocably agrees to sell and grant the Pooled Facility L/C
Participations to each of the Pool Participants.
Each Pooled Facility Lender represents and warrants to each other
Pooled Facility Lender that the amount of such Pooled Facility Lender's Existing
Pooled Loans are as set forth on Schedule 1.1(c), that such Pooled Facility
Lender is the sole owner of such Pooled Facility Lender's Existing Pooled Loans,
that such Existing Pooled Loans are free and clear of all liens and encumbrances
and that such Pooled Facility Lender has not conveyed any interest in such
Existing Pooled Loans to any Person other than the other Pooled Facility Lenders
pursuant to this Agreement.
Each Issuing Lender of a Pooled Letter of Credit represents and
warrants to each other Pooled Facility Lender that the amounts of such Issuing
Lender's Pooled Letters of Credit are as set forth on Schedule 1.1(i) (it being
understood that the amounts set forth on such Schedule with respect to Quezon
L/Cs represent only those portions of such Quezon L/Cs which are "Pooled Letters
of Credit" hereunder), that such Issuing Lender is the sole owner of the Pooled
L/C Rights related to each such Pooled Letter of Credit, that such Pooled L/C
Rights are free and clear of all liens and encumbrances and that such Issuing
Lender has not conveyed any interest in such Pooled L/C Rights to any Person
other than the other Pooled Facility Lenders pursuant to this Agreement.
The Borrowers specifically and unconditionally acknowledge and
reaffirm their obligations (and the obligations of their Subsidiaries, if
applicable) under the Pooled Facility Documents, as modified by this Agreement,
and under the Opt-Out Facility Documents, including, without limitation, the
indebtedness under the Existing Pooled Loans and obligations to reimburse
drawings under the Pooled Letters of Credit in the aggregate principal amounts
set forth on Schedule 1.1(i) and the funded and unfunded exposure under the
Opt-Out Facility Documents in the aggregate principal amounts set forth on
Schedule 1.1(f), together with all interest, costs, fees, charges and expenses
accrued thereunder to the date hereof and unpaid, interest to be accrued and
other costs, fees, charges and expenses as may accrue or become due under the
terms of this Agreement, the other Loan Documents, the Pooled Facility Documents
(as modified by this Agreement) and the Opt-Out Facility Documents, including
but not limited to reasonable fees and expenses of counsel. The Borrowers
acknowledge and agree that the obligations of the Borrowers (and the obligations
of their Subsidiaries, if applicable) under the Pooled Facility Documents (as
modified by this Agreement), including the Existing Pooled Loans and the
obligation to reimburse any drawings under the Pooled Letters of Credit, are
absolute and unconditional and are the legal, valid and binding obligations of
the Borrowers enforceable in accordance with the terms of this Agreement, and
Borrowers acknowledge and agree that the obligations of Company and the relevant
Subsidiaries of Company party to the Opt-Out Facility Documents under the
Opt-Out Facility Documents (as modified by this Agreement), including the
obligation to reimburse any drawings under letters of credit issued thereunder,
are absolute and unconditional and are the legal, valid and binding obligations
of Company and the relevant Subsidiaries of Company party to such Opt-Out
Facility Documents, enforceable in accordance with the terms of the Opt-Out
Facility Documents.
B. Pooled Facility Loan Participation. On the Closing Date
immediately upon payment of the Closing Date Paydown to Administrative Agent,
(i) all proceeds of the Closing Date Paydown shall be applied to repay the
Existing Pooled Loans, (ii) Administrative Agent shall distribute to each Pooled
Facility Lender that immediately prior to the Closing Date held Existing Pooled
Loans an amount equal to the amount of Existing Pooled Loans held by such Pooled
Facility Lender plus accrued and unpaid interest and fees and other charges and
expenses under the Pooled Facility Documents (any such amount being a "Pooled
Lender Paydown Amount"; the amounts of the Pooled Lender Paydown Amounts for all
Pooled Facility Lenders are set forth on Schedule 2.1 annexed hereto), and (iii)
each Pool Participant's Pooled Facility Loan Participations in the Existing
Pooled Loans shall be deemed to be paid ratably with the proceeds of the Closing
Date Paydown.
Each Pooled Facility Lender receiving a Pooled Lender Paydown Amount
acknowledges and agrees that such Pooled Lender Paydown Amount is equal to the
entire amount of the Existing Pooled Loans of such Pooled Facility Lender plus
all accrued interest, fees and other amounts due and owing to such Pooled
Facility Lender on the Closing Date under the Pooled Facility Documents (in the
case of the Quezon Lenders, with respect to the Existing Pooled Loans). In the
event that all or any part of any Pooled Facility Lender's Pooled Lender Paydown
Amount is rescinded or otherwise recovered directly or indirectly from any
Pooled Facility Lender as a preference, fraudulent transfer or otherwise, any
such payments so rescinded or recovered shall constitute Obligations for all
purposes hereunder and shall be required to be repaid by Borrowers to the Pooled
Facility Lenders as if the amount so rescinded or recovered were the amount of
an honored drawing under a Pooled Letter of Credit, and the provisions of
subsections 2.1C (other than the last sentence of the first paragraph thereof)
and 2.1D shall apply to any amount so rescinded or recovered as if such amount
were the amount of a drawing under a Pooled Letter of Credit honored on the date
such amount is rescinded or recovered, as if the Pooled Facility Lender from
whom such payment is rescinded or recovered were the Issuing Lender which
honored such drawing and as if each Pool Participant's Pooled Facility Loan
Participation in such amount were a Pooled Facility L/C Participation.
C. Pooled Facility L/C Participation. Notwithstanding anything to the
contrary contained in the Pooled Facility Documents, in the event an Issuing
Lender has determined to honor a drawing under a Pooled Letter of Credit issued
by it, such Issuing Lender shall immediately notify Borrowers and Administrative
Agent (who shall promptly notify Lenders of such drawing), and Borrowers shall
(subject to the provisions of the Intercreditor Agreement) reimburse the Issuing
Lender of any Pooled Letter of Credit on or before the Business Day immediately
following the date on which a drawing under such Pooled Letter of Credit is
honored in an amount (in the applicable currency) equal to the amount of the
honored drawing under such Pooled Letter of Credit. In the event that Borrowers
shall fail for any reason to reimburse the Issuing Lender of any Pooled Letter
of Credit on or before the Business Day immediately following the date on which
a drawing under such Pooled Letter of Credit is honored in an amount equal to
the amount of any payment by such Issuing Lender, such Issuing Lender shall
promptly notify Administrative Agent of the unreimbursed amount of such honored
drawing. Upon receipt of such notice, Administrative Agent shall promptly notify
each Pool Participant of the unreimbursed amount of such honored drawing (which
amount, in the case of a drawing under a Pooled Letter of Credit which is
denominated in CDN$, shall be calculated by reference to the applicable Exchange
Rate) and of such Pool Participant's respective participation therein based on
such Pool Participant's Pro Rata Share; provided that no Pool Participant's
funding of its participation in any such drawing shall exceed its Pro Rata Share
of the amount of such drawing, and the aggregate principal amount of all
participations funded by any Pooled Facility Lender with respect to any Pooled
Letters of Credit shall in no event exceed the amount of the Pooled Facility L/C
Participation of such Lender set forth on Schedule 2.1. Each Pool Participant
shall make available to Administrative Agent an amount equal to such respective
participation, in Dollars and in same day funds, at the Funding and Payment
Office, not later than 12:00 Noon (New York City time) on the first business day
(under the laws of the jurisdiction in which such office of such Issuing Lender
is located) after the date notified by Administrative Agent, and Administrative
Agent shall make available to the relevant Issuing Lender, at its primary
address set forth below its name on the appropriate signature page hereof or at
such other address as such Issuing Lender may request, an amount in same day
funds equal to the sum of all such amounts received by Administrative Agent from
Pool Participants (or, in the case of amounts received in respect of a Pooled
Letter of Credit which is denominated in CDN$, the CDN$ equivalent of such
amounts determined by reference to the applicable Exchange Rate). In the event
that any Pool Participant fails to make available to Administrative Agent on
such business day the amount of such Pool Participant's participation in such
Pooled Letter of Credit as provided in this subsection 2.1C, the relevant
Issuing Lender shall be entitled to recover such amount on demand from such Pool
Participant together with interest thereon at the rate customarily used by such
Issuing Lender for the correction of errors among banks for three Business Days
and thereafter at the Base Rate. Nothing in this subsection 2.1C shall be deemed
to prejudice the right of any Pool Participant to recover from any Issuing
Lender any amounts made available by such Pool Participant to Administrative
Agent for payment to such Issuing Lender pursuant to this subsection 2.1C in the
event that it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Pooled Letter of Credit by such
Issuing Lender in respect of which payment was made by such Pool Participant
constituted gross negligence or willful misconduct on the part of such Issuing
Lender.
Neither Administrative Agent nor any Pool Participant shall be
responsible for any default by any other Pool Participant in that other Pool
Participant's obligation to fund its participation as provided on the preceding
paragraph nor shall the Pooled Facility L/C Participation of any Pool
Participant be increased or decreased as a result of a default by any other Pool
Participant in that other Pool Participant's obligation to fund its own
participation. Nothing in this subsection 2.1C shall be deemed to relieve any
Pool Participant from its obligation to fulfill its participation obligations
hereunder or to prejudice any rights that Administrative Agent, Issuing Lenders
or Pooled Facility Lenders may have against any Pool Participant as a result of
any default by such Pool Participant hereunder.
Each Issuing Lender shall (i) maintain a record of the amount
available for drawing under each Pooled Letter of Credit issued by it, (ii)
record the amount and date of each drawing made under each such Pooled Letter of
Credit, (iii) on or prior to the Closing Date, notify Administrative Agent of
the amount available for drawing under each Pooled Letter of Credit issued by
it, and (iv) notify Administrative Agent no later than one Business Day after
any change in the amount available for drawing under each such Pooled Letter of
Credit and the amount and date of such change. Administrative Agent shall
maintain a record of such amounts and the Pooled Facility L/C Participations in
the Register. The record of such amounts by each Issuing Lender shall be
conclusive and binding on Borrowers, absent manifest error, subject to the
entries of such amounts in the Register, which shall, absent manifest error,
govern in the event of any inconsistency with any Issuing Lender's records.
Failure to make any recordation in the Register or in any Issuing Lender's
records, or any error in such recordation, shall not affect any Pooled Letters
of Credit or Pooled Facility L/C Participations or any Obligations in respect
thereof.
D. Distribution to Lenders of Reimbursements Received From Borrowers.
In the event any Issuing Lender shall have been reimbursed by Pool Participants
pursuant to subsection 2.1C for all or any portion of any payment by such
Issuing Lender under a Pooled Letter of Credit, such Issuing Lender shall pay to
Administrative Agent, and Administrative Agent shall promptly distribute to each
Pool Participant (that has paid all amounts payable by it under subsection 2.1C
with respect to such payment), such Pool Participant's Pro Rata Share of all
payments received by such Issuing Lender from Borrowers in reimbursement of such
Pooled Letter of Credit. Any such distribution shall be made to a Pool
Participant at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Pool Participant may
request. Notwithstanding anything to the contrary contained herein, with respect
to any honored drawing under a Pooled Letter of Credit denominated in CDN$ for
which Pool Participants have funded Pooled Facility L/C Participations, (i) the
funded amount of such participations and any accrued interest with respect
thereto shall be Dollar denominated obligations of Borrowers (such obligations
being "Dollar Participation Obligations"), (ii) all payments received by
Administrative Agent from the relevant Issuing Lender in CDN$ for distribution
to Pool Participants shall be converted to Dollars at the Exchange Rate as of
the applicable date of determination, (iii) Borrowers shall, notwithstanding
payment of in full in CDN$ of such honored drawing (and interest accrued with
respect thereto), continue to be obligated to pay in Dollars (and shall
indemnify the Pool Participants for) the Dollar Participation Obligations to the
extent payments of CDN$ converted to Dollars as described in clause (ii) are
insufficient to repay such Dollar Participation Obligations in full, (iv)
Borrowers may elect to repay Dollar Participation Obligations directly to
Administrative Agent in Dollars for distribution to Pool Participants in the
same manner as reimbursements of honored drawings under a Dollar-denominated
Pooled Letter of Credit, and (v) an honored drawing under a CDN$-denominated
Pooled Letter of Credit shall only be deemed repaid when (a) all Dollar
Participation Obligations, if any, with respect thereto have been repaid in full
in Dollars and (b) the relevant Issuing Lender shall have received, from
Administrative Agent pursuant to the first paragraph of subsection 2.1C and/or
from Borrowers, an aggregate amount in CDN$ equal to the amount of such drawing
plus any accrued interest owed to such Issuing Lender thereon.
E. Issuance of Replacement Pooled Letters of Credit. Borrowers may
from time to time request that Administrative Agent or Documentation Agent issue
a new letter of credit (a "Replacement Letter of Credit") to replace an existing
Pooled Letter of Credit in an amount equal to such existing Pooled Letter of
Credit and with substantially the same terms, conditions and requirements for
drawdown. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Borrowers herein set forth,
Administrative Agent or Documentation Agent, as the case may be, may, at its
discretion, issue a Replacement Letter of Credit provided that (i) the existing
Pooled Letter of Credit is permanently cancelled and (ii) the cancellation of
the existing Pooled Letter of Credit and the issuance of the Replacement Letter
of Credit can be completed without undue expense or hardship, triggering a
drawing under any Pooled Letter of Credit or breaching any underlying contracts
to which Company or any of its Subsidiaries or any Lender is a party. Such
Replacement Letter of Credit shall be deemed a Pooled Letter of Credit for all
purposes of this Agreement including with regard to the funding and disbursement
provisions of subsections 2.1C and 2.1D and all Pooled L/C Participations in
such existing Pooled Letter of Credit shall be automatically deemed Pooled L/C
Participations in equal amount in such Replacement Letter of Credit.
F. General Provisions. Each Pooled Facility Lender and each Borrower
hereby agree that the provisions of Section 2 and Section 3 to the extent
applicable to the Existing Pooled Loans and Pooled Letters of Credit shall
supersede and prevail over any provisions conflicting or to the contrary
contained in the Pooled Facility Documents. The provisions of subsections 3.3A,
3.3D, 3.4 and 3.5 shall apply to any Pooled Letter of Credit (including any
Replacement Letter of Credit) as if the term "Letter of Credit" were replaced
with "Pooled Letter of Credit" and the term "Revolving Lender" were replaced
with "Pooled Facility Lender" in such subsections (except that no provisions
contained in such subsections regarding the reimbursement of Letters of Credit
with the proceeds of Revolving Loans shall apply to Pooled Letters of Credit).
Anything contained in the Pooled Facility Documents or the Opt-Out Facility
Documents to the contrary notwithstanding, Borrowers jointly and severally
promise to pay all honored drawings under the Pooled Letters of Credit and all
amounts rescinded or recovered from any Pooled Facility Lender from the payment
of the Pooled Lender Paydown Amount to such Pooled Facility Lender when due in
accordance with the terms hereof and agree that, to the extent such Pooled
Letters of Credit or letters of credit issued under Opt-Out Facilities have not
been returned and cancelled, on the Maturity Date (i) the unpaid principal
amount of, and accrued interest on, any such funded amounts and on any Revolving
Loans, (ii) an amount equal to the maximum available amount that may at any time
on or after such date be drawn under all such Pooled Letters of Credit and all
such letters of credit issued under Opt-Out Facilities then outstanding (whether
or not any beneficiary under any such Pooled Letter of Credit or such a letter
of credit shall have presented, or shall be entitled at such time to present,
the drafts or other documents or certificates required to draw under such Pooled
Letter of Credit or letter of credit), and (iii) all Opt-Out Obligations and all
other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Borrowers, and any amounts so due and
payable with respect to Pooled Letters of Credit and letters of credit issued
under Opt-Out Facilities shall be cash collateralized pursuant to the terms of
the Intercreditor Agreement. Payment of all amounts due and owing under a Pooled
Facility, whether as part of the Closing Date Paydown or otherwise, shall not be
construed as terminating any agreements of Company and its Subsidiaries
contained in the Pooled Facility Documents which expressly survive the
termination of such Pooled Facility Documents and the payment of all amounts
owed thereunder.
G. Special Provisions Regarding Quezon Facilities. Nothing in this
Agreement shall be construed as (a) terminating the existing participations of
Persons who are Quezon Lenders in that portion of any letter of credit (any such
letter of credit, a "Quezon L/C") of which any Pooled Letter of Credit issued
under the Quezon Facilities is a part which does not constitute a Pooled Letter
of Credit (such portion being the "Non-Pooled L/C Portion"), (b) superseding any
rights or obligations to reimburse or participate in honored drawings under, or
to participate in payments made with respect to, any Non-Pooled L/C Portion, or
(c) causing the reversion back to the issuer of any Quezon L/C of any and
rights, titles, claims (including "claims" within the meaning of Section 101(5)
of the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Section 101, et seq.)),
interests, powers and privileges (other than Pooled L/C Rights) of such issuer
under the documents pursuant to which such Quezon L/C was issued.
Notwithstanding anything to the contrary in the Pooled Facility Documents, on
and after the Closing Date (i) the letter of credit fees (including fronting
fees) payable with respect to that portion of the Quezon L/Cs consisting of
Pooled Letters of Credit shall accrue at the same rate per annum and shall be
payable at the same times as the fees payable with respect to Letters of Credit
hereunder, (ii) the interest payable with respect to outstanding and unpaid
funded drawings under such Pooled Letters of Credit shall accrue at the same
rate per annum and shall be payable at the same times as the interest payable
with respect to unreimbursed drawings under other Pooled Letters of Credit
hereunder, and (iii) Borrowers shall pay or cause their respective Subsidiaries
to pay all amounts necessary to give effect to such increases. With respect to
the provisions of subsections 2.1B, 2.1C and 2.1F that require Borrowers to pay
or reimburse honored drawings under the Pooled Letter of Credit portion of a
Quezon L/C or make payments (or reimburse rescinded or recovered payments made)
on account of Existing Pooled Loans under the Quezon Facilities, the parties
hereto hereby agree (1) that such payments or reimbursements may be made through
advances of such amounts to OPD and the further advances of such amounts by OPD
to Quezon Equity Funding for direct payment or reimbursement by Quezon Equity
Funding to the Issuing Lender of the relevant Quezon L/C, so long as no such
amounts shall be deemed paid or reimbursed for purposes of this Agreement and
the Loan Documents until such amounts are received by such Issuing Lender, and
(2) the obligations of Borrowers to pay or reimburse honored drawings under the
Pooled Letter of Credit portion of a Quezon L/C or make payments (or reimburse
rescinded or recovered payments made) on account of Existing Pooled Loans under
the Quezon Facilities do not supersede or in any way terminate the obligations
of Quezon Equity Funding to reimburse drawings under (or reimbursement
obligations which arose from drawings under) the Quezon L/Cs, provided that such
amounts paid or reimbursed by Borrowers, whether or not made in accordance with
clause (1), so long as such amounts are received by the Issuing Lender of the
relevant Quezon L/C, (A) shall satisfy the direct obligation of Quezon Equity
Funding (to the extent of such obligation under the Pooled Facility Documents
for the Quezon Facilities) to such Issuing Lenders to make such payments to such
Issuing Lenders with respect to the Pooled Letter of Credit portion of a Quezon
L/C, to the same extent as if Quezon Equity Funding had made such payments
itself, and (B) shall satisfy the direct obligation of OPD to Quezon Equity
Funding and any direct obligation of OPD to such Issuing Lenders (to the extent
of any such obligations under the Pooled Facility Documents for the Quezon
Facilities) to make such payments to Quezon Equity Funding and directly or
indirectly to such Issuing Lenders with respect to the Pooled Letter of Credit
portion of a Quezon L/C, to the same extent as if OPD had made such payments
itself.
2.2 Revolving Loans.
---------------
A. Revolving Loan Commitments. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Borrowers herein set forth, each Revolving Lender hereby severally agrees,
subject to the limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Borrowers from time to time during the period from immediately following the
Closing Date Paydown to but excluding the Revolving Loan Commitment Termination
Date an aggregate amount (together with outstanding Revolving Loans made
pursuant to subsection 3.3B) not exceeding its Revolving Loan Commitment to be
used for the purposes identified in subsection 2.7. The amount of each Revolving
Lender's Revolving Loan Commitment after giving effect to the Closing Date
Paydown is set forth opposite its name on Schedule 2.2 annexed hereto and the
aggregate original amount of the Revolving Loan Commitments (after giving effect
to the Closing Date Paydown described in subsection 2.1B) is $145,885,689.06;
provided that the Revolving Loan Commitments of Revolving Lenders shall be (i)
adjusted to give effect to any assignments of the Revolving Loan Commitments
pursuant to subsection 10.1B and (ii) reduced from time to time by the amount of
any permanent reductions thereto made pursuant to subsection 2.6. Each Revolving
Lender's Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans and all other amounts owed hereunder
with respect to the Revolving Loans and the Revolving Loan Commitments shall be
paid in full no later than that date. Amounts borrowed under this subsection
2.2A may be repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date. Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be
subject to the following limitations:
(i) In no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect; and
(ii) In no event shall the Revolving Loans outstanding at any time
(other than Revolving Loans made to reimburse a drawing under a Letter of
Credit serving as a Springing Letter of Credit under subsection 3.3) exceed
the Revolving Loan Commitments then in effect minus the sum of (x) the
Springing Letter of Credit Sublimit then in effect and (y) the
Non-Springing Letter of Credit Usage then in effect.
B. Mechanics of Borrowing. Revolving Loans made on any Funding Date
(other than Revolving Loans made pursuant to subsection 3.3B) shall be in an
aggregate minimum amount of $200,000 and integral multiples of $100,000 in
excess of that amount (or, if the amount of the Revolving Loan Commitments
unfunded and available for borrowing is less than such aggregate minimum amount,
an amount equal to the amount of the Revolving Loan Commitments unfunded and
available for borrowing); provided that Revolving Loans made on any Funding Date
as Eurodollar Rate Loans with a particular Interest Period shall be in an
aggregate minimum amount of $500,000 and integral multiples of $200,000 in
excess of that amount. Whenever Borrowers desire that Revolving Lenders make
Revolving Loans (other than pursuant to subsection 3.3B) they shall deliver to
Administrative Agent a Notice of Borrowing no later than 10:00 A.M. (New York
City time) at least three Business Days in advance of the proposed Funding Date
(in the case of a Eurodollar Rate Loan) or at least one Business Day in advance
of the proposed Funding Date (in the case of a Base Rate Loan). Revolving Loans
may be continued as or converted into Base Rate Loans and Eurodollar Rate Loans
in the manner provided in subsection 2.4D. In lieu of delivering a Notice of
Borrowing, Borrowers may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.2B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability
to any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an Officer of
a Borrower or for otherwise acting in good faith under this subsection 2.2B or
under subsection 2.4D, and upon funding of Revolving Loans by Lenders, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Revolving Loans pursuant to subsection 2.4D, in each
case in accordance with this Agreement, pursuant to any such telephonic notice
Borrowers shall have effected Revolving Loans or a conversion or continuation,
as the case may be, of Revolving Loans hereunder.
Borrowers shall notify Administrative Agent prior to the funding of
any Revolving Loans in the event that any of the matters to which Borrowers are
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by Borrowers of
the proceeds of any Revolving Loans shall constitute a re-certification by
Borrowers, as of the applicable Funding Date, as to the matters to which
Borrowers are required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.8B, 2.8C and 2.8G, a
Notice of Borrowing for, or a Notice of Conversion/Continuation for conversion
to, or continuation of, a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrowers shall be bound to make a borrowing or to
effect a conversion or continuation in accordance therewith.
Notwithstanding the foregoing provisions of this subsection 2.2B, no
Eurodollar Rate Loans may be made and no Base Rate Loan may be converted into a
Eurodollar Rate Loan until the third Business Day after Closing Date.
C. Disbursement of Funds. All Revolving Loans under this Agreement
shall be made by Revolving Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that neither Administrative
Agent nor any Revolving Lender shall be responsible for any default by any other
Revolving Lender in that other Revolving Lender's obligation to make a Revolving
Loan requested hereunder nor shall the Revolving Loan Commitment of any
Revolving Lender to make the Revolving Loan requested be increased or decreased
as a result of a default by any other Revolving Lender in that other Revolving
Lender's obligation to make a Revolving Loan requested hereunder. Promptly after
receipt by Administrative Agent of a Notice of Borrowing pursuant to subsection
2.2B (or telephonic notice in lieu thereof), Administrative Agent shall notify
each Revolving Lender of the proposed borrowing. Each such Revolving Lender
shall make the amount of its Revolving Loan available to Administrative Agent
not later than 12:00 Noon (New York City time) on the applicable Funding Date,
in same day funds in Dollars, at the Funding and Payment Office. Except as
provided in subsection 3.3B with respect to Revolving Loans used to reimburse
any Issuing Lender for the amount of a drawing under a Letter of Credit issued
by it, upon satisfaction or waiver of the conditions precedent specified in
subsections 4.1 (in the case of Revolving Loans made on the Closing Date) and
4.2 (in the case of all Revolving Loans), Administrative Agent shall make the
proceeds of such Revolving Loans available to Borrowers on the applicable
Funding Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Revolving Loans received by Administrative Agent from
Revolving Lenders to be credited to the account of Borrowers at the Funding and
Payment Office.
Unless Administrative Agent shall have been notified by any Revolving
Lender prior to a Funding Date for any Revolving Loans that such Revolving
Lender does not intend to make available to Administrative Agent the amount of
such Revolving Lender's Revolving Loan requested on such Funding Date,
Administrative Agent may assume that such Revolving Lender has made such amount
available to Administrative Agent on such Funding Date and Administrative Agent
may, in its sole discretion, but shall not be obligated to, make available to
Borrowers a corresponding amount on such Funding Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Revolving
Lender, Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Revolving Lender together with interest thereon, for
each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Revolving Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
shall promptly notify Borrowers and Borrowers shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for
each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the rate payable under this Agreement for Base Rate
Loans. Nothing in this subsection 2.2C shall be deemed to relieve any Revolving
Lender from its obligation to fulfill its Revolving Loan Commitments hereunder
or to prejudice any rights that Borrowers may have against any Revolving Lender
as a result of any default by such Revolving Lender hereunder.
2.3 Recordation of Indebtedness.
---------------------------
A. The Register. Administrative Agent, acting for these purposes
solely as an agent of Borrowers (it being acknowledged that Administrative
Agent, in such capacity, and its officers, directors, employees, agent and
affiliates shall constitute Indemnitees under subsection 10.3), shall maintain
(and make available for inspection by Borrowers and Revolving Lenders upon
reasonable prior notice at reasonable times) at its address referred to in
subsection 10.8 a register for the recordation of, and shall record, the names
and addresses of each Revolving Lender and each Pooled Facility Lender and the
Revolving Loan Commitments and Revolving Loans of each Revolving Lender and the
Pooled Facility L/C Participations of each Pooled Facility Lender from time to
time (the "Register"). Borrowers, Administrative Agent, and Lenders shall deem
and treat the Persons listed as Revolving Lenders in the Register as the holders
and owners of the corresponding Revolving Loan Commitments, Revolving Loans and
participations listed therein for all purposes hereof and shall deem and treat
the Persons listed as Pooled Facility Lenders in the Register as the holders and
owners of the corresponding Pooled Facility L/C Participation listed therein for
all purposes hereof. All amounts owed with respect to any Revolving Loan
Commitment, Revolving Loan or Pooled Facility L/C Participation 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 Revolving
Lender or Pooled Facility Lender, as the case may be, shall be, conclusive and
binding on any subsequent holder, assignee or transferee of the corresponding
Revolving Loan Commitments, Revolving Loans or Pooled Facility L/C
Participation. Each Revolving Lender and Pooled Facility Lender shall record on
its internal records the amount of its Revolving Loans, Revolving Loan
Commitments and Pooled Facility L/C Participations, and each payment in respect
thereof, and any such recordation shall be conclusive and binding on Borrowers,
absent manifest error, subject to the entries in the Register, which shall,
absent manifest error, govern in the event of any inconsistency with any
Revolving Lender's or Pooled Facility Lender's records. Failure to make any
recordation in the Register or in any Revolving Lender's or Pooled Facility
Lender's records, or any error in such recordation, shall not affect any
Revolving Loans, Revolving Loan Commitments or Pooled Facility L/C
Participations or any such participations or any Obligations in respect thereof.
B. Optional Notes. If so requested by any Revolving Lender by written
notice to Borrowers (with a copy to Administrative Agent) at least two Business
Days prior to the Closing Date or at any time thereafter, Borrowers shall
execute and deliver to such Revolving Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Revolving
Lender pursuant to subsection 10.1) on the Closing Date (or, if such notice is
delivered after the Closing Date, promptly after Borrower's receipt of such
notice) a promissory note or promissory notes to evidence such Revolving
Lender's Revolving Loans, substantially in the form of Exhibit IV annexed
hereto, with appropriate insertions.
2.4 Interest and Default Interest on the Revolving Loans.
-----------------------------------------------------
A. Rate of Interest. Subject to the provisions of subsections 2.8 and
2.9, each Revolving Loan shall bear interest on the unpaid principal amount
thereof from the date made until repayment in full at a rate determined by
reference to the Base Rate or the Eurodollar Rate. The applicable basis for
determining the rate of interest with respect to any Revolving Loan (subject to
subsection 3.3B) shall be selected by Borrowers initially at the time a Notice
of Borrowing is given with respect to such Revolving Loan pursuant to subsection
2.2B (subject to the last sentence of subsection 2.2B), and the basis for
determining the interest rate with respect to any Revolving Loan may be changed
from time to time pursuant to subsection 2.2B (subject to the last sentence of
subsection 2.2B). If on any day a Revolving Loan is outstanding with respect to
which notice has not been delivered to Administrative Agent in accordance with
the terms of this Agreement specifying the applicable basis for determining the
rate of interest, then for that day that Revolving Loan shall bear interest
determined by reference to the Base Rate. Subject to the provisions of
subsections 2.4E, 2.4G and 2.9, the Revolving Loans shall bear interest until
paid in full as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus the
Base Rate Margin; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Eurodollar Rate
plus the Eurodollar Rate Margin.
B. Interest Periods. In connection with each Eurodollar Rate Loan,
Borrowers may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Revolving Loan, which Interest
Period shall be, at Borrowers' option, either a one, two, three or six month
period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Revolving Loan, in the case
of a Revolving Loan initially made as a Eurodollar Rate Loan, or on the
date specified in the applicable Notice of Conversion/Continuation, in the
case of a Revolving Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) 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; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) 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 (v) of this subsection 2.4B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the Revolving Loan Commitment Termination Date;
(vi) there shall be no more than four Interest Periods outstanding at
any time; and
(vii) in the event Borrowers fail to specify an Interest Period for
any Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Borrowers shall be deemed to have selected an
Interest Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.4E,
interest accrued with respect to any Revolving Loan shall be payable in arrears
on and to each applicable Interest Payment Date.
D. Conversion or Continuation. Subject to the provisions of
subsection 2.8, Borrowers shall have the option (i) to convert at any time all
or any part of their outstanding Revolving Loans equal to $200,000 and integral
multiples of $100,000 in excess of that amount from Revolving Loans bearing
interest at a rate determined by reference to one basis to Revolving Loans
bearing interest at a rate determined by reference to an alternative basis or
(ii) upon the expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of such Revolving Loan equal to $500,000
and integral multiples of $200,000 in excess of that amount as a Eurodollar Rate
Loan; provided, however, that a Eurodollar Rate Loan may only be converted into
a Base Rate Loan on the expiration date of an Interest Period applicable
thereto.
Borrowers shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 10:00 A.M. (New York City time) at least one
Business Days 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). In lieu of delivering a Notice of
Conversion/Continuation Borrowers may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.4D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.4D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Revolving Lender of the Revolving Loan
subject to the Notice of Conversion/Continuation.
E. Default Rate. Upon the occurrence and during the continuation of
any Event of Default, the outstanding principal amount of all Revolving Loans
and, to the extent permitted by applicable law, any interest payments thereon
not paid when due and any fees and other amounts then due and payable hereunder
(including unreimbursed amounts drawn under any Pooled Letter of Credit or
Letter of Credit), shall thereafter bear interest (including post-petition
interest in any proceeding under the Bankruptcy Code or other applicable
bankruptcy laws) payable upon demand at a rate that is 2% per annum in excess of
the interest rate otherwise payable under this Agreement with respect to the
applicable Revolving Loans or in the case of fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans; provided that, in the case of a Revolving
Loan that is a 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% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in
this subsection 2.4E 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 Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Revolving Loans and other
amounts bearing interest with reference to the Base Rate 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 Revolving Loan or amount
funded in a drawing under a Letter of Credit or Pooled Letter of Credit , the
date of the making of such Revolving Loan or the date of funding of such drawing
or the first day of an Interest Period applicable to such Revolving 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 Revolving
Loan or funded drawing or the expiration date of an Interest Period applicable
to such Revolving 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 that if a
Revolving Loan or funded drawing is repaid on the same day on which it is made
(or, if later, the Closing Date), one day's interest shall be paid on that
Revolving Loan or funded drawing.
G. Maximum Rate. Notwithstanding the foregoing provisions of this
subsection 2.4, in no event shall the rate of interest payable by Borrowers with
respect to any Revolving Loan or funded drawing under any Letter of Credit or
Pooled Letter of Credit exceed the maximum rate of interest permitted to be
charged under applicable law.
2.5 Fees.
----
A. Revolving Loan Commitment Fees. Borrowers agree to pay to
Administrative Agent, for distribution to each Revolving Lender in proportion to
that Revolving Lender's Pro Rata Share, commitment fees for the period from and
including the Closing Date to and excluding the Revolving Loan Commitment
Termination Date (or earlier termination of all Revolving Loan Commitments)
equal to (i) the average of the daily excess of the Revolving Loan Commitments
over the Total Utilization of Revolving Loan Commitments, multiplied by (ii)
0.75 of 1% per annum, such commitment fees to be calculated on the basis of a
360-day year and the actual number of days elapsed and to be
payable quarterly in arrears on March 15, June 15, September 15 and December 15
of each year, commencing on the first such date to occur after the Closing Date,
and on the Revolving Loan Commitment Termination Date (or earlier termination of
all Revolving Loan Commitments).
B. Restructuring Fees for Pooled Facility Lenders. Borrowers agree to
pay (i) to Administrative Agent on the Closing Date, for distribution to each
Pooled Facility Lender in proportion to that Pooled Facility Lender's Pro Rata
Share, restructuring fees in an aggregate amount equal to 1.0% of the total
Pooled Facility Exposure of all Pooled Facility Lenders, such Pooled Facility
Exposure to be calculated as of the Closing Date, immediately prior to giving
effect to the Closing Date Paydown and (ii) to the Canadian Loss Sharing Lenders
on the Closing Date, for ratable distribution, restructuring fees in an
aggregate amount equal to 1.0% of the outstanding amount of the Class B
Palladium DPS Facility, to be calculated as of the Closing Date; provided,
however, that such restructuring fees (x) shall be in lieu of the 0.50% success
and amendment fee previously agreed to among Company, certain of its
Subsidiaries and Lenders as required to be paid in connection with the
restructuring of Company's debt and (y) shall be reduced by the aggregate amount
of amendment fees paid to the Pooled Facility Lenders or the Canadian Loss
Sharing Lenders, as the case may be, in connection with Amendment No. 3,
Amendment No. 5 and Amendment No. 6 to the Bank of New York Credit Agreement (as
such terms are defined in the Bank of New York Credit Agreement) and/or the
related amendments to the other Pooled Facility Documents and Opt-Out Facility
Documents, as appropriate. Notwithstanding the foregoing proviso, such reduction
shall not apply to the amount of fees required to be paid under this subsection
2.5B to any Pooled Facility Lender in such capacity with respect to a Pooled
Facility which was not amended in connection with the foregoing amendments.
C. Restructuring Fees for Opt-Out Lenders. Borrowers agree to pay to
Administrative Agent on the Closing Date, for distribution to each Opt-Out
Lender (other than the Canadian Loss Sharing Lenders) in proportion to the ratio
of (i) such Opt-Out Lender's Opt-Out Facility Exposure to (ii) the sum of the
total Opt-Out Facility Exposure of all Opt-Out Lenders (other than the Canadian
Loss Sharing Lenders), restructuring fees in an aggregate amount equal to 1.0%
of the total Opt-Out Facility Exposures of all Opt-Out Lenders (other than the
Canadian Loss Sharing Lenders), each such Opt-Out Facility Exposure to be
calculated as of the Closing Date; provided, however, that such restructuring
fees (x) shall be in lieu of the 0.50% success and amendment fee previously
agreed to among Company, certain of its Subsidiaries and Lenders as required to
be paid in connection with the restructuring of Company's debt and (y) shall be
reduced by the aggregate amount of amendment fees paid to the Opt-Out Lenders in
connection with Amendment No. 5 and Amendment No. 6 to the Bank of New York
Credit Agreement (as such terms are defined in the Bank of New York Credit
Agreement) and the related amendments to the other Pooled Facility Documents and
Opt-Out Facility Documents; and provided further, however, that the
restructuring fees to be paid pursuant to this subsection 2.5C to the Opt-Out
Lenders in respect of the Class A Palladium DPS Facility shall be further
reduced by amounts paid to such Opt-Out Lenders in connection with the Amendment
No. 3 to the Bank of New York Credit Agreement (as defined in the Bank of New
York Credit Agreement) and/or the related amendments to the other Pooled
Facility Documents and Opt-Out Facility Documents, as appropriate.
Notwithstanding the foregoing provisos, such reductions shall not apply to the
amount of fees required to be paid under this subsection 2.5C to any Opt-Out
Lender in such capacity with respect to an Opt-Out Facility which was not
amended in connection with the foregoing amendments. The aggregate fees payable
to each Lender under this subsection 2.5C and subsection 2.5B are reflected next
to the name of such Lender on Schedule 2.1 hereto.
D. Participation Fee. Borrowers agree (i) to pay to Administrative
Agent on the first anniversary of the Closing Date, for distribution to each
Pooled Facility Lender and each Revolving Lender in proportion to such Lender's
Pro Rata Share (calculated as of such first anniversary), participation fees in
the aggregate amount of 2.0% of the sum of the total Pooled Facility Exposure of
all Pooled Facility Lenders plus the sum of the total Revolving Loan Exposure of
all Revolving Lenders, each such credit exposure to be calculated as of the
first anniversary of the Closing Date and (ii) to pay to the Canadian Loss
Sharing Lenders on such date, for ratable distribution, participation fees in
the aggregate amount of 2.0% of the total Opt-Out Facility Exposure with respect
to the Class B Palladium DPS Facility, calculated as of the first anniversary of
the Closing Date.
E. Termination Fee. Borrowers agree (i) to pay to Administrative
Agent on the Maturity Date, for distribution to each Pooled Facility Lender and
each Revolving Lender, in proportion to such Lender's Pro Rata Share (calculated
immediately prior to the Maturity Date), termination fees in an amount equal to
3.0% of the sum of the total average Pooled Facility Exposure of all Pooled
Facility Lenders plus the sum of the average total Revolving Loan Exposure of
all Revolving Lenders, in each case for the 90-day period immediately preceding
the Maturity Date, and (ii) to pay to the Canadian Loss Sharing Lenders on such
date, for ratable distribution, termination fees in an amount equal to 3.0% of
the average total Opt-Out Facility Exposure with respect to the Class B
Palladium DPS Facility for the 90-day period immediately preceding the Maturity
Date; provided; however, that if the sum of the termination fees calculated in
accordance with clauses (i) and (ii) would be less than $10,000,000, in lieu of
the foregoing fees Borrowers shall pay to each Pooled Facility Lender, Revolving
Lender and Canadian Loss Sharing Lender its ratable share (based on such credit
exposures) of $10,000,000.
F. Increased Fees. Notwithstanding anything to the contrary in the
Pooled Facility Documents or the Opt-Out Facility Documents, on and after the
Closing Date (i) the letter of credit fees (including fronting fees) payable
with respect to the Pooled Letters of Credit and the Opt-Out Facilities which
consist of letters of credit, to the extent such fees are directly or indirectly
payable by Company or any of its Subsidiaries, shall accrue at the same rate (or
the equivalent rate, as described below in this subsection 2.5F) per annum and
shall be payable at the same times as the fees payable with respect to Letters
of Credit hereunder (and no other fees directly or indirectly payable by Company
or any of its Subsidiaries shall accrue after the Closing Date on such Pooled
Letters of Credit or letters of credit other than (without duplication of such
fees) documentary and processing charges payable directly to the applicable
issuer of such Pooled Letter of Credit or such letter of credit, as the case may
be, for its own account in accordance with such issuer's standard schedule in
effect for such charges with respect to the issuance, amendment or transfer of
the relevant Pooled Letter of Credit or letter of credit and each payment of a
drawing made thereunder), and any fee amount which is denominated in CDN$ shall
be valued based on the Exchange Rate as of the applicable date of determination;
(ii) the interest or regular dividends, as the case may be, payable with respect
to Opt-Out Facilities (other than the Class B Palladium DPS Facility) which
consist of loans, Preferred Shares or other funded credit exposure shall, to the
extent such interest or regular dividends are directly or indirectly payable by
Company or any of its Subsidiaries (it being understood for purposes of this
clause (ii) that the right to put Preferred Shares to Company without the
exercise of such right shall not be deemed to make the regular dividends on such
Preferred Shares payable directly or indirectly by Company), accrue at the same
rate (or the equivalent rate, as described below in this subsection 2.5F) per
annum as the interest payable with respect to Revolving Loans hereunder and
shall be payable at the times the relevant direct obligor under the relevant
Opt-Out Facility is or would have otherwise been required to pay such interest
or regular dividends thereunder; (iii) the interest or regular dividends, as the
case may be, payable with respect to the Class B Palladium DPS Facility shall
accrue at the same rate (or the equivalent rate, as described below in this
subsection 2.5F) per annum as the interest payable with respect to Revolving
Loans hereunder and shall be payable at the times the relevant direct obligor
under the Class B Palladium DPS Facility is or would have otherwise been
required to pay the interest or regular dividends thereunder; and (iv) any
increases to the accrual rate of fees or interest with respect to Letters of
Credit or Revolving Loans which are agreed to by Borrowers and Revolving Lenders
after the Closing Date shall immediately upon effectiveness thereof result in a
corresponding increase in the accrual rate of letter of credit fees, interest
and regular dividends with respect to the Opt-Out Facilities and Pooled
Facilities referred to in clauses (i), (ii) and (iii). Without limiting the
covenants in subsections 6.14A and 10.24, in the event OFMC Anaheim and Ogden
Argentina S.A. are prohibited from paying such increase under the terms of the
relevant Opt-Out Facility Documents and any necessary waivers of such
prohibitions shall not have been obtained notwithstanding the exercise of best
efforts by Company and its Subsidiaries, Borrowers shall pay or cause to be paid
the increased pricing required under this subsection 2.5F so that the relevant
Opt-Out Lenders will be paid the amount of such increases at the times required
under this subsection 2.5F. The parties hereto agree that Borrowers and/or the
Opt-Out Lenders may agree to other increases in fees or pricing in relation to
one or more of the Opt-Out Facilities without equivalent increases in the fees
or pricing in relation to the Pooled Facilities and the Revolving Loan
Commitments, Revolving Loans and Letters of Credit; provided, however, that no
such increase shall result in such Opt-Out Facility benefiting from fees or
pricing, to the extent directly or indirectly payable by Company and its
Subsidiaries, in excess of the corresponding fees or pricing payable hereunder
with respect to an equal amount of Pooled Facility Exposure or Revolving Loan
Exposure. Whether such pricing or fees for Opt-Out Exposure are equivalent to or
in excess of pricing or fees with respect to the equivalent Pooled Facility
Exposure or Revolving Loan Exposure, and the amount of any such excess, shall be
determined on a tax equivalent basis by, if necessary, assigning the pricing or
fees for Opt-Out Facility Exposure an increased or decreased value to account
for the tax advantaged or disadvantaged treatment of such pricing or fees (and
the resulting increased or decreased value thereof) in the hands of the relevant
Opt-Out Lenders. The methodology for the determination of the amount of the
increase (outlining the increase if such increase is paid by the existing
obligor and if such increase is paid by another Person) in the dividend amount
payable to the Opt-Out Lenders under the Class B Palladium DPS Facility pursuant
to this subsection 2.5 is set forth on Schedule 2.5F annexed hereto.
G. Fees to Agents. Borrowers agree to pay to Administrative Agent and
Documentation Agent (for their own respective accounts) such fees in the amounts
and at the times separately agreed upon between Borrowers and Administrative
Agent or Documentation Agent, as the case may be.
H. No Other Fees. Company shall not pay or permit any Subsidiary to
pay, and none of Company nor any of its Subsidiaries has agreed to pay, any fee
or other similar consideration to any holder of any Indebtedness or Contingent
Obligation of Company or any of its Subsidiaries to amend or waive any term or
provision thereof in connection with the transactions contemplated to occur on
the Closing Date or in connection with the restructuring of the GECC Credit
Facilities or the Sempra Credit Facilities other than the fees referred to in
this subsection 2.5 payable to Agents and Lenders and the fees described in the
agreements delivered to the Agents on the Closing Date pursuant to subsection
4.1N.
2.6 Repayments, Prepayments and Reductions in Commitments; General
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Provisions Regarding Payments; Application of Proceeds of Collateral
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and Payments Under Subsidiary Guaranty.
--------------------------------------
A. Prepayments and Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Anything contained in the Pooled Facility
Documents to the contrary notwithstanding, Borrowers may, upon not less
than one Business Day's prior written or telephonic notice, in the case of
Base Rate Loans, and three Business Days' prior written or telephonic
notice, in the case of Eurodollar Rate Loans, in each case given to
Administrative Agent by 12:00 Noon (New York City time) on the date
required and, if given by telephone, promptly confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone
to each Lender for the Revolving Loans to be prepaid), at any time and from
time to time prepay any Revolving Loans on any Business Day in whole or in
part in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount (or, if the amount of the Revolving
Loans is less than such aggregate minimum amount, an amount equal to the
amount of the Revolving Loans); provided that voluntary prepayments of
Eurodollar Rate Loans made on a date other than an Interest Payment Date
applicable to such Revolving Loan shall be subject to breakage fees, costs
and expenses, if any, in accordance with subsection 2.8D. Notice of
prepayment having been given as aforesaid, the principal amount of the
Revolving Loans specified in such notice shall become due and payable on
the prepayment date specified therein. Any such voluntary prepayment shall
be applied as specified in subsection 2.6A(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Borrowers
may, upon not less than one Business Day's prior written or telephonic
notice confirmed in writing to Administrative Agent (which original written
or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Revolving Lender), at any time and from
time to time terminate in whole or permanently reduce in part, without
premium or penalty, the Revolving Loan Commitments in an amount up to the
amount by which the Revolving Loan Commitments exceed the Total Utilization
of Revolving Loan Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount. Borrowers'
notice to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in Company's notice
and shall reduce the Revolving Loan Commitment of each Revolving Lender
proportionately to its Pro Rata Share. No such voluntary reduction of the
Revolving Loan Commitments shall be permitted if such reduction would
result in the Revolving Loan Commitments being less than the Springing
Letter of Credit Sublimit, or if such reduction would result in the
Revolving Loan Commitments being less than the sum of (x) the Springing
Letter of Credit Sublimit then in effect plus (y) the Non-Springing Letter
of Credit Usage then in effect plus (z) the aggregate principal amount of
all outstanding Revolving Loans (other than Revolving Loans made to
reimburse a drawing under a Letter of Credit serving as a Springing Letter
of Credit under subsection 3.3), and no such voluntary reduction shall
reduce the Springing Letter of Credit Sublimit unless all Revolving Loan
Commitments are terminated concurrently therewith.
(iii) Mandatory Payments. Mandatory Payments shall be made in the
amounts and under the circumstances set forth below, all such Mandatory
Payments to be applied as set forth below or as more specifically provided
in subsection 2.6A(iv):
(a) Net Asset Sale Proceeds. Except as provided in subsections
2.11A and 7.7(viii), no later than two days after the date of receipt
by Company or any of its Subsidiaries of any Net Asset Sale Proceeds
in respect of any Asset Sale (other than Net Asset Sale Proceeds
applied on the Closing Date in the Closing Date Paydown), Company
shall make a Mandatory Payment in an aggregate amount equal to such
Net Asset Sale Proceeds.
(b) Net Insurance/Condemnation Proceeds. No later than the fifth
Business Day following the date of receipt by Administrative Agent or
by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be used for a
Mandatory Payment pursuant to the provisions of subsection 6.4C,
Company shall make such Mandatory Payment in an aggregate amount equal
to the amount of such Net Insurance/Condemnation Proceeds.
(c) Issuance of Equity Securities. On the date of receipt of the
Net Securities Proceeds from the issuance of any Capital Stock of
Company or of any Subsidiary of Company or from any capital
contribution to Company or any Subsidiary by any holder of Capital
Stock thereof after the Closing Date, Company shall make a Mandatory
Payment in an aggregate amount equal to 100% of such Net Securities
Proceeds; provided, however, that such Net Securities Proceeds shall
not include (1) any equity proceeds or capital contributions to
Subsidiaries of Company which are not Borrowers pursuant to capital
call requirements (relating to existing Projects) under Contractual
Obligations in effect on the Closing Date and (2) equity proceeds or
capital contributions to any Subsidiaries which are applied by such
Subsidiaries for the purpose of making Investments permitted under
subsection 7.3.
(d) Issuance of Indebtedness. On the date of receipt of the Net
Securities Proceeds from the issuance of any Indebtedness of Company
or any of its Subsidiaries after the Closing Date, other than
Indebtedness permitted pursuant to subsection 7.1, Company shall make
a Mandatory Payment in an aggregate amount equal to such Net
Securities Proceeds.
(e) Excess Cash. Any amounts on deposit in the Cash Management
System in excess of $10,000,000 (such amount, in any event, not to
include amounts, if any, required to be held in Deposit Accounts which
are collateral accounts or debt service reserve accounts described on
Schedule 2.6A(iii)(e) annexed hereto) at the end of each Business Day
shall be applied to make a Mandatory Payment on the next succeeding
Business Day. Upon the occurrence and continuation of an Event of
Default all amounts in the Cash Management System shall at
Administrative Agent's request be applied to make a Mandatory Payment.
(f) Tax Refunds. If after the Closing Date, Company or any of its
Subsidiaries receives any single payment of a Cash refund or rebate of
any federal Tax in an aggregate amount in excess of $1,000,000, the
Borrowers shall no later than the Business Day following the date of
receipt of such refund or rebate make a Mandatory Payment an aggregate
principal amount equal to 100% of such Tax refund or rebate.
(g) Calculations of Net Proceeds Amounts; Additional Mandatory
Payments Based on Subsequent Calculations. Concurrently with the
receipt of any amount which would require a Mandatory Payment pursuant
to subsections 2.6A(iii)(a)-(f), Company shall deliver to
Administrative Agent an Officer's Certificate demonstrating the
calculation of the amount of the applicable Net Asset Sale Proceeds,
Net Insurance/Condemnation Proceeds, Net Securities Proceeds, excess
cash in the Cash Management System, or federal Tax refund or rebate,
as the case may be, that gave rise to such Mandatory Payment. In the
event that Company shall subsequently determine that the actual amount
was greater than the amount set forth in such Officer's Certificate,
Company shall promptly make an additional Mandatory Payment in an
amount equal to the amount of such excess, and Company shall
concurrently therewith deliver to Administrative Agent an Officer's
Certificate demonstrating the derivation of the additional amount
resulting in such excess.
(h) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Borrowers shall from time to time prepay the
Revolving Loans to the extent necessary so that the Total Utilization
of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(i) Commitment Reductions due to Reductions in Springing Letter
of Credit Exposure. Immediately upon the occurrence of any Permanent
Springing Letter of Credit Reduction, (1) the Springing Letter of
Credit Sublimit shall be reduced in an amount equal to 100% of the
amount of such Permanent Springing Letter of Credit Reduction, and (2)
the Revolving Loan Commitments shall be reduced in an amount equal to
(a) so long as the aggregate net increase to the Annual Maximum
Investment Amounts for all periods pursuant to clause (b) of the first
proviso to the definition of "Maximum Investment Amount" shall be less
than $25,000,000, 75% of the amount of such Permanent Springing Letter
of Credit Reduction, and (b) thereafter, 100% of the amount of such
Permanent Springing Letter of Credit Reduction.
(iv) Application of Prepayments.
--------------------------
(a) Application of Mandatory Payments. Any Mandatory Payments
made pursuant to subsections 2.6A(iii)(a)-(g) shall be applied first,
to prepay the Revolving Loans to the full extent thereof and second,
to the Cash Collateral Account; provided, however, that certain
portions of such amounts may be applied to such other obligations of
Borrowers as set forth in the Intercreditor Agreement. If an Event of
Default has occurred and is continuing, any amount required to be
applied as a Mandatory Payment shall be applied as set forth in
subsection 2.6C.
(b) Application of Prepayments to Base Rate Loans and Eurodollar
Rate Loans. Any prepayment of the Revolving Loans shall be applied
first to Base Rate Loans to the full extent thereof before application
to Eurodollar Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Borrowers pursuant to
subsection 2.8D.
B. General Provisions Regarding Revolving Loan Payments and Certain
Other Payments.
(i) Manner and Time of Payment. Notwithstanding anything in the
Financing Documents to the contrary, all payments by Borrowers of
principal, interest or fees with respect to the Revolving Loans and other
Obligations hereunder and under the Revolving Notes shall be made in
Dollars (except that payments made directly to the Issuing Lender of a
CDN$-denominated Pooled Letter of Credit to reimburse honored drawings
thereunder shall be made in CDN$) in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition (other than
any legally required withholding), and delivered to Administrative Agent
(other than payments in reimbursement of an honored drawing under a Pooled
Letter of Credit, which may be made directly to the Issuing Lender of such
Pooled Letter of Credit), not later than 12:00 Noon (New York City time) on
the date due at the Funding and Payment Office for the account of the
applicable Lenders; funds received by Administrative Agent after that time
on such due date shall be deemed to have been paid by Borrowers on the next
succeeding Business Day. Borrowers hereby authorize Administrative Agent to
charge their accounts with Administrative Agent in order to cause timely
payment to be made to Administrative Agent of all principal, interest, fees
and expenses due hereunder (subject to sufficient funds being available in
their accounts for that purpose).
(ii) Application of Payments to Principal and Interest. All payments
in respect of the principal amount of any Revolving Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments shall be applied to the payment of interest
before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Revolving Loans shall be apportioned in accordance
with Revolving Lenders' Pro Rata Shares. Administrative Agent shall
promptly distribute to each Revolving Lender, at its primary address set
forth below its name on the appropriate signature page hereof or at such
other address as such Revolving Lender may request, its Pro Rata Share of
all such payments received by Administrative Agent and the Revolving Loan
commitment fees, participation fees and termination fees of such Revolving
Lender, if any, when received by Administrative Agent pursuant to
subsection 2.5. Notwithstanding the foregoing provisions of this subsection
2.6B(iii), if, pursuant to the provisions of subsection 2.8C, any Notice of
Conversion/Continuation 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, Administrative Agent shall give effect thereto in
apportioning payments received thereafter. Aggregate principal and interest
payments in respect of funded drawings under Pooled Letters of Credit shall
be apportioned in accordance with Pool Participants' Pro Rata Shares.
Administrative Agent shall promptly distribute to each Pool Participant, at
its primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Pool Participant may request,
its Pro Rata Share of all such payments received by Administrative Agent
and the fees of such Pooled Facility Lender, if any, when received by
Administrative Agent pursuant to subsection 2.5.
(iv) Payments on Business Days. 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 or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Revolving Lender agrees that before
disposing of any Revolving Note held by it, or any part thereof (other than
by granting participations therein), that Revolving Lender will make a
notation thereon of all Revolving Loans evidenced by that Revolving Note
and all principal payments previously made thereon and of the date to which
interest thereon has been paid; provided that the failure to make (or any
error in the making of) a notation of any Revolving Loan made under such
Revolving Note shall not limit or otherwise affect the Obligations of
Borrowers hereunder or under such Revolving Note with respect to any
Revolving Loan or any payments of principal or interest on such Revolving
Note.
C. Application of Proceeds of Collateral and Payments after Event of
Default. Upon the occurrence and during the continuation of an Event of Default,
(a) all payments received on account of the Obligations whether from any
Borrower, from any Subsidiary Guarantor or otherwise, shall be applied by
Administrative Agent (or Collateral Agent, as applicable) against the applicable
Obligations and Opt-Out Obligations as provided in the Intercreditor Agreement,
and (b) all proceeds received by Collateral Agent in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
under any Collateral Document may, in the discretion of Collateral Agent, be
held by Collateral Agent as Collateral for, and/or (then or at any time
thereafter) applied in full or in part by Collateral Agent against, the
applicable Secured Obligations as provided in the Intercreditor Agreement.
2.7 Use of Proceeds.
---------------
A. Revolving Loans. The proceeds of any Revolving Loans shall be
applied by Borrowers for working capital purposes, to repay funded draws on
Letters of Credit and for other general corporate purposes, which may include
the making of intercompany loans permitted under subsection 7.1 and the making
of Investments permitted under subsection 7.3; provided that no portion of the
proceeds of any Revolving Loans shall be applied to repay or reimburse funded
draws on Pooled Letters of Credit.
B. Margin Regulations. No portion of the proceeds of any borrowing
under this Agreement shall be used by Borrowers or any of their respective
Subsidiaries to purchase or carry Margin Stock. Without limiting the foregoing,
Borrowers and their respective Subsidiaries shall not use the proceeds of any
borrowing under this Agreement in any manner that might cause the borrowing or
the application of such proceeds to violate Regulation U, Regulation T or
Regulation X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board or to violate the Exchange Act, in each case as
in effect on the date or dates of such borrowing and such use of proceeds.
2.8 Special Provisions Governing Eurodollar Rate Loans.
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Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable
after 10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be 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 Borrowers and each
Revolving Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto) on any Interest Rate
Determination Date that by reason of circumstances affecting the interbank
Eurodollar market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Revolving Loans on the basis provided for in
the definition of Eurodollar Rate, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Borrowers and
each Revolving Lender of such determination, whereupon (i) no Revolving Loans
may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Borrowers and Revolving Lenders that the
circumstances giving rise to such notice no longer exist and (ii) any Notice of
Borrowing or Notice of Conversion/Continuation given by Borrowers with respect
to the Revolving Loans in respect of which such determination was made shall be
deemed to be for a Base Rate Loan.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the
event that on any date any Revolving Lender shall have determined (which
determination shall be conclusive and binding upon all parties hereto but shall
be made only after consultation with Borrowers and Administrative Agent) that
the making, maintaining or continuation of its Eurodollar Rate Loans (i) has
become unlawful as a result of compliance by such Revolving 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, or would cause such
Revolving Lender material hardship, as a result of contingencies occurring after
the date of this Agreement which materially and adversely affect the interbank
Eurodollar market or the position of such Revolving Lender in that market, then,
and in any such event, such Revolving Lender shall be an "Affected Lender" and
it shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Borrowers and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender).
Thereafter (a) the obligation of the Affected Lender to make Revolving Loans as,
or to convert Revolving Loans to, Eurodollar Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Borrowers pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Revolving Loan as
(or convert such Revolving Loan to, as the case may be) a Base Rate Loan, (c)
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 (d) 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 Borrowers
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation,
Borrowers shall have the option, subject to the provisions of subsection 2.8D,
to rescind such Notice of Borrowing or Notice of Conversion/Continuation as to
all Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to 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 Administrative Agent shall promptly transmit to each other
Revolving Lender). Except as provided in the immediately preceding sentence,
nothing in this subsection 2.8C shall affect the obligation of any Revolving
Lender other than an Affected Lender to make or maintain Revolving Loans as, or
to convert Revolving Loans to, Eurodollar Rate Loans in accordance with the
terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Borrowers shall, jointly and severally, compensate each Revolving Lender, upon
written request by that Revolving Lender pursuant to subsection 2.8, for all
reasonable losses, expenses and liabilities (including any interest paid by that
Revolving Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by that
Revolving Lender in connection with the liquidation or re-employment of such
funds) which that Revolving Lender may sustain: (i) if for any reason (other
than a default by that Revolving Lender) a borrowing of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any prepayment
(including any prepayment or conversion occasioned by the circumstances
described in subsection 2.8C) 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 Revolving Loan, (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 Borrowers, or (iv) as a consequence of any other default
by Borrowers in the repayment of Eurodollar Rate Loans when required by the
terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Revolving 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 that Revolving Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Revolving Lender under this subsection
2.8 and under subsection 2.9A shall be made as though that Revolving Lender had
funded each of its Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period, whether or not its Eurodollar Rate Loans had been funded in such manner.
G. Eurodollar Rate Loans After Default. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Borrowers may not elect to have a Revolving Loan be made or maintained as,
or converted to, a Eurodollar Rate Loan after the expiration of any Interest
Period then in effect for that Revolving Loan and (ii) subject to the provisions
of subsection 2.8D, any Notice of Borrowing or Notice of Conversion/Continuation
given by Borrowers with respect to a requested borrowing or
conversion/continuation that has not yet occurred shall be deemed to be for a
Base Rate Loan or, if the conditions to making a Revolving Loan set forth in
subsection 4.2 cannot then be satisfied, to be rescinded by Borrowers.
2.9 Increased Costs; Taxes; Capital Adequacy.
----------------------------------------
A. Compensation for Increased Costs. Subject to the provisions of
subsection 2.9B (which shall be controlling with respect to the matters covered
thereby), in the event that any Pooled Facility or Revolving Lender (including
any Issuing 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 other Government 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 Government Authority (whether or not having the force of
law):
(i) subjects such Lender to any additional Tax with respect to this
Agreement, the Pooled Facility Documents or any of its obligations
hereunder or thereunder (including with respect to issuing or maintaining
any Letters of Credit or Pooled Letter of Credit or purchasing or
maintaining any participations therein or maintaining any Revolving Loan
Commitment hereunder) or any payments to such Lender of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve, special
deposit, compulsory loan, insurance charge 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 Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to Taxes)
on or affecting such Lender or its obligations hereunder or the interbank
Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Revolving Loans or Revolving Loan
Commitments or agreeing to issue, issuing or maintaining any Letter of Credit or
Pooled Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Lender with respect thereto; then, in any such case, Borrowers shall promptly
pay, on a joint and several basis, to such Lender, upon receipt of the statement
referred to in subsection 2.10A, 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.
B. Taxes.
(i) Payments to Be Free and Clear. All sums payable by Borrowers under
this Agreement, the other Loan Documents and the Pooled Facility Documents
shall be paid free and clear of, and without any deduction or withholding
on account of, any Tax 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 Borrowers 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.
(ii) Grossing-up of Payments. If any Borrower 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 Borrowers to Administrative Agent or
any Lender under any of the Loan Documents or Pooled Facility Documents:
(a) Borrowers shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrowers
become aware of it;
(b) Borrowers shall pay any such Tax when such Tax is due, such
payment to be made (if the liability to pay is imposed on any
Borrower) for their own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on behalf of
and in the name of Administrative Agent or such Lender;
(c) the sum payable by Borrowers 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, Administrative Agent or 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
(d) within 30 days after paying any sum from which any or all of
them are required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which any or
all of them are required by clause (b) above to pay, Borrowers shall
deliver to 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.
(iii) Evidence of Exemption from U.S. Withholding Tax.
-----------------------------------------------
(a) Each Pooled Facility Lender and Revolving Lender that is
organized under the laws of any jurisdiction other than the United
States or any state or other political subdivision thereof (for
purposes of this subsection 2.9B(iii), a "Non-US Lender") shall
deliver to Administrative Agent and to Company, on or prior to the
Closing Date (in the case of each Pooled Facility Lender and Revolving
Lender listed on the signature pages hereof) or on or prior to the
date of the Assignment Agreement pursuant to which it becomes a Pooled
Facility Lender and Revolving Lender (in the case of each other Pooled
Facility Lender and Revolving Lender), and at such other times as may
be necessary in the determination of Company or Administrative Agent
(each in the reasonable exercise of its discretion), 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,
together with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder
to establish that such Lender is not subject to United States
withholding tax with respect to any payments to such Lender of
interest payable under any of the Loan Documents or the Pooled
Facility Documents.
(b) Each Non-US Lender hereby agrees, from time to time after the
initial delivery by such Lender of such forms, whenever a lapse in
time or change in circumstances renders such forms, certificates or
other evidence so delivered obsolete or inaccurate in any material
respect, that such Lender shall promptly (1) deliver to Administrative
Agent and to Company two original copies of renewals, amendments or
additional or successor forms, properly completed and duly executed by
such Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such Lender
is not subject to United States withholding tax with respect to
payments to such Lender under the Loan Documents or Pooled Facility
Documents or (2) notify Administrative Agent and Company of its
inability to deliver any such forms, certificates or other evidence.
(c) Borrowers shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.9B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a) or
(b)(1) of this subsection 2.9B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.9B(iii)(a) on
the date such Lender became a Pooled Facility Lender or a Revolving
Lender, nothing in this subsection 2.9B(iii)(c) shall relieve
Borrowers of their obligation to pay any amounts pursuant to
subsection 2.9B(ii)(c) 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 in
subsection 2.9B(iii)(a).
(iv) Indemnity for Withheld Amounts. Borrowers hereby agree to
indemnify Lenders and Agents for the full amount of any deduction or
withholding on account of any Taxes 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 Borrowers 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 (including any such
Taxes imposed by any jurisdiction on amounts payable under this subsection
2.9B) paid by Agents or Lenders with respect to sums payable by Borrowers
under this Agreement, the other Loan Documents and the Pooled Facility
Documents and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made promptly, and in any event within 10 days after, the relevant Lender
or Agent makes demand therefor in writing.
C. Capital Adequacy Adjustment. If any Pooled Facility Lender or
Revolving Lender shall have determined that the adoption, effectiveness,
phase-in or applicability after the date hereof 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 Government Authority
charged with the interpretation or administration thereof, or compliance by any
Lender with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such Government Authority, 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 Revolving Loans, Revolving Loan Commitments, Letters
of Credit, Pooled Letters of Credit, participations therein or other Obligations
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 Borrowers from such Lender of
the statement referred to in subsection 2.10A, Borrowers shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction.
2.10 Statement of Lenders; Obligation of Lenders and Issuing Lenders to
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Mitigate.
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A. Statements. Each Pooled Facility Lender and Revolving Lender
claiming compensation or reimbursement pursuant to subsection 2.8D, 2.9 or 2.10B
shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such compensation or reimbursement, which statement shall be conclusive and
binding upon all parties hereto absent manifest error; provided that a Pooled
Facility Lender or Revolving Lender claiming compensation or reimbursement
pursuant to subsection 2.9B(ii) due to circumstances in effect as of the Closing
Date shall not be required to deliver more than one such statement to Borrowers
or Administrative Agent, and such statement shall remain effective with respect
to this Agreement until all Obligations have been paid in full.
B. Mitigation. Each Pooled Facility Lender and Revolving Lender
(including any Issuing Lender) agree that, as promptly as practicable after the
officer of such Lender or Issuing Lender responsible for administering the
Revolving Loans, Letters of Credit or Pooled Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender or Issuing Lender
to become an Affected Lender or that would entitle such Lender or Issuing Lender
to receive payments under subsection 2.9 (other than subsection 2.9B(ii)), use
reasonable effort to make, issue, fund or maintain the Revolving Loan
Commitments of such Lender or the Affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, if (i) as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.9 would be materially reduced
and (ii) as determined by such Lender or Issuing Lender in its sole discretion,
such action would not otherwise be disadvantageous to such Lender or Issuing
Lender; provided that such Lender or Issuing Lender will not be obligated to
utilize such other lending or letter of credit office pursuant to this
subsection 2.10B unless Borrowers agree to pay, on a joint and several basis,
all incremental expenses incurred by such Lender or Issuing Lender as a result
of utilizing such other lending or letter of credit office as described above.
2.11 Covenants of the Pooled Facility Lenders and Opt-Out Facility
-------------------------------------------------------------
Lenders.
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A. Maturity Date of Pooled Facilities and Opt-Out Facilities.
Anything contained in the Pooled Facility Documents and the Opt-Out Facility
Documents to the contrary notwithstanding, no scheduled installments of
principal with respect to the Opt-Out Facilities or the Pooled Facilities shall
be payable prior to the Maturity Date and no Pooled Facility or Opt-Out Facility
shall terminate prior to the Maturity Date except as set forth in this
Agreement; provided that upon the sale, transfer or release of the entire
interest of Company and its Subsidiaries in any Project to which an Opt-Out
Facility relates, or a refinancing of the Indebtedness or Contingent Obligations
relating to any Project to which an Opt-Out Facility relates, all Opt-Out
Obligations under such Opt-Out Facility (excluding any Opt-Out Facility
consisting of a guaranty related to the Ottawa Senators Project under which the
guarantied obligations are not yet payable) shall become immediately due and
payable (provided that the rights of the relevant Opt-Out Lenders with respect
to those Opt-Out Obligations shall be subject to the Intercreditor Agreement),
and Borrowers shall cause Company and its Subsidiaries to repay the amounts due
and owing under such Opt-Out Facility, but only to the full extent of the Net
Asset Sale Proceeds of such sale or the net proceeds of such refinancing (it
being understood that if such proceeds are insufficient to pay the relevant
Opt-Out Obligations in full, then as among the Lenders the rights of the Opt-Out
Lenders to exercise remedies with respect to any resulting Realized Deficiency
shall be subject to the terms of the Intercreditor Agreement and the allocation
of such proceeds shall be subject to the terms of the Intercreditor Agreement
and subsection 10.5); provided further, that any Opt-Out Facility or any Pooled
Facility may be terminated if such termination does not result in amounts
thereunder becoming due; and provided, however, that nothing in this subsection
2.11A shall limit or restrict the obligations of Borrowers under subsection 6.14
or the rights of Opt-Out Lenders under Section 3.4 of the Intercreditor
Agreement. Each Issuing Lender, Pooled Facility Lender and issuing lender of a
letter of credit issued under an Opt-Out Facility hereby agrees that,
notwithstanding anything to the contrary contained in any Pooled Facility
Document or Opt-Out Facility Document, each Issuing Lender of any Pooled Letter
of Credit and each issuing lender of a letter of credit issued under an Opt-Out
Facility (in either case) expiring by its terms prior to the Maturity Date
(whether or not such Pooled Letter of Credit or letter of credit provides for
automatic extension in the absence of an election by the issuer thereof not to
extend) shall, at the request of Company prior to such date of expiration,
amend, reissue or extend (or elect not to decline to extend, as the case may be)
such Pooled Letter of Credit or letter of credit (as the case may be) so that it
shall expire on the date specified by Company in its request (provided that (i)
such requested date shall not be later than one year after the date such Pooled
Letter of Credit or letter of credit (as the case may be) would otherwise expire
(ii) such date of expiration shall only be later than the Maturity Date if
necessary to avoid a drawing under such Pooled Letter of Credit or letter of
credit, and (iii) Company shall not request a date of expiration beyond the
first date on which such Pooled Letter of Credit or letter of credit, as the
case maybe, could expire without giving rise to a right of the beneficiary
thereof to make a drawing thereunder solely as a result of or in anticipation of
such expiration) but on otherwise identical terms, unless in any such case an
Event of Default has occurred and is continuing (and has not been waived in
accordance with subsection 10.6) at the time the Issuing Lender of such Pooled
Letter of Credit or the issuer of such letter of credit, as the case may be,
makes its determination to amend, reissue or extend (or elect not to decline to
extend), as the case may be, such Pooled Letter of Credit or letter of credit,
as the case may be (it being understood that the relevant Issuing Lender or
issuer shall not amend, reissue or extend (or elect not to decline to extend)
such Pooled Letter of Credit or letter of credit (as the case may be) if such
Issuing Lender or such issuer has such knowledge); provided, however, that no
such amendment, reissuance, extension, or election not to decline to extend
shall be permitted or required in the event that the beneficiary of the relevant
Pooled Letter of Credit or letter of credit issued under an Opt-Out Facility has
returned the same for cancellation or the underlying Contractual Obligation to
provide such Pooled Letter of Credit or letter of credit to the beneficiary
thereof has terminated.
B. Amendments and Waivers to Pooled Facility Documents. Borrowers and
each Pooled Facility Lender agree that notwithstanding anything in the Pooled
Facility Documents to the contrary, no Lender party to such Pooled Facility
Documents immediately prior to the Closing Date shall have any right, power or
obligation to amend, modify or waive any of the Pooled Facilities or Pooled
Facility Documents after the Closing Date or to act in its individual capacity
as a lender or participant thereunder, and (i) any such amendment, modification
or waiver shall require the written consent of Requisite Lenders (or such other
number of Lenders as is required pursuant to subsection 10.6), (ii) any such
right, power or obligation of any Lender to act in its individual capacity as a
lender or participant under the relevant Pooled Facility Documents, to the
extent such rights, powers or obligations are not otherwise expressly
extinguished, terminated or superseded by other provisions of this Agreement,
shall instead be vested in Requisite Lenders (or such other number of Lenders as
is required pursuant to subsection 10.6), and (iii) any such right, power or
obligation of any Existing Pooled Facility Agent to act in its individual
capacity as such under the relevant Pooled Facility Documents (except to the
extent such right, power or obligation to act is solely as the issuing lender of
a Pooled Letter of Credit and such Existing Pooled Facility Agent continues to
be the Issuing Lender with respect to such Pooled Letter of Credit), to the
extent such rights, powers or obligations are not otherwise expressly
extinguished, terminated or superseded by other provisions of this Agreement,
shall instead be vested in Administrative Agent; provided, however, that the
issuance by Administrative Agent or Documentation Agent of a Replacement Letter
of Credit in accordance with subsection 2.1E and the extension, amendment or
issuance of a Pooled Letter of Credit pursuant to and in accordance with
subsection 2.11A shall not constitute an amendment or modification of the Pooled
Facilities or Pooled Facility Documents; and provided further, however, that the
Existing Pooled Facility Agents under the Quezon Facilities and the Quezon
Lenders may amend, supplement or otherwise modify the Pooled Facility Documents
for the Quezon Facilities, and/or take actions under such Pooled Facility
Documents, so long as such amendment, supplement or modification or action shall
not alter the rights and obligations of the Pooled Facility Lenders, the
Borrowers, OPD or Quezon Equity Funding with respect to the portion of the
Quezon L/Cs consisting of Pooled Letters of Credit. Without limiting the
generality of the foregoing, each Pooled Facility Lender hereby agrees that no
Pooled Facility Lender or combination of Pooled Facility Lenders shall have the
right or power to accelerate the maturity of any obligations under any or all of
the Pooled Facility Documents except as provided in Section 8 of this Agreement,
provided, however, that the Existing Pooled Facility Agents under the Quezon
Facilities and the Quezon Lenders may accelerate the maturity of obligations
(other than the Obligations) under the Pooled Facility Documents for the Quezon
Facilities, and/or exercise remedies under such Pooled Facility Documents with
respect to such matured obligations, so long as such acceleration shall in no
way accelerate the maturity of (or be deemed to accelerate the maturity of), and
no such remedies shall be exercised on account of, the Obligations or other
obligations of Borrowers, OPD or Quezon Equity Funding with respect to the
portion of the Quezon L/Cs consisting of Pooled Letters of Credit until such
time as Supermajority Lenders elect to accelerate the maturity of such
Obligations.
Each Pooled Facility Lender agrees that promptly after the
effectiveness of any amendment, termination, supplement, waiver or other
modification of any Pooled Facility Documents it shall provide, or cause to be
provided, to Agents a copy thereof (in the event Agents are not parties to such
amendment, termination, supplement or waiver).
C. Amendments and Waivers to Opt-Out Facility Documents. Each Opt-Out
Lender agrees that notwithstanding anything in the Opt-Out Facility Documents or
the Loan Documents to the contrary,
(i) that it shall not amend or otherwise change the terms of the
Opt-Out Facility Documents if the effect of such amendment or change would
be to (1) move to an earlier date the date of any repayments or prepayments
by Company or its Subsidiaries under the Opt-Out Facilities prior to the
Maturity Date, (2) cause amounts payable by Company or its Subsidiaries
under the Opt-Out Facility Documents to be payable on a date sooner than
the Maturity Date, (3) supersede or make more restrictive the covenants
with respect to Company or its Subsidiaries referred to in subsection 2.11D
below, (4) increase or create additional lending commitments or (5) confer
additional rights on Opt-Out Lenders, if such amendment, modification or
waiver would disproportionately disadvantage the Pooled Facility Lenders or
Revolving Lenders relative to the relevant Opt-Out Lenders or be adverse in
any material respect to Company and/or its Subsidiaries, the Pooled
Facility or the Revolving Credit Facility without the prior written consent
of Requisite Lenders, and
(ii) that it shall not amend, modify or waive provisions of any
agreement relating to the Opt-Out Facilities to the extent such amendment,
modification or waiver would result in (1) additional payment obligations
(it being understood that "additional payment obligations" shall not
include increases in the rate of accrual of fees or interest, as long as
Company or any of its Subsidiaries is already contractually obligated to
pay the relevant type of fees and interest on the part of Company or its
Subsidiaries as the case may be), (2) fees or pricing increases prohibited
under subsection 2.5F, or (3) increases in fees or pricing for an Opt-Out
Facility to the extent the repayment obligations under such Opt-Out
Facility are supported by a Pooled Facility or cash collateral against
which the Opt-Out Lenders have recourse notwithstanding the standstill
agreement pursuant to Section 3.4 of the Intercreditor Agreement;
provided that the limitation on pricing increases or fees shall not include
pricing increases or fees for which Company or a Subsidiary of Company is not,
directly or indirectly, an obligor and shall not include any future pricing
"step-ups" for which Company or its Subsidiary is already responsible, and which
arise pursuant to provisions already in effect, in each case under the Opt-Out
Facility Documents as in effect on the Closing Date.
Each Opt-Out Lender agrees that promptly after the effectiveness of
any amendment, termination, supplement, waiver or other modification of any
Opt-Out Facility Document it shall provide, or cause to be provided, to Agents a
copy thereof.
If any Opt-Out Lender(s) shall violate the provisions of clause
(i)(3) above by amending, supplementing or otherwise modifying any covenant
contained in the Opt-Out Facility Documents of such Lender in a manner that
makes such covenant more restrictive than the correlative covenant or covenants
contained in Section 6 and/or Section 7 hereof, Section 6 and/or Section 7 shall
(notwithstanding anything to the contrary contained in subsection 10.6)
automatically and without further action by any Borrower, Lender or Agent be
deemed modified to the extent and in the manner required so that such Section
contains such more restrictive provisions.
D. Pooled Facility and Opt-Out Facility Covenants. The Pooled
Facility Lenders and the Opt-Out Lenders agree, with respect to the Pooled
Facilities and the Opt-Out Facilities as the case may be, that as of the Closing
Date the covenants of Borrowers contained in Sections 6 and 7 of this Agreement
shall replace and supersede the covenants contained in the Pooled Facility
Documents and the Opt-Out Facility Documents (solely, in the case of the Opt-Out
Facility Documents, to the extent such covenants are for the benefit of Opt-Out
Lenders) as described on Schedule 2.11(a) annexed hereto and the covenants so
replaced shall cease to be of any further force and effect, and if any covenant
contained in Section 6 or Section 7 of this Agreement is hereafter amended,
supplemented or otherwise modified in a manner that makes such covenant more
restrictive than the correlative covenant or covenants contained in any Opt-Out
Facility Document, such covenants contained in such Opt-Out Facility Documents
shall automatically and without further action by any Borrower, Lender or Agent
be deemed modified to the extent and in the manner required so that such
covenants contain such more restrictive provisions. The covenants contained in
the Pooled Facility Documents and the Opt-Out Facility Documents which are
described in Schedule 2.11(b) annexed hereto shall be deemed covenants of the
Borrowers for the purposes of this Agreement as if such covenants were included
in Sections 6 and 7 of this Agreement.
2.12 Joint and Several Liability; Payment Indemnifications.
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A. Joint and Several Liabilities. All Obligations of Borrowers shall
be the joint and several Obligations of the Borrowers. The Obligations of and
the Liens granted by any such Borrower under the Loan Documents or the Pooled
Facility Documents shall not be impaired or released by any action or inaction
on the part of any Agent or any Lender with respect to any Loan Party, including
any action or inaction which would otherwise release a surety. Anything
contained in this Agreement and the other Loan Documents to the contrary
notwithstanding, the Obligations of each Borrower hereunder shall be limited to
a maximum aggregate amount equal to the largest amount that would not render its
Obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code or any applicable provisions
of comparable state law (collectively, the "Fraudulent Transfer Laws"), in each
case after giving effect to all other liabilities of such Borrower, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Borrower in respect of intercompany
indebtedness to any other Borrower or Affiliates of any other Borrower to the
extent that such indebtedness would be discharged in an amount equal to the
amount paid by such Borrower hereunder) and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, reimbursement, indemnification or
contribution of such Borrower pursuant to applicable law or pursuant to the
terms of any agreement.
B. Payment Contributions. In order to provide for just and equitable
contribution between the Borrowers if any payment is made by a Borrower (a
"Funding Borrower") in discharging any of the Obligations each of the Funding
Borrowers shall be entitled to a contribution from the other Borrowers for all
payments, damages and expenses incurred by such Funding Borrower in discharging
the Obligations, in the manner and to the extent required to allocate
liabilities in an equitable manner among the Borrowers on the basis of the
relative benefits received by the Borrowers. If and to the extent that a Funding
Borrower makes any payment to any Lender or any other Person in respect of the
Obligations, any claim which said Funding Borrower may have against the other
Borrowers by reason thereof shall be subject and subordinate to the prior cash
payment in full of the Obligations. The parties hereto acknowledge that the
right to contribution hereunder shall constitute an asset of the party to which
such contribution is owing. Notwithstanding any of the foregoing to the
contrary, such contribution arrangements shall not limit in any manner the joint
and several nature of the Obligations in respect of the Loan Documents and the
Pooled Facility Documents, limit, release or otherwise impair any rights of any
Agent or any Lender, or alter, limit or impair the obligation of each Borrower,
which is absolute and unconditional and joint and several with the other
Borrowers, to repay the Obligations. The obligation of any Borrower to make any
contribution to another Borrower under this subsection 2.12 shall be junior in
priority to all Obligations and Opt-Out Obligations of such Borrower and of
Borrowers.
C. Rights of Subrogation, Contribution, Etc. Except as prohibited
under applicable law, Company hereby waives any claim, right or remedy, direct
or indirect, that Company now has or may hereafter have against any other
Borrower or any Subsidiary Guarantor in connection with this Agreement or the
performance by Company of its obligations hereunder, in each case whether such
claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including (a) any right of subrogation,
reimbursement or indemnification that Company now has or may hereafter have
against any other Borrower or Subsidiary Guarantor, (b) any right to enforce, or
to participate in, any claim, right or remedy that any Agent or Lender now has
or may hereafter have against any other Borrower or Subsidiary Guarantor, and
(c) any benefit of, and any right to participate in, any collateral or security
now or hereafter held by any Agent or Lender. In addition, until the Obligations
shall have been indefeasibly paid in full and the Revolving Loan Commitments
shall have terminated and all Letters of Credit shall have expired or been
cancelled, Company shall withhold exercise of any right of contribution Company
may have against any other Borrower or Loan Party. Company further agrees that,
to the extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification Company may
have against any other Borrower or Loan Party or against any collateral or
security shall be junior and subordinate to any rights any Agent or Lender may
have against any other Borrower, to all right, title and interest any Agent or
Lender may have in any such collateral or security, and to any right any Agent
or Lender may have against such Loan Party. If any amount shall be paid to
Company on account of any such subrogation, reimbursement, indemnification or
contribution rights at any time when all Obligations shall not have been paid in
full, such amount shall be held in trust for Administrative Agent on behalf of
Agents and Lenders and shall forthwith be paid over to Administrative Agent for
the benefit of Agents and Lenders to be credited and applied against the
Obligations, whether matured or unmatured, in accordance with the terms hereof.
2.13 Defaulting Lenders.
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Anything contained herein to the contrary notwithstanding, in the
event that any Pooled Facility Lender or Revolving Lender (any such Lender being
a "Defaulting Lender") defaults (a "Funding Default") in its obligation to fund
its Pooled Facility Loan Participation, its Pooled Facility L/C Participation or
its participation in any Letter of Credit (a "Defaulted Participation") or to
fund any Revolving Loan (a "Defaulted Revolving Loan") in accordance with the
terms of this Agreement, then (i) during any Default Period (as defined below)
with respect to such Defaulting Lender, such Defaulting Lender shall be deemed
neither a "Pooled Facility Lender" nor a "Revolving Lender" for purposes of
voting on any matters (including the granting of any consents or waivers) with
respect to any of the Loan Documents (provided, however, that nothing in this
clause (i) shall be construed as permitting, without the consent of the relevant
Defaulting Lender, a reduction in the principal amount of such Defaulting
Lender's funded Revolving Loans or other outstanding funded Obligations, an
increase in the amount of such Lender's unfunded Revolving Loan Commitment,
participation in Letters of Credit, Pooled Facility L/C Participation or Pooled
Facility Loan Participation, a reduction or postponement of the due date of any
amount funded by such Defaulting Lender and payable in respect of any Pooled
Letter of Credit or Letter of Credit, an extension of the expiration date of any
Pooled Letter of Credit or Letter of Credit beyond the Maturity Date, or an
extension of the Maturity Date), (ii) to the extent permitted by applicable law,
until such time as the Default Excess (as defined below) with respect to such
Defaulting Lender shall have been reduced to zero, any payment of amounts with
respect to the Revolving Loans and any payment or reimbursement of amounts with
respect to a drawing under a Pooled Letter of Credit or a Letter of Credit shall
be applied first, to amounts funded by Agents, Issuing Lenders or other Lenders
(together with unpaid interest accrued thereon) in lieu of such amounts required
to be funded by Defaulting Lenders and second, to the Revolving Loans or to the
Pooled Facility Loan Participations or to the Pooled Facility L/C Participations
or Letter of Credit participations, as the case may be, of other Lenders (other
than any other Defaulting Lenders) as if such Defaulting Lender (and any other
Defaulting Lenders) had no Revolving Loans, Pooled Facility Loan Participation
or Pooled Facility L/C Participation outstanding and the Revolving Loan Exposure
and Pooled Facility Exposure of such Defaulting Lender were each zero, (iii)
such Defaulting Lender's Revolving Loan Commitment, Revolving Loans and Pro Rata
Share shall be excluded for purposes of calculating the commitment fee in
respect of any day during any Default Period with respect to such Defaulting
Lender, and such Defaulting Lender shall not be entitled to receive any such
commitment fee with respect to such Defaulting Lender's Revolving Loan
Commitment in respect of any Default Period with respect to such Defaulting
Lender, and (iv) the Total Utilization of Revolving Loan Commitments as at any
date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Revolving Loans of such Defaulting Lender.
For purposes of this Agreement, (I) "Default Period" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(A) the date on which all Revolving Loan Commitments are cancelled or terminated
and/or the Obligations are declared or become immediately due and payable, (B)
the date on which (1) the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Revolving Loans or Defaulted Participations, as the case
may be, of such Defaulting Lender or by the non-pro rata application of any
payments of amounts with respect to the Revolving Loans or any payments or
reimbursements of amounts with respect to drawings under Pooled Letters of
Credit or Letters of Credit, as the case may be, in accordance with the terms
hereof or any combination thereof), and (2) such Defaulting Lender shall have
delivered to Company and Agents a written reaffirmation of its intention to
honor its obligations under this Agreement with respect to its Revolving Loan
Commitment, Pooled Facility Loan Participation and Pooled Facility L/C
Participation, and (C) the date on which Company, Administrative Agent and all
Issuing Lenders waive all Funding Defaults of such Defaulting Lender in writing,
and (II) "Default Excess" means, with respect to any Defaulting Lender, the
excess, if any, of (x) such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Revolving Loans of all Revolving Lenders and all
funded Pooled Facility Loan Participations and Pooled Facility L/C
Participations and funded participations in Letters of Credit of Pooled Facility
Lenders and Revolving Lenders (calculated as if all Defaulting Lenders (other
than such Defaulting Lender) had funded all of their respective Defaulted
Revolving Loans and Defaulted Participations) over (y) the aggregate outstanding
principal amount of Revolving Loans of such Defaulting Lender and the aggregate
funded amount of such Defaulting Lender's Pooled Facility Loan Participation and
Pooled Facility L/C Participation and the aggregate funded amount of such
Defaulting Lender's participations in Letters of Credit.
No Commitment of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in this subsection 2.13, performance
by any Borrower of its obligations under this Agreement and the other Loan
Documents shall not be excused or otherwise modified, as a result of any Funding
Default or the operation of this subsection 2.13. The rights and remedies
against a Defaulting Lender under this subsection 2.13 are in addition to other
rights and remedies that Borrowers may have against such Defaulting Lender with
respect to any Funding Default and that Agents, any Issuing Lender or any Lender
may have against such Defaulting Lender with respect to any Funding Default.
2.14 Replacement of a Lender
If a Pooled Facility Lender or a Revolving Lender is a Defaulting
Lender, so long as (i) no Potential Event of Default or Event of Default shall
have occurred and be continuing and Company has obtained a commitment from
another Lender or an Eligible Assignee to purchase at par the Defaulting
Lender's Loans (together with accrued and unpaid interest and fees and other
charges and expenses then due and owing to such Defaulting Lender hereunder) and
assume the Defaulting Lender's Commitments and all other obligations of the
Defaulting Lender hereunder, (ii) such Lender is not an Issuing Lender with
respect to any Letters of Credit or Pooled Letters of Credit outstanding (unless
all such Letters of Credit or Pooled Letters of Credit are terminated or
arrangements acceptable to such Issuing Lender (such as a "back-to-back" letter
of credit) are made), Company may require the Defaulting Lender to assign all of
its Loans and Commitments and other obligations to such other Lender, Lenders,
Eligible Assignee or Eligible Assignees pursuant to the provisions of subsection
10.1B; provided that, prior to or concurrently with such replacement, (1)
Company has paid to the Lender giving such notice amounts due to such Defaulting
Lender through such date of replacement under subsection 2.8C or 2.9, (2) the
processing fee required to be paid by subsection 10.1B (i) shall have been paid
to Administrative Agent, (3) all of the requirements for such assignment
contained in subsection 10.1B, including, without limitation, the consent of
Administrative Agent and other Issuing Lenders of Pooled Letters of Credit and
Letters of Credit (if required) and the receipt by Administrative Agent of an
executed Assignment Agreement and other supporting documents, have been
fulfilled.
Section 3. LETTERS OF CREDIT AND CASH COLLATERAL ACCOUNT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
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Therein.
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A. Letters of Credit. In addition to Borrowers requesting that
Lenders make Revolving Loans pursuant to subsection 2.2A, Borrowers may request,
in accordance with the provisions of this subsection 3.1, from time to time
during the period from the Closing Date to but excluding the day prior to the
Revolving Loan Commitment Termination Date, that Administrative Agent or
Documentation Agent issue Letters of Credit payable on a sight basis for the
account of Company or any of its Subsidiaries for the purposes of serving as a
Springing Letter of Credit or supporting such other obligations as are permitted
to be incurred under this Agreement. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrowers
herein set forth, Administrative Agent or Documentation Agent may, but (except
as provided in subsections 3.1B(i) and 3.1B(ii)) shall not be obligated to,
issue such Letters of Credit in accordance with the provisions of this
subsection 3.1; provided that Borrowers shall not request that any Agent issue
(and no Agent shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit other than one serving as a Springing Letter
of Credit if, after giving effect to such issuance, (a) the Non-Springing
Letter of Credit Usage would exceed (b) the Revolving Loan Commitments then
in effect minus the Springing Letter of Credit Sublimit then in effect
minus the Revolving Loans outstanding at such time (other than Revolving
Loans made to reimburse a drawing under Letter of Credit serving as a
Springing Letter of Credit under subsection 3.3);
(iii) any Letter of Credit serving as a Springing Letter of Credit if,
after giving effect to such issuance, the Springing Letter of Credit Usage
would exceed the Springing Letter of Credit Sublimit then in effect;
(iv) any Letter of Credit having an expiration date later than the
earlier of (a) the day prior to the Revolving Loan Commitment Termination
Date and (b) the date which is one year from the date of issuance of such
Letter of Credit; provided that the immediately preceding clause (b) shall
not prevent any Issuing Lender from agreeing that a Letter of Credit will
automatically be extended to a date prior to the Revolving Loan Commitment
Termination Date unless such Issuing Lender elects not to extend for any
such additional period; and provided, further that such Issuing Lender
shall elect not to extend such Letter of Credit if it has knowledge that an
Event of Default has occurred and is continuing (and has not been waived in
accordance with subsection 10.6) at the time such Issuing Lender must elect
whether or not to allow such extension;
(v) any Letter of Credit for a purpose other than to satisfy a
Contractual Obligation to provide a Springing Letter of Credit or to
support such other obligations as are permitted to be incurred under this
Agreement; or
(vi) any Letter of Credit denominated in a currency other than
Dollars.
B. Mechanics of Issuance.
(i) Request for Issuance. Whenever Borrowers desire the issuance of a
Letter of Credit, they shall deliver to Administrative Agent a Request for
Issuance no later than 12:00 Noon (New York City time) at least ten
Business Days, or in each case such shorter period as may be agreed to by
Administrative Agent in any particular instance, in advance of the proposed
date of issuance. Upon receipt by Administrative Agent of a Request for
Issuance pursuant to subsection 3.1B(i) requesting the issuance of a Letter
of Credit, in the event Administrative Agent elects to issue such Letter of
Credit, Administrative Agent shall promptly so notify Borrowers, and
Administrative Agent shall be the Issuing Lender with respect thereto. In
the event that Administrative Agent, in its sole discretion, elects not to
issue such Letter of Credit, Administrative Agent shall promptly so notify
Borrowers, whereupon Borrowers may request Documentation Agent to issue
such Letter of Credit by delivering to Documentation Agent a copy of the
applicable Request for Issuance. Documentation Agent shall promptly notify
Borrowers and Administrative Agent whether or not, in its sole discretion,
it has elected to issue such Letter of Credit, and if Documentation Agent
elects to issue such Letter of Credit, Documentation Agent shall be the
Issuing Lender with respect thereto. In the event that Documentation Agent
shall have declined to issue such Letter of Credit, notwithstanding the
prior election of Administrative Agent not to issue such Letter of Credit,
Administrative Agent shall be obligated to issue such Letter of Credit and
shall be the Issuing Lender with respect thereto, notwithstanding the fact
that the Letter of Credit Usage with respect to such Letter of Credit and
with respect to all other Letters of Credit issued by Administrative Agent,
when aggregated with Administrative Agent's outstanding Revolving Loans,
may exceed Administrative Agent's Revolving Loan Commitment then in effect.
The Issuing Lender, in its reasonable discretion, may require changes in
the text of the proposed Letter of Credit or any documents described in or
attached to the Request for Issuance. No Letter of Credit shall require
payment against a conforming demand for payment to be made thereunder on
the same business day (under the laws of the jurisdiction in which the
office of the Issuing Lender to which such demand for payment is required
to be presented is located) that such demand for payment is presented if
such presentation is made after 10:00 A.M. (in the time zone of such office
of the Issuing Lender) on such business day.
Borrowers shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Borrowers are required to certify in the applicable
Request for Issuance is no longer true and correct as of the proposed date
of issuance of such Letter of Credit, and upon the issuance of any Letter
of Credit Borrowers shall be deemed to have re-certified, as of the date of
such issuance, as to the matters to which Borrowers are required to certify
in the applicable Request for Issuance.
(ii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures.
(iii) Notification to Revolving Lenders. Promptly after the issuance
or amendment of any Letter of Credit the applicable Issuing Lender shall
promptly notify Administrative Agent and each Revolving Lender of such
issuance in writing. Upon receipt of such notice (or, if Administrative
Agent is the Issuing Lender, together with such notice), Administrative
Agent shall notify each Revolving Lender in writing of the amount of such
Revolving Lender's respective participation in such Letter of Credit or
amendment, determined in accordance with subsection 3.1C and, if so
requested by a Revolving Lender, Administrative Agent shall provide such
Lender with a copy of such Letter of Credit or amendment.
C. Revolving Lenders' Purchase of Participations in Letters of
Credit. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from
the Issuing Lender a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Revolving Lender's Pro Rata Share
of the maximum amount which is or at any time may become available to be drawn
thereunder.
3.2 Letter of Credit Fees.
---------------------
Borrowers jointly and severally agree to pay the following amounts
with respect to Letters of Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender of a Letter of Credit or
Pooled Letter of Credit for its own account, equal to the greater of (X)
$500 and (Y) 0.25% per annum of the daily amount available to be drawn
under such Standby Letter of Credit and (b) a letter of credit fee, payable
to Administrative Agent for the account of Revolving Lenders (or the Pooled
Facility Lenders, in the case of a Pooled Letter of Credit) equal to the
excess of the Eurodollar Rate Margin over 0.25% per annum (expressed as a
daily rate) multiplied by the daily amount available to be drawn under such
Standby Letter of Credit, each such fronting fee and letter of credit fee
to be payable in arrears on and to (but excluding) each March 15, June 15,
September 15 and December 15 of each year and computed on the basis of a
360-day year, for the actual number of days elapsed;
(ii) with respect to each Performance Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender of a Letter of
Credit or Pooled Letter of Credit for its own account, equal to the greater
of (X) $500 and (Y) 0.25% per annum of the daily amount available to be
drawn under such Performance Letter of Credit and (b) a letter of credit
fee, payable to Administrative Agent for the account of Revolving Lenders
(or the Pooled Facility Lenders, in the case of a Pooled Letter of Credit),
equal to 2.125% per annum (expressed as a daily rate) multiplied by the
daily amount available to be drawn under such Performance Letter of Credit,
each such fronting fee and letter of credit fee to be payable in arrears on
and to (but excluding) each March 15, June 15, September 15 and December 15
of each year and computed on the basis of a 360-day year, for the actual
number of days elapsed; and
with respect to the issuance, amendment or transfer of each Letter of Credit or
Pooled Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clauses (i) and (ii) above), documentary
and processing charges payable directly to the applicable Issuing Lender for its
own account in accordance with such Issuing Lender's standard schedule for such
charges in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.
For purposes of calculating any fees payable under clauses (i) and
(ii) of this subsection 3.2, the daily amount available to be drawn under any
Letter of Credit or Pooled Letter of Credit shall be determined as of the close
of business on any date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (i)(b) or (ii)(b) of this
subsection 3.2, Administrative Agent shall distribute to each Revolving Lender
(or Pooled Facility Lender, in the case of a Pooled Letter of Credit) its Pro
Rata Share of such amount. The foregoing fees payable in respect of Pooled
Letters of Credit shall be in lieu of any fees payable under the terms of the
Pooled Facility Documents based on the amount of any outstanding letters of
credit thereunder.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
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A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in compliance with the terms
and conditions of such Letter of Credit.
B. Reimbursement by Borrowers of Amounts Paid Under Letters of
Credit. In the event an Issuing Lender has determined to honor a drawing under a
Letter of Credit issued by it, such Issuing Lender shall immediately notify
Borrowers and Borrowers shall (subject to the provisions of the Intercreditor
Agreement) reimburse such Issuing Lender on or before the Business Day
immediately following the date on which such drawing is honored (the
"Reimbursement Date") in an amount in Dollars and in same day funds equal to the
amount of such payment; provided that, anything contained in this Agreement to
the contrary notwithstanding, (i) unless Borrowers shall have notified
Administrative Agent and Issuing Lender prior to 10:00 A.M. (New York City time)
on the date such drawing is honored that Borrowers intend to reimburse such
Issuing Lender for the amount of such payment with funds other than the proceeds
of Revolving Loans, Borrowers shall be deemed to have given a timely Notice of
Borrowing to Administrative Agent requesting Revolving Lenders to make Revolving
Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars
equal to the amount of such payment and (ii) subject to satisfaction or waiver
of the conditions specified in subsection 4.2C, Revolving Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount
of such payment, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Issuing Lender for the amount of such
payment; and provided, further that if for any reason proceeds of Revolving
Loans are not received by such Issuing Lender on the Reimbursement Date in an
amount equal to the amount of such payment, Borrowers shall (subject to the
provisions of the Intercreditor Agreement) reimburse such Issuing Lender, on
demand, in an amount in same day funds equal to the excess of the amount of such
payment over the aggregate amount of such Revolving Loans, if any, which are so
received. Nothing in this subsection 3.3B shall be deemed to relieve any
Revolving Lender from its obligation to make Revolving Loans on the terms and
conditions set forth in this Agreement, and Borrowers shall retain any and all
rights they may have against any Revolving Lender resulting from the failure of
such Revolving Lender to make such Revolving Loans under this subsection 3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of
Credit.
(i) Payment by Revolving Lenders. In the event that Borrowers shall
fail for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount equal to the amount of any payment by such
Issuing Lender under a Letter of Credit issued by it, whether from the
proceeds of a Revolving Loan or otherwise, such Issuing Lender shall
promptly notify Administrative Agent of the unreimbursed amount of such
drawing and upon receipt of such notice, Administrative Agent shall
promptly notify each Revolving Lender (other than such Issuing Lender) of
such unreimbursed amount and of such Revolving Lender's respective
participation therein based on such Revolving Lender's Pro Rata Share;
provided that no Revolving Lender's funding of its participation in any
such drawing shall exceed its Pro Rata Share of the amount of such drawing,
and the aggregate principal amount of all participations funded by a
Revolving Lender with respect to Letters of Credit shall in no event exceed
the amount of such Lender's Revolving Loan Commitment minus the principal
amount of such Lender's outstanding Revolving Loans. Each Revolving Lender
shall make available to such Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 12:00 Noon
(New York City time) on the first Business Day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by Administrative Agent. In the event that any Revolving
Lender fails to make available to such Issuing Lender on such business day
the amount of such Revolving Lender's participation in such Letter of
Credit as provided in this subsection 3.3C, such Issuing Lender shall be
entitled to recover such amount on demand from such Revolving Lender
together with interest thereon at the rate customarily used by such Issuing
Lender for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. Nothing in this subsection 3.3C shall be
deemed to prejudice the right of any Revolving Lender to recover from any
Issuing Lender any amounts made available by such Revolving Lender to such
Issuing Lender pursuant to this subsection 3.3C in the event that it is
determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Revolving Lender constituted
gross negligence or willful misconduct on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Borrowers. In the event any Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of any payment by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall deliver to Administrative Agent for
distribution to any other Revolving Lender that has paid all amounts
payable by it under subsection 3.3C(i) with respect to such payment such
other Lender's Pro Rata Share of all payments subsequently received by such
Issuing Lender from Borrowers in reimbursement of such payment under the
Letter of Credit when such payments are received. Any such distribution
shall be made to a Revolving Lender at its primary address set forth below
its name on the appropriate signature page hereof or at such other address
as such Revolving Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Borrowers agree to pay to each
Issuing Lender, with respect to payments under any Letters of Credit issued
by it, interest on the amount paid by such Issuing Lender in respect of
each such payment from the date a drawing is honored to but excluding the
date such amount is reimbursed by Borrowers (including, in the case of
Letters of Credit, any such reimbursement out of the proceeds of Revolving
Loans pursuant to subsection 3.3B) at a rate equal to (a) for the period
from the date such drawing is honored to but excluding the Reimbursement
Date, the rate then in effect under this Agreement with respect to
Revolving Loans that are Base Rate Loans and (b) thereafter, a rate which
is 2% per annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Revolving Loans that are Base Rate Loans.
Interest payable pursuant to this subsection 3.3D(i) shall be computed on
the basis of a 360-day year, for the actual number of days elapsed in the
period during which it accrues and shall be payable on demand or, if no
demand is made, on the date on which the related drawing under a Letter of
Credit is reimbursed in full. All payments by Borrowers in respect of
payments made by an Issuing Lender under a Letter of Credit issued by it
shall include payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments shall be applied to the payment of
interest before application to principal.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a payment under a Letter of Credit
issued by it, (a) such Issuing Lender shall distribute to Administrative
Agent for distribution to each other Revolving Lender, out of the interest
received by such Issuing Lender in respect of the period from the date such
drawing is honored to but excluding the date on which such Issuing Lender
is reimbursed for the amount of such payment (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B), the amount that such other Revolving Lender would have been entitled
to receive in respect of the letter of credit fee that would have been
payable in respect of such Letter of Credit for such period pursuant to
subsection 3.2 if no drawing had been honored under such Letter of Credit,
and (b) in the event such Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of such payment, such Issuing Lender shall distribute to
Administrative Agent for distribution to each other Revolving Lender that
has paid all amounts payable by it under subsection 3.3C(i) with respect to
such payment such other Revolving Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such payment
so reimbursed by other Revolving Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Revolving Lenders to
but excluding the date on which such portion of such payment is reimbursed
by Borrowers. Any such distribution shall be made to a Revolving Lender at
its primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Revolving Lender may request.
3.4 Obligations Absolute.
--------------------
The obligation of Borrowers to reimburse each Issuing Lender for
payments under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
any Borrower or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Revolving Lender, against any Borrower, whether
in connection with this Agreement, the transactions contemplated herein or
any unrelated transaction (including any underlying transaction between any
Borrower or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Financing Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 Indemnification; Nature of Issuing Lenders' Duties.
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A. Indemnification. In addition to amounts payable as provided in
subsection 2.9, Borrowers hereby jointly and severally agree to protect,
indemnify, pay and save harmless each Issuing Lender from and against any and
all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of outside counsel and
allocated costs of internal counsel) which such Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit by such Issuing Lender, other than as a result of (a) the gross
negligence or willful misconduct of such Issuing Lender as determined by a final
judgment of a court of competent jurisdiction or (b) subject to the following
clause (ii), the wrongful dishonor by such Issuing Lender of a proper demand for
payment made under any Letter of Credit issued by it or (ii) the failure of such
Issuing Lender to honor a drawing under any such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto Government Authority.
B. Nature of Issuing Lenders' Duties. As between Borrowers and any
Issuing Lender, Borrowers assume all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any act or omission by a Government
Authority specified in subsection 3.5A, and none of the above shall affect or
impair, or prevent the vesting of, any of such Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to any Borrower.
Notwithstanding anything to the contrary contained in this subsection
3.5, Borrowers shall retain any and all rights they may have against any Issuing
Lender for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Withdrawals from the Cash Collateral Account.
--------------------------------------------
Borrowers may make withdrawals from the Cash Collateral Account for
any purpose not prohibited by this Agreement, in any amount up to and including
the aggregate amount of funds in such Cash Collateral Account, provided that the
conditions of subsection 4.4 have been satisfied or waived by Requisite Lenders,
and provided further, that amounts withdrawn from the Cash Collateral Account
shall be applied to amounts then due and owing from Borrowers under the
Intercreditor Agreement, to the full extent thereof, prior to any application of
such amounts to any other purpose. Whenever Borrowers desire to make a
withdrawal from the Cash Collateral Account they shall deliver to Administrative
Agent a Notice of Withdrawal no later than 10:00 A.M. (New York City time) one
Business Day in advance of the proposed Withdrawal Date. In lieu of delivering a
Notice of Withdrawal, Borrowers may give Administrative Agent telephonic notice
by the required time of any proposed withdrawal under this subsection 3.6;z
provided that such notice shall be promptly confirmed in writing by delivery of
a Notice of Withdrawal to Administrative Agent on or before the applicable
Withdrawal Date.
Neither Administrative Agent nor any Lender shall incur any liability
to any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an Officer of
a Borrower or for otherwise acting in good faith under this subsection 3.6.
Borrowers shall notify Administrative Agent prior to a withdrawal
from the Cash Collateral Account in the event that any of the matters to which
Borrowers are required to certify in the applicable Notice of Withdrawal is no
longer true and correct as of the applicable Withdrawal Date, and the withdrawal
by Borrowers of funds from the Cash Collateral Account shall constitute a
re-certification by Borrowers, as of the applicable Withdrawal Date, as to the
matters to which Borrowers are required to certify in the applicable Notice of
Withdrawal.
Upon satisfaction or waiver of the conditions precedent specified in
subsection 4.4, Administrative Agent shall authorize the financial institution
where the Cash Collateral Account is maintained to make funds available on the
applicable Withdrawal Date by causing an amount of same day funds in Dollars
equal to the amount requested in the applicable Notice of Withdrawal to be
transferred from the Cash Collateral Account to be credited to such account of
Borrowers in the Cash Management System as Company shall specify.
Section 4. CONDITIONS TO LOANS, LETTERS OF CREDIT, AND WITHDRAWALS
FROM THE CASH COLLATERAL ACCOUNT
The obligations of (i) Pooled Facility Lenders to participate in the
Pooled Letters of Credit and Existing Pooled Facility Loans, (ii) Revolving
Lenders to make Revolving Loans and to issue Letters of Credit hereunder, (iii)
Opt-Out Lenders to agree to the terms of the Loan Documents, and (iv) Lenders to
allow withdrawals from the Cash Collateral Account, are subject to the
satisfaction of the following conditions.
4.1 Conditions to Pooled Facility Participation.
-------------------------------------------
The obligations of Pooled Facility Lenders to participate in the
Pooled Facility Letters of Credit and of Opt-Out Lenders to agree to the terms
of the Loan Documents are subject to prior or concurrent satisfaction of the
following conditions:
A. Loan Party Documents. On or before the Closing Date, Borrowers
shall, and shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Borrowers or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Copies of the Organizational Documents of such Person, certified
by the Secretary of State of its jurisdiction of organization or, if such
document is of a type that may not be so certified, certified by the
secretary or similar officer of the applicable Loan Party, together with a
good standing certificate from the Secretary of State of its jurisdiction
of organization and each other state in which such Person is qualified to
do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date prior to the Closing Date;
(ii) Resolutions of the Governing Body of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents
and any Replacement Letter of Credit to which it is a party, certified as
of the Closing Date by the secretary or similar officer of such Person as
being in full force and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of such
Person executing the Loan Documents and any Replacement Letter of Credit to
which it is a party;
(iv) Executed originals of the Loan Documents (other than foreign
pledge agreements) to which such Person is a party; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. Fees. Borrowers shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and Lenders, the fees
payable on the Closing Date referred to in subsection 2.5 and all reasonable and
documented costs and expenses (including legal fees, due diligence fees,
recordation expenses, other out-of-pocket expenses and taxes) incurred in
connection with the negotiation, preparation, recordation, execution and
completion of the Loan Documents and the transactions contemplated thereby and
any Replacement Letters of Credit.
C. Representations and Warranties; Performance of Agreements.
Borrowers shall have delivered to Administrative Agent an Officer's Certificate,
in form and substance satisfactory to Administrative Agent, to the effect that
the representations and warranties in Section 5 are true, correct and complete
in all material respects on and as of the Closing Date to the same extent as
though made on and as of that date (or, to the extent such representations and
warranties specifically relate to an earlier date, that such representations and
warranties were true, correct and complete in all material respects on and as of
such earlier date) and that Company shall have performed in all material
respects all agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before the Closing Date.
D. Financial Statements; Financial Projections. On or before the
Closing Date, Administrative Agent shall have received (i) (a) the audited
consolidated financial statements of Company and its Subsidiaries for the Fiscal
Year ended December 31, 1999 and (b) the unaudited consolidated financial
statements of Company and its Subsidiaries for the Fiscal Quarters ended March
31, 2000, June 30, 2000 and September 30, 2000, all in reasonable detail and
certified by the chief financial officer of Company that they fairly present, in
all material respects, the financial condition of Company and its Subsidiaries
as of the dates indicated and the results of their operations and their cash
flows for the periods indicated, subject to (in the case of unaudited financial
statements) changes resulting from audit and normal year-end adjustments; and
(ii) the Monthly Budget, in form and substance satisfactory to Lenders.
E. Opinions of Counsel to Loan Parties. Lenders shall have received
originally executed copies of one or more favorable written opinions of
Company's General Counsel, Company's Senior Vice President - Legal Affairs,
Cleary, Gottlieb, Steen & Hamilton and LeBoeuf, Lamb, Greene & McRae, counsel
for Loan Parties, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the Closing Date and setting
forth substantially the matters in the opinions designated in Exhibit VI annexed
hereto and as to such other matters as Administrative Agent acting on behalf of
Lenders may reasonably request (this Agreement constituting a written request by
Borrowers to such counsel to deliver such opinions to Lenders).
F. Assurances. On the Closing Date, Administrative Agent and Lenders
shall have received an Officer's Certificate dated the Closing Date,
substantially in the form of Exhibit VIII annexed hereto and with appropriate
attachments, demonstrating that, after giving effect to the consummation of the
transactions contemplated by the Loan Documents (including the Closing Date
Paydown), each Loan Party will be Solvent.
G. Necessary Governmental Authorizations and Consents. Borrowers
shall have obtained all Governmental Authorizations and all consents of other
Persons, in each case that are necessary or advisable in connection with the
transactions contemplated by the Loan Documents and the continued operation of
the business conducted by Company and its Subsidiaries in substantially the same
manner as conducted prior to the Closing Date. Each such Governmental
Authorization or consent shall be in full force and effect, except in a case
where the failure to obtain or maintain a Governmental Authorization or consent,
either individually or in the aggregate, should not reasonably be expected to
have a Material Adverse Effect.
H. Environmental Reports. Administrative Agent shall have received
reports and other information, in form, scope and substance satisfactory to
Administrative Agent, regarding environmental matters relating to the Real
Property Assets listed in Schedule 4.1J.
I. Security Interests in Personal and Mixed Property. To the extent
not otherwise satisfied pursuant to subsection 4.1J, Administrative Agent shall
have received evidence satisfactory to it that Loan Parties shall have taken or
caused to be taken all such actions, executed and delivered or caused to be
executed and delivered all such agreements, documents and instruments, and made
or caused to be made all such filings and recordings (other than the filing or
recording of items described in clauses (ii), (iii) and (iv) below) that may be
necessary or, in the opinion of Administrative Agent, desirable in order to
create in favor of Administrative Agent, for the benefit of Lenders and to the
extent required by the 9.25% Debenture Indenture, the holders of the 9.25%
Debentures, a valid and (upon such filing and recording) perfected First
Priority security interest in the entire personal and mixed property Collateral.
Such actions shall include the following:
(i) Stock Certificates and Instruments. Delivery to Administrative
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent) representing
all capital stock pledged pursuant to the Security Agreement and (b) all
promissory notes or other instruments (duly endorsed, where appropriate, in
a manner satisfactory to Administrative Agent) evidencing any Collateral;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
satisfactory to Administrative Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings which
may have been made with respect to any personal or mixed property of any
Loan Party, together with copies of all such filings disclosed by such
search, and (b) UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Liens permitted to remain outstanding
pursuant to the terms of this Agreement);
(iii) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Loan Party with respect
to all personal and mixed property Collateral of such Loan Party, for
filing in all jurisdictions as may be necessary or, in the opinion of
Administrative Agent, desirable to perfect the security interests created
in such Collateral pursuant to the Collateral Documents;
(iv) PTO Cover Sheets, Etc. Delivery to Administrative Agent of all
cover sheets or other documents or instruments required to be filed with
the PTO in order to create or perfect Liens in respect of any IP
Collateral; and
(v) Foreign Pledge Agreements. Execution and delivery to
Administrative Agent of foreign pledge agreements with respect to 65% of
the Capital Stock of all Foreign Subsidiaries which are Material
Subsidiaries and are owned directly by any Borrower (other than to the
extent (a) a pledge of such Capital Stock under the Collateral Documents
would constitute a material violation of (1) a valid and enforceable
Contractual Obligation in favor of a Person other than Company or any of
its Subsidiaries for which the required consents have not been obtained on
or prior the Closing Date or (2) applicable law affecting such Borrower or
such Foreign Subsidiary, or (b) Administrative Agent determines, in its
sole discretion, not to obtain such foreign pledge agreements on the
Closing Date) and the taking of all such other actions under the laws of
such jurisdictions as Administrative Agent may deem necessary or advisable
to perfect or otherwise protect the Liens purported to be created in such
Capital Stock under the Collateral Documents.
J. Closing Date Mortgages; Closing Date Mortgage Policies; Etc.
Administrative Agent shall have received from Company and each applicable
Subsidiary Guarantor:
(i) Closing Date Mortgages. Fully executed and notarized
Mortgages (each a "Closing Date Mortgage" and, collectively, the
"Closing Date Mortgages"), in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each
Real Property Asset listed in Schedule 4.1J annexed hereto (each a
"Closing Date Mortgaged Property" and, collectively, the "Closing Date
Mortgaged Properties");
(ii) Opinions of Local Counsel. An opinion of counsel (which
counsel shall be reasonably satisfactory to Administrative Agent) in
each state in which a Closing Date Mortgaged Property is located with
respect to the enforceability of the form(s) of Closing Date Mortgages
to be recorded in such state and such other matters as Administrative
Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Administrative Agent;
(iii) Title Insurance. (a) ALTA mortgagee title insurance
policies or unconditional commitments therefor (the "Closing Date
Mortgage Policies") issued by the Title Company with respect to the
Closing Date Mortgaged Properties listed in Part A of Schedule 4.1J
annexed hereto, in amounts not less than the respective amounts
designated therein with respect to any particular Closing Date
Mortgaged Properties, insuring fee simple title to, or a valid
leasehold interest in, each such Closing Date Mortgaged Property
vested in such Loan Party and assuring Administrative Agent that the
applicable Closing Date Mortgages create valid and enforceable First
Priority mortgage Liens on the respective Closing Date Mortgaged
Properties encumbered thereby, subject only to a standard survey
exception, which Closing Date Mortgage Policies (1) shall include an
endorsement for mechanics' liens, for future advances under this
Agreement and for any other matters reasonably requested by
Administrative Agent and (2) shall provide for affirmative insurance
and such reinsurance as Administrative Agent may reasonably request,
all of the foregoing in form and substance reasonably satisfactory to
Administrative Agent; and (b) evidence satisfactory to Administrative
Agent that such Loan Party has (i) delivered to the Title Company all
certificates and affidavits required by the Title Company in
connection with the issuance of the Closing Date Mortgage Policies and
(ii) paid to the Title Company or to the appropriate governmental
authorities all expenses and premiums of the Title Company in
connection with the issuance of the Closing Date Mortgage Policies and
all recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the Closing
Date Mortgages in the appropriate real estate records;
(iv) Title Reports. With respect to each Closing Date Mortgaged
Property listed in Part B of Schedule 4.1J annexed hereto, a title
report issued by the Title Company with respect thereto, dated not
more than 30 days prior to the Closing Date and satisfactory in form
and substance to Administrative Agent;
(v) Copies of Documents Relating to Title Exceptions. Copies of
all recorded documents listed as exceptions to title or otherwise
referred to in the Closing Date Mortgage Policies or in the title
reports delivered pursuant to subsection 4.1J(iv); and
(vi) Matters Relating to Flood Hazard Properties. (a) Evidence,
which may be in the form of a letter from an insurance broker or a
municipal engineer, as to whether (1) any Closing Date Mortgaged
Property is a Flood Hazard Property and (2) the community in which any
such Flood Hazard Property is located is participating in the National
Flood Insurance Program, (b) if there are any such Flood Hazard
Properties, such Loan Party's written acknowledgement of receipt of
written notification from Administrative Agent (1) as to the existence
of each such Flood Hazard Property and (2) as to whether the community
in which each such Flood Hazard Property is located is participating
in the National Flood Insurance Program, and (c) in the event any such
Flood Hazard Property is located in a community that participates in
the National Flood Insurance Program, evidence that Company has
obtained flood insurance in respect of such Flood Hazard Property to
the extent required under the applicable regulations of the Board of
Governors of the Federal Reserve System.
K. Matters Relating to Existing Indebtedness of Company and its
Subsidiaries.
(i) Closing Date Paydown. On the Closing Date, Company and its
Subsidiaries shall have made the Closing Date Paydown, and the Closing
Date Paydown shall have been applied to the repayment in full and
termination of each of the Existing Pooled Loans.
(ii) Existing Indebtedness to Remain Outstanding. Administrative
Agent shall have received an Officer's Certificate of Company stating
that, after giving effect to the transactions described in this
subsection 4.1K, the Indebtedness of Company and its Subsidiaries
(other than Indebtedness under the Loan Documents) shall consist of
the Indebtedness described on Schedule 7.1 annexed hereto, the
Existing Project Debt, other Limited Recourse Debt permitted under
subsection 7.1(viii) and intercompany Indebtedness not prohibited
under subsection 7.1.
(iii) Replacement of Certain Existing Pooled Letters of Credit.
On the Closing Date, Company and its Subsidiaries shall have made
arrangements satisfactory to Agents with respect to the cancellation
and reissuance of any other existing Pooled Letters of Credit which,
in Agents' reasonable judgment, can be reissued with Administrative
Agent or Documentation Agent as the issuing lender in a timely manner
without undue expense or hardship, and without triggering a drawing
under any Pooled Letter of Credit or breaching underlying contracts.
Any such Replacement Letter of Credit issued in accordance with
subsection 2.1E shall be deemed a Pooled Letter of Credit and shall
have a final maturity date no later than the Maturity Date
L. Cash Collateral Account. Company shall have entered into
arrangements in form and substance satisfactory to Agents for the establishment
of the Cash Collateral Account.
M. Sale of Certain Aviation and Entertainment Assets. Any Net Asset
Sale Proceeds from the sale of Company's aviation and entertainment related
assets received prior to the Closing Date and not applied to the Closing Date
Paydown shall have been deposited in the Cash Collateral Account to be held as
Collateral for the Obligations hereunder and the Opt-Out Obligations.
N. Agreement Regarding Certain Obligations. Company and/or its
Subsidiaries shall have entered into (and Agents shall have received) one or
more binding agreements pursuant to which the GECC Credit Facilities and the
Sempra Credit Facilities and any Springing Letters of Credit heretofore required
thereunder shall have been restructured on the terms described in Schedule 4.1N
annexed hereto.
O. Amendment to Certain Documents. (i) The Closing Letter shall have
been executed and delivered by Borrowers to Administrative Agent and (ii) the
put agreements described more fully on Schedule 4.1O hereto in relation to the
Class A Palladium DPS Facility, the Class II preference shares of Senators
Finance Corporation II and the 10,000,000 Class B preference shares issued by
Palladium Finance Corporation II secured on the Closing Date by CDN$10,000,000
of cash collateral shall have been amended to provide that any obligation to pay
thereunder shall be satisfied to the extent of any payment made under the
applicable letter of credit supporting such payment obligation or from the
proceeds of the applicable foregoing cash collateral.
P. No Material Adverse Change. Agents shall be satisfied that there
has been no material adverse change since December 31, 1999 in the business,
property, assets, operations or financial condition of Company and its
Subsidiaries taken as a whole (except as previously disclosed prior to the
Closing Date in public filings or in writing to Lenders), and Company shall have
delivered to Agents an Officer's Certificate to the foregoing effect.
Q. Completion of Proceedings. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by Agents,
acting on behalf of Lenders, and their counsel shall be satisfactory in form and
substance to Agents and such counsel, and Agents and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
4.2 Conditions to All Revolving Loans.
---------------------------------
The obligations of Lenders to make Revolving Loans on each Funding
Date are subject to the following further conditions precedent:
A. The conditions described in subsection 4.1 shall have been
satisfied or waived in accordance with this Agreement.
B. Administrative Agent shall have received before that Funding Date,
in accordance with the provisions of subsection 2.2B, an originally executed
Notice of Borrowing, in each case signed by a duly authorized Officer of
Borrowers.
C. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default;
(iii) Each Loan Party shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain any Lender from making the
Revolving Loans to be made by it on that Funding Date;
(v) The aggregate amount on deposit in the Cash Management System in
the United States and the Cash Collateral Account shall not exceed
$10,000,000 (such amount, in any event, not to include amounts, if any,
required to be held in Deposit Accounts which are collateral accounts or
debt service reserve accounts described on Schedule 2.6A(iii)(e) annexed
hereto) plus the reserved amounts described in subsection 4.4B(v);
(vi) Company shall have delivered to Agents an Officer's Certificate
(together with such supporting calculations as Agents may reasonably
request) certifying that, before and after giving effect to the
contemplated application of amounts proposed to be borrowed, Company and
its Subsidiaries shall be in pro forma compliance with subsection 7.8; and
(vii) Except as set forth in Schedule 5.6 annexed hereto, there shall
be no Proceedings (whether or not purportedly on behalf of Company or any
of its Subsidiaries) at law or in equity, or before or by any court or
other Government Authority (including any Environmental Claims) that are
pending or threatened against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and
that, individually or in the aggregate, Administrative Agent or Requisite
Lenders reasonably expect to result in a Material Adverse Effect.
4.3 Conditions to Letters of Credit.
-------------------------------
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the conditions described in subsection 4.1 shall
have been satisfied or waived in accordance with this Agreement.
B. On or before the date of issuance of a Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Request for Issuance in each case
signed by a duly authorized Officer of Company, together with all other
information specified in subsection 3.1B(i) and such other documents or
information as the applicable Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2C (except subsection 4.2C(v)) shall be
satisfied to the same extent as if the issuance of such Letter of Credit were
the making of a Revolving Loan and the date of issuance of such Letter of Credit
were a Funding Date.
4.4 Conditions to Withdrawals from Cash Collateral Account.
------------------------------------------------------
The obligations of Lenders to permit withdrawals by the Company or
its Subsidiaries from the Cash Collateral Account on each Withdrawal Date are
subject to the following conditions precedent:
A. On or before the first Withdrawal Date, the conditions described
in subsection 4.1 shall have been satisfied or waived in accordance with this
Agreement.
B. Administrative Agent shall have received before that Withdrawal
Date, in accordance with the provisions of subsection 3.6, an originally
executed Notice of Withdrawal, in each case signed by a duly authorized Officer
of Borrowers.
C. As of that Withdrawal Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Withdrawal Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the withdrawal contemplated by such Notice of
Withdrawal that would constitute an Event of Default or a Potential Event
of Default, and Borrowers shall have delivered to Agents an Officer's
Certificate demonstrating, pursuant to calculations in reasonable detail,
that Borrowers are in compliance with each of the covenants in Section 7;
(iii) Each Loan Party shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before that Withdrawal Date;
(iv) The aggregate amount on deposit in the Cash Management System in
the United States shall not exceed $10,000,000 (such amount, in any event,
not to include amounts, if any, required to be held in Deposit Accounts
which are collateral accounts or debt service reserve accounts described on
Schedule 2.6A(iii)(e) annexed hereto);
(v) After giving effect to the withdrawal proposed on such date, the
amounts on deposit in the Cash Collateral Account shall not be less than
the amounts reserved in such Cash Collateral Account for the Balaji and
Haripur Projects as of the Closing Date, as reduced by any amounts applied
to make Investments in such Projects to the extent permitted under
subsection 7.3(vi);
(vi) Company shall have delivered to Agents an Officer's Certificate
(together with such supporting calculations as Agents may reasonably
request) certifying that, before and after giving effect to the
contemplated application of amounts proposed to be withdrawn from the Cash
Collateral Account, Company and its Subsidiaries shall be in pro forma
compliance with subsection 7.8; and
(vii) Except as set forth in Schedule 5.6 annexed hereto, there shall
be no Proceedings (whether or not purportedly on behalf of Company or any
of its Subsidiaries) at law or in equity, or before or by any court or
other Government Authority (including any Environmental Claims) that are
pending or threatened against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and
that, individually or in the aggregate, Administrative Agent or Requisite
Lenders reasonably expect to result in a Material Adverse Effect.
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Revolving Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce Revolving Lenders to purchase participations therein, Company represents
and warrants to each Lender, on the date of this Agreement, on each Funding
Date, on the date of issuance of each Letter of Credit or Replacement Letter of
Credit and on each Withdrawal Date, that the following statements are true,
correct and complete:
5.1 Organization, Powers, Qualification, Good Standing, Business and
----------------------------------------------------------------
Subsidiaries.
------------
A. Organization and Powers. Each Loan Party is a corporation,
partnership, trust or limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization as
specified in Schedule 5.1A annexed hereto. Each Loan Party has all requisite
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Financing
Documents and any Replacement Letters of Credit to which it is a party and to
carry out the transactions contemplated thereby.
B. Qualification and Good Standing. Each Loan Party is qualified to
do business and in good standing in each jurisdiction where necessary to carry
out its business and operations, except in jurisdictions where the failure to be
so qualified or in good standing has not had and could not reasonably be
expected to have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only
in the businesses permitted to be engaged in pursuant to subsection 7.12.
D. Subsidiaries. All of the Subsidiaries of Company are identified in
Schedule 5.1A annexed hereto, as said Schedule 5.1A may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xiv). The Capital
Stock of each of the Subsidiaries of Company identified in Schedule 5.1A annexed
hereto (as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable and none of such Capital Stock constitutes Margin Stock. Each of
the Subsidiaries of Company identified in Schedule 5.1A annexed hereto (as so
supplemented) is a corporation, partnership, trust or limited liability company
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization set forth therein, has all requisite
power and authority to own and operate its properties and to carry on its
business as now conducted and as proposed to be conducted, and is qualified to
do business and in good standing in every jurisdiction where necessary to carry
out its business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such power and authority has not had
and could not reasonably be expected to have a Material Adverse Effect. Schedule
5.1A annexed hereto (as so supplemented) correctly sets forth, the ownership
interest of Company and each of its Subsidiaries in each of the Subsidiaries of
Company identified therein.
5.2 Authorization of Borrowing, etc.
-------------------------------
A. Authorization of Borrowing. The execution, delivery and
performance of the Financing Documents have been duly authorized by all
necessary action on the part of each Loan Party that is a party thereto.
B. No Conflict. The execution, delivery and performance by Loan
Parties of the Financing Documents and any Replacement Letters of Credit to
which they are parties and the consummation of the transactions contemplated by
the Financing Documents do not and will not (i) violate any provision of any law
or governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Organizational Documents of Company or any of its Subsidiaries
or any order, judgment or decree of any court or other agency of government
binding on Company or any of its Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Company or any of its Subsidiaries, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of Company or any of its Subsidiaries (other than any Liens
(a) in existence on the Closing Date and permitted hereunder or (b) created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders and, to the extent required by the 9.25% Debenture Indenture, the
holders of the 9.25% Debentures), or (iv) require any approval of stockholders
or any approval or consent of any Person under any Contractual Obligation of
Company or any of its Subsidiaries, except for such approvals or consents which
will be obtained on or before the Closing Date and disclosed in writing to
Lenders.
C. Governmental Consents. The execution, delivery and performance by
Loan Parties of the Financing Documents and any Replacement Letters of Credit to
which they are parties and the consummation of the transactions contemplated by
the Loan Documents do not and will not require any Governmental Authorization
except those which have been obtained.
D. Binding Obligation. Each of the Financing Documents and
Replacement Letters of Credit has been duly executed and delivered by each Loan
Party that is a party thereto and is the legally valid and binding obligation of
such Loan Party, enforceable against such Loan Party in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally and general principles of equity.
5.3 Financial Condition.
-------------------
Company has heretofore delivered to Lenders, at Lenders' request, the
financial statements and information described in subsection 4.1D. All such
statements were prepared in conformity with GAAP and fairly present, in all
material respects, the financial position (on a consolidated and, where
applicable, consolidating basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated and, where applicable, consolidating basis) of the
entities described therein for each of the periods then ended, subject, in the
case of any such unaudited financial statements, to changes resulting from audit
and normal year-end adjustments. No Loan Party has, as of the Closing Date, any
Contingent Obligation, contingent liability or unusual long-term commitment that
is not reflected in the foregoing financial statements or the notes thereto and,
as of any Funding Date subsequent to the Closing Date, is not reflected in the
most recent financial statements delivered to Lenders pursuant to subsection 6.1
or the notes thereto (other than those liabilities reflected on the Schedules to
this Agreement) and that, in any such case, is material in relation to the
business, operations, properties, assets or financial condition of Company or
any of its Subsidiaries taken as a whole.
5.4 No Material Adverse Change; No Restricted Payments.
--------------------------------------------------
Since December 31, 1999, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect except as previously disclosed in public filings or in writing to
Lenders. Since December 31, 1999, neither Company nor any of its Subsidiaries
has directly or indirectly declared, ordered, paid or made, or set apart any sum
or property for, any Restricted Payment or agreed to do so except (i) as
permitted by subsection 7.5, (ii) as would have been permitted by subsection 7.5
had it been in effect on and after December 31, 1999 and (iii) for those
payments made prior to the Closing Date set forth on Schedule 7.5 annexed
hereto.
5.5 Title to Properties; Liens; Real Property; Intellectual Property.
----------------------------------------------------------------
A. Title to Properties; Liens. Company and its Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property), all of their respective material properties and assets
reflected in the financial statements referred to in subsection 5.3 or in the
most recent financial statements delivered pursuant to subsection 6.1, in each
case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under subsection
7.7. Except as permitted by this Agreement, all such properties and assets are
free and clear of Liens.
B. Real Property. As of the Closing Date, Schedule 5.5B annexed
hereto contains a true, accurate and complete list of (i) all fee interests in
any Real Property Assets and (ii) all leases, subleases or assignments of leases
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Property Asset, regardless of
whether a Loan Party is the landlord or tenant (whether directly or as an
assignee or successor in interest) under such lease, sublease or assignment.
Except as specified in Schedule 5.5B annexed hereto, each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and effect
and Company does not have knowledge of any material default that has occurred
and is continuing thereunder, and each such agreement constitutes the legally
valid and binding obligation of each applicable Loan Party, enforceable against
such Loan Party in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally and by general principles of
equity.
C. Intellectual Property. As of the Closing Date, Schedule 5.5C
annexed hereto contains a true, accurate and complete list of all material
Intellectual Property. Each of Company and its Subsidiaries owns or has the
right to use all material Intellectual Property used in the conduct of its
business, and none of such Intellectual Property conflicts with a right of any
other Person to the extent such conflict could reasonably be expect to result in
a Material Adverse Effect.
5.6 Litigation; Adverse Facts.
-------------------------
Except as set forth in Schedule 5.6 annexed hereto, there are no
Proceedings (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any court or other Government
Authority (including any Environmental Claims) that are pending or, to the
knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or other Government Authority, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
5.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all material tax
returns and reports of Company and its Subsidiaries required to be filed by any
of them have been timely filed, and all taxes shown on such tax returns to be
due and payable and all assessments, fees and other governmental charges upon
Company and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises that are due and payable have been paid when
due and payable. Company knows of no material proposed tax assessment against
Company or any of its Subsidiaries that is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements; Material
------------------------------------------------------------------
Contracts.
---------
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
C. Schedule 5.8 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date. Except as described on
Schedule 5.8, all such Material Contracts are in full force and effect and no
material defaults currently exist thereunder after giving effect to this
Agreement.
5.9 Governmental Regulation.
-----------------------
Neither Company nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act
(except that Persons owning facilities which (1) are "qualifying small power
production facilities" within the meaning of PURPA, (2) use biomass as their
primary energy source and (3) have a net power production capacity in excess of
thirty megawatts, are subject to regulation under the Federal Power Act), the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 Securities Activities.
---------------------
A. Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Revolving Loan, not
more than 25% of the value of the assets (either of Company only or of Company
and its Subsidiaries on a consolidated basis) subject to the provisions of
subsection 7.2 or 7.7 or subject to any restriction contained in any agreement
or instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 Employee Benefit Plans.
----------------------
A. Company, each of its Subsidiaries and, with respect to Pension
Plans and Multiemployer Plans, each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan. Each Employee Benefit Plan that is intended to qualify
under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service to such effect and no
event has occurred since the date of such determination letter (other than the
enactment of legislation for which the remedial amendment period has not
expired) that would reasonably be expected to affect adversely such Plan's
qualification.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code or except as set forth in Schedule 5.11 annexed hereto or in the
financial statements delivered to Lenders pursuant to subsection 4.1 or 6.1
hereof, as applicable, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of Company or any of its Subsidiaries.
D. As of the most recent valuation date for the Pension Plans, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA) but determined on the basis of the actuarial assumptions used for funding
purposes with respect to such Pension Plan, individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), does not exceed
$5,000,000.
E. As of the most recent valuation date for each Multiemployer Plan
for which the actuarial report (or an estimate provided pursuant to Section
4221(e) of ERISA) is reasonably available to Company, the potential withdrawal
liability of Company, its Subsidiaries and their respective ERISA Affiliates for
a complete withdrawal from such Multiemployer Plan (within the meaning of
Section 4203 of ERISA), when aggregated with the potential liability for a
complete withdrawal from all other Multiemployer Plans for which such actuarial
report (or an estimate provided pursuant to Section 4221(e) of ERISA) is
reasonably available to Company, based on the information contained in such
reports, would not reasonably be expected to exceed $5,000,000.
F. Neither Company nor any Subsidiary has incurred or is reasonably
expected to incur any material liability pursuant to Title IV of ERISA with
respect to any employee benefit plan of an entity that was formerly an ERISA
Affiliate of Company or any of its Subsidiaries or with respect to any employee
benefit plan that was previously maintained by Company or any of its
Subsidiaries.
5.12 Certain Fees.
------------
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby other
than fees paid to the Gordian Group as previously disclosed to the Lenders, and
Company hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 Environmental Protection.
------------------------
A. Except as set forth in Schedule 5.13 annexed hereto, neither
Company nor any of its Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to (a) any Environmental Law, (b)
any Environmental Claim, or (c) any Hazardous Materials Activity that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose liability on any Lender or Agent;
B. Except as set forth in Schedule 5.13 annexed hereto, neither
Company nor any of its Subsidiaries has received any letter or request for
information under Section 104 of CERCLA or any comparable state law regarding
any condition, occurrence or activity that could reasonably be expected to form
the basis of an Environmental Claim against Company or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose liability on any Lender or Agent;
C. Except as set forth in Schedule 5.13 annexed hereto, there are
and, to Company's knowledge, have been no conditions, occurrences, or Hazardous
Materials Activities that could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose liability on any Lender or Agent;
D. Except as set forth in Schedule 5.13 annexed hereto, (i) neither
Company nor any of its Subsidiaries nor, to Company's knowledge, any predecessor
of Company or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous Materials at
any Facility, (ii) none of Company's or any of its Subsidiaries' Facilities
constitute facilities for the treatment, storage or disposal of Hazardous
Materials under RCRA or any state equivalent, and (iii) none of Company's or any
of its Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste in violation of RCRA or any
state equivalent that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or impose liability on any Lender or
Agent; and
E. Compliance with all current requirements pursuant to or under
Environmental Laws would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect or impose liability on any Lender or
Agent.
5.14 Employee Matters.
----------------
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 Solvency.
--------
Loan Parties taken as a whole are and, upon the incurrence of any
Obligations by any Loan Party on any date on which this representation is made,
will be, Solvent.
5.16 Matters Relating to Collateral.
------------------------------
A. Creation, Perfection and Priority of Liens. The execution and
delivery of the Collateral Documents by Loan Parties, together with (i) the
actions taken on or prior to the date hereof pursuant to subsections 4.1I, 4.1J,
6.8 and 6.9 and (ii) the delivery to Administrative Agent of any Pledged
Collateral not delivered to Administrative Agent at the time of execution and
delivery of the applicable Collateral Document (all of which Pledged Collateral
has been so delivered) are effective to create in favor of Administrative Agent
for the benefit of Lenders and to the extent such Pledged Collateral is Shared
Collateral, for the holders of the 9.25% Debentures, as security for the
respective Secured Obligations, a valid and perfected First Priority Lien on all
of the Collateral, and all filings and other actions necessary or desirable to
perfect and maintain the perfection and First Priority status of such Liens have
been duly made or taken and remain in full force and effect, other than the
filing of any UCC financing statements delivered to Administrative Agent for
filing (but not yet filed) and the periodic filing of UCC continuation
statements in respect of UCC financing statements filed by or on behalf of
Administrative Agent.
B. Governmental Authorizations. No authorization, approval or other
action by, and no notice to or filing with, any Government Authority is required
for either (i) the pledge or grant by any Loan Party of the Liens purported to
be created in favor of Administrative Agent pursuant to any of the Collateral
Documents or (ii) the exercise by Administrative Agent of any rights or remedies
in respect of any Collateral (whether specifically granted or created pursuant
to any of the Collateral Documents or created or provided for by applicable
law), except (a) for filings or recordings contemplated by subsection 5.16A, (b)
as may be required in connection with the disposition of any Pledged Collateral
by laws generally affecting the offering and sale of securities, and (c)
authorizations and approvals in respect of the exercise of rights or remedies as
to any collateral of any Subsidiary which is subject to regulation under the
Federal Power Act pursuant to Section 210(e)(2) of PURPA.
C. Absence of Third-Party Filings. Except such as may have been filed
in favor of Administrative Agent as contemplated by subsection 5.16A and to
evidence Liens permitted pursuant to subsection 7.2, (i) no effective UCC
financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any filing or recording
office and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO.
D. Margin Regulations. The pledge of the Pledged Collateral pursuant
to the Collateral Documents does not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
E. Information Regarding Collateral. All written information supplied
to Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 Disclosure.
----------
No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement, except to the extent such document, certificate or written statement
has been superseded or corrected prior to the date hereof, contains any untrue
statement of a material fact or omits to state a material fact (known to
Company, in the case of any document not furnished by it) necessary in order to
make the statements contained herein or therein not misleading in any material
respect in light of the circumstances in which the same were made. Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are subject to significant business, economic,
regulatory and competitive uncertainties and contingencies, and, accordingly, no
assurances are given and no representations or warranties are made by the
Company or any of its Subsidiaries that any of the estimates and assumptions are
correct, that the projections will be achieved or that the forward looking
statements expressed in such information will correspond to actual results.
There are no facts known (or which should upon the reasonable exercise of
diligence be known) to Company (other than matters of a general economic nature)
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect and that have not been disclosed herein or in such
other documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
5.18 Subordinated Indebtedness.
-------------------------
The Obligations and the Opt-Out Obligations constitute senior
indebtedness that is entitled to the benefits of the subordination provisions of
the Convertible Subordinated Debentures.
5.19 Commitments Under Pooled Facility Documents.
--------------------------------------------
As of the Closing Date, the aggregate outstanding amount of each
Existing Pooled Loan and the maximum aggregate amount that can be drawn at any
time under each Pooled Letter of Credit is as set forth on Schedule 1.1(c). On
and after the Closing Date, except for (i) the obligation of any Issuing Lender
to honor drawings under any Pooled Letter of Credit on the terms set forth
herein and in such Pooled Letter of Credit and (ii) the obligations of Pooled
Facility Lenders to fund their respective Pooled Facility L/C Participations to
such Issuing Lender for any such drawing that is so honored on the terms set
forth herein, there are no commitments to lend any amounts to any Borrower or
any of its Subsidiaries or to otherwise extend additional credit to any Borrower
or any of its Subsidiaries under the Pooled Facility Documents (it being
understood that the Revolving Loan Commitments are not to be deemed included in
the Pooled Facility Documents); provided that it shall not be a breach of this
subsection 5.19 if Company and/or any of its Subsidiaries enters into a
transaction permitted under the last sentence of subsection 7.15. Borrowers
hereby agree to take all actions necessary to ensure that the representations
and warranties contained in this subsection 5.19 are true and correct as of the
Closing Date and at all times on and after the Closing Date, as applicable.
5.20 Matters Relating to Loan Parties.
--------------------------------
A. Loan Parties. Neither Company nor any of its Subsidiaries owns any
interest in any Domestic Subsidiary which is neither a Borrower nor a Subsidiary
Guarantor (other than Excluded Subsidiaries).
B. Shell Subsidiaries. Each Shell Subsidiary has no material assets
and is not engaged in any business.
C. Domestic Subsidiary Assets. Each Domestic Subsidiary which is a
Loan Party has granted a Lien in favor of Administrative Agent on substantially
all of its property pursuant to the Collateral Documents except for such
Domestic Subsidiaries (i) which have granted a Lien permitted under subsection
7.2A on all or substantially all of such property to secure Indebtedness
permitted under subsection 7.1, or (ii) with respect to which the grant of such
a Lien would constitute a material violation of (a) a valid and enforceable
Contractual Obligation in favor of or for the benefit of a Person other than
Company or any of its Subsidiaries and their respective Affiliates for which the
required consents have not been obtained or (b) applicable law affecting such
Loan Party.
D. Domestic Subsidiary Capital Stock. The Capital Stock of each
Domestic Subsidiary which is directly owned by any Loan Party has been pledged
to Administrative Agent pursuant to the Collateral Documents except for the
Capital Stock of those Domestic Subsidiaries (i) which is subject to a Lien
permitted under subsection 7.2A securing Indebtedness permitted under subsection
7.1, or (ii) the pledge of which would constitute a material violation of (a) a
valid and enforceable Contractual Obligation in favor of or for the benefit of a
Person other than Company or any of its Subsidiaries and their respective
Affiliates for which the required consents have not been obtained or (b)
applicable law affecting such Loan Party or such Domestic Subsidiary.
E. Foreign Subsidiary Capital Stock. 65% of the Capital Stock of each
Foreign Subsidiary which is a Material Subsidiary and is directly owned by Loan
Parties (or such lesser percentage as is owned by Loan Parties) has been pledged
to Administrative Agent pursuant to the Collateral Documents except for the
Capital Stock of those Foreign Subsidiaries the pledge of which would constitute
a material violation of (a) a valid and enforceable Contractual Obligation in
favor of or for the benefit of a Person other than Company or any of its
Subsidiaries and their respective Affiliates for which the required consents
have not been obtained or (b) applicable law affecting such Loan Party or such
Foreign Subsidiary.
Notwithstanding the foregoing, the failure to grant a Lien after the
Closing Date on assets of Company and its Subsidiaries or to pledge Capital
Stock of a Subsidiary shall not constitute a breach of the representations and
warranties contained in subsections 5.20C, 5.20D and 5.20E above on any date
after the Closing Date if, at the time of the making of such representation or
warranty on any such date, Borrowers are not otherwise in default of their
obligations under subsection 6.8 and have commenced and are diligently pursuing
appropriate actions to create such Lien or pledge to the extent such Lien or
pledge is required under such subsection; provided, however, that nothing in
this sentence shall be construed as waiving any of the conditions contained in
subsection 4.1; and provided further, that if on any Funding Date, any date of
issuance of a Letter of Credit or the date of any withdrawal from the Cash
Collateral Account, Borrowers are relying on this paragraph in certifying that
the representations and warranties in this Agreement are true, correct and
complete, then Borrowers shall so specify in the applicable Officer's
Certificate, Notice of Borrowing, Request for Issuance of Letter of Credit or
Notice of Conversion/Continuation delivered pursuant to subsection 4.2B, 4.3B,
4.4B or 2.4D, as the case may be, and shall provide a description in reasonable
detail of the circumstances on which such reliance is based.
5.21 Identified Investment Spending.
------------------------------
From the date of effectiveness of Amendment No. 3 to the Bank of New
York Credit Agreement to the Closing Date, Company and its Subsidiaries made no
expenditures and incurred no obligations which would, in either case, constitute
Invested Amounts with respect to any Projects or proposed Projects which are not
identified on Schedule 7.3(vi) and for which financial closing did not occur
prior to the Closing Date.
Section 6. COMPANY'S AFFIRMATIVE COVENANTS
6.1 Financial Statements and Other Reports.
--------------------------------------
Borrowers will maintain, and cause each of their respective
Subsidiaries to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. Borrowers will deliver to Administrative
Agent:
(i) Events of Default, etc.: promptly upon any Officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential Event
of Default, (b) that any Person has given any notice to Company or any of
its Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in subsection 8.2,
(c) of any condition or event that would be required to be disclosed in a
current report filed by Company with the Securities and Exchange Commission
on Form 8-K if Company were required to file such reports under the
Exchange Act, or (d) of the occurrence of any event or change that has
caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect, an Officer's Certificate specifying the nature and period
of existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition,
and what action Company has taken, is taking and proposes to take with
respect thereto;
(ii) Monthly Financials: as soon as available and in any event within
20 days after the end of each month a consolidated cash report showing
actual cash usage and cash receipts of Company and its Subsidiaries for
such month and for the period from the beginning of the then current Fiscal
Year to the end of such month, all in substantially the form of the Monthly
Budget and certified by the chief financial officer of Company that they
accurately present, in all material respects, Company and its Subsidiaries'
cash usage and cash receipts for the periods indicated;
(iii) Quarterly Financials: as soon as available and in any event
within 60 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, the consolidated balance sheet of Company and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statement of income of Company and its Subsidiaries for such
Fiscal Quarter and the related consolidated statements of stockholders'
equity and cash flows of Company and its Subsidiaries for the period from
the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all in
reasonable detail and certified by the chief financial officer of Company
that they fairly present, in all material respects, the financial condition
of Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated, subject
to changes resulting from audit and normal year-end adjustments; provided,
however, that so long as Company files a quarterly report on Form 10Q with
the Securities and Exchange Commission for any Fiscal Quarter, Borrowers
shall be required to deliver a copy of such quarterly report in lieu of the
financial statements described in this subsection 6.1(iii).
(iv) Year-End Financials: as soon as available and in any event within
120 days after the end of each Fiscal Year, (a) the consolidated balance
sheet of Company and its Subsidiaries as at the end of such Fiscal Year and
the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, and (b) an
audit report thereon of Deloitte & Touche LLP or other independent
certified public accountants of recognized national standing selected by
Company and satisfactory to Administrative Agent, which report shall be
unqualified, shall express no doubts about the ability of Company and its
Subsidiaries to continue as a going concern, and shall state that in the
opinion of such certified public accountants such consolidated financial
statements fairly present, in all material respects, the consolidated
financial position of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated in conformity with GAAP and that the audit by such
accountants in connection with such consolidated financial statements has
been made in accordance with auditing standards generally accepted in the
United States of America; provided, however, that so long as Company files
an annual report on Form 10K with the Securities Exchange Commission,
Borrowers shall be required to deliver a copy of such annual report in lieu
of the financial statements described in clause (a).
(v) Compliance Certificates: together with each delivery of financial
statements of Company and its Subsidiaries pursuant to subdivisions (iii)
and (iv) above, (a) an Officer's Certificate of Company stating that the
signers have reviewed the terms of this Agreement and have made, or caused
to be made under their supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the
accounting period covered by such financial statements and that such review
has not disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the existence as at
the date of such Officer's Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default, or, if any
such condition or event existed or exists, specifying the nature and period
of existence thereof and what action Company has taken, is taking and
proposes to take with respect thereto; and (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of the
applicable accounting periods with the restrictions contained in Section 7,
in each case to the extent compliance with such restrictions is required to
be tested at the end of the applicable accounting period;
(vi) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to subdivisions (iii) or (iv) of this subsection 6.1 will differ
in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then (a) together with the
first delivery of financial statements pursuant to subdivision (iii) or
(iv) of this subsection 6.1 following such change, consolidated financial
statements of Company and its Subsidiaries for (y) the current Fiscal Year
to the effective date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such change is made, in each
case prepared on a pro forma basis as if such change had been in effect
during such periods, and (b) together with each delivery of financial
statements pursuant to subdivision (iii) or (iv) of this subsection 6.1
following such change, if required pursuant to subsection 1.2, a written
statement of the chief accounting officer or chief financial officer of
Company setting forth the differences (including any differences that would
affect any calculations relating to the financial covenants set forth in
subsection 7.6) which would have resulted if such financial statements had
been prepared without giving effect to such change;
(vii) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (iv) above, a written statement by the independent certified
public accountants giving the report thereon stating whether, in connection
with their audit, any condition or event that constitutes an Event of
Default or Potential Event of Default has come to their attention and, if
such a condition or event has come to their attention, specifying the
nature and period of existence thereof; provided that such accountants
shall not be liable by reason of any failure to obtain knowledge of any
such Event of Default or Potential Event of Default that would not be
disclosed in the course of their audit;
(viii) Accountants' Reports: promptly upon request of an Agent (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management in
connection with their annual audit;
(ix) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders or by any Subsidiary of Company to its security holders
other than Company or another Subsidiary of Company, (b) all regular and
periodic reports and all registration statements (other than on Form S-8 or
a similar form) and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally by
Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries;
(x) Litigation or Other Proceedings: promptly upon any officer of
Company obtaining knowledge of (1) the institution of, or non-frivolous
threat of, any Proceeding against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries not
previously disclosed in writing by Company to Lenders or (2) any material
development in any Proceeding that, in the case of both clauses (1) and
(2):
(1) if adversely determined, has a reasonable possibility after
giving effect to the coverage and policy limits of insurance policies
issued to Company and its Subsidiaries of giving rise to a Material
Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of
or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Company, any of its Subsidiaries or any of
their respective ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened in
writing by the Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) all
notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (b) copies of such other documents or governmental reports
or filings relating to any Employee Benefit Plan as Administrative Agent
shall reasonably request;
(xiii) Insurance: as soon as practicable after any material change in
insurance coverage maintained by Company and its Subsidiaries notice
thereof to Administrative Agent specifying the changes and reasons
therefore;
(xiv) New Subsidiaries: promptly upon any Person becoming a Subsidiary
of Company, a written notice setting forth with respect to such Person (a)
the date on which such Person became a Subsidiary of Company and (b) all of
the data required to be set forth in Schedule 5.1A annexed hereto with
respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement Schedule 5.1A annexed hereto
for all purposes of this Agreement);
(xv) Material Contracts: promptly, and in any event within ten
Business Days after any Material Contract of Company or any of its
Subsidiaries is terminated or amended in a manner that is materially
adverse to Company or such Subsidiary, as the case may be, or any new
Material Contract is entered into, a written statement describing such
event with copies of such material amendments or new contracts, and an
explanation of any actions being taken with respect thereto;
(xvi) Pooled Facilities: promptly, and in any event within five
Business Days, after any request by a Pooled Facility Lender therefor,
copies of any certificates, reports or other documents delivered to Pooled
Facility Lenders with respect to a Pooled Facility;
(xvii) Material Events Concerning Pooled Facilities and Projects: as
soon as practicable after any Investments, any incurrence of Indebtedness
or Limited Recourse Indebtedness, or the creation of any additional
Subsidiaries in connection to a Pooled Facility or the Project to which
such Pooled Facility relates, notice thereof to Administrative Agent
specifying the event and causes thereof;
(xviii) Credit Rating: as soon as practicable after any change in
Company's long term unsecured debt rating by S&P or Moody's, notice thereof
to Administrative Agent specifying the changes and providing copies of any
related correspondence with such credit agency;
(xix) Company Investments: together with each delivery of monthly
financial statements in accordance with clause (ii) above, a written update
in reasonable detail of any Investment or any incurrence of any
Indebtedness, Lien, Contingent Obligation or Performance Guaranty in
respect of Projects which are of the types of Investments, Liens,
Indebtedness, Contingent Obligations and Performance Guaranties described
in subsections 7.1(v), 7.1(vii), 7.1(viii), 7.2A(v), 7.2A(vi), 7.3(vi),
7.3(vii), 7.3(xii), 7.4(iv), 7.4(vi) and 7.4(vii); and
(xx) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by any Agent or Requisite
Lenders (or by any Lender so long as such request is made through an Agent
(and Agents shall be required to request from Borrowers any such
information and data reasonably requested by a Lender)).
6.2 Existence, etc.
--------------
Except as permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its existence and all rights and franchises material to its business;
provided, however that neither Company nor any of its Subsidiaries shall be
required to preserve any such right or franchise if the management or Governing
Body of Company or such Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of the business of Company or such
Subsidiary, as the case may be, and the loss thereof could not reasonably be
expected to have a Material Adverse Effect.
6.3 Payment of Taxes and Claims; Tax .
---------------------------------
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any material penalty accrues thereon, and all claims
(including claims for labor, services, materials and supplies) for material sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such charge or claim
need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (i) such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor and (ii) in the case of a charge or claim
which has or may become a Lien against any of the Collateral, such proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such charge or claim.
B. Borrowers will not file or consent to the filing of any
consolidated income tax return with any Person (other than Company or any of its
Subsidiaries).
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/
-------------------------------------------------------------------
Condemnation Proceeds.
---------------------
A. Maintenance of Properties. Company will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof, except
that Company and its Subsidiaries shall not be required to perform the foregoing
obligations (i) with respect to Subsidiaries or assets to which Persons other
than Company and its Subsidiaries have recourse under Limited Recourse Debt owed
to such Persons or (ii) to the extent that failure to perform such obligations
would not reasonably be expected to have a Material Adverse Effect.
B. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained (i) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (ii) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts, with such deductibles, and covering such risks as are at all times
satisfactory to Administrative Agent in its commercially reasonable judgment.
Unless prohibited by contractual or other legal requirement, such policy of
insurance shall (a) name Administrative Agent for the benefit of Lenders as an
additional insured thereunder as its interests may appear and (b) in the case of
each business interruption and casualty insurance policy, contain a loss payable
clause or endorsement, satisfactory in form and substance to Administrative
Agent, that names Administrative Agent for the benefit of Lenders as the loss
payee thereunder for any covered loss in excess of $1,000,000 and provides for
at least 30 days prior written notice to Administrative Agent of any
modification or cancellation of such policy. As soon as practicable after the
Closing Date, Company shall deliver to Administrative Agent a certificate from
Borrowers' insurance broker(s) or other evidence satisfactory to it that all
insurance required to be maintained pursuant to this subsection 6.4 is in full
force and effect and that Administrative Agent on behalf of Lenders has been
named as additional insured and/or loss payee thereunder to the extent required
under this subsection 6.4.
C. Application of Net Insurance/Condemnation Proceeds.
(i) Business Interruption Insurance. Upon receipt by Company or any of
its Subsidiaries of any business interruption insurance proceeds
constituting Net Insurance/Condemnation Proceeds, (a) so long as no Event
of Default or Potential Event of Default shall have occurred and be
continuing, Company or such Subsidiary may retain and apply such Net
Insurance/Condemnation Proceeds for working capital purposes, and (b) if an
Event of Default or Potential Event of Default shall have occurred and be
continuing, Company shall apply an amount equal to such Net
Insurance/Condemnation Proceeds as provided in subsection 2.6A(iii)(b);
(ii) Net Insurance/Condemnation Proceeds Received by Company. Upon
receipt by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing, Company shall, or shall cause one or
more of its Subsidiaries to, promptly and diligently apply such Net
Insurance/Condemnation Proceeds to pay or reimburse the costs of repairing,
restoring or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received or, to the extent not so
applied, as provided in subsection 2.6A(iii)(b), and (b) if an Event of
Default or Potential Event of Default shall have occurred and be continuing
(unless Company is otherwise required to use funds by law or contract),
Company shall apply an amount equal to such Net Insurance/Condemnation
Proceeds as provided in subsection 2.6A(iii)(b).
(iii) Net Insurance/Condemnation Proceeds Received by Administrative
Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net Insurance/Condemnation
Proceeds (if it had received them directly) Administrative Agent shall, and
Company hereby authorizes Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds as provided in subsection 2.6A(iii)(b), and
(b) to the extent the foregoing clause (a) does not apply Administrative
Agent shall deliver such Net Insurance/Condemnation Proceeds to Company,
and Company shall, or shall cause one or more of its Subsidiaries to,
promptly apply such Net Insurance/Condemnation Proceeds to the costs of
repairing, restoring, or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received; provided, however that if at
any time Administrative Agent reasonably determine (A) that Company or such
Subsidiary is not proceeding diligently with such repair, restoration or
replacement or that such repair, restoration or replacement cannot be
completed within 180 days after the receipt by Administrative Agent of such
Net Insurance/Condemnation Proceeds, Administrative Agent shall, and
Company hereby authorizes Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds as provided in subsection 2.6A(iii)(b).
Notwithstanding the foregoing, no Net Insurance/Condemnation Proceeds
shall be required to be applied as provided in subsection 2.6A(iii)(b) to the
extent such application would constitute a material violation of (1) a valid and
enforceable Contractual Obligation (either in effect on the Closing Date or
arising under the documentation for Limited Recourse Debt permitted to be
incurred under this Agreement) in favor of or for the benefit of a Person other
than Company or any of its Subsidiaries or their respective Affiliates for which
the required consents have not been obtained or (2) applicable law affecting
Company and its Subsidiaries.
6.5 Inspection Rights; Lender Meeting.
--------------------------------
A. Inspection Rights. Borrowers shall, and shall cause each of their
respective Subsidiaries to, permit any authorized representatives designated by
any Lender to visit and inspect any of the properties of Borrowers or of any of
their Subsidiaries, to inspect, copy and take extracts from its and their
financial and accounting records, and to discuss its and their affairs, finances
and accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested.
B. Lender Meeting. Borrowers will, from time to time, upon the
reasonable prior request of Administrative Agent or Requisite Lenders,
participate in meetings of Administrative Agent and Lenders to be held at
Company's principal offices (or at such other location as may be agreed to by
Company and Administrative Agent) at reasonable times.
6.6 Compliance with Laws, etc.
------------------------
Borrowers shall comply, and shall cause each of their Subsidiaries to
comply, with the requirements of all applicable laws, rules, regulations and
orders of any Government Authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to cause, individually or
in the aggregate, a Material Adverse Effect.
6.7 Environmental Matters.
---------------------
A. Environmental Disclosure. Company will deliver to Administrative
Agent:
(i) Environmental Audits and Reports. As soon as practicable following
receipt thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character (excluding writings which are
protected by attorney-client privilege or the work-product doctrine or
confidential self-evaluative writings), whether prepared by personnel of
Company or any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant
environmental matters at any Facility that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect or impose liability on any Lender or Agent or with respect to any
Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect or impose
liability on any Lender or Agent;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon
the occurrence thereof, written notice describing in reasonable detail (a)
any Release required to be reported to any federal, state or local
governmental or regulatory agency under any applicable Environmental Laws
that could reasonably be expected to have a Material Adverse Effect or
impose liability on any Lender or Agent, (b) any remedial action taken by
Company or any other Person in response to (1) any Hazardous Materials
Activities the existence of which could reasonably be expected to result in
one or more Environmental Claims having, individually or in the aggregate,
a Material Adverse Effect or imposing liability on any Lender or Agent, or
(2) any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect or impose
liability on any Lender or Agent.
(iii) Written Communications Regarding Environmental Claims, Releases,
Etc. As soon as practicable following the sending or receipt thereof by
Company or any of its Subsidiaries, a copy of any and all written
communications (excluding writings which are protected by attorney-client
privilege or the work-product doctrine or confidential self-evaluative
writings), with respect to (a) the commencement or the threat to commence a
proceeding regarding any Environmental Claims that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect or impose liability on any Lender or Agent, (b) any Release required
to be reported to any federal, state or local governmental or regulatory
agency that could reasonably be expected to have a Material Adverse Effect
or impose liability on any Lender or Agent, and (c) any request for
information from any governmental agency that suggests such agency is
investigating whether Company or any of its Subsidiaries may be potentially
responsible for any Hazardous Materials Activity that could reasonably be
expected to have a Material Adverse Effect or impose liability on any
Lender or Agent.
(iv) Notice of Certain Proposed Actions Having Environmental Impact.
Prompt written notice describing in reasonable detail (a) any proposed
acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to (1) expose Company or any
of its Subsidiaries to, or result in, Environmental Claims that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or impose liability on any Lender or Agent or (2)
affect the ability of Company or any of its Subsidiaries to maintain in
full force and effect all Governmental Authorizations required under any
Environmental Laws for their respective operations except to the extent the
failure to maintain such Governmental Authorizations could not reasonably
be expected to have a Material Adverse Effect or impose liability on any
Lender or Agent and (b) any proposed action to be taken by Company or any
of its Subsidiaries to commence manufacturing or other industrial
operations or to modify current operations in a manner that could
reasonably be expected to subject Company or any of its Subsidiaries to any
additional obligations or requirements under any Environmental Laws that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or impose liability on any Lender or Agent.
(v) Certain Communications. With respect to documents which would have
been required to be provided to Administrative Agent pursuant to paragraph
(i) or (iii) but for the parenthetical in those paragraphs, Company shall
promptly upon receiving such documents provide a list identifying generally
the documents not disclosed and summarizing the information contained in
such documents to the extent consistent with not waiving any privilege with
respect thereto. If the privilege prevents Company from summarizing the
information contained in such documents Company (a) shall nevertheless
advise Administrative Agent that a matter, the nature of which cannot be
disclosed without waiving the applicable privilege, exists with respect to
a specified Facility or Environmental Claim that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect and (b) shall provide such other information to Administrative
Agent, consistent with not waving the privilege, that Administrative Agent
may reasonably request.
B. Company's Actions Regarding Environmental Claims and Violations of
Environmental Laws. Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all actions necessary to (i) cure any
violation of applicable Environmental Laws by Company or its Subsidiaries that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and (ii) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect (except if Company and its Subsidiaries do not have standing to
contest or respond to such Environmental Claim); provided, however, that Company
may, without breaching the requirements of this subsection 6.7B, contest an
alleged violation of Environmental Laws or an Environmental Claim in good faith
by appropriate proceedings promptly instituted and diligently conducted so long
as during such contest the failure to cure such violation or to respond to such
Environmental Claim or discharge the obligations thereunder could not reasonably
be expected to result in a Material Adverse Effect.
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral
-----------------------------------------------------------------
Documents After the Closing Date.
--------------------------------
A. Execution of Subsidiary Guaranty and Personal Property Collateral
Documents. In the event that any Domestic Subsidiary of Company existing on the
Closing Date ceases to be an Excluded Subsidiary or in the event that any Person
becomes a Domestic Subsidiary of Company after the date hereof and is a Material
Subsidiary, Company will promptly notify Administrative Agent of that fact and
cause such Domestic Subsidiary promptly (and in any event no later than 30 days
after it ceases to be an Excluded Subsidiary or becomes a Domestic Subsidiary,
as the case may be), to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and Security Agreement and to take all
such further actions and execute all such further documents and instruments
(including actions, documents and instruments comparable to those described in
subsection 4.1L) as may be necessary or, in the opinion of Administrative Agent,
desirable to create in favor of Administrative Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on all of the personal and
mixed property assets of such Domestic Subsidiary described in the applicable
forms of Collateral Documents, provided that at the request of Company in
connection with Investments, Indebtedness, Contingent Obligations or Performance
Guaranties made in or incurred with respect to Projects permitted under
subsections 7.1(vii), 7.3(vi), 7.3(vii), 7.4(vi) and 7.4(vii), or in connection
with sales of assets permitted under subsection 7.7, Administrative Agent shall
(without need for any further consent from any Lender or Lenders) release any
Liens on a Domestic Subsidiary's assets and/or release a Domestic Subsidiary
from the Subsidiary Guaranty or, in the case of a Person that becomes a Domestic
Subsidiary of Company in connection with such financing or investment permitted
hereunder, waive the requirement that such Domestic Subsidiary execute and
deliver to Administrative Agent a counterpart of the Subsidiary Guaranty and
Security Agreement, in each case solely to the extent required by the terms of
any such financings, investments or sales permitted under the foregoing
subsections of this Agreement; provided, however, that no Domestic Subsidiary
which meets the criteria set forth in subsections 5.20C(i) and 5.20C(ii) shall
be required to enter into the Security Agreement or to grant Liens on its
property pursuant to this subsection; provided, that no Borrower or Subsidiary
Guarantor shall be required to enter into an Opt-Out Facility Guaranty if
entering into such Opt-Out Facility Guaranty would constitute a material
violation of (a) a valid and enforceable Contractual Obligation in favor of a
Person other than Company or any of its Subsidiaries for which the required
consents have not been obtained or (b) applicable law affecting such Subsidiary,
provided that any such Subsidiary of Company shall be required to enter into
such Opt-Out Facility Guaranty at such time as such Subsidiary's entering into
such Opt-Out Facility Guaranty would no longer constitute a material violation
of such Contractual Obligation or applicable law, whether as a result of
obtaining the required consents or otherwise.
B. Subsidiary Organizational Documents, Legal Opinions, Etc. Company
shall deliver to Administrative Agent, together with such Loan Documents, (i)
certified copies of Organizational Documents of each Domestic Subsidiary which
is becoming a Loan Party pursuant to subsection 6.8A, together with a good
standing certificate from the Secretary of State of the jurisdiction of such
Subsidiary's organization and each other state in which such Person is qualified
to do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such jurisdictions, each
to be dated a recent date prior to their delivery to Administrative Agent, (ii)
a certificate executed by the secretary or similar officer of such Subsidiary as
to (a) the fact that the attached resolutions of the Governing Body of such
Subsidiary approving and authorizing the execution, delivery and performance of
such Loan Documents are in full force and effect and have not been modified or
amended and (b) the incumbency and signatures of the officers of such Subsidiary
executing such Loan Documents, and (iii) a favorable opinion of counsel to such
Subsidiary, in form and substance satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such Subsidiary,
(b) the due authorization, execution and delivery by such Subsidiary of such
Loan Documents, (c) the enforceability of such Loan Documents against such
Subsidiary and (d) such other matters (including matters relating to the
creation and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent and its
counsel.
C. Liquidation of Shell Subsidiaries; Foreign Pledge Agreements. As
soon as practicable but in any event no later than 90 days after the Closing
Date, Borrowers shall cause each Shell Subsidiary to be liquidated or dissolved
(or will cause such Shell Subsidiary to become a Subsidiary Guarantor) and
shall, in connection with the foregoing, take all actions and execute all
documents necessary or reasonably requested by Administrative Agent to grant to
Administrative Agent a valid and perfected First Priority security interest in
and to all personal, real and mixed property, if any, of such Shell
Subsidiaries; provided, however, that Borrowers shall not be in breach of the
covenant contained in this sentence if Borrowers, on or prior to the date which
is 90 days after the Closing Date, shall have taken all necessary corporate
actions and completed all filings with Governmental Authorities necessary to
accomplish such liquidation or dissolution of a Shell Subsidiary and such
dissolution or liquidation shall not have occurred due to inaction of foreign
Governmental Authorities beyond the control of Borrowers (as determined in the
reasonable judgment of Administrative Agent). As soon as practicable (but not
more than 90 days, unless rendered impracticable by events or by action or
inaction of foreign Governmental Authorities in each case beyond the control of
Borrowers (as determined in the reasonable judgment of Administrative Agent))
after the Closing Date (to the extent not completed on or prior to the Closing
Date), Borrowers shall cause foreign pledge agreements to be executed and
delivered to Administrative Agent with respect to 65% of the Capital Stock of
all Foreign Subsidiaries which are Material Subsidiaries and are directly owned
by any Borrower (other than to the extent a pledge of such Capital Stock under
the Collateral Documents would constitute a material violation of (1) a valid
and enforceable Contractual Obligation in favor of or for the benefit of a
Person other than Company or any of its Subsidiaries for which the required
consents have not been obtained or (2) applicable law affecting such Borrower or
such Foreign Subsidiary), shall take all such other actions under the laws of
such jurisdictions as Administrative Agent may deem necessary or advisable to
perfect or otherwise protect the Liens purported to be created in such Capital
Stock under the Collateral Documents, and shall deliver to Administrative Agent
opinions of counsel as required under subsection 6.15.
D. Release of Restrictions. Borrowers shall use their good faith,
commercially reasonable efforts to obtain all necessary consents from all
Persons in whose favor or for whose benefit Contractual Obligations are in
effect which would be violated by (i) a pledge of the stock of any Subsidiary of
a Loan Party, (ii) entry into the Subsidiary Guaranty by a Domestic Subsidiary
which is not already a Loan Party, (iii) entry into any Opt-Out Facility
Guaranty by any Subsidiary of Company which is a Loan Party, or (iv) granting a
Lien on substantially all of the assets of a Domestic Subsidiary. The foregoing
efforts shall be exercised so as to obtain such consents (a) as soon as
practicable but no later than 90 days after the Closing Date, for all such
Contractual Obligations which apply to Subsidiaries other than Subsidiaries
which are Excluded Subsidiaries pursuant to clause (vi) of the definition of
"Excluded Subsidiaries", and (b) as soon as practicable during the period from
the date which is 90 days after the Closing Date to the date which is 180 days
after the Closing Date, for all such Contractual Obligations which apply to
Subsidiaries which are Excluded Subsidiaries pursuant to clause (vi) of the
definition of "Excluded Subsidiaries".
6.9 Matters Relating to Additional Real Property Collateral.
--------------------------------------------------------
From and after the Closing Date, in the event that (i) any Borrower
or any Subsidiary Guarantor acquires any fee interest in real property or any
Material Leasehold Property, (ii) at the time any Person becomes a Subsidiary
Guarantor, such Person owns or holds any fee interest in real property or any
Material Leasehold Property, in either case excluding any such Real Property
Asset the encumbrancing of which requires the consent of any applicable lessor
or (in the case of clause (ii) above) then-existing senior lienholder, where
Company and its Subsidiaries are unable to obtain such lessor's or senior
lienholder's consent, or (iii) Administrative Agent requests a Mortgage be
executed and delivered encumbering certain real property located outside Ogilby,
California owned, as of the Closing Date, by Ogden Environmental Services, Inc.
(the "Ogilby Property"), provided that the Ogilby Property is, as of the date of
Administrative Agent's request, owned or leased by Company or any of its
Subsidiaries (any such non-excluded Real Property Asset described in the
foregoing clause (i), (ii) or (iii) being an "Additional Mortgaged Property"),
such Borrower or such Subsidiary Guarantor shall deliver to Administrative
Agent, as soon as practicable after such Person acquires such Additional
Mortgaged Property or becomes a Subsidiary Guarantor, as the case may be, a
fully executed and notarized Mortgage (an "Additional Mortgage"), in proper form
for recording in all appropriate places in all applicable jurisdictions,
encumbering the interest of such Loan Party in such Additional Mortgaged
Property; and such opinions, appraisal, documents, title insurance,
environmental reports that would have been delivered on the Closing Date if such
Additional Mortgaged Property were a Closing Date Mortgaged Property or that may
be reasonably required by Administrative Agent; provided that at the request of
Company in connection with Investments, Indebtedness, Contingent Obligations or
Performance Guaranties made in or incurred with respect to Projects permitted
under subsections 7.1(vii), 7.3(vi), 7.3(vii), 7.4(vi) and 7.4(vii),
Administrative Agent shall release any Mortgage on a Domestic Subsidiary's
property or, in the case of a Person that becomes a Domestic Subsidiary of
Company in connection with such financing or investment permitted hereunder,
waive the requirement that such Domestic Subsidiary execute and deliver to
Administrative Agent an Additional Mortgage, in each case solely to the extent
required by the terms of any such financings or investments permitted under the
foregoing subsections of this Agreement.
6.10 Deposit Accounts.
----------------
Company shall, and shall cause each of its Subsidiaries to, use and
maintain its Deposit Accounts in the Cash Management System in a manner
reasonably satisfactory to Administrative Agent. Company shall not permit the
aggregate principal balance in such Deposit Accounts with respect to which
Company shall not have (i) delivered to Administrative Agent an agreement,
satisfactory in form and substance to Administrative Agent and executed by the
financial institution at which such Deposit Account is maintained, pursuant to
which such financial institution confirms and acknowledges Administrative
Agent's security interest in, and sole dominion and control over, such Deposit
Account and waives its rights to set-off with respect to amounts in such Deposit
Account and (ii) taken all other steps necessary or, in the opinion of
Administrative Agent, desirable to ensure that Administrative Agent has sole
dominion and control over such Deposit Account, to exceed $5,000,000.
6.11 Most Favored Nations Payments.
-----------------------------
Company shall and shall cause each of its Subsidiaries to extend any
fees or pricing increases, to the extent such fees or pricing increases are the
direct obligation of Company or its Subsidiaries, resulting from the amendment,
waiver or modification, after the Closing Date, of the Financing Documents
(other than fees as contemplated by subsection 2.5 of this Agreement), to all
Lenders regardless of whether such Lender's has participated in such amendment,
waiver or modification. Whether such pricing or fees for one facility are in
excess of the pricing or fees with respect to another facility shall be
determined on a tax equivalent basis, giving effect to any tax advantaged or
disadvantaged treatment afforded to the relevant Lenders with respect to the
pricing or fees for such facility. Whether such pricing or fees for one facility
are in excess of pricing or fees with respect to another facility, and the
amount of any such excess, shall be determined by assigning the pricing or fees
for any particular facility an increased or decreased value, where appropriate,
to account for any tax advantaged or disadvantaged treatment of such pricing or
fees (and the resulting increased or decreased value thereof) in the hands of
the relevant Lenders.
6.12 Security Interest in Unsold Assets.
----------------------------------
In the event some or all of the assets (or the Capital Stock of
Subsidiaries of Company holding such assets) of Company and its Subsidiaries
(other than OFMC Anaheim) related to their aviation and entertainment businesses
have not been sold and are not subject to binding and effective contracts for
sale as of the date which is 60 days after Closing Date, (i) each Domestic
Subsidiary listed on Schedule 1.1(b) the assets or Capital Stock of which is not
sold by such date shall cease to be an Excluded Subsidiary, and (ii) Borrowers
shall, and shall cause their respective Subsidiaries to, as soon as practicable
but in any event within 30 days after such date, create in favor of
Administrative Agent, for the benefit of the Lenders, a valid and perfected
First Priority security interest (subject to Liens in existence on the Closing
Date) in all such aviation and entertainment related assets which have not been
sold by such date, except to the extent (a) such assets are not assets of a Loan
Party or a Person required under subsection 6.8 to be a Loan Party or (b)
failure to place such Liens on such assets would not cause a breach of any
representation or warranty in subsection 5.20 (assuming for purposes of
compliance with subsection 5.20 that such assets are not subject to a Lien
permitted under subsection 7.2A) if such representation or warranty were made on
such date (without giving effect to the final paragraph of subsection 5.20).
6.13 Establishment of Cash Management System.
---------------------------------------
Lenders and Borrowers hereby authorize The Bank of New York, in its
capacity as depository bank with respect to the Disbursement Account and the
Reserve Account (as such terms are defined on the Closing Date in the Bank of
New York Credit Agreement), to remit all funds in such accounts to Collateral
Agent on the Closing Date for deposit in the Cash Collateral Account. Not later
than 90 days after the Closing Date, Company shall have entered into
arrangements in form and substance satisfactory to Agents for the establishment
of the Cash Management System substantially in accordance with the terms
described on Schedule 6.13. Company shall and shall cause each of its
Subsidiaries to use and maintain its Cash Management System in a manner
reasonably satisfactory to Administrative Agent. Without limiting the foregoing,
the Cash Management System (i) shall include all deposit accounts, all
disbursement accounts and all concentration accounts of Company and its
Subsidiaries (other than Excluded Collateral (as such term is defined in the
Intercreditor Agreement) and debt service reserve accounts and cash collateral
accounts of Subsidiaries of Company established to make payments of Limited
Recourse Debt relating to Projects and permitted hereunder, where such
Subsidiaries have an irrevocable Contractual Obligation to apply such revenues
to such payments) maintained with domestic and foreign financial institutions,
and all such accounts, subject to such non-material exceptions as may be
reasonably satisfactory to Administrative Agent, shall be maintained with BofA,
(ii) shall provide for a blocked concentration and collateral account or
accounts to be established with Collateral Agent (or a depository institution or
institutions satisfactory to Collateral Agent and pursuant to documentation in
form and substance satisfactory to Administrative Agent) in a foreign
jurisdictions or jurisdictions to which cash in excess of amounts to be agreed
upon between Company and Administrative Agent shall be swept at time intervals
to be agreed upon between Company and Administrative Agent, and (iii) shall
provide for repatriation to the Cash Collateral Account of cash held in the
accounts described in the preceding clause (ii) to the extent such cash is in
excess of amounts to be agreed upon between Company and Administrative Agent, at
time intervals to be agreed upon between Company and Administrative Agent,
unless such repatriation would result in substantial adverse tax or accounting
consequences for Company and its Subsidiaries or would constitute a material
violation of (a) a valid and enforceable Contractual Obligation in favor of a
Person other than Company or any of its Subsidiaries for which the required
consents have not been obtained or (b) applicable law affecting Company or any
of its Subsidiaries. BofA, in its capacity as the cash management bank for
Company and its Subsidiaries, hereby agrees that the exercise of any right of
set-off by it against accounts in the Cash Management System shall (subject to
the Intercreditor Agreement) be deemed exercised first, against and on account
of the Obligations to the fullest extent permitted under applicable law, and
second, against and on account of any other obligations and liabilities of
Company or any of its Subsidiaries.
6.14 Payment of Opt-Out Facilities.
-----------------------------
A. Payment of Class B Palladium DPS Facility. Subject to the
provisions of the Intercreditor Agreement, promptly upon request by
Administrative Agent on behalf of Requisite Lenders after a Realized Deficiency
(as such term is defined in the Intercreditor Agreement) arises with respect to
the Class B Palladium DPS Facility, Borrowers shall cause the payment of all
amounts owing with respect to the Class B Palladium DPS Facility to the extent
of funds available in the Cash Collateral Account therefor. Borrowers shall also
pay or cause to be paid, on and after the Closing Date, the increased pricing
required under subsection 2.5F(iii) to be paid to the Canadian Loss Sharing
Lenders with respect to the Class B Palladium DPS Facility, so that the relevant
Opt-Out Lenders will be paid the amount of such increases at the times the
relevant obligor under the Class B Palladium DPS Facility would have otherwise
been required to pay such regular dividends.
B. Payment Upon Sale of Projects. Borrowers hereby agree to exercise,
and to cause their Subsidiaries to exercise, their respective best efforts to
cause the sale, on terms reasonably satisfactory to Borrowers and as soon as
practicable after the Closing Date, of their entire right, title and interest in
the Anaheim Project, the Ottawa Senators Project and the Ottawa Palladium
Project. Borrowers hereby agree that upon the sale of the entire interest of
Company and its Subsidiaries in any Project to which an Opt-Out Facility relates
(other than their interest in and claim against the business, operations and
Indebtedness of the Senators Hockey Club and its Subsidiaries), Borrowers shall
cause Company and its Subsidiaries to repay the amounts due under such Opt-Out
Facility or the Indebtedness which such Opt-Out Facility supports (to the extent
that the Opt-Out Obligations under such Opt-Out Facility are Contingent
Obligations), but only to the full extent of the Net Asset Sale Proceeds of such
sale (it being understood that proceeds from a Permitted Senators Transaction
shall be applied in accordance with subsection 7.7(xi)).
C. Payment of Anaheim Funding Needs. Notwithstanding the provisions
of subsection 2.11A, Borrowers shall pay or cause OFMC Anaheim to pay, as and
when due, notwithstanding the occurrence or continuance of an Event of Default
(other than an Event of Default described in subsection 7.8B(ii)), all amounts
(i) from time to time owing with respect to the Opt-Out Obligations arising with
respect to the Anaheim Project, or (ii) required to be paid in order to cause
OFMC Anaheim to manage the Anaheim Project in accordance with the presently
existing management agreement pertaining to the Anaheim Project, in each case to
the extent Borrowers are permitted to pay (or Borrowers are permitted to allow
their Subsidiaries to pay) such amounts pursuant to the terms of subsection
7.8B.
6.15 Opinions of Local Counsel.
-------------------------
Concurrently with the execution of any foreign pledge agreement with
respect to any Foreign Subsidiary pursuant to subsection 6.8, Company shall
deliver to Administrative Agent an opinion of counsel (which counsel shall be
reasonably satisfactory to Administrative Agent), under the laws of each
jurisdiction in which (i) any Loan Party holding stock of such Foreign
Subsidiary is organized with respect to the due authorization, execution and
delivery of such foreign pledge agreement by such Loan Party, and (ii) such
Foreign Subsidiary is organized with respect to customary matters regarding
enforceability, validity and perfection of such pledge.
6.16 Execution of Opt-Out Facility Guaranties after the Closing Date.
---------------------------------------------------------------
A. Execution of Opt-Out Facility Guaranties. Each Borrower other than
Company shall, no later than 30 days after the Closing Date, and shall cause
each Subsidiary Guarantor, upon any such Person becoming a Subsidiary Guarantor,
to execute and deliver to Administrative Agent a guaranty in substantially
similar form to the Subsidiary Guaranty (with such changes thereto as may be (x)
reasonably agreed upon by the parties thereto and by Opt-Out Lenders holding
more than 50% of the Opt-Out Facility Exposure of all Opt-Out Lenders under the
relevant Opt-Out Facility and (y) reasonably satisfactory to Administrative
Agent) to guarantee the Opt-Out Obligations of Company with respect to each
Opt-Out Facility (each such guaranty being an "Opt-Out Facility Guaranty");
provided that no Borrower or Subsidiary Guarantor shall be required to enter
into an Opt-Out Facility Guaranty if entering into such Opt-Out Facility
Guaranty would constitute a material violation of (i) a valid and enforceable
Contractual Obligation in favor of a Person other than Company or any of its
Subsidiaries for which the required consents have not been obtained or (ii)
applicable law affecting such Subsidiary; provided further, that any such
Subsidiary Guarantor shall be required to enter into such Opt-Out Facility
Guaranty at such time as such Subsidiary's entry into such Opt-Out Facility
Guaranty would no longer constitute a material violation of such Contractual
Obligation or applicable law, whether as a result of obtaining the required
consents or otherwise.
B. Subsidiary Organizational Documents, Legal Opinions, Etc. Company
shall deliver to Administrative Agent, together with such Opt-Out Facility
Guaranties, (i) a certificate executed by the secretary or similar officer of
each Subsidiary of Company executing such Opt-Out Facility Guaranties as to (a)
the fact that no changes have been made to the Organizational Documents of such
Subsidiary since the Closing Date, (b) the fact that the attached resolutions of
the Governing Body of such Subsidiary approving and authorizing the execution,
delivery and performance of such Opt-Out Facility Guaranties are in full force
and effect and have not been modified or amended and (c) the incumbency and
signatures of the officers of such Subsidiary executing such Opt-Out Facility
Guaranties, and (ii) a favorable opinion of counsel to such Subsidiary as to (a)
the due organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Opt-Out
Facility Guaranties, and (c) the enforceability of such Opt-Out Facility
Guaranties against such Subsidiary, all of the foregoing to be substantially
similar in form and substance to the corresponding documents delivered on the
Closing Date with respect to this Agreement.
Section 7. BORROWERS' NEGATIVE COVENANTS
Borrowers covenant and agree that, so long as any of the Revolving
Loan Commitments hereunder shall remain in effect and until payment in full of
all of the Revolving Loans and other Obligations and Opt-Out Obligations and the
cancellation or expiration of all Pooled Letters of Credit, Letters of Credit
and letters of credit constituting Opt-Out Facilities, unless Requisite Lenders
shall otherwise give prior written consent, Borrowers shall perform, and shall
cause each of their Subsidiaries to perform, all covenants in this Section 7.
7.1 Indebtedness.
------------
Borrowers shall not, and shall not permit their respective
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrowers may become and remain liable with respect to the
Obligations, and Company and its Subsidiaries may become and remain liable
with respect to Indebtedness under the Opt-Out Facilities;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Designated Borrowers may become and remain liable with respect
to Indebtedness to any other Designated Borrowers; provided that all such
intercompany Indebtedness shall be evidenced by promissory notes which
shall be pledged pursuant to the Collateral Documents;
(iv) Subsidiaries of Company other than Designated Borrowers may,
after the Closing Date, become and remain liable with respect to
Indebtedness to Company or any Subsidiary of Company the proceeds of which
are applied to working capital requirements of the Subsidiaries incurring
such Indebtedness; provided that the aggregate cash usage for Working
Capital Amounts and other purposes shall be in compliance with subsection
7.8C; and provided further, that all such intercompany Indebtedness shall
be evidenced by Intercompany Notes;
(v) Subsidiaries of Company other than Designated Borrowers may, after
the Closing Date, become and remain liable with respect to Indebtedness to
Company or any Subsidiary of Company the proceeds of which are applied to
operating expenses incurred by Company or any of its Subsidiaries to fund
amounts payable to third parties in connection with the development of
Projects; provided that cash usage for Development Amounts shall not exceed
at any time the cumulative amounts set forth in the Monthly Budget under
the heading "Third Party Development Expenses" for the relevant periods set
forth therein; and provided further, that all such intercompany
Indebtedness shall be evidenced by Intercompany Notes;
(vi) Company and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness outstanding on the Closing Date and described
in Schedule 7.1 annexed hereto and Indebtedness issued in exchange for the
Convertible Subordinated Debentures pursuant to the Exchange Offer;
(vii) Subsidiaries of Company may become and remain liable with
respect to Indebtedness to Company or any of its Subsidiaries the proceeds
of which are applied to make Investments permitted under subsections
7.3(vi) and 7.3(vii); provided that (a) all such intercompany Indebtedness
shall be evidenced by Intercompany Notes;
(viii) Subsidiaries of Company which are not Designated Borrowers may
become and remain liable with respect to Indebtedness to Persons other than
Company or any of its Subsidiaries or their respective Affiliates
(including Indebtedness of a Subsidiary or Indebtedness secured by assets
associated with a Project in existence at the time of acquisition of such
Subsidiary or such asset, respectively, so long as such Indebtedness was
not incurred in contemplation of such acquisition and such acquisition is
not otherwise prohibited under this Agreement), to the extent such
Indebtedness is Limited Recourse Debt;
(ix) Subsidiaries of Company may become and remain liable with respect
to Indebtedness consisting of a converted equity Investment by Company or
another Subsidiary of Company in such Subsidiaries, provided that the
underlying equity Investment was permitted under this Agreement at the time
of such conversion; and
(x) Any Subsidiary of Company may become and remain liable with
respect to Indebtedness incurred to refinance, in whole or in part, Limited
Recourse Debt of such Subsidiary permitted to be incurred under this
subsection 7.1; provided, that in each case (a) such refinancing would not
reasonably be expected to result in a Material Adverse Effect, (b) such
Indebtedness is Limited Recourse Debt of such Subsidiary, and (c) no
additional recourse to Company or any other Subsidiary or any Affiliate of
Company (or any of their equity, property or assets) results from such
refinancing.
Notwithstanding anything to the contrary contained herein, OPD shall
not directly or indirectly create, incur, assume, guaranty or otherwise become
or remain directly or indirectly liable with respect to any Indebtedness other
than (1) Indebtedness of OPD in existence on the Closing Date and (2)
Indebtedness incurred by OPD to Borrowers arising from amounts advanced to OPD,
to the extent such amounts are contributed by OPD to Quezon Equity Funding and
applied by Quezon Equity Funding to repay or reimburse (A) Existing Pooled Loans
under the Quezon Facilities on the Closing Date or (B) drawings honored with
respect to the portion of the Quezon L/Cs consisting of Pooled Letters of
Credit.
7.2 Liens and Related Matters.
-------------------------
A. Prohibition on Liens. Borrowers shall not, and shall not permit
their respective Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of Borrowers or any of their respective Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC or under any similar recording or notice
statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing on the Closing Date and described in Schedule 7.2
annexed hereto;
(iv) Liens on assets of any Subsidiary of Company securing
Indebtedness permitted by subsection 7.1(vii);
(v) Liens on assets of any Subsidiary of Company and/or on the stock
or other equity interests of such Subsidiary securing Indebtedness of such
Subsidiary permitted by subsection 7.1(viii);
(vi) Liens securing refinancing Indebtedness permitted by subsection
7.1(x), provided that in each case the Liens securing such refinancing
Indebtedness shall attach only to the assets that were subject to Liens
securing the Indebtedness so refinanced; provided, however, that such Liens
may extend to other assets associated with the Project (which in any event
shall not include assets held by any Borrower other than a Borrower, if
any, meeting the criteria set forth in clause (b) of the definition of
Borrower Recourse Obligation) in respect of which such refinancing
Indebtedness was incurred, if (a) such refinancing Indebtedness is Limited
Recourse Debt and (b) the sole business of the Subsidiary of Company
incurring such refinancing Indebtedness is the ownership and/or operation
of such Project and substantially all of such Subsidiary's assets are
associated with such Project; and
(vii) Liens securing debt service reserve funds, completion
obligations and similar accounts and obligations (other than Indebtedness)
of Subsidiaries of Company to Persons other than Company and its
Subsidiaries and their respective Affiliates, so long as (a) each such
obligation is associated with a Project, (b) such Lien is limited to (1)
assets associated with such Project (which in any event shall not include
assets held by any Borrower other than a Borrower, if any, meeting the
criteria set forth in clause (b) of the definition of Borrower Recourse
Obligation) and/or (2) the equity interests in such Subsidiary, but in the
case of clause (2) only if such Subsidiary's sole business is the ownership
and/or operation of such Project and substantially all of such Subsidiary's
assets are associated with such Project, and (c) such obligation is
otherwise permitted under this Agreement.
B. Equitable Lien in Favor of Lenders. If any Borrowers or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, the Borrowers hereby agree that (i) they will
be deemed to have automatically and without further action secured the
Obligations and the Opt-Out Obligations with such Lien equally and ratably with
any and all other Indebtedness secured thereby as long as any such Indebtedness
shall be so secured, and (ii) they shall take or cause to be taken such actions
as Agents or Requisite Lenders deem necessary or advisable to evidence such
equal and ratable Lien; provided that, notwithstanding the foregoing, this
covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A, and the creation or assumption of any such Lien not permitted
by the provisions of subsection 7.2A shall constitute an Event of Default.
C. No Further Negative Pledges. Neither Company nor any of its
Subsidiaries shall enter into any agreement (other than this Agreement and the
Loan Documents) on or after the Closing Date prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except with respect to specific property encumbered by a
Lien permitted under subsection 7.2A(v) to secure payment of particular
Indebtedness permitted to be incurred under subsection 7.1(viii) or to be sold
pursuant to an executed agreement with respect to an Asset Sale which is
permitted hereunder.
D. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Company will not, and will not permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such Subsidiary's
capital stock owned by Company or any other Subsidiary of Company, (ii) repay or
prepay any Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (iii) make loans or advances to Company or any other
Subsidiary of Company, or (iv) transfer any of its property or assets to Company
or any other Subsidiary of Company, except (a) as provided in this Agreement or
the other Loan Documents, (b) those encumbrances or restrictions applicable to
Subsidiaries of Company other than Borrowers and Subsidiary Guarantors to the
extent created under the documentation entered into by such Subsidiaries in
connection with Indebtedness in existence on the Closing Date, and (c) as may be
provided in an executed agreement with respect to an Asset Sale which is
permitted hereunder.
7.3 Investments; Acquisitions.
-------------------------
Borrowers shall not, and shall not permit their respective
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, or acquire, by purchase or otherwise, all
or substantially all the business, property or fixed assets of, or capital stock
or other ownership interest of any Person, or any division or line of business
of any Person except:
(i) Company and its Domestic Subsidiaries may make and own Investments
in Domestic Cash Equivalents and in such investments as are permitted under
the terms of the agreement establishing the Cash Collateral Account, as
such agreement is in effect on the Closing Date and as it may be amended or
supplemented from time to time thereafter with the consent of Agents; and
Company's Foreign Subsidiaries may make and own Investments in Foreign Cash
Equivalents;
(ii) Company and its Subsidiaries may continue to own the Investments
owned by them as of the Closing Date in any Subsidiaries of Company; and
Company and other Designated Borrowers may make and own additional equity
Investments in other Designated Borrowers;
(iii) Company and its Subsidiaries may make intercompany loans to the
extent permitted under subsections 7.1(iii) and 7.1(vii);
(iv) Company and its Subsidiaries may make Consolidated Maintenance
Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments
owned by them on the Closing Date and described in Schedule 7.3(v) annexed
hereto;
(vi) Company and its Subsidiaries may make and own Investments which
Company and its Subsidiaries are committed as of the Closing Date to make
in those Projects set forth in Schedule 7.3(vi) annexed hereto; provided
that (a) each such Investment (or commitment to make the same) made in
connection with such Projects shall be of a type described on such Schedule
and shall be in an amount not exceeding the amount set forth on such
Schedule, (b) the equity interests held by Company or any of its
Subsidiaries in any new Subsidiary formed in connection with any such
Investment shall be pledged as Collateral under the Collateral Documents,
except to the extent such pledge is not required under subsection 6.8, and
(c) the aggregate cash usage for such Projects in any period shall not
exceed the amounts therefor set forth in the Monthly Budget for any such
period;
(vii) Company and its Subsidiaries may make and own Investments (and
contractual commitments to make such Investments) with respect to Projects
(other than those Projects identified on Schedule 7.3(vi) annexed hereto)
to which Company and its Subsidiaries have made no contractual commitment
on or prior to the Closing Date, so long as (w) the aggregate Invested
Amount with respect to such Projects, together with Development Amounts,
shall not exceed the Maximum Investment Amount at any time, (x) no Invested
Amounts and Development Amounts shall be permitted with respect to such
Projects unless the aggregate Gross Receipts from Approved Asset Sales
(other than Excluded Gross Receipts) exceed $146,000,000, (y) not more than
$20,000,000 of Invested Amounts shall be permitted with respect to such
Projects to be made during Fiscal Year 2001 except to the extent the
aggregate Gross Receipts from Approved Asset Sales (other than Excluded
Gross Receipts) exceed $205,000,000, and during Fiscal Year 2001 the
Invested Amounts (plus Development Amounts) with respect to such Projects
shall not exceed the lesser of (A) the amount of such excess (over
$205,000,000) referred to in this clause (y) and (B) the Maximum Investment
Amount for Fiscal Year 2001, and (z) Company provides to Agents all
material contracts or other agreements entered into in connection with such
Investments; provided that the equity interests held by Company or any of
its Subsidiaries in any new Subsidiary formed in connection with any such
Investment shall be pledged as Collateral under the Collateral Documents,
except to the extent such pledge is not required under subsection 6.8;
(viii) Company and its Subsidiaries may make and own Investments in
the Ottawa Palladium Project of amounts offset against management fees or
other fees payable to Company and its Subsidiaries, to the extent Company
and its Subsidiaries are contractually obligated to provide financing for
the relevant Project;
(ix) Company and its Subsidiaries may make and own Investments in the
Anaheim Project after the Closing Date so long as Company and its
Subsidiaries shall be in compliance with subsection 7.8B;
(x) Company and its Subsidiaries may, after the Closing Date, make and
own Investments in any other Subsidiary of Company the proceeds of which
are applied to working capital requirements of the Subsidiaries in which
such Investments are made; provided that the aggregate cash usage for
Working Capital Amounts and other purposes shall be in compliance with
subsection 7.8C;
(xi) Company and its Subsidiaries may, after the Closing Date, make
and own Investments in any other Subsidiary of Company the proceeds of
which are applied to operating expenses incurred by Company or any of its
Subsidiaries to fund amounts payable to third-parties in connection with
the development of Projects; provided that the aggregate Development
Amounts for any period after the Closing Date shall not exceed at any time
the cumulative amounts set forth for such period in the Monthly Budget
under the heading "Third Party Development Expenses";
(xii) Any Subsidiaries of Company may make acquisitions of assets or
of equity interests in other Persons so long (x) as such acquisitions are
financed solely with the proceeds of Limited Recourse Debt of such
Subsidiary and/or amounts (other than the proceeds of Indebtedness)
received from Persons other than Company or any of its Subsidiaries (which
amounts shall in no event include proceeds of Revolving Loans or Working
Capital Amounts) and (y) Company provides to Agents all material contracts
or other agreements entered into in connection with such any Investment;
(xiii) Company and its Subsidiaries may make the China Project Swap
(provided that (a) such acquisition transaction results in no cash
consideration being paid to the seller of the assets so acquired by Company
and (b) no Indebtedness, Contingent Obligation or Performance Guaranty, or
commitment to incur or assume the same, is incurred or assumed in
connection with such acquisition transaction) and may continue to own the
Investments acquired thereby; and
(xiv) Borrowers may make Investments consisting of loan amounts
advanced to OPD, and OPD may make Investments consisting of contributions
of all of such amounts to Quezon Equity Funding, so long as all of such
amounts advanced to Quezon Equity Funding are applied by it to repay or
reimburse (a) Existing Pooled Loans under the Quezon Facilities on the
Closing Date or (b) drawings honored with respect to the portion of the
Quezon L/Cs consisting of Pooled Letters of Credit.
Notwithstanding anything in this Agreement to the contrary but
subject to the following proviso and the following sentence, if Company or any
of its Subsidiaries receives any non-cash consideration in connection with a
Permitted Senators Transaction the receipt of which non-cash consideration
and/or the placement of a prohibition against the creation of a Lien thereon
would cause Company or any of its Subsidiaries to be in violation of any term or
provision of subsection 7.2C and/or subsection 7.3, then such term(s) or
provision(s) shall be deemed waived by the Lenders and Agents (without the
necessity of any further action on the part of the Agents, the Lenders or any
Borrower, including, without limitation, the delivery of any written waivers or
consents) solely for purposes of permitting Company and its Subsidiaries to
consummate the Permitted Senators Transaction without being in violation of such
term(s) or provision(s) of subsection 7.2C and/or subsection 7.3; provided that
any such non-cash consideration to be received by Company and its Subsidiaries
in connection with a Permitted Senators Transaction (x) does not impose
additional material obligations on, or confer additional rights to the holders
thereof against, Company or any of its Subsidiaries and (y) is not otherwise
adverse in any material respect to the interests of the Pooled Facility Lenders
and the Revolving Lenders. Any deemed waiver of any term or provision of
subsection 7.2C and/or subsection 7.3 granted to Borrowers pursuant to the
preceding sentence shall not constitute, nor should it be construed as, a waiver
of compliance by Company or any other Borrower with respect to (1) any term or
provision of subsection 7.2C and/or subsection 7.3 in any other instance or (2)
any other term, provision or condition of this Agreement or any other Loan
Document.
7.4 Contingent Obligations; Performance Guaranties.
----------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation or Performance Guaranty, and shall not create or become or
remain liable with respect to any obligation to incur a subsequent Contingent
Obligation or to post cash collateral in the event of any downgrade in Company's
long-term unsecured debt rating, except:
(i) Subsidiaries of Company may become and remain liable with respect
to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of Pooled Letters of Credit
and Letters of Credit and under the Pooled Facilities, and Company and its
Subsidiaries may become and remain liable with respect to Contingent
Obligations under the Opt-Out Facilities;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of customary and appropriate
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets to the extent such
Asset Sales and sales are permitted under this Agreement;
(iv) Company and its Subsidiaries may become and remain liable with
respect to (a) a Performance Guaranty relating to the proposed
waste-to-energy Project in Puerto Rico, (b) Performance Guaranties in
existence on the Closing Date and described on Schedule 7.4(iv) annexed
hereto, and (c) Performance Guaranties replacing Performance Guaranties
described in clause (a) or (b), provided that no such replacement
Performance Guaranty shall be more disadvantageous in any material respect
to Company and its Subsidiaries than the Performance Guaranty so replaced;
(v) Company and its Subsidiaries, as applicable, may remain liable
with respect to Contingent Obligations in existence on the Closing Date and
described in Schedule 7.4(v) annexed hereto;
(vi) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations (other than Performance Guaranties)
incurred in connection with Projects in which Investments are permitted
under subsection 7.3(vii), provided that the aggregate Invested Amounts at
any time with respect to all such Projects shall not exceed the amounts
permitted under such subsection;
(vii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations (other than Performance Guaranties) which
Company and its Subsidiaries are contractually committed as of the Closing
Date to incur with respect to those Projects set forth on Schedule 7.3(vi)
annexed hereto; provided that each such Contingent Obligation (or
commitment to incur the same) incurred in connection with such Projects
shall be of a type described on such Schedule and shall be in an amount not
exceeding the amount set forth on such Schedule;
(viii) Company and its Subsidiaries may incur a Contractual Obligation
to provide letter of credits or cash collateral deposits under those
circumstances under which Company and its Subsidiaries were required prior
to the Closing Date under the GECC Credit Facilities to provide letter of
credits or cash collateral deposits to support the payment of such credit
Facilities, provided that no such obligation to provide such a letter of
credit or cash collateral deposit shall be more disadvantageous in any
material respect to Company and its Subsidiaries than the obligation prior
to the Closing Date under the GECC Credit Facilities to provide such a
letter of credit or cash collateral deposit; and
(ix) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations consisting of long-term or forward
purchase contracts and option contracts to buy, sell or exchange
commodities and similar agreements or arrangements, so long as such
contracts, agreements or arrangements do not constitute Commodities
Agreements.
Notwithstanding anything to the contrary contained herein, OPD shall
not directly or indirectly create or become or remain liable with respect to any
Contingent Obligation other than Contingent Obligations of OPD in existence on
the Closing Date.
7.5 Restricted Payments.
-------------------
Borrowers shall not, and shall not permit their respective
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Payment; provided, however, that (i) so long as no
Event of Default shall have occurred and be continuing, Company may make
regularly scheduled payments of interest in respect of any Subordinated
Indebtedness in accordance with the terms of, and only to the extent required
by, and subject to the subordination provisions contained in, the indenture or
other agreement pursuant to which such Subordinated Indebtedness was issued, as
such indenture or other agreement may be amended from time to time to the extent
permitted under subsection 7.13, (ii) Company may make regularly scheduled
payments of interest in respect of the 9.25% Debentures in accordance with the
terms of, and only to the extent required by, the 9.25% Debenture Indenture, as
such indenture may be amended from time to time to the extent permitted under
subsection 7.13, (iii) so long as no Event of Default shall have occurred and be
continuing, Subsidiaries of Company may make payments of principal, interest and
other amounts in respect of Existing Project Debt (to the extent such
Subsidiaries are obligors as of the Closing Date with respect to such Existing
Project Debt) in accordance with the terms of, and only to the extent required
by, the indentures or other agreements pursuant to which such Existing Project
Debt or such other Indebtedness was issued, as such indentures or other
agreements may be amended from time to time to the extent permitted under
subsection 7.13, provided, however, that it shall not be a breach of this clause
(iii) if a Subsidiary of Company shall make such payments with respect to any
such Indebtedness related to a Project during the continuance of an Event of
Default to the extent (x) such payments are funded solely from debt service
reserves and cash collateral accounts established to make such payments and from
revenues generated from the operations of such Project and (y) such Subsidiary
has an irrevocable Contractual Obligation to apply such revenues to such
payments, (iv) so long as no Event of Default shall have occurred and be
continuing, Subsidiaries of Company, to the extent such Subsidiaries are
obligors with respect to Limited Recourse Debt permitted hereunder, may make
payments of principal, interest and other amounts in respect of such Limited
Recourse Debt in accordance with the terms of, and only to the extent required
by, the indentures or other agreements pursuant to which such Limited Recourse
Debt was issued, as such indentures or other agreements may be amended from time
to time to the extent permitted under subsection 7.13, provided, however, that
it shall not be a breach of this clause (iv) if a Subsidiary of Company shall
make such payments with respect any such Indebtedness related to a Project
during the continuance of an Event of Default to the extent (x) such payments
are funded solely from debt service reserves and cash collateral accounts
established to make for such payments and from revenues generated from the
operations of such Project and (y) such Subsidiary has an irrevocable
Contractual Obligation to apply such revenues to such payments, (v) Borrowers
may make payments to the relevant Lenders of their respective Preferred
Distributions, Realized Ratable Shares (as such terms are defined in the
Intercreditor Agreement) and any indemnities owed to them, in each case solely
to the extent such payments are required to be made by Borrowers under the
Intercreditor Agreement, (vi) Company and its Subsidiaries may pay any fees
required to be paid to the Agents and Lenders hereunder, (vii) Company may make
Restricted Payments in an aggregate amount not to exceed $55,000 in any Fiscal
Year consisting of cash dividends on outstanding Series A Preferred Stock,
(viii) so long as no Event of Default shall have occurred and be continuing,
Company and its Subsidiaries may make payments of principal, interest and other
amounts owed in respect of Limited Recourse Debt from the proceeds of any
Indebtedness permitted to be incurred under this Agreement to refinance such
Limited Recourse Debt, (ix) so long as no Event of Default shall have occurred
and be continuing, Company and its Subsidiaries may make payments of principal
and interest on the Sempra Credit Facilities and the GECC Credit Facilities (in
each case in the amounts and at the times set forth on Schedule 4.1N annexed
hereto), (x) Company and its Subsidiaries may make payments of regularly
scheduled dividends (in amounts not otherwise prohibited hereunder) on the Class
B Palladium DPS Facility and, so long as no Event of Default shall have occurred
and be continuing, payments of principal and interest on the CGS Credit
Facility, (xi) Company and its Subsidiaries may repurchase, redeem or otherwise
repay Indebtedness of Company with Net Securities Proceeds from any issuance of
Common Stock to the extent such Net Securities Proceeds are not required to be
applied to the repayment of Revolving Loans hereunder, (xii) Company may make
regularly scheduled payments in respect of any Opt-Out Facility in accordance
with the terms of, and only to the extent required by, the relevant Opt-Out
Facility Documents, (xiii) Company may (a) exchange equity or debt securities of
Company for an equal principal amount (in the case of debt securities) of
Convertible Subordinated Debentures, or exchange equity securities for 9.25%
Debentures, pursuant to the Exchange Offer, (xiv) Company and its Subsidiaries
may repay Opt-Out Facilities and other Indebtedness in accordance with and
pursuant to subsection 6.14, and (xv) OFMC Anaheim may make expenditures
permitted under subsection 7.8B which are applied to payments in respect of the
certificates of participation outstanding as of the Closing Date relating to the
Anaheim Project (including expenditures made by application of management fees
payable to OFMC Anaheim under the management agreement for the Anaheim Project).
7.6 Financial Covenants.
-------------------
A. Minimum Debt Service Coverage Ratio. Company shall not permit the
ratio of (i) Adjusted EBIT to (ii) Consolidated Debt Service Expense, in each
case for any four-Fiscal Quarter period (or for the one-, two- or three- Fiscal
Quarter period, as the case may be, ending after the Closing Date but prior to
December 31, 2001) ending at the end of any Fiscal Quarter set forth below, to
be less than the correlative ratio indicated:
Period Minimum Debt Service
------ Coverage Ratio
--------------
Fiscal Quarter ending March 31, 2001 0.53:1.00
Fiscal Quarter ending June 30, 2001 1.00:1.00
Fiscal Quarter ending September 30, 2001 1.34:1.00
Fiscal Quarter ending December 31, 2001 1.41:1.00
Fiscal Quarter ending March 31, 2002 1.73:1.00
Each Fiscal Quarter thereafter 2.10:1.00
B. Maximum Leverage Ratio. Company shall not permit the Consolidated
Leverage Ratio as at any date during any of the periods set forth below to
exceed the correlative ratio indicated:
Period Maximum Consolidated
------ Leverage Ratio
-------------
Fiscal Quarter ending March 31, 2001 7.86:1.00
Fiscal Quarter ending June 30, 2001 3.41:1.00
Fiscal Quarter ending September 30, 2001 2.58:1.00
Fiscal Quarter ending December 31, 2001 2.29:1.00
Fiscal Quarter ending March 31, 2002 2.00:1.00
Thereafter 1.76:1.00
C. Minimum Consolidated Net Worth. Company shall not permit
Consolidated Net Worth at any date of determination on or after March 31, 2001
to be less than the sum of (i) actual Consolidated Net Worth at December 31,
2000 and (ii) the sum obtained by adding the amounts, determined for each Fiscal
Quarter ending after the Closing Date and on or prior to such date of
determination, equal to the greater of (x) 75% of Consolidated Net Income for
such Fiscal Quarter and (y) zero. Notwithstanding anything to the contrary
contained herein, for purposes of this subsection 7.6C, (a) Consolidated Net
Worth and Consolidated Net Income shall be calculated without giving effect to
(1) any reduction in Consolidated Net Income and any resulting reduction in
Consolidated Net Worth attributable to the application of Statement #84 of the
Financial Accounting Standards Board to the Exchange Offer or (2) any Senators
Sale Losses, and (b) the minimum Consolidated Net Worth required pursuant to the
calculation set forth in the preceding sentence shall be reduced for each Fiscal
Quarter ending on or after March 31, 2001 by an amount equal to the lesser of
(1) $5,300,000 and (2) the absolute value of any loss constituting Consolidated
Net Income for the Fiscal Quarter ending March 31, 2001.
D. Other Financial Covenants. Company shall not breach or default
with respect to any of the financial covenants set forth in the Closing Letter.
E. Alteration of Financial Covenants. In the event a reclassification
of discontinued operations of Company and its Subsidiaries occurring after the
Closing Date affects in any material respect the calculations of the compliance
by Borrowers and their Subsidiaries with the financial covenants contained in
this subsection 7.6, Administrative Agent, Pooled Facility Lenders, Opt-Out
Lenders and Borrowers agree to negotiate in good faith to amend the affected
covenants and related definitions to compensate for the accounting impact
resulting from any such reclassification so that the restrictions, limitations
and performance standards effectively imposed by such covenants, as so amended,
are substantially identical to the restrictions, limitations and performance
standards imposed by such covenants as in effect on the Closing Date.
7.7 Restriction on Fundamental Changes; Asset Sales.
-----------------------------------------------
Borrowers shall not, and shall not permit their respective
Subsidiaries to, alter the legal form of organization of Company or any of its
Subsidiaries, or enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of (including by discount or compromise), in one
transaction or a series of transactions, all or any part of its business,
property or assets (including its notes or receivables and Capital Stock of a
Subsidiary, whether newly issued or outstanding) or its interests in or claims
against any Project, in each case whether now owned or hereafter acquired,
except:
(i) any Subsidiary of Company may be merged with or into a Borrower or
any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to a Borrower or any wholly-owned
Subsidiary Guarantor; provided that, (a) in the case of such a merger, such
Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing
or surviving Person, and (b) notwithstanding other provisions of this
subsection 7.7, no such merger shall merge OFMC Anaheim with any other
Person without the prior written consent of the Opt-Out Lenders holding the
Opt-Out Obligations for which OFMC Anaheim is an obligor;
(ii) Company and its Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales; provided that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out
or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may make Asset Sales (other than
Approved Asset Sales) of assets having a fair market value not in excess of
$10,000,000 in the aggregate; provided that (a) the consideration received
for such assets shall be in an amount at least equal to the fair market
value thereof; (b) the consideration received shall be limited to cash and
the assumption of liabilities related to such assets; and (c) the Net Asset
Sale Proceeds of such Asset Sales shall be applied as required by
subsection 2.6A(iii)(a) or subsection 2.6C;
(v) Company and its Subsidiaries may discount or otherwise compromise
for less than the face value thereof, notes or accounts receivable, to the
extent Company deems necessary in order to resolve disputes that occur in
the ordinary course of business;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital
Stock of any of its Subsidiaries, in order to qualify members of the
Governing Body of the Subsidiary if required by applicable law;
(vii) Company and its Subsidiaries may make Approved Asset Sales,
provided that (a) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof; (b) the sole
consideration received in such Asset Sales shall be cash and the assumption
of Indebtedness and Contingent Obligations related to such assets; (c) the
Net Asset Sale Proceeds of such Asset Sales shall be applied as required by
subsection 2.6A(iii)(a) or subsection 2.6C; and (d) any Indebtedness in
relation to such assets shall be repaid and the related letters of credit
shall be cancelled and returned to the issuers thereof;
(viii) Company and its Subsidiaries may sell or release their interest
in or claim against any Project (other than their interest in and claim
against the business, operations and Indebtedness of the Senators Hockey
Club and its Subsidiaries, which shall be governed by subsection 7.7(xi))
to which an Opt-Out Facility relates so long as the sales price for the
relevant Project is greater than or equal to such Project's Minimum Sales
Price, provided that the net cash proceeds of such sale are applied to
repay the relevant Opt-Out Facility or the Indebtedness which such Opt-Out
Facility supports (to the extent that the Opt-Out Obligations under such
Opt-Out Facility are Contingent Obligations) and, if Company or any of its
Subsidiaries has the right to consent to or prohibit such sale pursuant to
the terms of the relevant Opt-Out Facilities or otherwise, the terms of
such sale shall be reasonably satisfactory to Requisite Lenders (it being
understood that the sales price in any such sale shall be deemed
satisfactory if it equals or exceeds the Minimum Sales Price for the
relevant Project);
(ix) Any Subsidiary of Company may, if its Board of Directors
determines that doing so is in the best interests of such Subsidiary,
change its legal form of organization to a limited liability company, a
corporation or a limited partnership; provided (a) that (1) if such
Subsidiary is a Borrower, such Subsidiary shall have executed such
documents as Administrative Agent reasonably deems necessary to ensure that
such Subsidiary continues to be bound as a Borrower under the Loan
Documents after such change and (2) if all or any portion of the equity
interests of such Subsidiary are subject to Liens created under the
Collateral Documents prior to such change, the same percentage of the
equity interests of such Subsidiary shall continue to be subject to Liens
under the Collateral Documents after such change, with such Liens being of
equal or higher priority than before such change and, if perfected prior to
such change, perfected, and (b) Company and its Subsidiaries shall have
complied with the provisions of the Collateral Documents applicable to such
change of legal form;
(x) Company and its Subsidiaries may make the China Project Swap
(provided that (a) such Asset Sale results in no cash consideration being
paid to the seller of the assets so acquired by Company and (b) no
Indebtedness, Contingent Obligation or Performance Guaranty, or commitment
to incur or assume the same, is incurred or assumed in connection with such
Asset Sale); and
(xi) Company, as a Junior Lender (as such term is defined in the
Senators Senior Subordination Agreement) may, without further consent of
any Agent or any Lender (other than any consent of the applicable Opt-Out
Lenders under the applicable Opt-Out Facility Documents otherwise
required), exercise its rights and perform its obligations under Section 9
of the Senators Senior Subordination Agreement with respect to releasing
its Liens on the property of the Senators Hockey Club upon a sale or
transfer of such property which the "Senior Lenders" (or such other
applicable parties) under the Senators Senior Subordination Agreement
reasonably believe to be for consideration which is reasonably equivalent
to the fair value of such property, so long as the Senators Lease shall not
be terminated or otherwise amended or modified in any respect (including
any amendment or modification that alters the legal, equitable or
contractual rights of Ogden Palladium Services (Canada) Inc. thereunder) in
connection with, or as a condition of, any such sale or transfer (any such
permitted sale or transfer being referred to herein as a "Permitted
Senators Transaction"), provided that the proceeds of any Permitted
Senators Transaction are applied in accordance with the relevant terms of
the Senators Senior Subordination Agreement and the NHL Priority Loan
Letter Agreement.
Without limiting the provisions of subsection 7.7(xi), if Company or
any of its Subsidiaries (including Ogden Palladium Services (Canada) Inc.) has
the right to consent to or approve any amendment of, modification to or
termination of the Senators Lease, Company and its Subsidiaries shall not
exercise any such consent or approval right without the prior written consent of
Requisite Lenders. Notwithstanding anything to the contrary contained herein,
Borrowers shall not, and shall not permit their respective Subsidiaries to, (1)
sell, transfer or otherwise dispose of their interests in or claims against OPD
or the Quezon Project without the consent of Requisite Lenders or (2) agree to
or otherwise permit, without the prior written consent of Requisite Lenders, the
release, extinguishment or termination of any right of consent or approval which
Company any of its Subsidiaries may have over a sale of any Project to which an
Opt-Out Facility relates or over an amendment of, modification to or termination
of the Senators Lease.
7.8 Monthly Budget Covenants.
------------------------
A. Maintenance Capital Expenditures. Borrowers shall not, and shall
not permit their respective Subsidiaries to, make or incur Consolidated
Maintenance Capital Expenditures, for the period commencing on January 1, 2001
and ending during any month set forth in the Monthly Budget, in an aggregate
amount in excess of the "Cumulative Allowable Cash Usage for Maintenance Capital
Expenditures" amount set forth in the Monthly Budget for the month in which such
period ends.
B. Anaheim Expenditures. Borrowers shall not, and shall not permit
their respective Subsidiaries to, make cash expenditures in connection with the
Anaheim Project, during the period commencing on January 1, 2001 and ending on
the Maturity Date, if (i) the aggregate amount of such expenditures, net of
amounts received in cash from the Anaheim Project in repayment of such
expenditures (including management fees payable to OFMC Anaheim under the
management agreement for the Anaheim Project), would exceed $4,400,000 or (ii) a
default in the payment when due (whether at the maturity thereof, or upon
acceleration of maturity or otherwise and without giving effect to any
applicable grace periods) of all or any portion of the Obligations (whether of
principal, interest or any other amount with respect thereto) shall have
occurred, and (a) such default shall not have been cured or waived in accordance
with the terms of the Financing Documents and (b) Lenders shall have exercised
set-off rights with respect to $10,000,000 or more of cash Collateral after the
Closing Date. Any Lender exercising a right of set-off shall, notwithstanding
subsection 10.4, promptly notify Administrative Agent, and Administrative Agent
shall promptly thereafter notify each other Lender, of the exercise of such
right and the amount against which such right was exercised.
C. Net Cash Usage. Borrowers shall not, and shall not permit their
respective Subsidiaries to, make cash expenditures during the period commencing
on January 1, 2001 and ending during any month set forth in the Monthly Budget,
if such cash expenditures would cause cumulative net cash usage by Company and
its Subsidiaries for such period to exceed the "Cumulative Allowable Cash Usage"
amount set forth in the Monthly Budget for the month in which such period ends;
provided that such cash expenditures for any period shall not include the amount
of any Taxes paid in such period as a result of any Asset Sale that would have
been deducted in calculating Net Asset Sale Proceeds of such Asset Sale had such
taxes been paid on or prior to the closing of such Asset Sale.
D. Additional Expenditures. Notwithstanding anything to the contrary
in this subsection 7.8, Borrowers shall be permitted to make cash expenditures
in an aggregate amount not to exceed $1,000,000 in addition to those
expenditures otherwise permitted under subdivisions A, B, and C of this
subsection 7.8, so long as Agents shall have consented to such additional
expenditures.
7.9 Transactions with Shareholders and Affiliates.
---------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of
Company or with any Affiliate of Company or of any such holder; provided that
the foregoing restriction shall not apply to (i) any Indebtedness permitted
under subsection 7.1(iii) or intercompany Indebtedness between Company and its
Subsidiaries or between any of its Subsidiaries existing on the Closing Date,
(ii) reasonable and customary fees paid to members of the Governing Bodies of
Company and its Subsidiaries, in each case provided that such transaction are on
terms that are no less favorable to Company or that Subsidiary, as the case may
be, than those existing on the Closing Date that might be obtained at the time
from Persons who are not such a holder or Affiliate, or (iii) the payment of
reasonable legal fees and expenses incurred by law firms in which Directors of
Company are affiliated for services rendered to Company and its Subsidiaries.
7.10 Restriction on Leases
---------------------
Borrowers shall not, and shall not permit any of their Subsidiaries
to, become liable in any way, whether directly by assignment or as a guarantor
or other surety, for the obligations of the lessee under any lease, whether an
Operating Lease or a Capital Lease (other than intercompany leases between
Borrowers and Subsidiary Guarantors), unless, immediately after giving effect to
the incurrence of liability with respect to such lease, the aggregate amount of
all rents paid or payable by Company and its Subsidiaries on a consolidated
basis under all such leases entered into after the Closing Date at the time in
effect during the then current Fiscal Year or any future period of 12
consecutive calendar months shall not exceed $3,000,000; provided, however, that
this subsection 7.10 shall not prohibit Subsidiaries of Company from incurring
obligations permitted under subsection 7.3(vi) or 7.3(vii); and provided
further, that nothing in this subsection 7.10 shall be construed to permit
expenditures in excess of amounts permitted under subsection 7.8.
7.11 Sales and Lease-Backs
---------------------
Borrowers shall not, and shall not permit any of their Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, (i) that Company or any of its Subsidiaries has
sold or transferred or is to sell or transfer to any other Person (other than
Company or any of its Subsidiaries) or (ii) that Company or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property that has been or is to be sold or transferred by Company or any of its
Subsidiaries to any Person (other than Company or any of its Subsidiaries) in
connection with such lease; provided that Borrowers and their respective
Subsidiaries may remain liable under those transactions entered into prior to
the Closing Date and described on Schedule 7.11.
7.12 Conduct of Business
-------------------
From and after the Closing Date, Company shall not, and shall not
permit any of its Subsidiaries, to engage in any business other than the
businesses engaged in by Company and its Subsidiaries on the Closing Date and
the energy business.
7.13 Amendments to Debt Documentation and Organizational Documents.
--------------------------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
amend, modify or waive (or make any payment consistent with an amendment,
modification or waiver of) any material provision of any of (i) the principal
documents relating to Existing Project Debt, the 9.25% Debenture Indenture or
related documents, or the Convertible Subordinated Debentures or related
documents, in each case if the effect of such amendment, modification or waiver,
together with all other amendments, modifications or waivers made, (x) is to
impose additional material obligations on, or confer additional rights to the
holders thereof against, Company or any of its Subsidiaries, or (y) is otherwise
adverse in any material respect to the interests of the Lenders, or (ii) the
Organizational Documents of Company and its Subsidiaries, if the effect of such
amendment, modification or waiver, together with all other amendments,
modifications or waivers made, is adverse in any material respect to the
interests of the Lenders.
7.14 End of Fiscal Years; Fiscal Quarters.
------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to
change the end of the Fiscal Year of Company or any of its Subsidiaries from
December 31st.
7.15 No Additional Commitments.
-------------------------
Borrowers hereby agree not to create or agree with any Lender to
create after the Closing Date any commitments to lend any amounts to any
Borrower or any Subsidiary of any Borrower or to otherwise extend additional
credit to any Borrower or any Subsidiary of any Borrower under the Pooled
Facility Documents (it being understood that the Revolving Loan Commitments are
not to be deemed included in the Pooled Facility Documents), other than (i) the
reissuance or extension of, or election not to decline to extend, any Pooled
Letters of Credit pursuant to subsection 2.11A and (ii) the issuance of
Replacement Letters of Credit. Nothing in this subsection 7.15 shall be
construed as prohibiting Company and its Subsidiaries from obtaining a
commitment or commitments to refinance the Obligations or entering into a credit
facility or facilities to refinance the Obligations.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur:
8.1 Failure to Make Payments When Due.
---------------------------------
Failure by Borrowers to pay any installment of principal of any
Revolving Loan when due, whether at stated maturity, by acceleration, by notice
of voluntary prepayment, by mandatory prepayment or otherwise; failure by
Borrowers to pay when due, whether from a Revolving Loan, proceeds of a Letter
of Credit or otherwise, any amount payable to an Issuing Lender in reimbursement
of any drawing under a Letter of Credit or Pooled Letter of Credit or any amount
payable to any Pooled Facility Lender on account of any portion of any Pooled
Lender Paydown Amount that is rescinded or otherwise recovered directly or
indirectly from any Pooled Facility Lender; or failure by Borrowers to pay any
interest or any fee or any other amount due under this Agreement (including
amounts payable with respect to the Opt-Out Facilities pursuant to subsection
2.5F) within five days after the date due; or
8.2 Default in Other Agreements.
---------------------------
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable (a) in respect of
one or more items of Indebtedness (other than Indebtedness referred to in
subsection 8.1 or in clause (b)) or Contingent Obligations or Performance
Guaranties, in each case in the principal amount of $5,000,000 or more,
individually or in the aggregate, or (b) in respect of Limited Recourse
Debt of Subsidiaries of Company in the principal amount of $10,000,000 or
more, individually or in the aggregate, in each case beyond the end of any
grace period provided therefor (provided that Limited Recourse Debt
incurred in connection with one or more Projects to which less than
$2,000,000 in the aggregate of Adjusted EBIT is attributable for the
12-month period immediately preceding the failure to pay such interest,
principal or other amounts shall not be considered Indebtedness or Limited
Recourse Debt solely for purposes of this clause (b)); or
(ii) breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) one or more items of Indebtedness
or Contingent Obligations in the individual or aggregate principal amounts
referred to in clause (i) above or (b) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness or
Contingent Obligation(s), if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder or holders)
to cause, that Indebtedness or Contingent Obligation(s) to become or be
declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be (upon the giving
or receiving of notice, lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
----------------------------
Failure of Company to perform or comply with any term or condition
contained in subsection 2.7 or 6.2 or Section 7 of this Agreement; or
8.4 Breach of Warranty.
------------------
Any representation, warranty, certification or other statement made
by Company or any of its Subsidiaries in any Financing Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
8.5 Other Defaults Under Financing Documents.
----------------------------------------
Company or any Subsidiary of Company shall default in the performance
of or compliance with any term contained in this Agreement or any of the other
Financing Documents, other than any such term referred to in any other
subsection of this Section 8, and such default shall not have been remedied or
waived within 30 days after the earlier of (i) an Officer of Company or such
Subsidiary becoming aware of such default or (ii) receipt by Company and such
Subsidiary of notice from Administrative Agent or any Lender of such default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted
under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Company or any of
its Subsidiaries under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its
Subsidiaries, or over all or a substantial part of its property, shall have
been entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of Company or any of its
Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Company or any of its Subsidiaries, and
any such event described in this clause (ii) shall continue for 60 days
unless dismissed, bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
--------------------------------------------------
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Company or any
of its Subsidiaries shall make any assignment for the benefit of creditors;
or
(ii) Company or any of its Subsidiaries shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as
such debts become due; or the Governing Body of Company or any of its
Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
-------------------------
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $5,000,000 or (ii)
in the aggregate at any time an amount in excess of $5,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9 Dissolution.
-----------
Any order, judgment or decree shall be entered against Company or any
of its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 Employee Benefit Plans.
----------------------
There shall occur one or more ERISA Events which individually
or in the aggregate results in or are reasonably be expected to result in
liability of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in excess of $7,500,000 during the term of this Agreement; or there
shall exist an amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA, but determined on the basis of actuarial assumptions used
for funding purposes with respect to such Pension Plans), individually or in the
aggregate for all Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which assets exceed benefit liabilities), which
exceeds $10,000,000; or
8.11 Material Adverse Effect.
-----------------------
Any event or change shall occur after the date of this Agreement that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect; or
8.12 Change in Control.
-----------------
A Change in Control shall have occurred; or
8.13 Invalidity of Intercreditor Agreement or Subsidiary Guaranty; Failure
---------------------------------------------------------------------
of Security; Repudiation of Obligations.
---------------------------------------
At any time after the execution and delivery thereof, (i) the
Intercreditor Agreement or the Subsidiary Guaranty (with respect to the
obligations thereunder of any Material Subsidiary) for any reason, other than
the satisfaction in full of all Obligations and Opt-Out Obligations , shall
cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void, (ii) any Collateral Document (with
respect to the obligations thereunder of any Material Subsidiary) shall cease to
be in full force and effect (other than by reason of a release of Collateral
thereunder in accordance with the terms hereof or thereof, the satisfaction in
full of the Secured Obligations or any other termination of such Collateral
Document in accordance with the terms hereof or thereof) or shall be declared
null and void, or Administrative Agent shall not have or shall cease to have a
valid and perfected First Priority Lien in any Collateral purported to be
covered thereby, in each case for any reason other than the failure of
Administrative Agent or any Lender to take any action within its control, or
(iii) any Loan Party shall contest the validity or enforceability of any Loan
Document or Pooled Facility Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Loan Document or Pooled Facility Document to which it is a party :
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Revolving Loans, (b) an amount equal to the maximum amount that may at any time
be drawn under all Pooled Letters of Credit, Opt-Out Facilities consisting of
letters of credit or Letters of Credit then outstanding (whether or not any
beneficiary under any such Pooled Letter of Credit, Opt-Out Facility or Letter
of Credit shall have presented, or shall be entitled at such time to present,
the drafts or other documents or certificates required to draw under such Pooled
Letter of Credit, Opt-Out Facility or Letter of Credit), and (c) all Opt-Out
Obligations and all other Obligations shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by Borrowers, and the obligation
of each Lender to make any Revolving Loan, the obligation of Administrative
Agent or the right of the Documentation Agent to issue any Letter of Credit or
Pooled Letter of Credit hereunder, and the obligation of any Issuing Lender of
any Pooled Letter of Credit or issuing lender of any letter of credit issued
under an Opt-Out Facility to amend, reissue, extend or elect not to decline to
extend any such Pooled Letter of Credit or letter of credit, as the case may be,
under subsection 2.11A shall thereupon terminate, and (ii) upon the occurrence
and during the continuation of any other Event of Default, Administrative Agent
shall, upon the written request or with the written consent of Supermajority
Lenders, by written notice to Company, declare all or any portion of the amounts
described in clauses (a) through (c) above to be, and the same shall forthwith
become, immediately due and payable, and the obligation of each Lender to make
any Revolving Loan, the obligation of Administrative Agent and the right of the
Documentation Agent to issue any Letter of Credit or Pooled Letter of Credit
shall thereupon terminate; provided that the foregoing shall not affect in any
way the obligations of Pooled Facility Lenders under subsection 2.1C or
Revolving Lenders under subsection 3.3C(i).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Intercreditor Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph,
if at any time within 60 days after an acceleration of the Revolving Loans
pursuant to clause (ii) of such paragraph Borrowers shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than non-payment of the principal of and accrued interest on the Revolving
Loans, in each case which is due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to subsection 10.6, then Supermajority
Lenders, by written notice to Company, may at their option rescind and annul
such acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
Lenders to a decision which may be made at the election of Supermajority Lenders
and are not intended, directly or indirectly, to benefit Borrowers, and such
provisions shall not at any time be construed so as to grant Borrowers the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Administrative Agent or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.
Section 9. AGENTS
9.1 Appointment.
-----------
A. Appointment of Administrative Agent and Documentation Agent. BofA
is hereby appointed Administrative Agent hereunder and under the other Loan
Documents and Deutsche Bank is hereby appointed Documentation Agent hereunder.
Each Lender hereby authorizes each Agent to act as its agent in accordance with
the terms of this Agreement and the other Loan Documents. Each Agent agrees to
act upon the express conditions contained in this Agreement and the other Loan
Documents, as applicable. The provisions of this Section 9 are solely for the
benefit of Agent and Lenders and no Loan Party shall have rights as a third
party beneficiary of any of the provisions thereof. In performing its functions
and duties under this Agreement, each Agent (other than as provided in
subsection 2.3A) shall act solely as an agent of Lenders and does not assume and
shall not be deemed to have assumed any obligation towards or relationship of
agency or trust with or for Company or any other Loan Party.
B. Appointment of Supplemental Collateral Agents. It is the purpose
of this Agreement and the other Loan Documents that there shall be no violation
of any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case Administrative Agent deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein individually as a "Supplemental Collateral
Agent" and collectively as "Supplemental Collateral Agents").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement, any of the
other Loan Documents or the Pooled Facility Documents to be exercised by or
vested in or conveyed to Administrative Agent with respect to such Collateral
shall be exercisable by and vest in such Supplemental Collateral Agent to the
extent, and only to the extent, necessary to enable such Supplemental Collateral
Agent to exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and every
covenant and obligation contained in the Loan Documents and necessary to the
exercise or performance thereof by such Supplemental Collateral Agent shall run
to and be enforceable by either Administrative Agent or such Supplemental
Collateral Agent, and (ii) the provisions of this Section 9 and of subsections
10.2 and 10.3 that refer to Administrative Agent shall inure to the benefit of
such Supplemental Collateral Agent and all references therein to Administrative
Agent shall be deemed to be references to Administrative Agent and/or such
Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Company or any other Loan Party
be required by any Supplemental Collateral Agent so appointed by Administrative
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, Company shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by Administrative Agent. In case any Supplemental Collateral Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
C. Appointment of Administrative Agent as Agent under Pooled
Facilities. BofA hereby replaces the Existing Pooled Facility Agent under each
relevant Pooled Facility Document in such Existing Pooled Facility Agent's
capacity as agent (howsoever entitled) thereunder and succeeds to the rights and
obligations of each such Existing Pooled Facility Agent in such capacity under
the relevant Pooled Facility Documents. Each Lender hereby authorizes
Administrative Agent to act as its agent in accordance with the terms of this
Agreement, the other Loan Documents and the Pooled Facility Documents.
Administrative Agent agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, and to the extent not contrary to this
Agreement or the other Loan Documents, the Pooled Facility Documents.
9.2 Powers and Duties; General Immunity.
-----------------------------------
A. Powers; Duties Specified. Each Lender irrevocably authorizes
Agents to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder, under the other Loan Documents and under the
Pooled Facility Documents as are specifically delegated or granted to Agent by
the terms hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. An Agent shall have only those duties and
responsibilities that are expressly specified in this Agreement, the other Loan
Documents and under the Pooled Facility Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its
Affiliates, agents or employees. No Agent shall have, by reason of this
Agreement or any of the other Financing Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other
Financing Documents, expressed or implied, is intended to or shall be so
construed as to impose upon an Agent any obligations in respect of this
Agreement or any of the other Financing Documents except as expressly set forth
in the Loan Documents.
B. No Responsibility for Certain Matters. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Financing Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by such Agent to Lenders or by or on
behalf of any Borrower to such Agent or any Lender in connection with the
Financing Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Borrowers or any other Person liable
for the payment of any Obligations or Opt-Out Obligations, nor shall such 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 Financing Documents or as to the use of the proceeds of the Revolving
Loans or the use of the Pooled Letters of Credit or Letters of Credit or as to
the existence or possible existence of any Event of Default or Potential Event
of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Revolving Loans, the Letter of Credit
Usage, the Pooled Facility L/C Participations, the Pooled Letters of Credit or
the Pooled Facility Loan Participations or the component amounts thereof.
C. Exculpatory Provisions. No Agent or any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent under or in connection with any of the Loan Documents
or the Pooled Facility Documents except to the extent caused by such Agent's
gross negligence or willful misconduct. An Agent shall be entitled to refrain
from any act or the taking of any action (including the failure to take an
action) in connection with this Agreement, any of the other Loan Documents or
the Pooled Facility 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 subsection
10.6) 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
Company and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against an Agent as a result of such Agent acting or (where so
instructed) refraining from acting under this Agreement, any of the other Loan
Documents or Pooled Facility Documents in accordance with the instructions of
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. 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, an Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Revolving Loans, the Pooled Letters of
Credit and the Letters of Credit, an Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
performing the duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include Agents in their individual capacity. An Agent and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust, financial advisory or other business with Company or
any of its Affiliates as if it were not performing the duties specified herein,
and may accept fees and other consideration from Company for services in
connection with this Agreement and otherwise without having to account for the
same to Lenders.
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal
---------------------------------------------------------------------
of Creditworthiness.
-------------------
Each Lender agrees that it has made its own independent investigation
of the financial condition and affairs of Company and its Subsidiaries in
connection with the making of the Revolving Loans and the issuance of Pooled
Letters of Credit and Letters of Credit hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of Company and its
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 Revolving Loans or the issuing of Letters of Credit 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.
9.4 Right to Indemnity.
------------------
Each Revolving Lender and Pooled Facility Lender, in proportion to
its Pro Rata Share, severally agrees to indemnify Agents and the officers,
directors, employees, agents, attorneys, professional advisors and affiliates of
each of them to the extent that any such Person shall not have been reimbursed
by Borrowers, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements and fees and disbursements of any financial
advisor engaged by Agents) or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against an Agent or other such
Persons in exercising the powers, rights and remedies of an Agent or performing
duties of an Agent hereunder, under the other Loan Documents or Pooled Facility
Documents or otherwise in its capacity as Agent in any way relating to or
arising out of this Agreement, the other Loan Documents or Pooled Facility
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from an Agent's gross negligence or
willful misconduct or any Funding Default of another Lender. If any indemnity
furnished to an Agent or any other such Person 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.
9.5 Successor Agents .
-----------------
An Agent may resign at any time by giving 60 days' prior written
notice thereof to Lenders and Company, and an Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to Company and such Agent and signed by Requisite Lenders. Upon any
such notice of resignation or any such removal, Requisite Lenders shall have the
right, upon five Business Days' notice to Company, to appoint a successor Agent.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
that successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Agent and the
retiring or removed Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Agent's resignation or
removal hereunder as an Agent, the provisions of this Section 9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement, the other Loan Documents, or the Pooled Facility
Documents.
9.6 Intercreditor Agreement, Collateral Documents and Guaranties.
------------------------------------------------------------
Each Lender hereby further authorizes each of Administrative
Agent and Collateral Agent, on behalf of and for the benefit of Lenders, to
enter into each Collateral Document as secured party and to enter into and be
the agent for and representative of Lenders under the Intercreditor Agreement,
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of the
Intercreditor Agreement, each Collateral Document and the Subsidiary Guaranty;
provided that Administrative Agent and Collateral Agent shall not (i) enter into
or consent to any amendment, modification, termination or waiver of any
provision contained in the Intercreditor Agreement or any material amendment,
modification, termination or waiver of any provision contained in any Collateral
Document or the Subsidiary Guaranty or (ii) release any Collateral (except as
otherwise expressly permitted or required pursuant to the terms of this
Agreement or the applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or such greater number of Lenders as are required
to consent to such amendment, modification, termination or waiver pursuant to
subsection 10.6); provided further, however, that, without further written
consent or authorization from Lenders, Administrative Agent may execute any
documents or instruments necessary to (a) release any Lien encumbering any item
of Collateral that is the subject of a sale or other disposition of assets or a
financing permitted by this Agreement or to which Requisite Lenders have
otherwise consented or (b) release any Subsidiary Guarantor from the Subsidiary
Guaranty if all of the capital stock of such Subsidiary Guarantor is sold to any
Person (other than an Affiliate of Company) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders have otherwise
consented. Anything contained in any of the Financing Documents to the contrary
notwithstanding, Company, Administrative Agent and each Lender hereby agree that
(1) no Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce the Subsidiary Guaranty,
it being understood and agreed that all powers, rights and remedies under the
Collateral Documents and the Subsidiary Guaranty may be exercised solely by
Administrative Agent for the benefit of Lenders (and to the extent such
Collateral is Shared Collateral, for the holders of the 9.25% Debentures) in
accordance with the terms thereof, and (2) in the event of a foreclosure by
Administrative Agent on any of the Collateral pursuant to a public or private
sale, Administrative Agent or any Lender may be the purchaser of any or all of
such Collateral at any such sale and Administrative Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations (and, after
determination of a Realized Deficiency (if any) with respect thereto, any of the
Opt-Out Obligations) as a credit on account of the purchase price for any
Collateral payable by Administrative Agent at such sale.
9.7 Administrative Agent May File Proofs of Claim.
---------------------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to Company or any of the Subsidiaries of Company,
Administrative Agent (irrespective of whether the principal of any Revolving
Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall have made any
demand on Company) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Revolving Loans and any other
Obligations and Opt-Out Obligations that are owing and unpaid and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of Lenders and Agents (including any claim for the
reasonable compensation, expenses, disbursements and advances of Lenders
and Agents and their agents and counsel and all other amounts due Lenders
and Agents under subsections 2.5 and 10.2) allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and their agents
and counsel, and any other amounts due Agents under subsections 2.5 and 10.2
hereof.
Nothing herein contained shall be deemed to authorize Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the Opt-Out Obligations or the rights of any Lenders or to
authorize Administrative Agent to vote in respect of the claim of any Lender in
any such proceeding.
9.8 Indemnification of Existing Pooled Facility Agents.
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Each Pooled Facility Lender agrees and affirms that any of its
obligations to indemnify each Existing Pooled Facility Agent and related Persons
under the Pooled Facility Documents to which such Pooled Facility Lender was a
party immediately prior to the Closing Date, in each case for acts or omissions
prior to the Closing Date in exercising the powers, rights and remedies of an
agent or performing duties of an agent under the Pooled Facility Documents,
shall survive the Closing Date to the same extent as if the provisions governing
such indemnification obligations continued to be in effect after the Closing
Date and such Pooled Facility Lenders continued to be party to such Pooled
Facility Documents to the same extent as immediately prior to the Closing Date.
Section 10. MISCELLANEOUS
10.1 Successors and Assigns; Assignments and Participations in Loans and
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Letters of Credit.
-----------------
A. General. 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 (it being
understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). No Borrower's rights or obligations
hereunder nor any interest therein may be assigned or delegated by such Borrower
without the prior written consent of all Lenders. Subject to subsection 10.1B,
each Lender shall have the right at any time to (i) sell, assign or transfer to
any Person, or (ii) sell participations to any Person in, all or any part of its
Revolving Loan Commitments or any Revolving Loans made by it or its Pooled
Letters of Credit or Letters of Credit or participations therein or any other
interest herein or in any other Obligations or Opt-Out Obligations owed to it;
provided that, except as provided in subsection 10.5, no such sale, assignment
or transfer described in clause (i) above (other than a sale, assignment or
transfer of Opt-Out Obligations without any sale, assignment or transfer of
Revolving Loan Commitments, Revolving Loans, participations in Letters of Credit
or Pooled Letters of Credit or other Obligations) shall be effective unless and
until an Assignment Agreement effecting such sale, assignment or transfer shall
have been accepted by Administrative Agent and recorded in the Register as
provided in subsection 10.1B(ii); provided, further that (a) no such sale,
assignment, transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Revolving Lender effecting such sale, assignment,
transfer or participation, (b) no such sale, assignment, transfer or
participation of any Pooled Facility Loan Participation or Pooled Facility L/C
Participation or any participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding interest in the
underlying Pooled Facility in which the Pooled Facility Lender effecting such
sale, assignment, transfer or participation is a lender under the Pooled
Facility Documents, (c) no such sale, assignment, transfer or participation of
any interest in an Opt-Out Facility or any participation therein may be made
without the assignee thereof entering into an assignment agreement under which
such assignee agrees to be bound by the terms and conditions of this Agreement
and the Intercreditor Agreement, (d) no such sale, assignment or transfer of any
interest in the Class B Palladium DPS Facility may be made to any Person other
than an Eligible Assignee, and (e) nothing herein shall be construed as
permitting any such sale, assignment, transfer or participation of any interest
in an Opt-Out Facility to be made in contravention of any applicable
requirements under the relevant Opt-Out Facility Documents or under other
contractual arrangements binding on the relevant Opt-Out Facility Lenders.
Except as otherwise provided in this subsection 10.1, no Lender shall, as
between Borrowers and such Lender, be relieved of any of its obligations
hereunder as a result of any sale, assignment or transfer of, or any granting of
participations in, all or any part of its Revolving Loan Commitments or the
Revolving Loans, the Letters of Credit or participations therein, the Pooled
Facility L/C Participations or the Pooled Facility Loan Participations or the
other Obligations owed to such Lender. No Lender shall be permitted to assign
any portion of its rights or obligations hereunder (including, in the case of
Opt-Out Lenders, any right to receive payments under subsection 2.5F or
subsection 6.14A) to any other Person if, upon giving effect to such assignment,
Borrowers would be obligated to pay such assignee amounts greater than the
amounts, if any, which Borrowers would have been required to pay such assigning
Lender under subsection 2.8 or 2.9 if such assignment did not occur.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Revolving Loan Commitment,
Revolving Loan, Letter of Credit or participation therein, Pooled Facility
L/C Participation or Pooled Facility Loan Participation or other Obligation
may (a) be assigned in any amount to another Lender, or to an Affiliate of
the assigning Lender or another Lender, with the giving of notice to
Borrowers and Agents and with the consent of Agents (which consent shall
not be unreasonably withheld or delayed) or (b) be assigned in an aggregate
amount of not less than $5,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Revolving Loan Commitments,
Revolving Loans, Letters of Credit and participations therein, Pooled
Facility L/C Participation or Pooled Facility Loan Participation and other
Obligations of the assigning Lender) to any Eligible Assignee with the
consents of Agents and of the Issuing Lenders of any Letters of Credit or
Pooled Letters of Credit (which consents shall not be unreasonably withheld
or delayed), and provided further, however, that no assignment by a
Defaulting Lender shall be permitted unless such Defaulting Lender or
assignee has funded such Defaulting Lender's defaulted funding obligations
with respect to Loans and participations in Letters of Credit, Pooled
Letters of Credit and Existing Pooled Loans, if any. To the extent of any
such assignment in accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with respect to its
Revolving Loan Commitments, Revolving Loans, Letters of Credit or
participations therein, Pooled Facility L/C Participation or Pooled
Facility Loan Participation or other Obligations or the portion thereof so
assigned. The parties to each such assignment shall execute and deliver to
Administrative Agent, for its acceptance and recording in the Register, an
Assignment Agreement, together with a processing and recordation fee of
$5,000 unless the assignee is an Affiliate of a Lender, in which case no
fee shall be required, a counterpart to the Intercreditor Agreement and
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 Administrative Agent
pursuant to subsection 2.9B(iii). Upon such execution, delivery, and
acceptance and recordation, from and after the effective date specified in
such Assignment Agreement, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the rights
and obligations of a Lender hereunder, (y) the assignee shall be a party to
the Intercreditor Agreement, and to the extent that rights and obligations
have been assigned to it pursuant to the Assignment Agreement, shall have
the rights and obligations of a Creditor Party thereunder (as such term is
defined in the Intercreditor Agreement) and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment Agreement, relinquish its
rights (other than any rights which survive the termination of this
Agreement under subsection 10.9B) and be released from its obligations
under this Agreement and the Intercreditor Agreement (and, in the case of
an Assignment Agreement covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Pooled
Facility Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of subsection 10.9 and entitled to any rights
under the Intercreditor Agreement which survive after such Lender ceases to
be a Pooled Facility Lender); provided that, anything contained in any of
the Financing Documents to the contrary notwithstanding, if such Lender is
the Issuing Lender with respect to any outstanding Letters of Credit or
Pooled Letter of Credit such Lender shall continue to have all rights and
obligations of an issuing lender with respect to such Letters of Credit or
Pooled Letter of Credit until the cancellation or expiration of such
Letters of Credit or Pooled Letters of Credit and the reimbursement of any
amounts drawn thereunder). If any such assignment occurs after the issuance
of any Revolving Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Revolving Notes, if any, to Administrative Agent
for cancellation, and thereupon new Revolving Notes shall, if so requested
by the assignee and/or the assigning Lender in accordance with subsection
2.3B, be issued to the assignee and to the assigning Lender, substantially
in the form of Exhibit IV, annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Revolving Loan Commitments be,
of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon
its receipt of an Assignment Agreement executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee (except that such
representation shall not be required in the case of an assignment pursuant
to clause (a) of subsection 10.1B(i)), together with an executed
counterpart to the Intercreditor Agreement from the assignee and the
processing and recordation fee referred to in subsection 10.1B(i), and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.9B(iii),
Administrative Agent shall, if Agents, Issuing Lenders of Letter of Credit
and Pooled Letters of Credit and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Administrative Agent to such assignment),
(b) record the information contained therein in the Register, and (c) give
prompt notice thereof to Company. Administrative Agent shall maintain a
copy of each Assignment Agreement delivered to and accepted by it as
provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an
Affiliate of Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the Maturity Date or (ii) a reduction of
the principal amount of or the rate of interest payable on any Revolving Loan
allocated to such participation, and all amounts payable by Company hereunder
(including amounts payable to such Lender pursuant to subsections 2.8D and 2.9)
shall be determined as if such Lender had not sold such participation. Company
and each Lender hereby acknowledge and agree that, solely for purposes of
subsections 10.6 and 10.7, (a) any participation will give rise to a direct
obligation of Company to the participant and (b) the participant shall be
considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, any Lender may assign and pledge all or any portion of its
Revolving Loans, the other Obligations or Opt-Out Obligations owed to such
Lender, and its Revolving Note or Revolving Notes 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; provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. Information. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. Agreements of Lenders. Each Pooled Facility Lender listed on the
signature pages hereof hereby agrees (i) that it is an Eligible Assignee
described in clause (i) of the definition thereof (without reference to the
ultimate and penultimate provisos to such definition); (ii) that it has
experience and expertise in the making of loans such as the Revolving Loans; and
(iii) that it will make its Revolving Loans for its own account in the ordinary
course of its business and without a view to distribution of such Revolving
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 subsection 10.1, the disposition of such Revolving Loans or any interests
therein shall at all times remain within its exclusive control). Each Lender
that becomes a party hereto pursuant to an Assignment Agreement shall be deemed
to agree that the agreements of such Lender contained in Section 2(c) of such
Assignment Agreement are incorporated herein by this reference. Notwithstanding
the foregoing, nothing herein shall be construed to imply that the Revolving
Loans are "securities" within the meaning of the Securities Act or the Exchange
Act or any other applicable securities law. Each Lender hereby represents and
warrants to each other Lender that to the best of such Lender's knowledge after
due inquiry the Opt-Out Facilities and Pooled Facilities with respect to which
such Lender is an Opt-Out Lender or a Pooled Facility Lender represent the only
Indebtedness or Contingent Obligations of Company and its Subsidiaries to or in
favor of such Lender or any of its Affiliates outstanding as of the Closing Date
(other than Limited Recourse Debt related to Projects).
10.2 Expenses.
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Whether or not the transactions contemplated hereby shall be
consummated, Borrowers agree, jointly and severally, to pay promptly (i) all the
actual and reasonable costs and expenses of negotiation, preparation and
execution of the Loan Documents and any Replacement Letters of Credit and any
consents, amendments, waivers or other modifications thereto; (ii) all the costs
of furnishing all opinions by counsel for Loan Parties (including any opinions
requested by Agents or Lenders as to any legal matters arising hereunder) and of
Borrowers' performance of and compliance with all agreements and conditions on
their part to be performed or complied with under this Agreement and the other
Loan Documents including with respect to confirming compliance with
environmental, insurance and solvency requirements; (iii) the reasonable fees,
expenses and disbursements of advisors and counsel to Agents (including
O'Melveny & Myers LLP, counsel to Agents, and Ernst & Young LLP) and Lenders and
each counsel (other than internal counsel) retained by any Lender (to the
extent, in the case of counsel retained by such individual Lenders, incurred
prior to or on the Closing Date or after the occurrence of any Potential Event
of Default or in connection with any consent, amendment, waiver or other
modification to the Loan Documents) in connection with the negotiation,
preparation, execution, interpretation or administration of the Loan Documents
and any Replacement Letters of Credit and any proposed consents, amendments,
waivers or other modifications thereto and any other documents or matters
requested by any Borrower; (iv) all the actual costs and reasonable expenses of
creating and perfecting Liens in favor of Administrative Agent on behalf of
Lenders pursuant to any Collateral Document, 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 Administrative Agent and of counsel providing any opinions that Agents or
Requisite Lenders may request in respect of the Collateral Documents or the
Liens created pursuant thereto; (v) all the actual costs and reasonable fees,
expenses and disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed or retained by
Agents or their counsel; (vi) all the actual costs and reasonable expenses
incurred in connection with the custody or preservation of any of the
Collateral; and (vii) all costs and expenses, including reasonable attorneys'
fees and costs of settlement, incurred by Agents and Lenders in enforcing any
Obligations or Opt-Out Obligations of or in collecting any payments due from any
Loan Party hereunder or under the other Financing Documents (including in
connection with the sale of, collection from, or other realization upon any of
the Collateral or the enforcement of the Subsidiary Guaranty) or in connection
with any refinancing or restructuring of the credit arrangements provided under
this Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3 Indemnity.
---------
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Borrowers jointly and severally agree to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless Agents and Lenders, and
the officers, directors, employees, agents and affiliates of Agents and Lenders
(collectively called the "Indemnitees"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Borrowers shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any
and all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, 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, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct or indirect
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 arising out of (i) this
Agreement or the other Financing Documents or the transactions contemplated
hereby or thereby (including Lenders' agreement to make the Revolving Loans
hereunder or to purchase and fund the Pooled Facility Loan Participations or the
Pooled Facility L/C Participations or the use or intended use of the proceeds
thereof or the issuance of Letters of Credit or Pooled Letters of Credit
hereunder or the use or intended use of any thereof, or any enforcement of any
of the Loan Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Subsidiary
Guaranty), (ii) the statements contained in the commitment letter delivered by
any Lender with respect thereto, (iii) any claim by the holders of the 9.25%
Debentures (or their representatives) against the Collateral or in respect of
any repayment of the Obligations or the Opt-Out Obligations from the proceeds of
Collateral, or (iv) 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 Company or any of its
Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Borrowers shall
contribute the maximum portion that they are permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
----------------------------------------------
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 Borrower at any time
or from time to time, without notice to any Borrower or to any other Person, 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 that
Lender or any Affiliate of such Lender to or for the credit or the account of
Borrowers and each other Loan Party against and on account of the obligations
and liabilities of Borrowers or any other Loan Party to that Lender (or any
Affiliate of such Lender) or to any other Lender (or any Affiliate of any other
Lender) under this Agreement, the other Loan Documents and the Pooled Facility
Documents, including all claims of any nature or description arising out of or
connected with this Agreement, the Pooled Letters of Credit, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Revolving Loans or any amounts in respect of
the Pooled Letters of Credit, the Letters of Credit or any other amounts due
hereunder shall have become due and payable pursuant to Section 8 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured. Each Borrower hereby further grants to Administrative Agent and each
Lender a security interest in all deposits and accounts maintained with an Agent
or such Lender as security for the Obligations and the Opt-Out Obligations (and
to the extent required by the 9.25% Debenture Indenture, for the obligations
under the 9.25% Debentures).
10.5 Ratable Sharing.
---------------
Pooled Facility Lenders (in their capacity as Pooled Facility Lenders
and as Revolving Lenders for purposes of this subsection) and Opt-Out Lenders
(other than Canadian Loss Sharing Lenders) hereby agree among themselves that if
any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Revolving Loans made and applied in accordance with the terms of
this Agreement), by realization upon security, 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 Loan Documents, the Pooled Facility 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, amounts payable in respect of Pooled
Letters of Credit or Letters of Credit, fees and other amounts then due and
owing to that Pooled Facility Lender or Opt-Out Lender hereunder or under the
other Financing Documents or Opt-Out Facility Documents (collectively, the
"Aggregate Amounts Due" to such Lender) that is greater than the proportion
received by any other Pooled Facility Lender or Opt-Out Lender in respect of the
Aggregate Amounts Due to such other Pooled Facility Lender or Opt-Out Lender
(except to the extent such greater reduction or payment is attributable to any
"Preferred Distribution" (as such term is defined in the Intercreditor
Agreement) paid to the Quezon Lenders pursuant to the terms of and in accordance
with the Intercreditor Agreement), then the Pooled Facility Lender or Opt-Out
Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Pooled Facility Lender and Opt-Out Lender of
the receipt of such payment and (ii) apply a portion of such payment to purchase
assignments (which it shall be deemed to have purchased from each seller of an
assignment simultaneously upon the receipt by such seller of its portion of such
payment) of the Aggregate Amounts Due to the other Pooled Facility Lenders and
Opt-Out Lenders so that all such recoveries of Aggregate Amounts Due shall be
shared by all Pooled Facility Lenders and Opt-Out Lenders in proportion to the
Aggregate Amounts Due to them; provided that if all or part of such
proportionately greater payment received by such purchasing Pooled Facility
Lender or Opt-Out Lender is thereafter recovered from such Pooled Facility
Lender or Opt-Out Lender upon the bankruptcy or reorganization of any Borrower
or otherwise, those purchases shall be rescinded and the purchase prices paid
for such assignments shall be returned to such purchasing Pooled Facility Lender
or Opt-Out Lender ratably to the extent of such recovery, but without interest;
and provided further, however, that (1) no Opt-Out Lender shall be entitled to
the benefits of, or subject to the burdens of, or included in any calculation
whatsoever required under, this subsection 10.5 until such time as such Opt-Out
Lender has a Realized Deficiency, (2) the Aggregate Amounts Due to any such
Opt-Out Lender, the Aggregate Amounts Due to Pooled Facility Lenders and other
Opt-Out Lenders in relation to such Opt-Out Lender, and the payments or
reductions of such Aggregate Amounts Due in relation to such Opt-Out Lender,
shall only be calculated on and after such time as such Opt-Out Lender has a
Realized Deficiency and without giving effect to amounts received by such
Opt-Out Lender on account of such Opt-Out Lender's Ratable Paydown, (3) the
payments or reductions of the Aggregate Amounts Due to the Pooled Facility
Lenders in relation to such Opt-Out Lender shall not include payments or
reductions of Revolving Loan Exposure to the extent such payments or reductions
do not include or are not accompanied by a reduction of the Revolving Loan
Commitments, (4) nothing herein shall be construed as obligating any Opt-Out
Lender to assume any obligations to fund or reimburse any drawing under Letters
of Credit or Pooled Letters of Credit, or otherwise to make any payments or
advance any funds to any Borrower with respect to unfunded Revolving Loan
Commitments, and (5) nothing in this subsection 10.5 shall be construed as
obligating any Opt-Out Lender to share with any Pooled Facility Lender or other
Opt-Out Lender (or include in any calculation required under this subsection
10.5) any amount realized on or with respect to Opt-Out Lender Collateral (as
defined in the Intercreditor Agreement), so long as such amounts are included in
the calculation of such Opt-Out Lender's Realized Deficiency. Each Borrower
expressly consents to the foregoing arrangement and agrees that any purchaser of
an assignment so purchased may exercise any and all rights of a Pooled Facility
Lender or Opt-Out Lender as to such assignment as fully as if that Pooled
Facility Lender or Opt-Out Lender had complied with the provisions of subsection
10.1B with respect to such assignment or the relevant provisions of the Opt-Out
Facility Documents. In order to further evidence such assignment (and without
prejudice to the effectiveness of the assignment provisions set forth above),
each purchasing Pooled Facility Lender or Opt-Out Lender and each selling Pooled
Facility Lender or Opt-Out Lender agree to enter into an assignment agreement at
the request of a selling Pooled Facility Lender or Opt-Out Lender or a
purchasing Pooled Facility Lender or Opt-Out Lender, as the case may be, in form
and substance reasonably satisfactory to each such Pooled Facility Lender or
Opt-Out Lender.
10.6 Amendments and Waivers.
----------------------
No amendment, modification, termination or waiver of any provision of
this Agreement or of the Revolving Notes or the other Loan Documents, and no
consent to any departure by any Borrower therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; provided that no
such amendment, modification, termination, waiver or consent shall, without the
consent of:
(i) each Lender with Obligations or Opt-Out Obligations directly
affected, (1) reduce the principal amount of any outstanding Revolving Loan
or other outstanding funded Obligation or Opt-Out Obligation, (2) postpone
the date on which any interest, any dividend or any fees hereunder are
payable, (3) decrease the interest or dividend rate borne by any Revolving
Loan, any Opt-Out Obligation or any reimbursement obligation payable with
respect to a drawing under a Pooled Letter of Credit, a Letter of Credit or
a letter of credit issued under an Opt-Out Facility (other than any waiver
of any increase in the rate applicable pursuant to subsection 2.4E) or any
recovered or rescinded amount of Existing Pooled Loans; (4) decrease the
amount of any fees payable hereunder, (5) reduce the amount or postpone the
due date of any amount payable in respect of any Pooled Letter of Credit,
Letter of Credit, letter of credit issued under an Opt-Out Facility or
Opt-Out Obligation, (6) extend the expiration date of any Pooled Letter of
Credit, Letter of Credit or letter of credit issued under an Opt-Out
Facility beyond the Maturity Date or Revolving Loan Commitment Termination
Date, as applicable, except as provided under subsection 2.11A, (7) change
in any manner the obligations of Revolving Lenders relating to the purchase
of participations in Letters of Credit, or change in any manner the
obligations of Pooled Facility Lenders relating to the purchase of Pooled
Facility L/C Participations or Pooled Facility Loan Participations, (8)
increase the maximum duration of Interest Periods permitted hereunder, (9)
change in any manner or waive the provisions contained in subsection 8.1,
(10) amend, modify, waive or terminate any provision of any Loan Document
in a manner which would have the effect of amending, modifying or waiving
any provision of the Intercreditor Agreement (unless those Lenders whose
approval would have been required to make such change to the Intercreditor
Agreement, under the terms of the Intercreditor Agreement, have approved
such amendment, modification, waiver or termination), or (11) change in any
manner the definition of "Eligible Assignee" or any provision of subsection
10.1;
(ii) each Lender, (1) change in any manner the definition of "Pro Rata
Share," "Requisite Lenders" or "Supermajority Lenders" (except for any
changes resulting solely from an increase in the aggregate Revolving Loan
Commitments approved by Supermajority Lenders), (2) change in any manner
any provision of this Agreement that, by its terms, expressly requires the
approval or concurrence of all Lenders, (3) release (or subordinate) any
Lien granted in favor of Administrative Agent with respect to all or
substantially all of the Collateral or release all or substantially all of
the Subsidiary Guarantors from their obligations under the Subsidiary
Guaranty, in each case other than releases in accordance with the terms of
the Loan Documents either (x) in connection with Asset Sales permitted
under the Loan Documents or (y) required under the first proviso to
subsection 6.8A or the proviso to subsection 6.9, (4) change in any manner
or waive the provisions contained in subsection 8.13 or 10.5 or this
subsection 10.6, (5) extend the Maturity Date, (6) cause one or more credit
facilities which are not Pooled Facilities on the Closing Date to become
Pooled Facilities hereunder, or share the benefit of Liens created under
the Collateral Documents on a pari passu basis to secure additional Pooled
Facilities, in either case if the aggregate principal amount of such
additional Pooled Facilities would be in excess of $10,000,000, or (7)
share the benefit of Liens created under the Collateral Documents on a pari
passu or subordinate basis to secure obligations (other than the
Obligations, the Opt-Out Obligations and the obligations of Company under
the 9.25% Debentures outstanding as of the Closing Date (it being
understood that for purposes of this clause (7) Obligations outstanding as
of the Closing Date shall include Obligations with respect to Revolving
Loans and Letters of Credit borrowed or issued, as the case may be, under
Commitments outstanding as of the Closing Date)) in excess of $10,000,000
in aggregate principal amount;
(iii) Supermajority Lenders, (1) to the extent that doing so would not
require the consent of a greater number of Lenders under any other
provision of this subsection 10.6, permit any credit facility which is not
one of the Pooled Facilities on the Closing Date to become a Pooled
Facility hereunder, (2) increase the aggregate Revolving Loan Commitments,
(3) to the extent that doing so would not require the consent of a greater
number of Lenders under any other provision of this subsection 10.6,
release (or subordinate) any Lien granted in favor of Administrative Agent
with respect to any portion of the Collateral the fair market value of
which exceeds $20,000,000 in the aggregate (determined at the time of
release) or release one or more Subsidiary Guarantors from their
obligations under the Subsidiary Guaranty if such released Subsidiary
Guarantors owned more than 5% of the consolidated assets of Company and its
Subsidiaries, in each case other than releases in accordance with the terms
of the Loan Documents either (x) in connection with Asset Sales permitted
under the Loan Documents or (y) required under the first proviso to
subsection 6.8A or the proviso to subsection 6.9, (4) change in any manner
any provision of this Agreement regarding the Springing Letters of Credit
or the Springing Letter of Credit Sublimit if the effect of such change
would be to increase the amount of the Revolving Loan Commitments available
(over what would otherwise be available) for purposes other than providing
for the issuance of (and reimbursement of drawings under) Letters of Credit
serving as Springing Letters of Credit, or (5) amend, modify or waive any
of the provisions of subsection 2.6A(iii), 2.6A(iv), 4.1, 4.2, 4.3, 4.4 or
6.12;
(iv) the relevant Revolving Lender, increase the amount of such
Lender's Revolving Loan Commitment;
(v) each Revolving Lender, postpone the Revolving Loan Commitment
Termination Date;
(vi) Opt-Out Lenders having or holding more than 50% (or, if higher,
the percentage required pursuant to the applicable Opt-Out Facility (as in
effect on the Closing Date, and not including in any event the Class B
Palladium DPS Facility) to approve any sale or release of Company's and its
Subsidiaries' rights and interests in the relevant Project) of the
aggregate Opt-Out Facility Exposure with respect to the relevant Opt-Out
Facility, change the Minimum Sales Price for any Project or change or waive
the provisions of subsection 7.7(xi); and
(vii) Opt-Out Lenders having or holding more than 50% (or, if higher,
the percentage required pursuant to the applicable Opt-Out Facility (as in
effect on the Closing Date, and not including in any event the Class B
Palladium DPS Facility) to change or waive similar covenants under such
Opt-Out Facility) of the aggregate Opt-Out Facility Exposure with respect
to the relevant Opt-Out Facility, change or waive in a manner adverse to
the interests of the relevant Opt-Out Lenders (1) any provision of the Loan
Documents which expressly provides for the funding of expenses of or
Investments in, or providing for the payment of Indebtedness related to,
the Project to which an Opt-Out Facility relates, (2) the provision in
subsection 6.12 excluding OFMC Anaheim from the requirements of such
subsection, or the provision in subsection 7.7(i)(b) prohibiting certain
mergers of OFMC Anaheim, (3) the last paragraph or subsection 7.3 or any
provision of the Loan Documents expressly permitting the sale or release of
the interest of Company and its Subsidiaries in the Project to which an
Opt-Out Facility relates or expressly obligating Borrowers to make or cause
such sale or release, (4) any provision of the Loan Documents requiring
Borrowers or any of their Subsidiaries to enter into a guaranty of Opt-Out
Obligations, or (5) the provision in the definition of "Subsidiary" which
excludes Senators Hockey Club and its Subsidiaries from such definition, or
the provision in the definition of "Opt-Out Facility Documents" which
limits the relevant Opt-Out Facility Documents relating to the Ottawa
Senators Project.
In addition, (a) any amendment, modification, termination or waiver
of any of the provisions contained in Section 4 shall be effective only if
evidenced by a writing signed by or on behalf of Agents as well as Supermajority
Lenders, (b) no amendment, modification, termination or waiver of any provision
of any Revolving Note shall be effective without the written concurrence of
Lender which is the holder of that Revolving Note, (c) no amendment,
modification, termination or waiver of any provision of Section 3 shall be
effective without the written concurrence of Administrative Agent and, with
respect to the purchase of participations in Letters of Credit, without the
written concurrence of each Issuing Lender that has issued an outstanding Letter
of Credit or has not been reimbursed for a payment under a Letter of Credit, (d)
no amendment, modification, termination or waiver of any provision of subsection
2.1 shall be effective without the written concurrence of each Pooled Facility
Lender that has issued an outstanding Pooled Letter of Credit or has not been
reimbursed for a payment under a Pooled Letter of Credit, and (e) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Agents shall be effective without the written
concurrence of Agents. Administrative Agent may, but shall have no obligation
to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that 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 Borrowers or Borrowers in any case
shall entitle any Borrower or Borrowers 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 subsection 10.6 shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by Borrowers, on Borrowers. Administrative Agent agrees that promptly
after the effectiveness of any amendment, termination, supplement, waiver or
other modification of this Agreement or of the Pooled Facility Documents it
shall provide, or cause to be provided, to each Lender a copy thereof to the
extent such a copy is available to Administrative Agent.
10.7 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 an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 Notices.
-------
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, 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, upon receipt of telefacsimile, or three Business Days
after depositing it in the United States mail (or Canadian mail as appropriate)
with postage prepaid and properly addressed; provided that notices to
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Company and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
10.9 Survival of Representations, Warranties and Agreements.
-----------------------------------------------------
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the
Revolving Loans and the issuance of the Pooled Letters of Credit or the Letters
of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Borrowers set forth in subsections 2.8D, 2.9,
3.5A, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall survive the payment of the Revolving Loans, the
cancellation or expiration of the Pooled Letters of Credit and the Letters of
Credit and the reimbursement of any amounts drawn thereunder, and the
termination of this Agreement (and the benefits to a Lender of such agreements
of Borrowers shall survive such Lender's ceasing to be a party hereto pursuant
to subsection 10.1B).
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of an Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Financing
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. All rights and
remedies existing under this Agreement and the other Financing Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
-------------------------------
Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations or Opt-Out Obligations. To the extent
that Company makes a payment or payments to Administrative Agent or Lenders (or
to Administrative Agent for the benefit of Lenders), or Agents 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.
10.12 Severability.
------------
In case any provision in or obligation under this Agreement or the
Revolving Notes shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and 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.
10.13 Obligations Several; Independent Nature of Lenders' Rights.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Revolving Loan Commitment or the Revolving
Loans of any Lender or any Letters of Credit issued or participations therein or
any Pooled Facility L/C Participation of any other Lender hereunder. Nothing
contained herein or in any other Loan Document or Pooled Facility 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 of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
10.14 Headings.
--------
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 Applicable Law.
--------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER OR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT
WOULD REQUIRE APPLICATION OF ANOTHER LAW.
10.16 Construction of Agreement.
-------------------------
Each of the parties hereto acknowledges that it has been represented
by counsel in the negotiation and documentation of the terms of this Agreement,
that it has had full and fair opportunity to review and revise the terms of this
Agreement, and that this Agreement has been drafted jointly by all of the
parties hereto. Accordingly, each of the parties hereto acknowledges and agrees
that the terms of this Agreement shall not be construed against or in favor of
another party.
10.17 Consent to Jurisdiction and Service of Process.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK (AS THE AGENT, AGENTS,
LENDER OR LENDERS BRINGING SUCH ACTION MAY ELECT IN ITS OR THEIR SOLE
DISCRETION). BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS (AND SUBMITS TO) GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) 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 SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
10.18 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER 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 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 their 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 SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE REVOLVING
LOANS MADE HEREUNDER. In the event of litigation, this Agreement may be filed as
a written consent to a trial by the court.
10.19 Confidentiality.
---------------
Each Lender shall hold all non-public information obtained pursuant
to the requirements of this Agreement that has been identified as confidential
by Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Borrowers that in any event
a Lender may make (a) disclosures to Affiliates and professional advisors of
such Lender, (b) disclosures reasonably required by (i) any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by such Lender of any Revolving Loans or any participations therein, or
(ii) any direct or indirect contractual counterparties in swap agreements or
such contractual counterparties' professional advisors provided that such
assignee, transferee, participant, contractual counterparty or professional
advisor agrees to keep such information confidential to the same extent required
of Lenders hereunder, (c) disclosures to any court or tribunal (whether or not
pursuant to subpoena) in connection with any action arising out of or related to
this Agreement, or (d) disclosures required or requested by any Government
Authority or representative thereof or pursuant to legal process; provided that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify Company of any request by any Government Authority or
representative thereof (other than any such request in connection with any
examination of such Lender by such Government Authority) for disclosure of any
such non-public information prior to disclosure of such information; and
provided, further that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.20 No Fiduciary Duty.
------------------
No Agent nor any Lender has or shall have, by reason of this
Agreement or any of the Financing Documents, a fiduciary relationship in respect
of any Borrower, Borrowers, any other Loan Party or Loan Parties.
10.21 Release of Parties.
------------------
Each Borrower, on behalf of itself, and each of its Subsidiaries
(collectively, the "Releasors") hereby releases, remises, acquits and forever
discharges Agents, each Lender (in its capacity as a Lender hereunder and as a
lender, collateral agent, depository or letter of credit issuer and in any other
capacity under or in connection with any Pooled Facility or Opt-Out Facility),
each Existing Opt-Out Facility Agent and each Existing Pooled Facility Agent and
each of their respective employees, agents, representatives, consultants,
attorneys, fiduciaries, servants, officers, directors, partners, predecessors,
successors and assigns, subsidiary corporations, parent corporations, related
corporate divisions, participants and assigns (all of the foregoing hereinafter
called the "Released Parties"), from any and all actions and causes of action,
judgments, executions, suits, debts, claims, demands, liabilities, obligations,
setoffs, recoupments, counterclaims, defenses, damages and expenses of any and
every character, known or unknown, suspected or unsuspected, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, whether heretofore
or hereafter arising, for or because of any matter or things done, omitted or
suffered to be done by any of the Released Parties prior to and including the
date of execution hereof, and in any way directly or indirectly arising out of
or in any way connected to this Agreement, any of the other Financing Documents,
the Pooled Facility Documents or the Opt-Out Facility Documents or the
administration or enforcement of any of such documents (all of the foregoing
hereinafter called the "Released Matters"). Each Releasor acknowledges that the
agreements in this subsection are intended to be in full satisfaction of all or
any alleged injuries or damages suffered or incurred by such Releasor arising in
connection with the Released Matters and constitute a complete waiver of any
right of setoff or recoupment, counterclaim or defense of any nature whatsoever
which arose prior to the Closing Date to payment or performance of the
Obligations and/or Opt-Out Obligations. Each Releasor represents and warrants
that it has no knowledge of any claim by it against the Released Parties or of
any facts, or acts or omissions of the Released Parties which on the date hereof
would be the basis of a claim by the Releasors against the Released Parties
which is not released hereby. Each Releasor represents and warrants that it has
not purported to transfer, assign, pledge or otherwise convey any of its right,
title or interest in any Released Matter to any other person or entity and that
the foregoing constitutes a full and complete release of all Released Matters.
Releasors have granted this release freely, and voluntarily and without duress.
10.22 Counterparts; Effectiveness.
---------------------------
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered (whether such execution and delivery is evidenced by
original signature or by facsimile signature) shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.23 No Third Party Beneficiaries
----------------------------
Nothing in this Agreement, express 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, the Indemnitees and Released Parties related to Agents,
Lenders, Opt-Out Facility Agents and Pooled Facility Agents) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
10.24 Fee and Covenant Acknowledgements
---------------------------------
Notwithstanding anything to the contrary in the Pooled Facility
Documents or the Opt-Out Facility Documents, on and after the Closing Date, OFMC
Anaheim and Ogden Argentina S.A. hereby agree to pay the increased fees as set
forth in subsection 2.5F. Additionally, OFMC Anaheim and Ogden Argentina S.A.
hereby agree to abide by the covenants as set forth in Sections 6 and 7. Other
than as set forth in this subsection 10.24, in no event shall OFMC Anaheim or
Ogden Argentina S.A. have any obligations to make payments under this Agreement.
10.25 Name Change
-----------
Borrowers hereby acknowledge that on or prior to the Closing Date
Company changed its legal name from "Ogden Corporation" to "Covanta Energy
Corporation" and that on or about the Closing Date certain other Subsidiaries of
Company changed and/or will change their legal names in a similar manner.
Borrowers, Agents and Lenders hereby agree that (i) each reference in this
Agreement and the Loan Documents to "Ogden Corporation", "Ogden", "Company" or
other terms referring to Ogden Corporation shall mean and be a reference to
Company, and (ii) each reference in this Agreement and the Loan Documents to any
other Subsidiary of Company, by whatever name, shall mean and be a reference to
such Subsidiary both before and after such name change.
[Remainder of page intentionally left blank]
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.
BORROWERS:
COVANTA ENERGY CORPORATION
By:
--------------------------------------
Name: Jeffrey Horowitz, Esq.
Title: Secretary
Each of the entities named on Schedule A
annexed hereto, as Borrowers
By:
--------------------------------------
Name: Jeffrey Horowitz, Esq.
Title: Authorized Officer
Notice Address for each Borrower:
c/o Covanta Energy Group, Inc.
40 Lane Road
Fairfield, NJ 07007
Attn: Jeffrey Horowitz, Esq.
SOLELY FOR THE PURPOSE OF SUBSECTION 10.24:
OGDEN FACILITY MANAGEMENT
CORPORATION OF ANAHEIM, INC.
By:
--------------------------------------
Name: Peter Allen
Title: Vice President
Notice Address:
c/o Covanta Energy Group, Inc.
40 Lane Road
Fairfield, NJ 07007
Attn: Jeffrey Horowitz, Esq.
OGDEN ARGENTINA S.A.
By:
--------------------------------------
Name: Jesus Sainz
Title: Director
Notice Address:
c/o Covanta Energy Group
40 Lane Road
Fairfield, NJ 07007
Attn: Jeffrey Horowitz, Esq.
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Administrative Agent, Co-Arranger,
Co-Book Runner and as a Lender
By:
--------------------------------------
Name: Michael R. Heredia
Title: Managing Director
Notice Address:
Attention: Barry Flynn
1 Independence Center
101 North Tryon Street
Charlotte, N.C. 28255
DEUTSCHE BANK AG, NEW YORK BRANCH
As Documentation Agent, Co-Arranger,
Co-Book Runner and as a Lender
By:
--------------------------------------
Name: Keith C. Braun
Title: Vice President
Notice Address:
Attention: Keith C. Braun
Deutsche Bank AG
New York Branch
130 Liberty Street
New York, NY 10016
ABN AMRO BANK N.V.,
as a Lender
By:
--------------------------------------
Name: Neil J. Bivona
Title: Vice President
By:
--------------------------------------
Name: William J. Fitzgerald
Title: Senior Vice President
Notice Address:
Attention: Credit Administration
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
BANK OF MONTREAL,
as a Lender
By:
--------------------------------------
Name: Heather L. Turf
Title: Director
Notice Address:
Attention: Heather Turf
Bank of Montreal
115 S. LaSalle Street, 12th Floor West
Chicago, IL 60603
BANK OF TOKYO-MITSUBISHI (CANADA),
as a Lender
By:
--------------------------------------
Name: T. Vanderlaan
Title: Vice President
Notice Address:
Attention: T. Vanderlaan
Royal Bank Plaza, South Tower
Suite 2100
Toronto, Ontario
M5J 1J2 Canada
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Lender
By:
--------------------------------------
Name: Salvatore Esposito
Title: Director
By:
--------------------------------------
Name: C. Theodore Wolf
Title: Director
Notice Address:
Attention: Salvatore Esposito
Bayerische Hypo-und Vereinsbank AG
150 E. 42nd Street
New York, NY 10017
BNP PARIBAS,
as a Lender
By:
--------------------------------------
Name: Clive Bettles
Title: Managing Director
By:
--------------------------------------
Name: Janice Ho
Title: Director
Notice Address:
Attention: Clive Bettles
BNP Paribas
725 S. Figueroa Street #2090
Los Angeles, CA 90017
BRYDEN MANAGEMENT CORPORATION IV,
as a Lender
By:
--------------------------------------
Name: Robert C. McInnis
Title: Secretary
Notice Address:
Attention: Robert C. M. Yunis
1 Laser Street
Nepean, Ontario
KZE-7V1, Canada
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender
By:
--------------------------------------
Name: David C. Smith
Title: Managing Director
By:
--------------------------------------
Name: Rocco Calarco
Title: Director
Notice Address:
Attention: Rocco Calarco
Canadian Imperial Bank of Commerce
BCE Place, 8th Floor
161 Bay Street
Toronto, Ontario
M5J 2S8 Canada
CLARICA LIFE INSURANCE COMPANY,
as a Lender
By:
--------------------------------------
Name: Keith Cressman
Title: Director, Structured Finance
Notice Address:
Attention: Sara M. Alvarado
Clarica Life Insurance Company
227 King Street South
Waterloo, Ontario
N2J 4C5 Canada
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
as a Lender
By:
--------------------------------------
Name: Robert Donohue
Title: Senior Vice President
By:
--------------------------------------
Name: Peter Doyle
Title: Assistant Vice President
Notice Address:
Attention: Robert Donohue
Commerzbank AG
2 World Financial Center
New York, NY 10281
CREDIT LYONNAIS CANADA,
as a Lender
By:
--------------------------------------
Name:Jean-Pierre Beaupre
Title: President and Chief
Executive Officer
By:
--------------------------------------
Name: Cynthia Hansen
Title: Assistant Vice-President
Notice Address:
Attention: Cynthia Hansen
Credit Lyonnais Canada
2000 Mansfield Street, Suite 1610
Montreal, Quebec
H3A 3A4 Canada
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:
--------------------------------------
Name: James B. Hallock
Title: Vice President
Notice Address:
Attention: James B. Hallock
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:
--------------------------------------
Name: Jay Chall
Title: Director
By:
--------------------------------------
Name: Andrea E. Shkane
Title: Vice President
Notice Address:
Attention: Andrea E. Shkane
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010-3629
DRESDNER BANK AG, GRAND CAYMAN BRANCH
as a Lender
By:
--------------------------------------
Name: Thomas R. Brady
Title: Vice President
By:
-------------------------------------
Name: John W. Sweeney
Title: Vice President
Notice Address:
Attention: Thomas R. Brady
Dresdner Bank AG, New York Branch
75 Wall Street, 33rd Floor
New York, NY 10005
DRESDNER BANK CANADA,
as a Lender
By:
--------------------------------------
Name: David Brandt
Title: President and Chief
Executive Officer
By:
--------------------------------------
Name: Dr. Uwe Seedorf
Title: Senior Vice President
Notice Address:
Attention: Dr. Uwe Seedorf
Dresdner Kleinwort Wasserstein
2, First Canadian Place
Suite 1700
Toronto, Ontario
M5P 1E3, Canada
and
Attention: Jane Elliot Boyd
Dresdner Kleinwort Wassersein
2, First Canadian Place
Suite 1700
Toronto, Ontario
M5P 1E3, Canada
FIRSTAR BANK, N.A.,
as a Lender
By:
--------------------------------------
Name: Alan R. Milster
Title: Vice President
Notice Address:
Attention:Alan R. Milster
Firstar Bank, N.A.
7th Floor - Special Assets
One Firstar Plaza
Seventh & Washington
St. Louis, MO 63101
FIRST UNION NATIONAL BANK,
as a Lender
By:
--------------------------------------
Name: John Kipping
Title: Senior Vice President
Notice Address:
Attention: John Kipping
190 River Road
NJ 3181
Summit, NJ 07901
FLEET NATIONAL BANK,
as a Lender
By:
--------------------------------------
Name: Michael F. O'Neill
Title: Senior Vice President
Notice Address:
Attention: Michael F. O'Neill
Fleet National Bank
100 Federal Street
Mail Stop: MA DE 10006A
Boston, MA 02110
HSBC BANK CANADA,
as a Lender
By:
--------------------------------------
Name: Peter Leenaars
Title: Senior Manager
By:
--------------------------------------
Name: J. S. Brydon
Title: Senior Manager
Notice Address:
Attention: Peter Leenaars
HSBC Bank Canada
70 York Street
Toronto, Ontario
M5J 1S9 Canada
and
Attention: Jim Brydon
HSBC Bank Canada
70 York Street
Toronto, Ontario
M5J 1S9 Canada
HSBC BANK USA,
as a Lender
By:
--------------------------------------
Name: Carol A. Kraus
Title: Vice President
Notice Address:
Attention: Carol A. Kraus
HSBC Bank USA
140 Broadway
New York, NY 10005
IIB BANK [IFSC BRANCH],
as a Lender
By:
--------------------------------------
Name: Siobhan Lynch
Title: Head of Credit
By:
--------------------------------------
Name: Paul Naessens
Title: Senior Manager
Notice Address:
Attention: John O'Connor
KBC House
IFSC Dublin 1
Ireland
KBC BANK N.V.,
as a Lender
By:
--------------------------------------
Name: Robert Snauffer
Title: First Vice President
By:
--------------------------------------
Name: S. Kurtz Barkley
Title: First Vice President
Notice Address:
Attention: John Sidney Trahan
KBC Bank N.V.
515 S. Figueroa Street, Suite 1920
Los Angeles, CA 90071
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Lender
By:
--------------------------------------
Name: Michael D. Novack
Title: Vice President
Corporate Finance Division
Structured Finance Department
By:
--------------------------------------
Name: David A. Leech
Title: Vice President
Corporate Finance Division
Structured Finance Department
Notice Address:
Attention: Michael Novack
Landesbank Hessen-Thuringen Girozentrale
420 Fifth Avenue, 24th Floor
New York, NY 10018
NATIONAL WESTMINSTER BANK PLC,
New York and/or Nassau Branch
as a Lender
By:
--------------------------------------
Name: Graeme Hunter
Title: Manager, Specialised
Lending Services
Notice Address:
Attention: Graeme Hunter
Corporate Banking & Financial Markets
Specialised Lending Services
PO Box 450
5-10 Great Tower Street
London, EC3P 3HX
England
ROYAL BANK OF SCOTLAND, plc,
as a Lender
By:
--------------------------------------
Name: Graeme Hunter
Title: Manager, Specialised
Lending Services
Notice Address:
Attention: Graeme Hunter
Corporate Banking & Financial Markets
Specialised Lending Services
PO Box 450
5-10 Great Tower Street
London, EC3P 3HX
England
S.C. STORMONT CORPORATION
as a Lender
By:
--------------------------------------
Name: Robert C. McLunis
Title: President
Notice Address:
Attention: Robert C. McInnis
1 Laser Street
Nepean, Ontario
KZE-7V1, Canada
SANPAOLO IMI S.p.A.,
as a Lender
By:
--------------------------------------
Name: Carlo Persico
Title: Deputy General Manager
By:
--------------------------------------
Name: Robert Wurster
Title: First Vice President
Notice Address:
Attention: Robert Wurster
SAN PAOLO IMI S.p.A.
245 Park Avenue, 35th Floor
New York, NY 10167
SOCIETE GENERALE,
as a Lender
By: _______________________________________
Name: Gordon Eadon
Title: Director
Notice Address:
Attention: Gordon Eadon
Societe Generale
1221 Avenue of the Americas
New York, NY 10020
SUNTRUST BANK,
as a Lender
By:
--------------------------------------
Name: W. David Wisdom
Title: Vice President
Notice Address:
Attention: Keith Hubbard
SunTrust Bank
711 Fifth Avenue, 16th Floor
New York, NY 10022
THE BANK OF NEW YORK,
as a Lender
By:
--------------------------------------
Name: Peter W. Helt
Title: Vice President
Notice Address:
Attention: Peter W. Helt
Bank of New York
1 Wall Street, 16th Floor
New York, NY 10286
THE BANK OF NOVA SCOTIA,
as a Lender
By:
--------------------------------------
Name: Pieter J. Van Schaick
Title: Managing Director
Notice Address:
Attention: Pieter Van Schaick
The Bank of Nova Scotia
One Liberty Plaza, 26th Floor
New York, NY 10006
THE CHASE MANHATTAN BANK,
as a Lender
By:
--------------------------------------
Name: Michael Lancia
Title: Vice President
Notice Address:
Attention: Michael Lancia
The Chase Manhattan Bank
380 Madison Avenue
Special Loan - 9
New York, NY 10017
THE DAI-ICHI KANGYO BANK, LIMITED,
as a Lender
By:
--------------------------------------
Name: Yoshimitsu Arahata
Title: Senior Vice President and
Joint General Manager
Notice Address:
Attention: Hollie T. Luong
The Dai-Ichi Kangyo Bank, Limited
555 West 5th Street, 5th Floor
Los Angeles, CA 90013
THE DAI-ICHI KANGYO BANK, LIMITED
NEW YORK BRANCH,
as a Lender
By:
--------------------------------------
Name: R. P. Gallagher
Title: Vice President
Notice Address:
Attention: R .P. Gallagher
The Dai-Ichi Kangyo Bank, Limited,
New York Branch
Suite 4911
1 World Trade Center
New York, NY 10048
THE FUJI BANK, LIMITED,
as a Lender
By:
--------------------------------------
Name: Raymond Ventura
Title: Vice President and Manager
Notice Address:
Attention: Chigusa Tada
The Fuji Bank, Limited
2 World Trade Center, 79th Floor
New York, NY 10048
THE HUNTINGTON NATIONAL BANK,
as a Lender
By:
--------------------------------------
Name: David F. Isler
Title: Senior Vice President
Notice Address:
Attention: David F. Isler
The Huntington National Bank
41 S. High Street
Suite HC0733
Columbus, OH 43215
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as a Lender
By:
--------------------------------------
Name: Noel P. Purcell
Title: Senior Vice President
Notice Address:
Attention: John Davies
The Industrial Bank of Japan
Trust Company
1251 Avenue of the Americas
New York, NY 10020
THE SANWA BANK, LIMITED, NEW YORK BRANCH
as a Lender
By:
--------------------------------------
Name: Christopher DiCarlo
Title: Vice President
Notice Address:
Attention: Christopher DiCarlo
The Sanwa Bank, Limited,
New York Branch
55 East 52nd Street
New York, NY 10055
THE SUMITOMO BANK OF CANADA,
as a Lender
By:
--------------------------------------
Name: Alfred Lee
Title: Vice President
Notice Address:
Attention: Alfred Lee
The Sumitomo Bank of Canada
Suite 1400, Ernst & Young Tower
Toronto-Dominion Centre, P.O. Box 172
222 Bay Street
Toronto, Ontario
M5K 1H6 Canada
THE SUMITOMO TRUST & BANKING CO., LTD.
NY BRANCH,
as a Lender
By:
--------------------------------------
Name: Stephen Stratico
Title: Vice President
Notice Address:
Attention: Steve Stratico
The Sumitomo Trust & Banking Co.,
Ltd. NY Branch
527 Madison Avenue
New York, NY 10022
THE TOKAI BANK, LIMITED - NEW YORK BRANCH,
as a Lender
By:
--------------------------------------
Name: Shinichi Nakatani
Title: Assistant General Manager
Notice Address:
Attention: Julie Lim
The Tokai Bank, Limited -
New York Branch
55 East 52nd Street
New York, NY 10055
THE TORONTO-DOMINION BANK,
as a Lender
By:
--------------------------------------
Name: Mark A. Baird
Title: Manager, Credit Administration
Notice Address:
Attention: Mark A. Baird
Toronto Dominion (Texas), Inc.
909 Fannin Street, 17th Floor
Houston, TX 77010
THE TORONTO-DOMINION BANK,
as a Lender
By: _______________________________________
Name: Edward A. (Ted) Hopkinson
Title: Vice President
Corporate Credit
Notice Address:
Attention: Edward A. (Ted) Hopkinson
Vice President - Corporate Credit
The Toronto Dominion Bank
55 King Street West, 8th Floor
P.O. Box 1
TD Bank Tower
Toronto, Ontario
M5K 1A2
UBS AG,
as a Lender
By:
--------------------------------------
Name: Mark R. Slane
Title: Executive Director
Recovery Management
By:
--------------------------------------
Name: Peter V. Matton
Title: Global Head
Recovery Management
Notice Address:
Attention: Marie Haddad
UBS AG
677 Washington Blvd.
Stamford, CT 06901
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as a Lender
By:
--------------------------------------
Name: Alan S. Bookspan
Title: Director
By:
--------------------------------------
Name: Walter T. Duffy III
Title: Associate Director
Notice Address:
Attention: Walter T. Duffy III
Westdeutsche Landesbank Girozentrale
1211 Avenue of the Americas
New York, NY 10036