364-DAY
REVOLVING CREDIT FACILITY
Dated as of June 10, 1997
TRIGEN ENERGY CORPORATION, a Delaware corporation, the BANKS listed on
the signature pages hereof, and SOCIETE GENERALE, as Issuing Bank and as Agent,
agree as follows (with certain terms used herein being defined in Article 10):
ARTICLE 1.
CREDIT FACILITY
Section 1.01. Credit Extension. In conjunction with and in addition to
the Other Credit Facility, this revolving credit facility available to the
Borrower on the Agreement Date pursuant to this Agreement is Thirty-Five Million
Dollars ($35,000,000).
(a) Commitment to Lend. Upon the terms and subject to the conditions of
this Agreement, each Bank agrees to make, from time to time during the Facility
Period, one or more Loans to the Borrower in an aggregate unpaid principal
amount not exceeding at any time such Bank's Commitment at such time minus the
aggregate of such Bank's Letter of Credit Amounts and such Bank's Percentage
Interest of Unreimbursed Letter of Credit Obligations at such time. Subject to
Section 1.06 and the other terms and conditions of this Agreement, the Loans
may, at the option of the Borrower, be made as, and from time to time continued
as or converted into, Base Rate or Eurodollar Rate Loans of any permitted Type,
or any combination thereof.
(b) Commitments to Issue Letters of Credit. (i) Amounts of Letters of
Credit. Upon the terms and subject to the conditions of this Agreement, the
Issuing Bank shall issue, from time to time during the Facility Period, one or
more Letters of Credit for the account of the Borrower, provided that (A) the
aggregate of all Letter of Credit Amounts, Unreimbursed Letter of Credit
Obligations and the aggregate unpaid principal amount of all Loans at any time
shall not exceed the maximum amount of the Facility at such time and (B) in the
case of a Bank, the aggregate of such Bank's Letter of Credit Amounts, and such
Bank's Percentage Interest in the Unreimbursed Letter of Credit Obligations and
the Loans shall not exceed such Bank's Commitment at such time.
(ii) Terms of Letters of Credit. Each Letter of Credit:
(A) May be a standby Letter of Credit in support of Liabilities of the
Borrower or one or more of the Borrower's Subsidiaries, in each case, that
arise in the ordinary course of business and are in respect of general
corporate purposes of the Borrower or such Subsidiaries, as the case may be;
(B) Shall be (1) denominated only in Dollars and shall be issued on
terms and conditions satisfactory to the Issuing Bank, and (2) in a stated
amount of not less than One Hundred Thousand Dollars ($100,000);
(C) Shall have an expiration date occurring not later than the
Termination Date;
(D) Shall be subject to the Uniform Customs; and
(E) Shall contain such other terms and conditions as may be approved by
the Issuing Bank and the Agent.
(c) Extension of Facility Period. The initial Facility Period shall be
three hundred sixty four (364) days. Seventy-Five days before the end of a
Facility Period, the Borrower may request that the Banks extend the Facility
Period by another 364-day period. Such a request shall be in writing (and shall
be irrevocable) and shall be delivered to Agent with such other documentation as
the Agent may request. Each Bank, the Agent and the Issuing Bank each in its
sole discretion may, but shall not be required to, grant such a 364-day
extension to the Facility Period and shall submit to the Agent and Issuing Bank
its written consent to such extension of the Facility Period. The Agent will
notify the Borrower in writing one month before the end of the Facility Period
as to whether the 364-day extension will be granted and to advise the Borrower
of the new Termination Date and any other conditions to such extension, provided
that in the absence of such a notice by the Agent, the extension request will be
deemed denied.
Section 1.02. Disbursement of Loans and Issuance of Letters of Credit.
(a) Manner of Borrowing. (i) The Borrower shall give the Agent notice (which
shall be irrevocable) no later than 10:00 a.m. (New York time) on, in the case
of Base Rate Loans, the Business Day for the making of such Loans, and, in the
case of Eurodollar Rate Loans, the third Eurodollar Business Day before the
requested date for the making of such Loans. Each such notice shall be in the
form of Schedule 1.02(a) and shall specify (A) the requested date for the making
of the requested Loans, which shall be, in the case of Base Rate Loans, a
Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day, (B) the Type or Types of Loans requested and (C) the amount of each such
Type of Loan, the aggregate of which amounts for all Types of Loans requested to
be made on the requested date shall be at least Two Million Dollars ($2,000,000)
or such greater amount in increments of One Hundred Thousand Dollars ($100,000),
and shall not exceed the maximum amount that can then be borrowed hereunder.
Upon receipt of any such notice, the Agent shall promptly notify each Bank of
the contents thereof and of the amount and Type of each Loan to be made by such
Bank on the requested date specified therein.
(ii) Not later than 1:00 p.m. (New York time) on each requested date for
the making of Loans, each Bank shall make available to the Agent, in Dollars in
funds immediately available to the Agent at the Agent's Office, the Loans to be
made by such Bank on such date. Any Bank's failure to make any Loan to be made
by it on the requested date therefor shall not relieve any other Bank of its
obligation to make any Loan to be made by such other Bank on such date, but such
other Bank shall not be liable for such failure.
(iii) Unless the Agent shall have received notice from a Bank prior to
12:00 noon (New York time) on the requested date for the making of any Loans
that such Bank will not make available to the Agent the Loans requested to be
made by such Bank on such date, the Agent may assume that such Bank has made
such Loans available to the Agent on such date in accordance with Section
1.02(a)(ii) and the Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Bank. If and to the extent such Bank shall not have so made
available to the Agent, the Loans requested to be made by such Bank on such date
and the Agent shall have so made available to such Borrower a corresponding
amount on behalf of such Bank, such Bank shall, on demand, pay to the Agent such
corresponding amount together with interest thereon, for each day from the date
such amount shall have been so made available by the Agent to such Borrower
until the date such amount shall have been repaid to the Agent, at the Federal
Funds Rate until (and including) the third Business Day after demand is made and
thereafter at the Base Rate. If such Bank does not pay such corresponding
amount promptly upon the Agent's demand therefor, the Agent shall promptly
notify the Borrower and the Borrower shall immediately repay such corresponding
amount to the Agent together with accrued interest thereon at the applicable
rate or rates provided in Section 1.03(a).
(iv) All Loans made available to the Agent in accordance with Section
1.02(a)(ii) shall be disbursed by the Agent not later than 1:00 p.m. (New York
time) on the requested date therefor in Dollars in funds immediately available
to the Borrower by credit to an account of such Borrower at the Agent's Office
or in such other manner as may have been specified in the applicable notice and
as shall be acceptable to the Agent.
(b) (i) Manner of Issuance and Amendment of Letters of Credit. (A)
The Borrower shall request the issuance or amendment of a Letter of Credit by
delivering to the Issuing Bank, at least 30 Business Days before the amendment
under the terms of the Letter of Credit, (1) in the case of any such issuance or
amendment, a duly completed and executed request for the issuance or amendment
of such Letter of Credit substantially in the form of Schedule 1.02(b) (to which
request shall be attached, the duly executed form attached as Exhibit A to
Schedule 1.02(b), with a notation on such form indicating that such letter of
credit is a Letter of Credit issued pursuant to and in accordance with the terms
of the Facility), provided that if such request is transmitted to the Issuing
Bank by facsimile, the original of such request shall be provided to the Issuing
Bank as soon as practicable thereafter, and (2) in the case of any such
issuance, if the desired form of Letter of Credit is different from the Issuing
Bank's standard form, (x) such request shall be accompanied by a copy of such
desired form of Letter of Credit and (y) the Issuing Bank may, but shall not be
required to, issue the Letter of Credit in the requested non-standard form and
may, in any case, require more than three Business Days after receipt of such a
request to issue a non-standard form of Letter of Credit.
(B) The Issuing Bank shall, on the date of each issuance or amendment of
a Letter of Credit, give the Agent, each other Bank and the Borrower notice of
such issuance or amendment, accompanied by a copy to the Agent of such Letter of
Credit or amendment.
(ii) Acquisition of Participations Upon Issuance. Upon the date of
issuance of a Letter of Credit, the Issuing Bank shall be deemed to have granted
to each Bank (other than the Issuing Bank), and each Bank (other than the
Issuing Bank) shall be deemed to have acquired from the Issuing Bank, without
further action by any party hereto, a participation in such Letter of Credit,
Unreimbursed Letter of Credit Obligations, and any Drawings that may at any time
be made thereunder, to the extent of such Bank's Percentage Interest.
(iii) Certain Responsibilities in Respect of Letters of Credit. Neither
the Issuing Bank nor any Bank shall be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for or issuance of a Letter of Credit;
(B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof in whole or in part;
(C) the failure of any request for a Drawing under a Letter of Credit to
strictly comply with conditions required in order to draw on such Letter of
Credit, except, in the case only of the Issuing Bank, under the circumstances
specified in the last sentence of Section 1.04(b)(iv);
(D) except to the extent caused by the gross negligence or willful
misconduct of the Agent or the Issuing Bank, errors, omissions, interruptions
or delays in transmissions or delivery of any messages, by mail, cable, telex
or otherwise, whether or not in cipher;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission of any document required in
order to make a drawing under any Letter of Credit or of the proceeds
thereof;
(G) the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any Drawing under such Letter of Credit; and
(H) any consequence arising from causes beyond the control of the
Issuing Bank, including, without limitation, any change in Applicable Law.
Section 1.03. Interest. (a) Rates. (i) Each Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal to (A) so
long as it is a Base Rate Loan, the Base Rate as in effect from time to time and
(B) so long as it is a Eurodollar Rate Loan, the applicable Eurodollar Rate plus
the applicable Eurodollar Rate Margin, and (ii) each other amount outstanding
under the Loan Documents shall bear interest at a rate per annum equal to the
Base Rate as in effect from time to time. Any overdue principal of or interest
on any Loan or Drawing and, to the maximum extent permitted by Applicable Law,
each other amount due and payable under the Loan Documents shall bear interest
at a rate per annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable, (i) on each Interest Payment
Date, (ii) in the case of any Loan when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) or, in
the case of Loans, converted, but only to the extent then accrued on the amount
then so due or converted, and (iii) in the case of all other amounts due and
payable under the Loan Documents, on demand. Interest at the Post-Default Rate
shall be payable on demand.
(c) Conversion; Maximum Interest Rate; Additional Interest on Eurodollar
Loans. The provisions of Article 1, Section 1.03(c), (d) and (e) of the Other
Credit Facility are incorporated in their entirety by reference in this
Agreement to the extent as if fully set forth herein.
Section 1.04. Repayment. (a) Loans. The Loans shall mature and become
due and payable, and shall be repaid by the Borrower, in full on the Maturity
Date.
(b) Letters of Credit. (i) Drawings shall mature and become due and
payable, and shall be repaid by the Borrower in full on the date such Drawing is
disbursed. The Borrower agrees to reimburse the Issuing Bank on each such date
for all amounts paid by the Issuing Bank for (x) all Drawings disbursed; and (y)
any Taxes, charges or other costs or expenses incurred by the Issuing Bank in
connection with such payment.
(ii) The Issuing Bank shall promptly notify (A) the Borrower, the Agent
and each Bank of its receipt of a Drawing request with respect to such Letter of
Credit, stating the date and amount of the Drawing requested and (B) the
Borrower of the date and amount of each Drawing made pursuant to such request.
The Issuing Bank's failure to give, or delay in giving, any such notice shall
not release or diminish the obligations hereunder of the Borrower and each Bank
in respect of such Drawing.
(iii) If the Borrower fails to pay to the Issuing Bank in full the
principal amount of, together with interest accrued on, a Drawing in accordance
with Section 1.04(b)(ii), each other Bank shall pay to the Issuing Bank, upon
demand, its Percentage Interest of such unpaid amount, in Dollars in funds
immediately available to the Issuing Bank at the Issuing Bank's Office on, if
such demand is made not later than 1:00 p.m. on such Business Day, and, if not,
the next Business Day, together with interest on such amount from the date of
such Drawing until such amount is paid in full at, for the first three days, the
Federal Funds Rate and, thereafter, the Base Rate. Upon, but only upon, making
such required payment to the Issuing Bank, a Bank shall be entitled to receive
its Percentage Interest of the Unreimbursed Letter of Credit Obligations
together with interest accrued thereon, and, until such payment in full by such
Bank, the Issuing Bank shall hold such Bank's Percentage Interest as collateral
for such payment.
(iv) The obligation of the Borrower and each Bank under this Section
1.04, in the case of the Borrower, to reimburse the Issuing Bank for, and in the
case of such Bank, to fund its Percentage Interest in the Unreimbursed Letter of
Credit Obligations together with interest thereon shall be absolute and
unconditional under any and all circumstances and irrespective of:
(A) any setoff, counterclaim or defense to payments which the Borrower
or such Bank may at any time have against the Issuing Bank based on (1) any
lack of validity or enforceability of this Agreement or any of the other Loan
Documents; (2) any draft, certificate or any 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; (3) the surrender or impairment of any security
for the performance or observance of any of the terms of any of the Loan
Documents; or (4) the occurrence of any Default; and
(B) the existence of any claim, setoff, other defense or other right
which the Borrower or such Bank may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Agent, the Issuing
Bank, any other Bank or any other Person, whether in connection with any
Letter of Credit, any Loan Document, or the transactions contemplated
therein, or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of Credit).
In furtherance and not in limitation of the foregoing, the Issuing Bank may
accept documents that appear on their face to be in order without responsibility
for further investigation, regardless of any notice or information to the
contrary and not thereby constituting gross negligence, willful misconduct or a
knowing violation of Applicable Law.
Section 1.05. Prepayments. The Borrower may, at any time and from time
to time, prepay the Loans in whole or in part, without premium or penalty (but
subject to Section 7.04), except that any partial prepayment shall be in an
aggregate principal amount of at least Two Million Dollars ($2,000,000) and
larger integral multiples of One Hundred Thousand Dollars ($100,000). The
Borrower shall give the Agent notice of each prepayment no later than
10:00 a.m., on the Business Day in the case of a prepayment of Base Rate Loans,
and, in the case of a prepayment of Eurodollar Rate Loans, on the third
Eurodollar Business Day before, the date of such prepayment. Each such notice
of prepayment shall be in the form of Schedule 1.05 and shall specify (i) the
date such prepayment is to be made and (ii) the amount and Type and, in the case
of Eurodollar Rate Loans, the last day of the applicable Interest Period of the
Loans to be prepaid. Upon receipt of any such notice, the Agent shall promptly
notify each Bank of the contents thereof and the amount and Type and, in the
case of Eurodollar Rate Loans, the last day of the applicable Interest Period of
each Loan of such Bank to be prepaid. Amounts to be prepaid together with
interest thereon as provided in Section 1.03(b) shall irrevocably be due and
payable on the date specified in the applicable notice of prepayment.
Section 1.06. Limitation on Types of Loans. Section 1.06 of the Other
Credit Facility is incorporated herein in its entirety by reference to the
extent as if fully set forth herein.
Section 1.07. Reduction of Commitments. Section 1.07 of the Other
Credit Facility is incorporated herein in its entirety by reference to the
extent as if fully set forth herein.
Section 1.08. Fees. (a) Commitment Fees. The Borrower shall pay to
the Agent for the account of each Bank a commitment fee on the daily unused
amount of such Bank's Commitment under the Facility for each day of the Facility
Period at a rate per annum of .15%, payable quarterly in arrears on the last day
of each calendar quarter (commencing on the quarter ending June 30, 1997, on the
Maturity Date and on the date of any reduction of such Commitment (to the extent
accrued and unpaid on the amount of the reduction).
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Issuing
Bank, for its own account, (A) the Letter of Credit Fronting Fee of .10% per
annum, which shall be payable quarterly in arrears on the last day of each
calendar quarter and on the Repayment Date and (B) the standard processing fees
of the Issuing Bank for the issuance, reconfirmation, reissuance and amendment
of each Letter of Credit with respect thereto, as such processing fees are in
effect from time to time.
(ii) The Borrower shall pay to the Agent, for the account of each Bank,
with respect to each undrawn Letter of Credit, a Letter of Credit Commission on
the daily Letter of Credit Amount of each such Bank at a rate equal to the
Applicable LC Fee Rate. Such fee shall be payable quarterly in arrears on the
last day of each calendar quarter and on the Repayment Date.
(c) Utilization Fee. If on any day the sum of the outstanding aggregate
principal amount of the Loans, Unreimbursed Letters of Credit Obligations and
the aggregate of all Letter of Credit Amounts exceeds fifty percent of the
aggregate Commitments and the Other Credit Facility Commitments, the Borrower
shall pay to the Agent for the account of each Bank, a Utilization Fee, provided
that no Utilization Fee shall be payable with respect to any day unless the
Eurodollar Rate Margin is equal to or less than .45% on such day. The
Utilization Fee shall be paid quarterly in arrears on the last day of each
calendar quarter and on the Repayment Date.
(d) Fees Non-Refundable. None of the fees payable under this Section
1.08 shall be refundable in whole or in part.
Section 1.09. Computation of Interest and Fees. Interest calculated on
the basis of the Eurodollar Rate or the Federal Funds Rate, and the Letter of
Credit Fronting Fee and the Letter of Credit Commission shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed.
Interest calculated on the basis of the Prime Rate and the commitment fees shall
be computed on the basis of 365 days, as applicable, and paid for the actual
number of days elapsed. Interest for any period shall be calculated from and
including the first day thereof to but excluding the last day thereof.
Section 1.10. Evidence of Indebtedness. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of
such Bank and a single Note payable to the order of such Bank which, subject to
Section 9.20, may be a Registered Note. The records of each Bank shall be prima
facie evidence of such Bank's Loans and accrued interest thereon and of all
payments made in respect thereof. Drawings, participations and the Borrower's
obligations to repay Drawings with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement and the records of the Issuing
Bank. The records of the Issuing Bank, shall, absent manifest error, be prima
facie evidence of, with respect to each Letter of Credit, the amount of
Unreimbursed Letter of Credit Obligations and each Bank's Percentage Interest
therein.
Section 1.11. Payments by the Borrower. (a) Time, Place and Manner.
All payments due to the Agent under the Loan Documents shall be made to the
Agent at the Agent's Office or at such other address as the Agent may designate
by notice to the Borrower. All payments due to any Bank under the Loan
Documents shall, in the case of payments on account of principal of or interest
on the Loans or fees, be made to the Agent at the Agent's Office and, in the
case of all other payments, be made directly to such Bank at its Domestic
Lending Office or at such other address as such Bank may designate by notice to
the Borrower. A payment shall not be deemed to have been made on any day unless
such payment has been received by the required Person, at the required place of
payment, in Dollars in funds immediately available to such Person at such place,
no later than 12:00 noon on such day.
(b) No Reductions. All payments due to the Agent, the Issuing Bank, or
any Bank under the Loan Documents, and all other terms, conditions, covenants
and agreements to be observed and performed by the Borrower thereunder, shall be
made, observed or
performed by the Borrower without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether sounding in tort, contract or otherwise) or Tax, except, subject to
Section 1.13, for any withholding or deduction for Taxes required to be withheld
or deducted under Applicable Law.
(c) Authorization to Charge Accounts. The Borrower hereby authorizes
the Agent, the Issuing Bank and each Bank, if and to the extent any amount
payable by the Borrower under the Loan Documents (whether payable to such Person
or to any other Person that is the Agent, the Issuing Bank or a Bank) is not
otherwise paid when due, to charge such amount against any or all of the
accounts of the Borrower with such Person or any of its Affiliates (whether
maintained at a branch or office located within or without the United States),
with the Borrower remaining liable for any deficiency.
(d) Extension of Payment Dates. Whenever any payment to the Agent, the
Issuing Bank or any Bank under the Loan Documents would otherwise be due (except
by reason of acceleration) on a day that is not a Business Day, or, in the case
of payments of the principal of Eurodollar Rate Loans, a Eurodollar Business
Day, such payment shall instead be due on the next succeeding Business or
Eurodollar Business Day, as the case may be, unless, in the case of a payment of
the principal of Eurodollar Rate Loans, such extension would cause payment to be
due in the next succeeding calendar month, in which case such due date shall be
advanced to the next preceding Eurodollar Business Day. If the date any payment
under the Loan Documents is due is extended (whether by operation of any Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.12. Distribution of Payments by the Agent. (a) Distribution
to Banks. The Agent shall promptly distribute to each Bank its Percentage
Interest of each payment received by the Agent under the Loan Documents for the
account of the Banks by credit to an account of such Bank at the Agent's Office
or by wire transfer to an account of such Bank at an office of any other
commercial bank located in the United States.
(b) Agent Reliance. Unless the Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks under
the Loan Documents that the Borrower will not make such payment in full, the
Agent may assume that the Borrower has made such payment in full to the Agent on
such date and the Agent in its sole discretion may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date a
corresponding amount with respect to the amount then due such Bank. If and to
the extent the Borrower shall not have so made such payment in full to the Agent
and the Agent shall have so distributed to any Bank a corresponding amount, such
Bank shall, on demand, repay to the Agent the amount so distributed together
with interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Agent, at the
Federal Funds Rate until (and including) the third Business Day after demand is
made and thereafter at the Base Rate.
Section 1.13. Taxes. The provisions of Article 1, Section 1.13 of the
Other Credit Facility are incorporated in their entirety by reference in this
Agreement to the extent as if fully set forth herein.
Section 1.14. Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) Loans of each Type to be made on any day shall be made by
the Banks pro rata in accordance with their respective Commitments, (b) Loans of
the Banks shall be converted and continued pro rata in accordance with their
respective amounts of Loans of the Type and, in the case of Eurodollar Rate
Loans, having the Interest Period being so converted or continued, (c) each
reduction in the Commitments shall be made pro rata in accordance with the
respective amounts thereof, (d) each payment of the principal of or interest on
the Loans, reimbursement of Drawings or payment of fees shall be made for the
account of the Banks pro rata in accordance with their respective Percentage
Interests.
Para Def Code here returns to original
ARTICLE 2.
CONDITIONS TO CREDIT EXTENSIONS
Section 2.01. Conditions to Initial Credit Extensions. The obligation
of each Bank to make its initial Loan (or, if no Loans have been made at such
time, the obligation of the Issuing Bank to issue the initial Letter of Credit)
is subject to the fulfillment of each of the following conditions:
(a) the Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) a certificate of the Secretary or an Assistant Secretary of the
Borrower, dated the requested date for the making of such Credit Extension,
substantially in the form of Schedule 2.01(a)(i), to which shall be attached
copies of the resolutions and by-laws referred to in such certificate;
(ii) a copy of the certificate of incorporation of the Borrower,
certified, as of a recent date, by the Secretary of State or other
appropriate official of the Borrower's jurisdiction of incorporation;
(iii) a good standing certificate with respect to the Borrower and each
Material Subsidiary, issued as of a recent date by the Secretary of State or
other appropriate official of such Person's jurisdiction of incorporation,
together with a confirmation from such Secretary of State or other official,
updating the information in such certificate;
(iv) an opinion of counsel for the Borrower, dated the requested date
for the making of such Credit Extension, substantially in the form of
Schedule 2.01(a)(iv);
(v) an opinion of counsel for the Agent, dated the requested date for
the making of such Credit Extension;
(vi) a certificate of the president, chief financial officer or
treasurer of the Borrower, dated the requested date for the making of such
Credit Extension, setting forth in the form of a sample calculation the
manner and degree of detail in which the Borrower will make the calculations
required by Section 5.01(c) of the Other Credit Facility;
(vii) a duly executed Note for each Bank;
(viii) such instruments and other documents as the Agent may request,
the possession of which is necessary or appropriate in the Agent's
determination to give effect to this Agreement under Applicable Law;
(ix) an officer's certificate or other evidence confirming that LdE
controls the Borrower;
(x) a copy of the UTC Environmental Report; and
(xi) evidence that prior to or contemporaneously with the initial Credit
Extension, the Other Credit Facility, has been amended to reflect the
execution and delivery of this Agreement; and
(b) all fees payable on or prior to the requested date of such Credit
Extension pursuant to Section 1.08 of the Other Credit Facility and this
Agreement, and all amounts payable pursuant to Section 9.02 of the Other Credit
Facility and this Agreement, for which invoices have been delivered to the
Borrower on or prior to such date, shall have been paid in full or arrangements
satisfactory to the Agent shall have been made to cause them to be paid in full
concurrently with such Credit Extension.
Section 2.02. Conditions to Each Credit Extension. The obligation of
each Bank to make each Loan requested to be made by it, including its initial
Loan, and the obligation of the Issuing Bank to issue each Letter of Credit
requested to be issued by it (including, if no Loans have been made at such
time, the initial Letter of Credit) is subject to the fulfillment of each of the
following conditions:
(a) the Agent and, in the case of a request for the issuance of a Letter
of Credit, the Issuing Bank, shall have received, in the case of a Loan, a
notice of borrowing with respect to such Loan complying with the requirements of
Section 1.02(a) and, in the case of a Letter of Credit, a request for the
issuance of such Letter of Credit complying with the requirements of Section
1.02(b);
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time of such Credit Extension (except to the extent
such representations and warranties expressly relate to an earlier date), both
with and without giving effect to such Credit Extension and all other Credit
Extensions and to the application of the proceeds thereof;
(c) no Default shall have occurred and be continuing at the time of such
Credit Extension or would result from the making of such Credit Extension and
all other Credit Extensions or from the application of the proceeds thereof;
(d) such Bank shall have received such material Information as it may
have requested pursuant to Section 5.01(f) of the Other Credit Facility; and
(e) such Credit Extension will not contravene any Applicable Law
applicable to such Bank.
Except to the extent that the Borrower shall have disclosed in the notice
of borrowing or in the request for the issuance of a Letter of Credit, as
applicable, or in a
subsequent notice given to, in the case of Loans, the Banks or, in the case of
Letters of Credit, the Issuing Bank, prior to 10:00 a.m. (New York time) on the
requested date of a Credit Extension, that a condition specified in clause (b)
or (c) above will not be fulfilled as of the requested time of such Credit
Extension, the Borrower shall be deemed to have made a Representation and
Warranty as of the time of such Credit Extension that the conditions specified
in such clauses have been fulfilled as of such time. No such disclosure by the
Borrower that a condition specified in clause (b) or (c) above will not be
fulfilled as of the requested time of a requested Credit Extension shall affect
the right of each Bank or the Issuing Bank, as the case may be, not to make the
Credit Extension requested to be made by it if, in such Person's determination,
such condition has not been fulfilled at such time.
ARTICLE 3.
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties. In order to induce the
Agent, each Bank, and the Issuing Bank to enter into this Agreement and to make
each Credit Extension requested, all of the representations and warranties
contained in Article 3 of the Other Credit Facility are incorporated in their
entirety by reference in this Agreement to the same extent as fully set forth
herein.
ARTICLE 4.
CERTAIN COVENANTS
Section 4.01. Covenants. From the Agreement Date and until the
Repayment Date the Borrower shall comply with all of the Covenants contained in
Article 4 of the Other Credit Facility which is incorporated in its entirety by
reference in this Agreement to the extent as if fully set forth herein.
ARTICLE 5.
INFORMATION
Section 5.01. Information to be Furnished. From the Agreement Date and
until the Repayment Date, the Borrower shall furnish to each Bank all of the
Information in accordance with Article 5 of the Other Credit Facility which
Article 5 is incorporated in its entirety by reference in this Agreement to the
extent as if fully set forth herein. Notwithstanding the foregoing, if the
Borrower has already provided the Information required at the time requested in
accordance with Article 5 of the Other Credit Facility, the Borrower shall not
be required to comply hereunder if the information is the same as was supplied
under the Other Credit Facility.
ARTICLE 6.
DEFAULT
Section 6.01. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Borrower or
any Subsidiary, or be effected by operation of law or pursuant to any judgment
or order of any court or any order, rule or regulation of any governmental or
non-governmental body:
(a) Any payment of principal on any of the Loans, the Notes or the
Drawings under this Agreement or any prepayment shall not be made when and as
due (whether at maturity, by reason of notice of prepayment or acceleration or
otherwise) and in accordance with the terms of this Agreement and the Notes; or
any payment of interest, fees or any other amount due under this Agreement shall
not be made within three Business Days of when due; and
(b) Any Event of Default under Section 6.01 of the Other Credit
Facility.
Section 6.02. Remedies Upon Event of Default. During the continuance of
any Event of Default (other than one specified in Section 6.01(e) of the Other
Credit Facility with respect to the Borrower) and in every such event, the
Agent, upon notice to the Borrower, may do any or all of the following: (a)
declare, in whole or, from time to time, in part, the principal of and interest
on the Loans and the Notes and all other amounts owing under the Loan Documents
to be, and the Loans and the Notes and all such other amounts shall thereupon
and to that extent become, due and payable, (b) terminate, in whole or, from
time to time, in part, the Commitments and (c) require the Borrower to deposit
in the Cash Collateral Account with the Issuing Bank, funds sufficient to
reimburse or to enable the Issuing Bank to fund the full amount that is
available to be drawn under all outstanding Letters of Credit. Upon the
occurrence of an Event of Default specified in Section 6.01(e) of the Other
Credit Facility automatically and without any notice to the Borrower, (a) the
principal of and interest on the Loans and the Notes and all other amounts owing
under the Loan Documents shall be due and payable and (b) the Commitments shall
terminate. Presentment, demand, protest or notice of any kind (other than the
notice provided for in the first sentence of this Section 6.02) are hereby
expressly waived.
Section 6.03. Cash Collateral Account. (a) Cash Collateral Account.
When required by the terms of this Agreement, the Borrower shall establish and
maintain a special account (the "Cash Collateral Account") at the offices of the
Agent and under the Agent's sole dominion and control.
(b) Setoff. The Agent on behalf of the Banks and the Issuing Bank shall
have rights of setoff and a security interest and charge in the Cash Collateral
Account. If any Default or Event of Default shall have occurred and be
continuing, all amounts then on deposit or anytime thereafter deposited in the
Cash Collateral Account in lieu of being released to the Borrower, shall in the
discretion of the Agent, be returned by the Agent and/or applied by the Agent
against any and all of the amounts due and payable hereunder, whether by
acceleration or otherwise.
(c) Release of Funds After Repayment Date. Any funds remaining in the
Cash Collateral Account after the Repayment Date shall be released to the
Borrower.
ARTICLE 7.
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Additional Credit Facility Provisions. All of the
provisions of Article 7 of the Other Credit Facility are incorporated herein in
their entirety by reference to the same extent as if fully set forth in this
Agreement.
ARTICLE 8.
THE AGENT
Section 8.01. Appointment and Powers. The Issuing Bank and each Bank
hereby irrevocably appoints and authorizes the Agent, individually and in its
capacity as Agent, to act as the agent for such Issuing Bank or Bank under the
Loan Documents, with such powers as are delegated to the Agent by the terms
thereof, together with such other powers as are reasonably incidental thereto.
The Agent's duties shall be purely ministerial and the Agent shall have no
duties or responsibilities except those expressly set forth in the Loan
Documents. The Agent shall not be required under any circumstances to take any
action that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Applicable Law or (b) would expose the Agent to any Liability or
expense against which it has not been indemnified to its satisfaction. The
Agent shall not, by reason of its serving as the Agent, be a trustee or other
fiduciary for any Bank.
Section 8.02. Limitation on Liability of Agent. Neither the Agent nor
any of its respective directors, officers, employees or agents shall be liable
or responsible for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence, willful misconduct or knowing violations of law. The Agent shall
not be responsible to the Issuing Bank or any Bank for (a) any recitals,
statements, representations or warranties contained in the Loan Documents or in
any certificate or other document referred to or provided for in, or received by
the Issuing Bank or any of the Banks under, the Loan Documents, (b) the
validity, effectiveness or enforceability of the Loan Documents or any such
certificate or other document, or (c) any failure by the Borrower to perform any
of its obligations under the Loan Documents. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact so long as the Agent was not grossly
negligent in selecting or directing such agents or attorneys-in-fact. The Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, facsimile, telegram or cable)
believed by it to be genuine and correct and to have been signed or given by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the Agent.
As to any matters not expressly provided for by the Loan Documents, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under the Loan Documents in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 8.03. Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default (other than the non-payment to it of fees or
Drawings or principal of or interest on Loans) unless the Agent has received
notice from a Bank or the Borrower specifying such Default and stating that such
notice is a "Notice of Default". In the event that the Agent has knowledge of
such a non-payment or receives such a notice of the occurrence of a Default, the
Agent shall give prompt notice thereof to the Banks. In the event of any
Default, the Agent shall (a) in the case of a Default that constitutes an Event
of Default, take any or all of the actions referred to in clauses (a) and (b) of
the first sentence of Section 6.02 if so directed by the Required Banks and (b)
in the case of any Default, take such other action with respect to such Default
as shall be reasonably directed by the Required Banks. Unless and until the
Agent shall have received such directions, in the event of any Default, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interests of the Banks.
Section 8.04. Rights as a Bank. Each Person acting as the Agent that is
also a Bank shall, in its capacity as a Bank, have the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not acting as the Agent, and the term "Bank" or "Banks" shall include
such Person in its individual capacity. Each Person acting as the Agent
(whether or not such Person is a Bank) and its Affiliates may (without having to
account therefor to the Issuing Bank or any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Borrower and its Affiliates as if it were not acting as an Agent, and
such Person and its Affiliates may accept fees and other consideration from the
Borrower and its Affiliates for services in connection with the Loan Documents
or otherwise without having to account for the same to the Issuing Bank or the
Banks.
Section 8.05. Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by the Borrower under the Loan Documents), ratably
on the basis of their respective Percentage Interests, for any and all
Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent (including the costs and expenses
that the Borrower is obligated to pay under the Loan Documents) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent (a) they are subject to the indemnity contemplated by the last sentence
of Section 9.10(b) or (b) they arise from gross negligence, willful misconduct
or knowing violations of law by the Agent.
Section 8.06. Non-Reliance on the Agent, the Issuing Bank and Other
Banks. Each Bank agrees that it has made and will continue to make,
independently and without reliance on the Agent or the Issuing Bank or any other
Bank, and based on such documents and information as it deems appropriate, its
own credit analysis of the Borrower, and its own decision to enter into the Loan
Documents and to take or refrain from taking any action in connection therewith.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower of the Loan Documents or any other document referred
to or provided for therein or to inspect the properties or books of the Borrower
or any Subsidiary thereof. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent under
the Loan Documents, the Agent shall not have any obligation to provide any Bank
with any information concerning the business, status or condition of the
Borrower or any Subsidiary thereof, the Loan Documents that may come into the
possession of the Agent or any of its Affiliates.
Section 8.07. Execution and Amendment of Loan Documents on Behalf of the
Banks. Each Bank hereby authorizes the Agent to execute and deliver, in the
name of and on behalf of such Bank, any other Loan Document requiring execution
by or on behalf of such Bank. The Agent shall consent to any amendment of any
term, covenant, agreement or condition of the Loan Documents, or to any waiver
of any right thereunder, if, but only if, the Agent is directed to do so in
writing by the Required Banks; provided, however, that (i) the Agent shall not
be required to consent to any such amendment or waiver that affects its rights
or duties and (ii) the Agent shall not, unless directed to do so in writing by
each Bank, consent to any assignment by the Borrower of any of its rights or
obligations under any such agreement in connection with the Loan Documents,
except as required or permitted by the Loan Documents.
Section 8.08. Resignation of the Agent. The Agent may at any time give
notice of its resignation to the Issuing Bank, the Banks and the Borrower. The
Agent shall resign if directed by the Required Banks. Upon receipt of any such
notice of resignation or removal, the Required Banks may, after consultation
with the Borrower, appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or
removal, then the retiring Agent may, on behalf of the Banks and after
consultation with the Borrower, appoint a successor Agent. Upon the acceptance
by any Person of its appointment as a successor Agent, (a) such Person shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations as Agent under the Loan Documents.
After any retiring Agent's resignation or removal as Agent, the provisions of
this Article 8 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
ARTICLE 9.
MISCELLANEOUS
Section 9.01. Notices and Deliveries. (a) Notices and Information.
Except as provided in Section 9.01(b):
(i) Manner of Delivery. All notices, communications and materials
(including all Information) to be given or delivered pursuant to the Loan
Documents shall, except in those cases where giving notice by telephone is
expressly permitted, be given or delivered in writing (which shall include telex
and facsimile transmissions). Notices under Sections 1.02(a), 1.02(b), 1.03(c),
1.04(b), 1.05, 1.07 and 6.02 may be by telephone, promptly, in the case of each
notice other than one under Section 6.02, confirmed in writing. In the event of
a discrepancy between any telephonic notice and any written confirmation
thereof, such written confirmation shall be deemed the effective notice except
to the extent that the any Person has acted in reliance on such telephonic
notice.
(ii) Addresses. All notices, communications and materials to be given
or delivered pursuant to the Loan Documents shall be given or delivered at the
following respective addresses and facsimile and telephone numbers and to the
attention of the following individuals or departments:
(A) if to the Borrower, to it at:
Trigen Energy Corporation
One Water Street
White Plains, New York 10601
Fax No.: (914) 286-6777
Telephone No.: (914) 286-6600
Attention: Treasurer
(B) if to any Bank, to it at the address or fax or telephone
number and to the attention of the individual or department, set forth
below such Bank's name under the heading "Notice Address" on Annex A or,
in the case of a Bank that becomes a Bank pursuant to an assignment, set
forth under the heading "Notice Address" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment;
(C) if to the Issuing Bank at an address or fax or telephone number
different from that determined in accordance with clause (B) above with
respect to the Bank that is the Issuing Bank, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7428
Telephone No.: (212) 278-6727
Attention: Specialized Letter of Credit Services
(D) if to the Agent at an address or fax or telephone number
different from that determined in accordance with clause (B) above with
respect to the Bank that is the Agent, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7463
Telephone No.: (212) 278-6926
Attention: Ms. Betty Burg, French Corporate Group
or at such other address or fax or telephone number or to the attention of such
other individual or department as the party to which such information pertains
may hereafter specify for the purpose in a notice specifically captioned "Notice
of Change of Address" given to (x) if the party to which such information
pertains is the Borrower, the Agent, the Issuing Bank and each Bank, (y) if the
party to which such information pertains is the Agent, the Borrower, the Issuing
Bank and each Bank and (z) if the party to which such information pertains is a
Bank or the Issuing Bank, the Borrower and the Agent.
(iii) Effectiveness. Each notice and communication and any material to
be given or delivered pursuant to the Loan Documents shall be deemed so given or
delivered (A) if sent by registered or certified mail, postage prepaid, return
receipt requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
office and a receipt therefor is issued thereby, (B) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, (C) if sent by facsimile, when
such notice, communication or material is transmitted to the appropriate fax
number as above provided and is received at such number and (D) if given by
telephone, when communicated to the individual or any member of the department
specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered, or, in the case of
notice by the Agent to the Borrower under Section 6.02 given by telephone as
above provided, if any individual or any member of the department to whose
attention notices, communications and materials are to be given or delivered is
unavailable at the time, to any other officer or employee of the Borrower,
except that (1) notices of a change of address, fax or telephone number or
individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be deemed given until received
and (2) notices, communications and materials to be given or delivered to the
(x) Agent or any Bank pursuant to Sections 1.02(a), 1.03(c), 1.04(b), 1.05, 1.07
and 1.12(b) and Article 5 shall not be deemed given or delivered until received
by the officer of the Agent or such Bank responsible, at the time, for the
administration of the Loan Documents and (y) the Issuing Bank pursuant to
Section 1.02(b) shall not be deemed given or delivered until received by the
officer of the Issuing Bank responsible, at the time, for the administration of
the Issuing Bank's commitment hereunder to issue Letters of Credit.
(iv) Reasonable Notice. Any requirement under Applicable Law of
reasonable notice by the Agent, the Issuing Bank or the Banks to the Borrower of
any event in connection with, or in any way related to, the Loan Documents or
the exercise by the Agent, the Issuing Bank or the Banks of any of their rights
thereunder shall, to the extent permitted by Applicable Law, be met if notice of
such event is given to the Borrower in the manner prescribed above at least 10
days before (A) the date of such event or (B) the date after which such event
will occur.
Section 9.02. Expenses; Indemnification. Whether or not any Credit
Extensions are made hereunder, the Borrower shall:
(a) pay or reimburse the Agent, the Issuing Bank and each Bank for all
transfer, documentary, stamp and similar taxes, and all recording and filing
fees and taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan Documents or
the making of the Loans or the Drawings or the issuance of the Letters of
Credit, if any;
(b) pay or reimburse the Agent for all reasonable costs and expenses
(including fees and disbursements of legal counsel, appraisers, accountants
and other experts employed or retained by the Agent) incurred by such Person
in connection with, arising out of, or in any way related to (i) the
negotiation, preparation, execution and delivery of (A) the Loan Documents
and (B) whether or not executed, any waiver, amendment or consent thereunder
or thereto, (ii) the administration of and any operations under the Loan
Documents, (iii) consulting with respect to any matter in any way arising out
of, related to, or connected with, the Loan Documents, including (A) the
protection, preservation, exercise or enforcement of any of the rights of
such Person or the Banks in, under or related to the Loan Documents or (B)
the performance of any of the obligations of such Person or the Banks under
or related to the Loan Documents, or (iv) protecting, preserving, exercising
or enforcing any of the rights of such Person or the Banks in, under or
related to the Loan Documents;
(c) pay or reimburse each Bank and the Issuing Bank for all reasonable
costs and expenses (including fees and disbursements of legal counsel and
other experts employed or retained by such Person) incurred by such Person in
connection with, arising out of, or in any way related to protecting,
preserving, exercising or enforcing any of its rights in, under or related to
the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and against
all losses (including judgments, penalties and fines) suffered, and pay or
reimburse each Indemnified Person for all costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts employed
or retained by such Indemnified Person) incurred, by such Indemnified Person
in connection with, arising out of, or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person or the
Borrower or any other Person), including the prosecution or defense thereof
and any litigation or proceeding with respect thereto (whether or not, in the
case of any such litigation or proceeding, such Indemnified Person is a party
thereto), or (ii) any investigation, governmental or otherwise, arising out
of, related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity
shall not be applicable to any loss suffered by any Indemnified Person to the
extent such loss is the result of acts or omissions on the part of such
Indemnified Person constituting (w) gross negligence, (x) willful misconduct,
(y) knowing violations of law or (z) in the case of claims by the Borrower
against such Indemnified Person, such Indemnified Person's failure to observe
any other standard applicable to it under any of the other provisions of the
Loan Documents or, but only to the extent not waivable thereunder, Applicable
Law.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Indemnified Person in respect of which
indemnity may be sought from the Borrower, such Indemnified Person shall
promptly notify the Borrower in writing, and the Borrower shall assume the
defense thereof, including the employment of counsel satisfactory to such
Indemnified Person, and the payment of all expenses. Any Indemnified Person
seeking indemnification shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expense of such Indemnified Person unless (a) the
Borrower has agreed to pay such fees and expenses or (b) the Borrower shall have
failed to assume the defense of such action or proceeding or shall have failed
to employ counsel satisfactory to such Indemnified Person in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include such Indemnified Person, and such Indemnified
Person shall have been advised by counsel that there may be one or more legal
defenses available to such Indemnified Person that are different from or
additional to those available to the Borrower (in which case, if such
Indemnified Person notifies the Borrower in writing that it elects to employ
separate counsel at the expense of the Borrower, the Borrower shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Person; it being understood, however, that the Borrower shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all Indemnified Persons, which firm shall be designated in writing by
such Indemnified Persons). The Borrower shall not be liable for any settlement
of any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there is a final judgment for the
plaintiff in any such action or proceeding, the Borrower agrees to indemnify and
hold harmless any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
Section 9.03. Amounts Payable Due Upon Request for Payment. All amounts
payable by the Borrower under Section 9.02 and under the other provisions of the
Loan Documents shall, except as otherwise expressly provided, be immediately due
upon request for the payment thereof.
Section 9.04. Remedies of the Essence. The various rights and remedies
of the Agent, the Issuing Bank and the Banks under the Loan Documents are of the
essence of those agreements, and the Agent, the Issuing Bank and the Banks shall
be entitled, to the extent permitted by Applicable Law, to obtain a decree
requiring specific performance of each such right and remedy.
Section 9.05. Rights Cumulative. Each of the rights and remedies of the
Agent, the Issuing Bank and the Banks under the Loan Documents shall be in
addition to all of their other rights and remedies under the Loan Documents and
Applicable Law, and nothing in the Loan Documents shall be construed as limiting
any such rights or remedies.
Section 9.06. Disclosures. Each of the Agent, the Issuing Bank and the
Banks agrees to hold any information (which is not already public information)
which it may receive from the Borrower or any Subsidiary pursuant to any Loan
Document in confidence, except for disclosure (i) to other Banks, the Agent, or
the Issuing Bank, (ii) to legal counsel, accountants, and other professional
advisors to the Agent, the Issuing Bank or such Bank, as the case may be, (iii)
to regulatory officials, (iv) as requested pursuant to or as required by
Applicable Law, (v) in connection with any legal proceeding to which the Agent,
the Issuing Bank or such Bank, as the case may be, is a party, and (vi) to
potential assignees and participants of such Bank, provided, that such Bank
shall require any assignee or participant to be bound in like manner to this
Section 9.06.
Section 9.07. Amendments; Waivers. Any term, covenant, agreement or
condition of the Loan Documents may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by the Required Banks and, if the rights and duties of the Agent
or the Issuing Bank are affected thereby, by the Agent or the Issuing Bank, as
the case may be, and in the case of an amendment with respect to any Loan
Document, by the Borrower; provided, however, that no amendment or waiver shall
be effective, unless in writing and signed by each Bank affected thereby, to the
extent it (i) changes the amount of such Bank's Commitment, except as permitted
by Section 7.07, (ii) reduces (A) the principal of or the rate of interest on
(1) such Bank's Loans or Notes or (2) any of the Drawings or (B) the fees
payable to such Bank hereunder, (iii) postpones any date fixed for (A) any
payment of (1) principal of or interest on (aa) such Bank's Loans or Notes or
(bb) any of the Drawings or (2) the fees payable to such Bank hereunder or (B)
the expiration of any Letter of Credit if such postponement would extend the
expiration of such Letter of Credit beyond the Termination Date, or (iv) amends
or waives the requirements of, or an Event of Default under, Section 1.14,
Section 3.21, Section 6.01(h) of the Other Credit Facility, this Section 9.07 or
any other provision of this Agreement requiring the consent or other action of
all of the Banks. Unless otherwise specified in such waiver, a waiver of any
right under the Loan Documents shall be effective only in the specific instance
and for the specific purpose for which given. No election not to exercise,
failure to exercise or delay in exercising any right, nor any course of dealing
or performance, shall operate as a waiver of any right of the Agent, the Issuing
Bank or any Bank under the Loan Documents or Applicable Law, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right of the Agent, the Issuing
Bank or any Bank under the Loan Documents or Applicable Law.
Section 9.08. Set-Off; Suspension of Payment and Performance. The
Agent, the Issuing Bank and each Bank is hereby authorized by the Borrower, at
any time and from time to time, without notice, to the extent permitted by
Applicable Law, during any Event of Default, to set off against, and to
appropriate and apply to the payment of, the Liabilities of the Borrower under
the Loan Documents (whether owing to such Person or to any other Person that is
the Agent, the Issuing Bank or a Bank and whether matured or unmatured, fixed or
contingent or liquidated or unliquidated) any and all Liabilities owing by such
Person or any of its Affiliates to the Borrower (whether payable in Dollars or
any other currency, whether matured or unmatured and, in the case of Liabilities
that are deposits, whether general or special, time or demand and however
evidenced and whether maintained at a branch or office located within or without
the United States).
Section 9.09. Sharing of Recoveries. (a) Each Bank agrees that, if,
for any reason, including as a result of (i) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar law being deemed secured by a
Debt owed by it to the Borrower, including a claim deemed secured under Section
506 of the Bankruptcy Code, or (iii) the allocation of payments by the Agent or
the Borrower in a manner contrary to the provisions of Section 1.14, such Bank
shall receive payment of a proportion of the aggregate amount due and payable to
it hereunder as principal of or interest on the Loans, Drawings or fees that is
greater than the proportion received by any other Bank in respect of the
aggregate of such amounts due and payable to such other Bank hereunder, then the
Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder so that all
such recoveries with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; provided that if all or part of such
proportionately greater payment received by the purchasing Bank is thereafter
recovered by or on behalf of the Borrower from such Bank, such purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such Bank to the extent of such recovery, but without interest
(unless the purchasing Bank is required to pay interest on the amount recovered
to the Person recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate). The Borrower expressly consents to
the foregoing arrangements and agree that any holder of a participation in any
rights hereunder so purchased or acquired pursuant to this Section 9.09(a)
shall, with respect to such participation, be entitled, to the extent permitted
by Applicable Law, to all of the rights of a Bank under Sections 7.02 of the
Other Credit Facility, 9.02 and 9.08 (subject to any condition imposed on a Bank
hereunder with respect thereto) and may, to the extent permitted by Applicable
Law, exercise any and all rights of set-off with respect to such participation
as fully as though the Borrower was directly indebted to the holder of such
participation for Loans to the Borrower in the amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim, set-off,
banker's lien or similar right that it may have in respect of the Borrower in a
manner so as to apportion the amount subject to such exercise, on a pro rata
basis, between (i) obligations of such Borrower for amounts subject to the
sharing provisions of Section 9.09(a) and (ii) other Liabilities of such
Borrower.
Section 9.10. Assignments and Participations. (a) Assignments. (i)
The Borrower may not assign any of its rights or obligations under the Loan
Documents without the prior written consent of the Agent, the Issuing Bank and
each Bank, and no assignment of any such obligation shall release the Borrower
therefrom unless the Agent or the Issuing Bank and each Bank, as applicable,
shall have consented to such release in a writing specifically referring to the
obligation from which the Borrower is to be released.
(ii) Each Bank may from time to time assign any or all of its rights
and obligations under the Loan Documents to one or more Eligible Assignees;
provided that, except in the case of the grant of a security interest to a
Federal Reserve Bank (which may be made without condition or restriction), no
such assignment shall be effective unless (A) the assignment is consented to by
the Borrower (unless an Event of Default specified in Section 6.01(e) of the
Other Credit Facility with respect to the Borrower exists), which consent shall
not be unreasonably withheld (it being agreed that the failure of a proposed
assignee to have a long term debt rating of A- or higher is a valid reason for
withholding consent), the Issuing Bank and the Agent (which consents shall not
be unreasonably withheld), (B) if less than the full amount of the assignor
Bank's Commitment, the assignment shall involve the assignment of not less than
$5,000,000 of the assignor Bank's Commitment, (C) a Notice of Assignment with
respect the assignment, duly executed by the assignor and the assignee, shall
have been given to the Borrower and the Agent, (D) in the case of an assignment
of a Registered Note, such Registered Note shall have been surrendered for
registration of assignment duly endorsed by (or accompanied by a written
instrument of assignment duly executed by) the Registered Holder and such
assignment shall have been recorded on the Register and (E) except in the case
of an assignment by the Bank that is the Agent, the Agent shall have been paid
an assignment fee of $2,500. Upon any effective assignment, the assignor shall
be released from the obligations so assigned and, in the case of an assignment
of all of its Loans and Commitment, shall cease to be a Bank. In the event of
any effective assignment by a Bank, the Borrower shall, against receipt of the
existing Note of the assignor Bank, issue a new Note to the assignee Bank and,
in the case of a partial assignment, to the assignor Bank, appropriately
reflecting such assignment.
(b) Participations. Each Bank may from time to time sell or otherwise
grant participations in any or all of its rights and obligations under the Loan
Documents without the consent of the Borrower, the Agent, the Issuing Bank or
any other Bank. In the event of any such grant by a Bank of a participation,
such Bank's obligations under the Loan Documents to the other parties thereto
shall remain unchanged, such Bank shall remain solely responsible for the
performance thereof, and the Borrower, the Agent and the other Banks may
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations thereunder. A Bank may not grant to any holder of
a participation the right to require such Bank to take or omit to take any
action under the Loan Documents, except that a Bank may grant to any such holder
the right to require such holder's consent to (i) reduce (A) the principal of or
the rate of interest on (1) such Bank's Loans or Notes or (2) any of the
Drawings or (B) the fees payable to such Bank hereunder, (ii) postpone any date
fixed for (A) any payment of (1) principal of or interest on (aa) such Bank's
Loans or Notes or (bb) any of the Drawings or (2) the fees payable to such Bank
hereunder or (B) the expiration of any Letter of Credit if such postponement
would extend the expiration date of such Letter of Credit beyond the Termination
Date or (iii) except in connection with a transaction that is permitted under
the Loan Documents, permit the Borrower to assign any of its obligations under
the Loan Documents to any other Person. Each holder of a participation in any
rights under the Loan Documents, if and to the extent the applicable
participation agreement so provides, shall, with respect to such participation,
be entitled to all of the rights of a Bank as fully as though it were a Bank
under Sections 1.13 and 9.02(d) of this Agreement or 7.02, 7.03, 7.04 of the
Other Credit Facility (subject to any conditions imposed on a Bank hereunder
with respect thereto, including delivery of the forms and certificates required
under Section 1.13(c)) and may, to the extent permitted by Applicable Law,
exercise any and all rights of set-off with respect to such participation as
fully as though the Borrower was directly indebted to the holder of such
participation for Loans made to the Borrower in the amount of such
participation; provided, however, that no holder of a participation shall be
entitled to any amounts that would otherwise be payable to it with respect to
its participation under Section 1.13 of this Agreement or 7.02 of the Other
Credit Facility unless (x) such amounts are payable in respect of Regulatory
Changes that are enacted, adopted or issued after the date the applicable
participation agreement was executed or (y) such amounts would have been payable
to the Bank that granted such participation if such participation had not been
granted. Each Bank selling or granting a participation shall indemnify the
Borrower and the Agent for any Taxes and Liabilities that they may sustain as a
result of such Bank's failure to withhold and pay any Taxes applicable to
payments by such Bank to its participant in respect of such participation.
Section 9.11. Governing Law. This Agreement and the Notes (including
matters relating to the Maximum Permissible Rate) shall be construed in
accordance with and governed by the law of the State of New York (without giving
effect to its choice of law principles other than Section 5-1401 of the New York
General Obligations Law).
Section 9.12. Judicial Proceedings; Waiver of Jury Trial. Any judicial
proceeding brought against the Borrower with respect to any Loan Document
Related Claim may be brought in any court of competent jurisdiction in The City
of New York, and, by execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with any Loan Document Related
Claim and (b) irrevocably waives, to the extent permitted by Applicable Law, any
objection it may now or hereafter have as to the venue of any such proceeding
brought in such a court or that such a court is an inconvenient forum. The
Borrower hereby waives personal service of process and consents that service of
process upon it may be made by certified or registered mail, return receipt
requested, at its address specified or determined in accordance with the
provisions of Section 9.01(a)(ii), and service so made shall be deemed completed
on the third Business Day after such service is deposited in the mail. Nothing
herein shall affect the right of any Agent, the Issuing Bank, any Bank or any
other Indemnified Person to serve process in any other manner permitted by law
or shall limit the right of any Agent, the Issuing Bank, any Bank or any other
Indemnified Person to bring proceedings against the Borrower in the courts of
any other jurisdiction. THE BORROWER, THE AGENT, THE ISSUING BANK AND EACH BANK
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.13. Judgment Currency. If in connection with determining the
amount of a judgment to be rendered in a currency other than Dollars (a "Foreign
Currency"), it is necessary to convert a sum payable by the Borrower to an
Indemnified Person under the Loan Documents in Dollars into such Foreign
Currency, then, unless another rate of exchange is required under Applicable
Law, the rate of exchange used shall be the Agent's Spot Rate of Exchange on the
Business Day preceding the day on which final judgment is to be rendered. The
obligations of the Borrower in respect of any such sum payable by it to such
Indemnified Person under the Loan Documents in Dollars shall, notwithstanding
any such judgment in such Foreign Currency, be discharged only to the extent
that on the Business Day following actual receipt by such Indemnified Person of
the amount of the judgment in such Foreign Currency, such Indemnified Person is
able to purchase Dollars in New York with such sum of Foreign Currency, whether
or not at the Agent's Spot Rate of Exchange. As a separate obligation and
notwithstanding any such judgment, the Borrower shall pay such Indemnified
Person on demand in Dollars any difference between the amount originally payable
by the Borrower to such Indemnified Person in Dollars and the amount of Dollars
that may be so purchased. In the event that the amount that may be so purchased
exceeds the amount originally payable, such Indemnified Person shall promptly
remit such excess to the Borrower.
Section 9.14. LIMITATION OF LIABILITY. NEITHER THE AGENT, THE ISSUING
BANK, THE BANKS, ANY OTHER INDEMNIFIED PERSON NOR (EXCEPT AS OTHERWISE PROVIDED
HEREIN) THE BORROWER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND EACH PARTY
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY SUCH PARTY IN CONNECTION WITH ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.15. Severability of Provisions. Any provision of the Loan
Documents that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Borrower hereby
waives any provision of Applicable Law that renders any provision of the Loan
Documents prohibited or unenforceable in any respect.
Section 9.16. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 9.17. Survival of Obligations. Except as otherwise expressly
provided therein, the rights and obligations of the Borrower, the Agent, the
Issuing Bank, the Banks and the other Indemnified Persons under the Loan
Documents shall survive the Repayment Date.
Section 9.18. Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Borrower, the Agent, the Issuing Bank and the Banks
relating to the subject matter hereof and supersede all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
Section 9.19. Successors and Assigns. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 9.20. Registered Notes. A Bank that is a Non-US Bank that has
complied with Section 1.13(c)(A)(1)(bb) may have its Note issued as a Registered
Note, and for this purpose the Borrower shall cause to be maintained a Register.
Once issued, Registered Notes may not be exchanged for Notes that are not
Registered Notes, and of the Loans evidenced thereby, may be transferred only in
accordance with the provisions of Section 9.10(a)(ii)(D).
ARTICLE 10
INTERPRETATION
Section 10.1. Defined Terms. Terms used herein and not defined herein
shall have the meanings set forth in Article 10 of the Other Credit Facility.
For the purposes of this Agreement:
"Agent" means Societe Generale, as agent for the Banks and the Issuing
Bank under the Loan Documents, and any successor Agent appointed pursuant to
Section 8.08.
"Agent's Office" means the address of the Agent specified in or
determined in accordance with the provisions of Section 9.01.
"Agreement" means this Revolving Credit Facility, including all
schedules, annexes and exhibits hereto, as the same may be amended, modified or
supplemented from time to time.
"Agreement Date" means the date set forth as such on the first page
hereof, which date is the date the executed copies of this Agreement were deemed
delivered by all parties hereto and, accordingly, this Agreement became
effective and the Banks first became committed to make the Loans and other
extensions of credit contemplated by this Agreement.
"Bank" means (a) any Person listed on the signature pages hereof
following the Agent and (b) any Person (other than the Borrower or any of its
Affiliates) that has been assigned any or all of the rights or obligations of a
Bank pursuant to Section 9.10 or has replaced a Bank pursuant to Section 7.07.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(a) the Prime Rate in effect on such day; or (b) the sum of the Federal Funds
Rate in effect on such day plus 1/2%.
"Base Rate Loan" means any Loan the interest on which is, or is to be, as
the context may require, computed on the basis of the Base Rate.
"Borrower" means Trigen Energy Corporation, a Delaware corporation.
"Commitment" of any Bank means (a) the amount set forth opposite such
Bank's name under the heading "Commitment" on Annex A or, in the case of a Bank
that becomes a Bank pursuant to an assignment, the amount of the assignor's
Commitment assigned to such Bank, in either case, as the same may be reduced
from time to time pursuant to Section 1.07 or increased or reduced from time to
time pursuant to assignments in accordance with Section 9.10(a), or (b) as the
context may require, the obligation of such Bank to make Loans in an aggregate
unpaid principal amount not exceeding such amount.
"Commitment Fee" shall have the meaning set forth in Section 1.08(a).
"Credit Extension" means (a) the making by any Bank of any Loan or (b)
the issuance or renewal by the Issuing Bank of any Letter of Credit.
"Default" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Domestic Lending Office" of any Bank means, (a) as applied to any Bank,
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Domestic Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Domestic Lending Office" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment or (ii) such
other branch or office of such Bank designated by such Bank from time to time as
the branch or office at which its Base Rate Loans are to be made or maintained
and (b) as applied to the Issuing Bank, (i) the branch or office of the Issuing
Bank set forth below under the heading "Issuing Bank Domestic Lending Office" on
Annex A or (ii)such other branch or office of such Bank designated by the
Issuing Bank from time to time at which Drawings are to be made or maintained.
"Eurodollar Lending Office" of any Bank means (a) as applied to any Bank
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Eurodollar Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Eurodollar Lending Office" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment or (ii) such
other branch or office of such Bank designated by such Bank from time to time as
the branch or office at which its Eurodollar Rate Loans are to be made or
maintained and (b) as applied to the Issuing Bank, if such branch or office is
different from the Eurodollar Lending Office of the Bank that is the Issuing
Bank, (i) the branch or office of the Issuing Bank set forth below the name of
the Bank that is the Issuing Bank under the heading" Issuing Bank Eurodollar
Lending Office on Annex A or (ii)such other branch or office of such Bank
designated by the Issuing Bank from time to time as the branch or the office at
which Drawings are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the Rate that appears
on the Telerate Screen Page in the column headed "USD" for a period equal to
such Interest Period, at 11:00 a.m. (London time) two Eurodollar Business Days
before the first day of such Interest Period. If the Telerate Screen Page
becomes unavailable or if for any other reason determined by the Agent in good
faith, the Agent is unable to determine the appropriate Eurodollar Rate by
reference to the Telerate Screen Page, then "Eurodollar Rate" shall mean, for
such Interest Period, the rate per annum determined by the Agent to be the rate
per annum determined by the Reference Bank to be the rate at which the Reference
Bank offered or would have offered to place with first-class banks in the London
interbank market deposits in Dollars in amounts comparable to the Eurodollar
Rate Loan of the Reference Bank to which such Interest Period applies, for a
period equal to such Interest Period, at 11:00 a.m. (London time) on the second
Eurodollar Business Day before the first day of such Interest Period.
"Eurodollar Rate Loan" means any Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Eurodollar Rate.
"Eurodollar Rate Margin" means (a) .75% so long as the Borrower shall not
maintain an S & P Rating of at least BBB-; and (b) so long as the Borrower shall
receive and maintain an S & P Rating of at least BBB-, the Eurodollar Rate
Margin shall be determined in accordance with the following table:
S & P Rating Eurodollar Rate Margin
A- or higher .30%
BBB+ .35%
BBB .40%
BBB- .45%
The Eurodollar Rate Margin shall be increased or decreased in accordance with
this definition upon any change in the S & P Rating and such increased or
decreased Eurodollar Rate Margin shall be effective from the date of the
announcement of such new S & P Rating.
"Event of Default" means any of the events specified in Section 6.01.
"Facility" means the revolving credit of up to Thirty-Five Million
Dollars ($35,000,000) granted to the Borrower subject and pursuant to the
Agreement, as the same may be reduced pursuant to Section 1.07.
"Facility Period" means the period commencing on the June 24, 1997 and
ending on the Termination Date.
"Federal Funds Rate" means, for any day, 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 that is a Business Day, the average of quotations for such day on such
transactions received by Societe Generale from three Federal funds brokers of
recognized standing selected by such bank.
"Interest Payment Date" means (a) for any Base Rate Loan, (i) the last
Business Day of each month; and (ii) the day on which any principal amount of
such Base Rate Loan matures and becomes due and payable; and (b) for any
Eurodollar Loan, (i) the last day of each Interest Period for such Eurodollar
Loan; (ii) the last day of each three month portion of each Interest Period
which is longer than three months; and (iii) the day on which any principal
amount of such Eurodollar Loan matures and becomes due and payable.
"Interest Period" means a period commencing, in the case of the first
Interest Period applicable to a Eurodollar Rate Loan, on the date of the making
of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third or sixth calendar month
thereafter, except that (a) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day and (b) any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month in which such Interest
Period ends) shall end on the last Eurodollar Business Day of a calendar month.
"Issuing Bank" means with respect to each Letter of Credit issued by
Societe Generale pursuant to Section 1.02(b), Societe Generale in its capacity
as the issuing bank of the Letter of Credit.
"Issuing Bank's Office" means the address of the Issuing Bank specified
in or determined in accordance with the provisions of Section 9.01.
"Lending Office" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"Letter of Credit" means any standby letter of credit issued by the
Issuing Bank pursuant to Section 1.01(b).
"Letter of Credit Amount" means, at any time, an amount equal to the
product of: (a) the aggregate undrawn amount under such Letter of Credit at
such time; multiplied by (b) such Bank's Percentage Interest.
"Letter of Credit Commission" means a commission equal to the Applicable
LC Fee Rate based on the aggregate Letter of Credit Amount.
"Letter of Credit Fees" shall mean the fees described in Section 1.08(b).
"Letter of Credit Fronting Fee" means a fee of .10% of the aggregate
undrawn amount of all Letters of Credit issued hereunder, which fee is to be
paid quarterly in arrears to the Issuing Bank.
"Loan" means any amount advanced by a Bank pursuant to Section 1.01(a).
"Loan Document Representation and Warranty" means any "Representation and
Warranty" as defined in any Loan Document or the Existing Credit Agreement and
any other representation or warranty made or deemed made under any Loan Document
or the Existing Credit Agreement.
"Loan Documents" means (a) this Agreement, the Notes and the Letters of
Credit and (b) the Other Credit Facility, Other Credit Facility Notes and the
Letters of Credit issued pursuant to the Other Credit Facility and (c) all other
agreements, documents and instruments delivered pursuant to any of the
foregoing.
"Maturity Date" means for any Loan, the earlier of: (a) the Termination
Date; and (b) the date on which the maturity of the Loan has been accelerated
pursuant to Section 6.02.
"Note" means any Note in the form of Exhibit A and includes such a Note
that is a Registered Note.
"Notice of Assignment" means any notice to the Borrower and the Agent
with respect to an assignment and acceptance pursuant to Section 9.10 in the
form of Schedule 9.10.
"Other Credit Facility" means the $125,000,000 Revolving Credit Facility
dated as of April 4, 1997 among the Borrower, Agent, and the Banks, as the same
may be restated or amended from time to time.
"Other Credit Facility Commitments" of any Bank means (a) the amount set
forth opposite such Bank's name under the heading "Commitment" on Annex A of the
Other Credit Facility or, in the case of a Bank that becomes a Bank pursuant to
an assignment, the amount of the assignor's Commitment assigned to such Bank, as
the same may be reduced from time to time pursuant to Section 1.07 of the Other
Credit Facility or increased or reduced from time to time pursuant to
assignments in accordance with Section 9.10(a) of the Other Credit Facility; or
(b) as the context may require, the obligation of such Bank to make loans
pursuant to the Other Credit Facility in an aggregate unpaid principal amount
not exceeding such amount.
"Other Credit Facility Notes" means the notes issued by the Borrower
pursuant to the Other Credit Facility.
"Percentage Interest" means, as to a Bank, the percentage set forth
opposite such Bank's name on Annex A of this Agreement and any amendment or
assignment hereto, or if applicable, in the Register.
"Post-Default Rate" means the rate otherwise applicable under Section
1.03(a) plus 2%.
"Prime Rate" means the rate of interest from time to time announced by
Societe Generale at its office in New York, New York as its prime commercial
lending rate for extensions of credit in Dollars, which rate is not necessarily
the lowest rate of interest charged or received by Societe Generale. Each
change in the Prime Rate resulting from a change in such prime commercial
lending rate shall take effect when such prime commercial lending rate changes.
"Reference Bank" means Societe Generale, New York.
"Register" means a register kept at the Agent's office by the Agent on
behalf of the Borrower, on which the Agent records the names of the Registered
holders of Registered Notes.
"Registered Holder" means the Person in whose name a Registered Note is
registered.
"Registered Note" means a Note the name of the holder of which has been
recorded on the Register. The registration of a Note shall constitute the
registration of the Loan evidenced thereby.
"Repayment Date" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Termination Date,
reduction to zero pursuant to Section 1.07 or termination pursuant to Section
6.02) and (b) the payment in full of the Loans, Drawings and all other amounts
payable or accrued hereunder.
"Required Banks" means, at any time, Banks having more than two thirds
(66-2/3%) of the Loans and Participations outstanding, or if there are no Loans
or Participations outstanding, more than two thirds (66-2/3%) of the aggregate
amount of the Commitment. Any determination of those Banks constituting Required
Banks shall be made by the Agent and shall be conclusive and binding on all
parties absent manifest error.
"Telerate Screen" means the display of interest settlement rates
(commonly known as LIBOR) for Dollar deposits in London designated as page 3750
on the Dow Jones Telerate Service (or any other page that replaces page 3750 and
displays London interbank settlement rates for Dollar deposits).
"Termination Date" means: (a) the Business Day immediately prior to the
first anniversary of the Agreement Date; or (b) if the Facility Period has been
extended pursuant to Section 1.01(c), the Business Day as contained in a notice
from the Agent to the Borrower.
"Type" means, with respect to Loans, any of the following, each of which
shall be deemed to be a different "Type" of Loan: Base Rate Loans, Eurodollar
Rate Loans having a one-month Interest Period, Eurodollar Rate Loans having a
two-month Interest Period, Eurodollar Rate Loans having a three-month Interest
Period and Eurodollar Rate Loans having a six-month Interest Period. Any
Eurodollar Rate Loan having an Interest Period that differs from the duration
specified for a Type of Eurodollar Rate Loan listed above solely as a result of
the operation of clauses (a) and (b) of the definition of "Interest Period"
shall be deemed to be a Loan of such above-listed Type notwithstanding such
difference in duration of Interest Periods.
"Uniform Customs" means Uniform Customs and Practice for Commercial
Documentary Credits of the International Chamber of Commerce, revision 500 of
1993 and as the same may be amended, modified or supplemented.
"Unreimbursed Letter of Credit Obligations" means any amounts which the
Borrower is required to reimburse the Issuing Bank for Drawings.
Section 10.02. Other Interpretive Provisions. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or Contract
defined or referred to herein shall be deemed references to such Loan Document
or Contract (and, in the case of any Note or any other instrument, any
instrument issued in substitution therefor) as the terms thereof may have been
or may be amended, supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word "including",
"include" or "includes" is set forth only for the purpose of indicating that,
regardless of whatever other items are in the category in which such item or
items are "included", such item or items are in such category, and shall not be
construed as indicating that the items in the category in which such item or
items are "included" are limited to such items or to items similar to such
items.
(e) Each authorization in favor of the Agent, the Issuing Bank, the
Banks or any other Person granted by or pursuant to this Agreement shall be
deemed to be irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references to the time of
day shall be deemed to be to New York City time as then in effect.
Section 10.03. Accounting Matters. Unless otherwise specified herein,
all accounting determinations hereunder and all computations utilized by the
Borrower shall be made in accordance with Section 10.03 of the Other Credit
Facility.
Section 10.04. Representations and Warranties. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made, at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 10.05. Captions. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 10.06. Interpretation of Related Documents. Except as otherwise
specified herein or therein, terms that are defined herein that are used in
Notes, certificates, opinions and other documents delivered in connection
herewith shall have the meanings ascribed to them herein and such documents
shall be otherwise interpreted in accordance with the provisions of this
Article 10.
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
TRIGEN ENERGY CORPORATION
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
SOCIETE GENERALE,
as Agent, as Issuing Bank and as a Bank
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
CREDIT LOCAL DE FRANCE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
CREDIT COMMERCIAL DE FRANCE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
MELLON BANK, N.A.
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Credit
Facility to be executed by their duly authorized officers as of the Agreement
Date.
THE DAI-ICHI KANGYO BANK, LTD.
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Credit
Facility to be executed by their duly authorized officers as of the Agreement
Date.
UMB BANK, N.A.
By
Name:
Title: