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Exhibit 4.10
SECURED REVOLVING O&M COSTS FACILITY
dated as of May 14, 1999
Between
AES EASTERN ENERGY, L.P.
THE BANKS
and
CREDIT SUISSE FIRST BOSTON,
as Agent
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TABLE OF CONTENTS
Page
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ARTICLE 1
INTERPRETATION
Section 1.01 Defined Terms................................................................................. 1
Section 1.02 Other Interpretive Provisions................................................................. 11
Section 1.03 Accounting Matters............................................................................ 12
Section 1.04 Representations and Warranties................................................................ 12
Section 1.05 Captions...................................................................................... 12
Section 1.06 Interpretation of Related Documents........................................................... 12
ARTICLE 2
CREDIT FACILITY
Section 2.01 Commitment to Lend............................................................................ 13
Section 2.02 Manner of Borrowing........................................................................... 13
Section 2.03 Interest...................................................................................... 14
(a) Rates................................................................................... 14
(b) Payment................................................................................. 14
(c) Conversion and Continuation............................................................. 15
(d) Maximum Interest Rate................................................................... 16
Section 2.04 Repayment..................................................................................... 16
Section 2.05 Prepayments................................................................................... 16
(a) Optional Payments....................................................................... 16
(b) Available Commitments Mandatory Prepayments............................................. 16
(c) Clean-Up Period Mandatory Prepayments................................................... 17
(d) [Reserved].............................................................................. 17
(e) Rent Payment Date Mandatory Prepayments................................................. 17
Section 2.06 Limitation on Types of Loans.................................................................. 17
Section 2.07 Adjustment of Commitments..................................................................... 17
Section 2.08 Fees.......................................................................................... 17
(a) Commitment Fees......................................................................... 17
(b) Minimum Utilization Fee................................................................. 18
(c) Agency Fees............................................................................. 18
(d) Fees Non-Refundable..................................................................... 18
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Section 2.09 Computation of Interest and Fees.............................................................. 18
Section 2.10 Evidence of Indebtedness...................................................................... 18
Section 2.11 Payments by the Borrower...................................................................... 19
(a) Time, Place and Manner.................................................................. 19
(b) No Reductions........................................................................... 19
(c) Extension of Payment Dates.............................................................. 19
Section 2.12 Distribution of Payments by the Agent......................................................... 19
Section 2.13 Taxes......................................................................................... 20
Section 2.14 Pro Rata Treatment............................................................................ 22
ARTICLE 3
CONDITIONS TO LOANS
Section 3.01 Conditions to Initial Loans................................................................... 22
Section 3.02 Conditions to Each Loan....................................................................... 23
ARTICLE 4
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 4.01 Participation Agreements Section 3............................................................ 25
Section 4.02 Representations and Warranties in Schedule 4.................................................. 25
Section 4.03 Authorization; Enforceability; Required Consents; Absence of Conflicts........................ 25
Section 4.04 Litigation.................................................................................... 26
Section 4.05 Burdensome Provisions......................................................................... 26
Section 4.06 No Adverse Change or Event.................................................................... 26
Section 4.07 Additional Adverse Facts...................................................................... 26
ARTICLE 5
CERTAIN COVENANTS
Section 5.01 [Reserved] ................................................................................... 27
Section 5.02 Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims, Preservation of Enforceability.... 27
Section 5.03 Insurance..................................................................................... 27
Section 5.04 Use of Proceeds............................................................................... 28
Section 5.05 Liens......................................................................................... 28
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Section 5.06 Merger or Consolidation....................................................................... 28
Section 5.07 Disposition of Assets......................................................................... 28
Section 5.08 Incurrence of Debt............................................................................ 29
Section 5.09 Limitations on Investments.................................................................... 29
Section 5.10 Transactions with Affiliates.................................................................. 29
Section 5.11 Subsidiaries.................................................................................. 29
Section 5.12 Additional Facilities......................................................................... 29
Section 5.13 Payment of Operating and Maintenance Costs.................................................... 29
Section 5.14 Annual Operating Budget....................................................................... 30
Section 5.15 AEE Revenues.................................................................................. 30
Section 5.16 No Abandonment................................................................................ 30
Section 5.17 Assignment.................................................................................... 31
ARTICLE 6
INFORMATION
Section 6.01 Information to Be Furnished................................................................... 31
(a) Quarterly Financial Statements.......................................................... 31
(b) Year-End Financial Statements; Accountants' Certificate................................. 31
(c) Operating Budgets....................................................................... 32
(d) Monthly Operations Report............................................................... 32
(e) Notices under each of the Participation Agreements...................................... 32
(f) Reports and Filings..................................................................... 32
(g) Requested Information................................................................... 33
(h) Notice of Defaults, Material Adverse Changes and Other
Matters................................................................................. 33
Section 6.02 Accuracy of Financial Statements and Information.............................................. 33
(a) Historical Financial Statements......................................................... 33
(b) Future Financial Statements............................................................. 34
(c) Historical Information.................................................................. 34
(d) Future Information...................................................................... 35
Section 6.03 Additional Covenants Relating to Disclosure................................................... 35
(a) Accounting Methods and Financial Records................................................ 35
(b) Fiscal Year............................................................................. 35
(c) Visits, Inspections and Discussions..................................................... 35
Section 6.04 Authorization of Third Parties to Deliver Information and Discuss Affairs..................... 36
ARTICLE 7
DEFAULT
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Section 7.01 Events of Default............................................................................. 36
Section 7.02 Remedies upon Event of Default................................................................ 38
ARTICLE 8
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 8.01 Mandatory Suspension and Conversion of Eurodollar Rate Loans.................................. 39
Section 8.02 Regulatory Changes............................................................................ 40
Section 8.03 Capital Requirements.......................................................................... 40
Section 8.04 Funding Losses................................................................................ 41
Section 8.05 Certain Determinations........................................................................ 41
Section 8.06 Change of Lending Office...................................................................... 41
Section 8.07 Replacement of Bank in Respect of Increased Costs............................................. 42
ARTICLE 9
THE AGENT
Section 9.01 Appointment and Powers........................................................................ 42
Section 9.02 Limitation on Agent's Liability............................................................... 43
Section 9.03 Defaults...................................................................................... 43
Section 9.04 Rights as a Bank.............................................................................. 44
Section 9.05 Indemnification............................................................................... 44
Section 9.06 Non-Reliance on Agent and Other Banks......................................................... 44
Section 9.07 Execution and Amendment of Loan Documents on Behalf of the Banks.............................. 45
Section 9.08 Resignation of the Agent...................................................................... 45
ARTICLE 10
MISCELLANEOUS
Section 10.01 Notices and Deliveries........................................................................ 46
(a) Notices and Materials Other than Collateral............................................. 46
(b) Collateral.............................................................................. 48
Section 10.02 Expenses; Indemnification..................................................................... 48
Section 10.03 Amounts Payable Due upon Request for Payment.................................................. 49
Section 10.04 Remedies of the Essence....................................................................... 49
Section 10.05 Rights Cumulative............................................................................. 49
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Section 10.06 Amendments; Waivers........................................................................... 49
Section 10.07 Set-Off; Suspension of Payment and Performance................................................ 50
Section 10.08 Sharing of Recoveries......................................................................... 51
Section 10.09 Assignments and Participations................................................................ 52
(a) Assignments............................................................................. 52
(b) Participations.......................................................................... 53
Section 10.10 Governing Law................................................................................. 54
Section 10.11 Judicial Proceedings; Waiver of Jury Trial.................................................... 54
Section 10.12 LIMITATION OF LIABILITY....................................................................... 55
Section 10.13 Process Agent................................................................................. 55
Section 10.14 Severability of Provisions.................................................................... 55
Section 10.15 Counterparts.................................................................................. 55
Section 10.16 Survival of Obligations....................................................................... 55
Section 10.17 Entire Agreement.............................................................................. 55
Section 10.18 Successors and Assigns........................................................................ 56
Section 10.19 No Fiduciary Relationship Established By Loan Documents....................................... 56
Section 10.20 No Recourse to Affiliates..................................................................... 56
Section 10.21 Confidential Information...................................................................... 56
Section 10.22 Registered Notes.............................................................................. 57
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SCHEDULES
Schedule 2.02 - Notice of Borrowing
Schedule 2.03(c)(iv) - Notice of Conversion or Continuation
Schedule 2.05(a) - Notice of Prepayment
Schedule 2.05(c) - Notice of Clean-Up Period
Schedule 2.13(a)(iv) - Non-US Bank Certificate
Schedule 3.01(b)(vi) - Form of Borrower's Counsel Opinion
Schedule 3.01(b)(vii) - Form of Agent's Counsel Opinion
Schedule 4.01 - Certain Representations and Warranties(PA 3.1)
Schedule 4.02 - Certain Representations and Warranties(PA 3.1)
Schedule 4.03 - Required Consents and Governmental Approvals
Schedule 4.04 - Material Litigation
Schedule 4.07 - Additional Material Adverse Facts
Schedule 5.01 - [Reserved]
Schedule 6.01(a) - Certificate As To Financial Statements and Defaults
Schedule 6.02(a) - Base Financial Statements
Schedule 7.01(g) - Certain Events of Default (Lease Agreement)
Schedule 10.09(a) - Notice of Assignment
EXHIBITS
Exhibit A - Promissory Note
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SECURED REVOLVING O&M COSTS FACILITY
Dated as of May 14, 1999
AES EASTERN ENERGY, L.P., as Borrower, the BANKS, and CREDIT SUISSE
FIRST BOSTON, as Agent, agree as follows (with certain terms used herein being
defined in Article 1):
ARTICLE 1
INTERPRETATION
Section 1.01 Defined Terms. Each capitalized term used herein and not
otherwise defined herein shall have the definition assigned to such term in
Appendix A to the Participation Agreement (Kintigh A-1), dated as of May 1, 1999
among AEE, the Owner Trust, the Owner Participant, the Indenture Trustee and the
Pass Through Trustee and the principles of interpretation set forth in such
Appendix A shall apply to such definitions. As used herein, the term "Leases"
shall refer not only to the singular of such term as defined in such Appendix A
but also refer to each Other Lease and each Related Lease as such terms are
defined in such Appendix A and the term "Participation Agreements" shall refer
not only to the singular of such term as defined in such Appendix A but also
refer to each other Participation Agreement as defined in any Other Lease or any
Related Lease. For the purposes of the Loan Documents:
"Additional Facilities Mortgage" means a mortgage upon all or part of
the Additional Facilities securing the Secured Debt.
"AEE 2 Entity" means AEE 2, AES Westover L.L.C. and AES Greenridge
L.L.C.
"Adjusted Eurodollar Rate" means, for any Interest Period, a rate per
annum (rounded upward, if necessary, to the next higher 1/16 of 1%) equal to the
rate obtained by dividing (a) the Eurodollar Rate for such Interest Period by
(b) a percentage equal to 1 minus the Reserve Requirement in effect from time to
time during such Interest Period.
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, Controls, or is
Controlled by, or is under common Control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
"Agent" means Credit Suisse First Boston, as agent for and
representative (within the meaning of Section 9-105(m) of the Uniform Commercial
Code) of the Banks under the Loan Documents, and any successor Agent appointed
pursuant to Section 9.08.
"Agent's Fee Letter" means the letter agreement dated the date hereof
between the Borrower and Credit Suisse First Boston.
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"Agent's Office" means the address of the Agent specified in or
determined in accordance with the provisions of Section 10.01(a)(ii).
"Agreement" means this Agreement, including all schedules, annexes and
exhibits hereto.
"Agreement Date" means the date set forth as such on the signature
pages hereof, which is the date the executed copies of this Agreement were
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. If no such date is there
set forth, the Agreement Date shall be the date as of which this Agreement is
dated.
"Applicable Law" means, anything in Section 10.10 to the contrary
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and Governmental
Registrations and (iii) orders, decisions, judgments and decrees.
"Available Commitment" of any Bank means, at any time, the Commitment
of such Bank at such time less such Bank's pro rata apportionment of the
principal amount outstanding at such time under the Secured Debt.
"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 10.09(a).
"Bank Tax" means any net income or franchise tax or an equivalent type
of tax imposed upon any Bank by any jurisdiction (or political subdivision
thereof) in which such Bank or any of its Lending Offices is located.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(a) the Prime Rate in effect on such day and (b) the sum of the Federal Funds
Rate in effect on such day plus 0.50%.
"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 AES Eastern Energy, L.P., a Delaware limited
partnership.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks in New York City are authorized or required by law to close.
"Capital Security" means, with respect to any Person, (a) any share of
capital stock of or other unit of ownership interest in such Person or (b) any
security convertible into, or any option, warrant or other right to acquire, any
share of capital stock of or other unit of ownership interest in such Person.
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"Clean-Up Period" means, with respect to each consecutive period of 365
or, in the case of a leap year, 366 consecutive days occurring within the period
from the Agreement Date through the Maturity Date, one period of 30 consecutive
days prior to and including one Rent Payment Date included within such annual
period, such Rent Payment Date to be selected at the option of the Borrower.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property in which a Lien is created pursuant to
the Pledge Agreement or the Security Agreement.
"Commitment" of any Bank means 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 2.07 or increased or reduced from time to
time pursuant to assignments in accordance with Section 10.09(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 Letter" means the letter agreement dated as of the date
hereof and related correspondence between CSFB and The AES Corporation subject
to the terms and conditions of which CSFB agrees to provide a working capital
facility to the Borrower.
"Consolidated Subsidiary" means a Subsidiary which is such by virtue of
clause (a) of the definition thereof.
"Contract" means (a) any agreement (whether bi-lateral or uni-lateral
or executory or non-executory and whether a Person entitled to rights thereunder
is so entitled directly or as a third party beneficiary), including an
indenture, lease or license, (b) any deed or other instrument of conveyance, (c)
any certificate of incorporation or charter and (d) any by-law.
"Control" means, with respect to a Person, possession by another
Person, directly or indirectly, of the power to direct or cause the direction of
the management or policies of such first Person, whether through the ownership
of voting securities, by contract or otherwise. The words "Controlling" and
"controlled" have correlative meanings.
"Debt" means any Liability that constitutes "debt" or "Debt" under
section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous Applicable
Law.
"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.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
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"Domestic Lending Office" of any Bank means (a) 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 (b) 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.
"Eligible Assignee" means (a) any commercial bank, savings and loan
institution or savings bank organized under the laws of the United States, or
any State thereof, and having combined capital and surplus in excess of
$100,000,000, (b) any commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
combined capital and surplus (or the equivalent thereof under the accounting
principles applicable thereto) in excess of $100,000,000, provided that such
bank is acting through a branch, agency or Affiliate located in the country in
which it is organized or another country that is also a member of the OECD, (c)
the central bank of any country that is a member of the OECD or (d) any
insurance company, pension fund, mutual fund or other financial institution of
recognized standing.
"Enacted", as applied to a Regulatory Change, means the date such
Regulatory Change first becomes effective or is implemented or first required or
expected to be complied with, whether the same is (a) the result of an enactment
by a government or any agency or political subdivision thereof, a determination
of a court or regulatory authority, a request or directive of a regulatory
authority, or otherwise or (b) enacted, adopted, issued or proposed before or
after the Agreement Date.
"Eurodollar Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" of any Bank means (a) 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 (b) 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.
"Eurodollar Rate" means, for any Interest Period:
(a) the rate per annum determined by the Agent at approximately 11:00
a.m. (London time) on the date which is two Eurodollar Business Days prior to
the beginning
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of such Interest Period by reference to the British Bankers' Association
Interest Settlement Rates for deposits in Dollars (as set forth by any service
selected by the Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates) for a period equal to such Interest Period or
(b) to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition the "Eurodollar Rate" shall be
the interest rate per annum determined by the Agent to be the average of the
rates per annum at which deposits in Dollars are offered for such Interest
Period to major banks in the London interbank market in London, England by the
Reference Banks at approximately 11:00 a.m. (London time) on the date which is
two Eurodollar Business Days prior to the beginning of such Interest Period. If
at least two such quotations are provided, the rate for the rate for such
Interest Period will be the arithmetic mean (rounded upward, if necessary, to
the nearest 1/16 of 1%) of the quotations. If fewer than two quotations are
provided, as requested, the rate for such Interest Period will be the arithmetic
mean (rounded upward, if necessary, to the nearest 1/16 of 1%) of the rates
quoted by major banks in New York City selected by the Agent at approximately
11:00 a.m. New York City time on the first day of such Interest Period for loans
in Dollars to leading European banks for a term comparable to such Interest
Period commencing on the first day of such Interest Period and in an amount of
$1,000,000.
"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 Adjusted
Eurodollar Rate.
"Event of Default" means any of the events specified in Section 7.01.
"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 Credit Suisse First Boston from three Federal funds
brokers of recognized standing selected by such bank.
"Governmental Approval" means any authority, consent, approval, license
(or the like) or exemption (or the like) of any governmental unit.
"Governmental Registration" means any registration or filing (or the
like) with, or report or notice (or the like) to, any governmental unit.
"Indemnified Person" means any Person that is, or at any time, was, the
Agent, a Bank, an Affiliate of the Agent or a Bank or a director, officer,
employee or agent of any such Person.
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"Information" means data, certificates, reports, statements (including
financial statements), opinions of counsel, documents and other information.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature and (iii) copyrights, in each case whether registered, unregistered
or under pending registration and, in the case of any such that are registered
or under pending registration, whether registered or under pending registration
under the laws of the United States or any other country, (b) reissues,
continuations, continuations-in-part and extensions of any Intellectual Property
referred to in clause (a), and (c) rights relating to any Intellectual Property
referred to in clause (a) or (b), including rights under applications (whether
pending under the laws of the United States or any other country) or licenses
relating thereto.
"Interest Payment Date" means (i) on and before January 1, 2000, the
first Business Day of July and October and (ii) after January 1, 2000, each Rent
Payment Date and the first Business Day of April and October of each year.
"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 calendar month thereafter, except that (a)
any Interest Payment Date that would otherwise have a Rent Payment Date occur
during the term of that Interest Period shall end on the day that is such Rent
Payment Date, (b) 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 (c) 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.
"Lending Office" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"Liability" of any Person means (in each case, whether with full or
limited recourse) any indebtedness, liability obligation, covenant or duty of or
binding upon, or any term or condition to be observed by or binding upon such
Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
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"Lien" means, with respect to (a) any property or asset, including any
investment property, (or any income or profits therefrom) of any Person (in each
case whether the same is consensual or nonconsensual or arises by Contract,
operation of law, legal process or otherwise) (i) any mortgage, lien, pledge,
attachment, levy or other security interest of any kind thereupon or in respect
thereof or (ii) any other arrangement, express or implied, under which the same
is subordinated, transferred, sequestered or otherwise identified so as to
subject the same to, or make the same available for, the payment or performance
of any Liability in priority to the payment of the ordinary, unsecured
Liabilities of such Person, or (b), in the case of any investment property, any
Contract or other arrangement, express or implied, under which any Person has
the right to control such investment property, provided that for purposes of
this definition the right of the Borrower to direct the investment of such
property shall not constitute control of such investment property. For the
purposes of this Agreement, a Person shall be deemed to own subject to a Lien
any asset that it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means any amount advanced by a Bank pursuant to Section 2.01.
"Loan Document Related Claim" means any claim or dispute (whether
arising under Applicable Law, including any "environmental" or similar law,
under Contract or otherwise and, in the case of any proceeding relating to any
such claim or dispute, whether civil, criminal, administrative or otherwise) in
any way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Agreement Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any "Representation
and Warranty" as defined in any Loan Document and any other representation or
warranty made or deemed made under any Loan Document.
"Loan Documents" means (a) this Agreement, the Notes, the Pledge
Agreement, the Security Agreement, the Agent's Fee Letter, the Commitment Letter
and the Depository Agreement and (b) all other agreements, documents and
instruments relating to, arising out of, or in any way connected with any
agreement, document or instrument referred to in clause (a) to which the Agent
or any Bank and The AES Corporation or one or more AEE Entities are parties.
"Loan Party" means any Person (other than the Agent or a Bank) that is
a party to a Loan Document.
"Materially Adverse Effect" means, (a) with respect to any Person, any
materially adverse effect on such Person's business, assets, Liabilities,
financial condition, or results of operations or business prospects, (b) with
respect to a group of Persons "taken as a whole", any materially adverse effect
on such Persons' business, assets, Liabilities,
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financial conditions, or results of operations or business prospects taken as a
whole on, where appropriate, a consolidated basis in accordance with GAAP, (c)
with respect to any Loan Document, any adverse effect, in any material respect,
on the binding nature, validity or enforceability thereof as an obligation of
the Borrower and (d) with respect to any Collateral, or any category of
Collateral, pledged by the Borrower, a materially adverse effect on its value as
Collateral or a Materially Adverse Effect with respect to AEE 2 or its utility
in the Borrower's business or an adverse effect, in any material respect, on the
validity, perfection, priority or enforceability of the Security Interest
therein.
"Maturity Date" means the third anniversary of the Agreement Date
provided, that with the written consent of each of the Banks, the Borrower may
extend such date to the fourth or fifth anniversary of the Agreement Date.
"Maximum Permissible Rate" means, with respect to interest payable on
any amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable thereon.
"Non-US Bank" means a Person that is not a United States Person and
that is not described in Section 881(c)(3) of the Code.
"Note" means any Note in the form of Exhibit A.
"Notice of Assignment" means any notice to the Borrower and the Agent
with respect to an assignment pursuant to Section 10.09(a) in the form of
Schedule 10.09(a).
"Person" means any individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof.
"Pledge Agreement" means the LLC Membership Interest Pledge Agreement,
dated as of the date hereof, between AES Eastern Energy, L.P. and Credit Suisse
First Boston, as Secured Party.
"Post-Default Rate" means the rate otherwise applicable under Section
2.03(a)(i) plus 2.0%.
"Prime Rate" means the prime commercial lending rate of Credit Suisse
First Boston, as publicly announced to be in effect from time to time at its New
York branch. The Prime Rate shall be adjusted automatically, without notice, on
the effective date of any change in such prime commercial lending rate. The
Prime Rate is not necessarily Credit Suisse First Boston's lowest rate of
interest.
"Reference Banks" means four major banks, selected by the Agent, in the
London interbank market.
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"Register" means a register kept at the Agent's office by the Agent on
behalf of the Borrower, at no extra charge to 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 a Loan evidenced thereby.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System.
"Regulatory Change" means any Applicable Law, interpretation,
directive, determination, request or guideline (whether or not having the force
of law), or any change therein or in the administration or enforcement thereof,
that is Enacted after the Agreement Date, including any such that imposes,
increases or modifies any Tax, reserve requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement, or determines
that the Commitments do not constitute commitments with an original maturity of
one year or less, but excluding any such that imposes, increases or modifies any
Bank Tax.
"Repayment Date" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Maturity Date,
reduction to zero pursuant to Section 2.07 or termination pursuant to Section
7.02) and (b) the payment in full of the Loans and all other amounts payable or
accrued under the Loan Documents.
"Representation and Warranty" means any representation or warranty made
pursuant to or under (a) Section 3.02, Article 4, Section 6.02 or any other
provision of this Agreement or (b) any amendment to, or waiver of rights under,
this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY
REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT
MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, at any time, Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have expired or
been terminated, Banks having more than 50% of the aggregated amount of the
Loans outstanding.
"Reserve Requirement" means, at any time, the then current maximum rate
for which reserves (including any marginal, supplemental or emergency reserve),
are required to be maintained under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars
against "Eurocurrency
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liabilities", as that term is used in Regulation D. The Adjusted Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any change in
the Reserve Requirement.
"Secured Debt" means Indebtedness of AEE in an aggregate principal
amount of up to $25 Million secured by the Additional Facilities Mortgage
pursuant to terms reasonably acceptable to the Required Banks including but not
limited to terms permitting the Banks to purchase or pay down such Indebtedness
during the continuance of an Event of Default.
"Secured Party" has the meaning ascribed to such term in the Pledge
Agreement and the Security Agreement.
"Security Agreement" means the Security Agreement, dated as of the date
hereof, between AEE 2, L.L.C. and Credit Suisse First Boston, as Secured Party.
"Security Interest" means the Liens created, or purported to be
created, by the Loan Documents.
"Subsidiary" means, with respect to any Person at any time, (a) any
other Person the accounts of which would be consolidated with those of such
first Person in its consolidated financial statements as of such time, and (b)
any other Person (i) that is, at such time, Controlled by, or (ii) securities of
which having ordinary voting power to elect a majority of the board of directors
(or other persons having similar functions), or other ownership interests of
which ordinarily constituting a majority voting interest, are at such time,
directly or indirectly, owned or controlled by such first Person, or by such
first Person and one or more of its Subsidiaries; unless otherwise specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"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 and
Eurodollar Rate Loans having a one-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 Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"United States Person" means a corporation, partnership or other entity
created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
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Section 1.02 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 (other than each of the Leases and each of the
Participation Agreements) 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 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
herein to the Agent, any Bank or the Borrower shall be deemed to refer to such
Person however designated in Loan Documents, so that (i) a reference to rights
or duties of the Agent under the Loan Documents shall be deemed to include the
rights or duties of such Person as the Secured Party under the Pledge Agreement
and the Security Agreement, (ii) a reference to costs incurred by a Bank in
connection with the Loan Documents shall be deemed to include costs incurred by
such Person as a Principal under the Pledge Agreement and the Security Agreement
and (iii) a reference to the obligations of the Borrower under the Loan
Documents shall be deemed to include the obligations of such Person as the
Pledgor under the Pledge Agreement.
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(g) 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.
(h) Except where the context clearly indicates a different
meaning, all terms defined in Article 1, 8 or 9 of the Uniform Commercial Code,
as in effect on the Agreement Date, are used herein with the meanings therein
ascribed to them.
Section 1.03 Accounting Matters.
Unless otherwise specified herein, all accounting determinations
hereunder and all computations utilized by the Borrower in complying with the
covenants contained herein shall be made, all accounting terms used herein shall
be interpreted, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with GAAP, except, in the case of such
financial statements, for departures from GAAP that may from time to time be
approved in writing by the independent certified public accountants who are at
the time, in accordance with Section 6.02(b), reporting on the Borrower's
financial statements.
Section 1.04 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, except where otherwise stated therein 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,
except where otherwise stated therein 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 1.05 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 1.06 Interpretation of Related Documents.
Except as otherwise specified 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 1.
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ARTICLE 2
CREDIT FACILITY
Section 2.01 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 period from the Agreement Date
through the Maturity Date, one or more Loans to the Borrower in an aggregate
unpaid principal amount not exceeding at any time such Bank's Available
Commitment at such time. Subject to Section 2.06 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. The
aggregate amount of the Commitments on the Agreement Date is $50,000,000. Upon
the terms and subject to the conditions of this Agreement, the Borrower may
borrow, pay or prepay and reborrow Loans.
Section 2.02 Manner of Borrowing.
(a) The Borrower shall give the Agent notice (which shall be
irrevocable) no later than 12:00 noon on, in the case of Base Rate Loans, the
Business Day before the requested date 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 2.02 and shall specify (i) the requested date for the making of
the requested Loans, which shall be (x) in the case of Base Rate Loans, a
Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day and (y) shall not be a day during a Clean-Up Period, (ii) the Type or Types
of Loans requested and (iii) the amount of each such Type of Loan. 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.
(b) Not later than 1:00 p.m. on each requested date for the
making of Loans, each Bank shall, if it has received the notice contemplated by
Section 2.02(a) on or prior to its close of business on, in the case of Base
Rate Loans, the Business Day, and, in the case of Eurodollar Rate Loans, the
third Eurodollar Business Day, before such date, 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.
(c) Unless the Agent shall have received notice from a Bank
prior to 10:00 a.m. 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
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such date in accordance with Section 2.02(b) 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
the 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 the 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 may 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 2.03(a).
(d) All Loans made available to the Agent in accordance with
Section 2.02(b) shall be disbursed by the Agent not later than 2:00 p.m. on the
requested date therefor in Dollars in funds immediately available to the
Borrower by credit to an account of the 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.
Section 2.03 Interest.
(a) Rates.
(i) Subject to Section 2.03(a)(ii), (A) each Loan shall bear
interest on the outstanding principal amount thereof at a rate per
annum equal to (1) so long as it is a Base Rate Loan, the Base Rate as
in effect from time to time plus 1.00% and (2) so long as it is a
Eurodollar Rate Loan, the applicable Adjusted Eurodollar Rate plus
1.75% and (B) each other amount due and payable under the Loan
Documents shall, to the maximum extent permitted by Applicable Law,
bear interest at a rate per annum equal to the Base Rate as in effect
from time to time plus 1.00%.
(ii) During an Event of Default (and whether before or after
judgment), each Loan (whether or not due) 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, in the case of Loans that are (i)
Base Rate Loans, on each Interest Payment Date, (ii) Eurodollar Rate Loans, on
the last day of each applicable Interest Period, (iii) any Loan, when such Loan
shall be due (whether at maturity, by reason of notice of prepayment or
acceleration or otherwise) or converted,
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but only to the extent then accrued on the amount then so due or converted, and
(iv) 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 and Continuation.
(i) All or any part of the principal amount of Loans of any
Type may, on any Business Day, be converted into any other Type or
Types of Loans, except that (A) Eurodollar Rate Loans may be converted
only on the last day of an applicable Interest Period and (B) Base Rate
Loans may be converted into Eurodollar Rate Loans only on a Eurodollar
Business Day.
(ii) Base Rate Loans shall continue as Base Rate Loans unless
and until such Loans are converted into Loans of another Type.
Eurodollar Rate Loans of any Type shall continue as Loans of such Type
until the end of the then current Interest Period therefor, at which
time they shall be automatically converted into Base Rate Loans unless
the Borrower shall have given the Agent notice in accordance with
Section 2.03(c)(iv) requesting either that such Loans continue as Loans
of such Type for another Interest Period or that such Loans be
converted into Loans of another Type at the end of such Interest
Period.
(iii) Notwithstanding anything to the contrary contained in
Section 2.03(c)(i) or (ii), during a Default, the Agent may notify the
Borrower that Loans may only be converted into or continued as Loans of
certain specified Types and, thereafter, until no Default shall
continue to exist, Loans may not be converted into or continued as
Loans of any Type other than one or more of such specified Types.
(iv) The Borrower shall give the Agent notice (which shall be
irrevocable) of each conversion of Loans or continuation of Eurodollar
Rate Loans no later than 10:00 a.m. on, in the case of a conversion
into Base Rate Loans, the Business Day, and, in the case of a
conversion into or continuation of Eurodollar Rate Loans, the third
Eurodollar Business Day, before the requested date of such conversion
or continuation. Each notice of conversion or continuation shall be in
the form of Schedule 2.03(c)(iv) and shall specify (A) the requested
date of such conversion or continuation, (B) 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 converted or continued and (C) the
amount and Type or Types of Loans into which such Loans are to be
converted or as which such Loans are to be continued. Upon receipt of
any such notice, the Agent shall promptly notify each Bank of (x) the
contents thereof, (y) the amount and Type and, in the case of
Eurodollar Rate Loans, the last day of the applicable Interest Period
of each Loan to be converted or continued by such Bank and (z) the
amount and Type or Types of Loans into which such Loans are to be
converted or as which such Loans are to be continued.
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(d) Maximum Interest Rate.
Nothing contained in the Loan Documents shall require the
Borrower at any time to pay interest at a rate exceeding the Maximum Permissible
Rate. If interest payable by the Borrower on any date would exceed the maximum
amount permitted by the Maximum Permissible Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for such
period by the Maximum Permissible Rate shall be increased by the unpaid amount
of such reduction. Any interest actually received for any period in excess of
such maximum amount permitted for such period shall be deemed to have been
applied as a prepayment of the Loans.
Section 2.04 Repayment.
The Loans shall mature and become due and payable, and shall be repaid
by the Borrower, in full on the Maturity Date.
Section 2.05 Prepayments.
(a) Optional Payments.
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 8.04), except that any partial prepayment shall be in an aggregate
principal amount of at least $1,000,000. Under the terms and subject to the
conditions of this Agreement, the Borrower may reborrow amounts that have been
prepaid. The Borrower shall give the Agent notice of each prepayment no later
than 10:00 a.m. on, in the case of a prepayment of Base Rate Loans, the Business
Day, and, in the case of a prepayment of Eurodollar Rate Loans, the third
Eurodollar Business Day, before the date of such prepayment. Each such notice of
prepayment shall be in the form of Schedule 2.05(a) 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 shall irrevocably be
due and payable on the date specified in the applicable notice of prepayment,
together with interest thereon as provided in Section 2.03(b).
(b) Available Commitments Mandatory Prepayments.
If at any time immediately after giving effect to any
borrowing of Secured Debt, the aggregate unpaid principal amount of the Loans
would exceed the aggregate amount of Available Commitments, the Borrower shall,
prior to borrowing Secured Debt, prepay Loans in an aggregate principal amount
not less than the amount of such excess; provided that if the Loans are to be
immediately prepaid with the proceeds of the Secured
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Debt and notice of such prepayment has been given as provided in Section
2.05(a), such prepayments may be made at the time of such borrowing of Secured
Debt.
(c) Clean-Up Period Mandatory Prepayments.
The Borrower shall prepay in whole all Loans on the Business
Day immediately preceding each Clean-Up Period. The Borrower shall not later
than the first day of each Clean-Up Period notify the Agent of the commencement
of such Clean-Up Period. Each such notice of the commencement of a Clean-Up
Period shall be in the form of Schedule 2.05(c) and shall specify the
commencement date of such Clean-Up Period.
(d) [Reserved].
(e) Rent Payment Date Mandatory Prepayments.
The Borrower shall prepay in whole all Loans outstanding
immediately prior to making any payment of Rent, other than any payment of Rent
made solely with amounts drawn under Rent Reserve Account Payment Undertaking
Agreements, and shall not borrow hereunder on the date on which any payment of
Rent shall be made.
Section 2.06 Limitation on Types of Loans.
Notwithstanding anything to the contrary contained in this Agreement,
the Borrower shall borrow, prepay, convert and continue Loans in a manner such
that (a) the aggregate principal amount of Eurodollar Rate Loans of the same
Type and having the same Interest Period shall at all times be not less than
$5,000,000 (b) there shall not be, at any one time, more than five Interest
Periods in effect with respect to Eurodollar Rate Loans of all Types and (c) no
payment of Eurodollar Rate Loans will have to be made prior to the last day of
an applicable Interest Period in order to repay the Loans in the amounts and
(subject to Section 2.11(d)) on the date specified in Section 2.04.
Section 2.07 Adjustment of Commitments.
The Borrower may reduce the Commitments by giving the Agent notice
(which shall be irrevocable) thereof no later than 10:00 a.m. on the third
Business Day before the requested date of such reduction, except that no partial
reduction of the Commitments shall be in an aggregate amount less than
$1,000,000. Upon receipt of any such notice, the Agent shall promptly notify
each Bank of the contents thereof and the amount to which such Bank's Commitment
is to be irrevocably reduced. Once reduced, the Commitments may not be increased
by the Borrower at any time thereafter.
Section 2.08 Fees.
(a) Commitment Fees.
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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 for each day
from the Agreement Date through (but excluding) the Maturity Date at a rate per
annum of 0.50%, payable on successive Interest Payment Dates, on the Maturity
Date and on the date of any termination of such Bank's Commitment.
(b) Minimum Utilization Fee.
To the extent that the average daily aggregate unpaid principal amount
of any Bank's Loans for any period from the Agreement Date, effective date of
such Bank's Commitment or any increase therein or any Rent Payment Date to the
next succeeding Rent Payment Date or date of termination or reduction of such
Bank's Commitment ("Average Unpaid Loans") is less than an amount equal to
one-half of such Bank's average daily Commitment for such period ("Minimum
Utilization Amount"), the Borrower shall pay to the Agent for the account of
such Bank a minimum utilization fee at a rate per annum of 1.25% on an amount
equal to the difference between the Minimum Utilization Amount and the Average
Unpaid Loans for such Bank for such period, payable on successive Rent Payment
Dates, on the Maturity Date and on the date of any termination of such Bank's
Commitment; provided that in calculating any period for purposes of this Section
2.08(b) the Clean-Up Period, each Rent Payment Date and the Maturity Date shall
be excluded. The minimum utilization fee referred to in this Section 2.08(b)
shall be in addition to the commitment fee referred to in Section 2.08(a).
(c) Agency Fees.
The Borrower shall pay to the Agent, for its own account, the fees
payable to it under the Agent's Fee Letter.
(d) Fees Non-Refundable. None of the fees payable under this Section
2.08 shall be refundable in whole or in part.
Section 2.09 Computation of Interest and Fees.
Interest calculated on the basis of the Adjusted Eurodollar Rate or the
Federal Funds Rate and the commitment fees 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 shall be computed on the basis of a
year of 365 or 366 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 2.10 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
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which, subject to Section 10.22, 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.
Section 2.11 Payments by the Borrower.
(a) Time, Place and Manner.
All payments due to the Agent or the Banks under the Loan
Documents shall be made to the Agent at the Agent's Office or to such other
Person 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, whether made to
the Agent or directly to such Bank, shall be made for the account of, in the
case of payments in respect of Eurodollar Rate Loans, such Banks Eurodollar
Lending Office and, in the case of all other payments, such Banks Domestic
Lending Office. 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 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 2.13, for any withholding or deduction for Taxes required to be withheld
or deducted under Applicable Law.
(c) Extension of Payment Dates.
Whenever any payment to the Agent 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 2.12 Distribution of Payments by the Agent.
(a) The Agent shall promptly distribute to each Bank its
ratable share of each payment received by the Agent under the Loan Documents for
the account of the
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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) 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 2.13 Taxes.
(i) Taxes Payable by the Borrower.
If under Applicable Law any Tax is required to be withheld or
deducted by the Borrower from, or is otherwise payable by the Borrower in
connection with, any payment to the Agent or any Bank under the Loan Documents,
the Borrower (A) shall (1), if so required, withhold or deduct the amount of
such Tax from such payment and, in any case, pay such Tax to the appropriate
taxing authority in accordance with Applicable Law and (2) indemnify the Agent
and such Bank in accordance with the provisions of Section 10.02(d) against its
failure so to do and (B) shall, subject to Section 2.13(a)(iii), pay to the
Agent or such Bank, as applicable, such additional amounts as may be necessary
so that the net amount received by the Agent or such Bank with respect to such
payment, after withholding or deducting all Taxes required to be withheld or
deducted by the Borrower, is equal to the full amount payable under the Loan
Documents. If any Tax is withheld or deducted by the Borrower from, or is
otherwise payable by the Borrower in connection with, any payment payable to the
Agent or any Bank under the Loan Documents, the Borrower shall, as soon as
possible after the date of such payment, furnish to the Agent or such Bank, as
applicable, the original or a certified copy of a receipt for such Tax from the
applicable taxing authority. If any payment due to the Agent or any Bank under
the Loan Documents is or is expected to be made without withholding or deducting
therefrom, or otherwise paying in connection therewith, any Tax payable by the
Borrower to any taxing authority, the Borrower shall, within 30 days after any
request from the Agent or such Bank, as applicable, furnish to the Agent or such
Bank a certificate from such taxing authority, or an opinion of counsel
acceptable to the Agent or such Bank, in either case stating that no Tax payable
to such taxing authority was or is, as the case may be, required to be withheld
or deducted from, or otherwise paid by the Borrower in connection with, such
payment.
(ii) Taxes Payable by the Agent or any Bank.
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The Borrower shall, within thirty days of request by the Agent
or any Bank for the payment thereof, but subject to Section
2.13(a)(iii), pay to the Agent or such Bank, as the case may be, (A)
all Taxes (other than Bank Taxes, payable by the Agent or such Bank, as
the case may be) with respect to any payment due to the Agent or such
Bank under the Loan Documents and (B) all Taxes payable by the Agent or
such Bank as a result of payments made by the Borrower (whether made to
a taxing authority or to the Agent or such Bank) pursuant to this
Section 2.13(a)(ii). A certificate as to the amount of such payment or
liability delivered to the Borrower by a Bank, or by the Agent on its
own behalf or on behalf of a Bank, shall be conclusive absent manifest
error.
(iii) Limitations.
Notwithstanding anything to the contrary contained herein, the
Borrower shall not be required to pay any additional amount in respect
of withholding of United States Federal income taxes pursuant to this
Section 2.13 to any Bank (A) except to the extent such Taxes are
required to be withheld as a result of (1) in the case of a Person that
is a Bank on the Agreement Date, a Regulatory Change Enacted after the
Agreement Date and (2) in the case of a Person that becomes a Bank
after the Agreement Date, a Regulatory Change Enacted after such Person
becomes a Bank, or (B) to the extent such withholding is required
because such Bank has failed to submit any form or certificate that it
is entitled to so submit under Applicable Law (including any Forms
required to be submitted pursuant to Section 2.13(a)(iv)).
(iv) Exemption from US Withholding Taxes.
There shall be submitted to the Borrower and the Agent (A) on
or before the first date that interest or fees are payable to such Bank
under the Loan Documents (1) if at the time the same are applicable
(aa) by each Bank that is not a United States Person, two duly
completed and signed copies of Internal Revenue Service Form 1001 or
4224, in either case entitling such Bank to a complete exemption from
withholding of any United States federal income taxes on all amounts to
be received by such Bank under the Loan Documents or (bb) by each Bank
that is a Non-US Bank (x) a duly completed Internal Revenue Service
Form W-8 and (y) a certification in the form of Schedule 2.13(a)(iv)
that such Bank is a Non-US Bank or (2) if at the time any of the
foregoing are inapplicable, duly completed and signed copies of such
form, if any, as entitles such Bank to exemption from withholding of
United States federal income taxes to the maximum extent to which such
Bank is then entitled under Applicable Law, and (B) from time to time
thereafter, prior to the expiration or obsolescence of any previously
delivered form or upon any previously delivered form becoming
inaccurate or inapplicable, such further duly completed and signed
copies of such form, if any, as entitles such Bank to exemption from
withholding of United States federal income taxes to the maximum extent
to which such Bank is then entitled under Applicable Law. Each Bank
shall promptly notify the Borrower and the
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Agent if (A) it is required to withdraw or cancel any form or
certificate previously submitted by it or any such form or certificate
has otherwise become ineffective or inaccurate or (B) payments to it
are or will be subject to withholding of United States federal income
taxes to a greater extent than the extent to which payments to it were
previously subject. Upon the request of the Borrower or the Agent, each
Bank that is a United States Person shall from time to time submit to
the Borrower and the Agent a certificate to the effect that it is such
a United States Person and a duly completed Internal Revenue Service
Form W-9.
Section 2.14 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 or increase in the Commitments
shall be made pro rata in accordance with the respective amounts thereof and (d)
each payment of the principal of or interest on the Loans or of fees shall be
made for the account of the Banks pro rata in accordance with the respective
amounts thereof then due and payable.
ARTICLE 3
CONDITIONS TO LOANS
Section 3.01 Conditions to Initial Loans.
The obligation of each Bank to make its initial Loan is subject to the
determination of each Bank, in its sole and absolute discretion, that each of
the following conditions has been fulfilled:
(a) the Agent shall have determined that each closing
condition in Section 4 of each of the Participation Agreements shall be
fulfilled or waived as of the Closing Date in a manner satisfactory to the
Agent;
(b) the Agent shall have received each of the following, in
form and substance and, in the case of the materials referred to in clause (ii),
certified in a manner satisfactory to the Agent:
(i) copies of each of the executed Operative Documents
referred to in Section 4.1 of each of the Participation Agreements;
(ii) copies of the organizational documents, by-laws or
other governing documents of each of the Borrower and each AEE Entity
and resolutions of the board of directors or comparable governing body
of the Borrower duly authorizing the Agreement;
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(iii) a certificate of the Borrower stating that the
representations and warranties set forth in Article 4 shall be true and
correct on and as of the Closing Date with the same effect as though
made on and as of the Closing Date;
(iv) all other certificates, consents, Governmental
Approvals, reports, surveys, filings, recordings, policies and other
documents delivered by or on behalf of any AEE Entity pursuant to
Section 4 of each of the Participation Agreements;
(v) an opinion of counsel, dated the Closing Date and
addressed to the Agent ,of each of the counsels listed in subsections
4.18(a) and (b) of each of the Participation Agreements;
(vi) an opinion of counsel for the Borrower, dated the
requested date for the making of such Loan, in the form of Schedule
3.01(b)(vi), with such changes as the Agent shall reasonably approve;
(vii) an opinion of counsel for the Agent, dated the
requested date for the making of such Loan, in the form of Schedule
3.01(b)(vii);
(viii) a duly executed Note for each Bank;
(ix) a duly executed copy of the Pledge Agreement;
(x) a duly executed copy of the Security Agreement;
(xi) either (A) such duly executed UCC-1 financing
statements and other documents as the Agent may reasonably
request, the filing or recordation of which is necessary or
appropriate in the Agent's determination to create or perfect
a security interest in the Collateral under Applicable Law, or
(B) evidence, as the Agent may reasonably request, of the
filing or recordation of the same in such offices as the Agent
shall have specified;
(c) all fees payable on or prior to the requested date of such
Loan pursuant to Section 2.08 of this Agreement or any other Loan Document, and
all amounts payable pursuant to Section 10.02 of 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 the disbursement of the
proceeds of the Loans to be made on such date; and
(d) this Agreement and the Notes shall be rated at least Ba1
by Moody's and BBB- by S&P.
Section 3.02 Conditions to Each Loan.
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The obligation of each Bank to make each Loan requested to be made by
it, including its initial Loan, is subject to the determination of such Bank in
its sole and absolute discretion, that each of the following conditions has been
fulfilled:
(a) the Agent shall have received a Funding Date Certificate
complying with the requirements of the Depositary Agreement setting forth the
amounts to be applied or transferred pursuant to Section 3.01(b) of the
Depositary Agreement and after giving effect to such applications or transfers
including, but not limited to, the Loans to be made on the Funding Date referred
to therein, the amounts remaining in the Revenue Account, the Operating Account,
each bank account of the Borrower or any Subsidiary or otherwise then available
to AEE or any Subsidiary for payment of Operating and Maintenance Costs, other
than pursuant to Section 3.12 of the Depositary Agreement (collectively,
"Available Amounts") would, in the aggregate, be less than $10 million; provided
that the sum of (i) the aggregate amount transferred to the Operating Account
with respect to any Rent Payment Period (including sums properly withdrawn
therefrom during such rent period to pay operating and maintenance costs), (ii)
Available Amounts prior to giving effect to such Loans plus (iii) the aggregate
amounts of such Loans does not exceed the sum 125% of the Annual Operating
Budget for such Rent Payment Period plus fuel costs payable for such Rent
Payment Period;
(b) the Agent shall have received a notice of borrowing, for
the Funding Date referred to in clause (a) above, with respect to such Loan
complying with the requirements of Section 2.02;
(c) each Loan Document Representation and Warranty shall be
true and correct at and as of the time such Loan is to be made both with and
without giving effect to such Loan and all other Loans to be made at such time
and to the application of the proceeds thereof;
(d) no Default shall have occurred and be continuing at the
time such Loan is to be made or would result from the making of such Loan and
all other Loans to be made at such time or from the application of the proceeds
thereof;
(e) such Bank shall have received such Information as it may
have requested pursuant to Section 6.01(f); and
(f) such Loan 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 a subsequent notice given to the Banks prior to 5:00
p.m. on the Business Day before the requested date for the making of the
requested Loans, that a condition specified in clause (b) or (c) above will not
be fulfilled as of the requested time for the making of such Loans, the Borrower
shall be deemed to have made a Representation and Warranty as of the time of the
making of such Loans that the conditions specified in such clauses have been
fulfilled as of such time. No such disclosure
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by the Borrower that a condition specified in clause (b) or (c) above will not
be fulfilled as of the requested time for the making of the requested Loans
shall affect the right of each Bank to not make the Loans requested to be made
by it if, in such Banks determination, such condition has not been fulfilled at
such time.
ARTICLE 4
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce each Bank to enter into this Agreement and to make
each Loan requested to be made by it, the Borrower represents and warrants as
follows:
Section 4.01 Participation Agreements Section 3.
The representations and warranties referred to in Section 3.1 of each
of the Participation Agreements as in effect as of the date hereof are true and
correct at and as of the Agreement Date and the Closing Date with the same
effect as though made at and as of such time. (See Schedule 4.01, for
information purposes)
Section 4.02 Representations and Warranties in Schedule 4.
The representations and warranties set forth, or referred to in Section
3.1 of each of the Participation Agreements as in effect as of the date hereof
as amended, supplemented or modified in accordance with Schedule 4.02 are true
and correct at and as of the time any Loan is made with the same effect as
though made at and as of such time.
Section 4.03 Authorization; Enforceability; Required Consents; Absence
of Conflicts.
The Borrower has the power, and has taken all necessary action to
authorize it to execute, deliver and perform in accordance with their respective
terms the Loan Documents and to borrow hereunder in the unused amount of the
Commitments. This Agreement has been, and each of the other Loan Documents when
delivered to the Agent will have been, duly executed and delivered by the
Borrower and is, or when so delivered will be, a legal, valid and binding
agreement of the Borrower, assuming the due authorization, execution and
delivery by each other party thereto, enforceable against the Borrower in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally or general principles of equity. The execution,
delivery and performance in accordance with their respective terms by the
Borrower of the Loan Documents, and each borrowing hereunder, whether or not in
the amount of the unused Commitments, do not and (absent any change in any
Applicable Law or applicable Contract) will not (a) require any Governmental
Approval or any other consent or approval, including any consent or approval any
partner of the Borrower or any member of any AEE Entity, to have been obtained
or any Governmental Registration to have been made, other than Governmental
Approvals and other consents and approvals and
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Governmental Registrations that have been obtained or made, as the case may be,
are final and not subject to review on appeal or to collateral attack, are in
full force and effect and, in the case of any such required under any Applicable
Law or Contract as in effect on the Agreement Date, are listed on Schedule 4.03,
or (b) violate, conflict with, result in a breach of, constitute a default
under, or result in or require the creation of any Lien (other than the Security
Interest or Permitted Encumbrances) upon any assets of the Borrower or any AEE
Entity under, (i) any Contract to which the Borrower or any AEE Entity is a
party or by which the Borrower or any AEE Entity or any of their respective
properties may be bound or (ii) any Applicable Law which could reasonably be
expected to have a Materially Adverse Effect on (x) any Loan Document or (y) the
Collateral.
Section 4.04 Litigation.
Except as set forth on Schedule 4.04, there are not, in any court or
before any arbitrator of any kind or before or by any governmental, or
non-governmental body, any actions, suits or proceedings pending or, to the
Actual Knowledge of the Borrower or any AEE Entity, threatened (nor to the
Actual Knowledge of the Borrower or any AEE Entity, is there any substantial
basis therefor) against or in any other way relating to or affecting (a) the
Borrower or any AEE Entity or any of their respective businesses or properties,
(b) any Loan Document or (c) the Collateral, except actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, have a Materially Adverse Effect on (x) any Loan Document or (y) the
Collateral.
Section 4.05 Burdensome Provisions.
Neither the Borrower nor any Subsidiary is a party to or bound by any
Contract or Applicable Law, compliance with which could reasonably be expected
to have a Materially Adverse Effect on (a) any Loan Document or (b) the
Collateral.
Section 4.06 No Adverse Change or Event.
Since March 31, 1999, no change in the business, assets, Liabilities,
financial condition, results of operations or business prospects of the Borrower
or any AEE Entity has occurred, and no event has occurred or failed to occur,
that has had or could reasonably be expected to have, either alone or in
conjunction with all such other changes, events and failures, a Materially
Adverse Effect on (a) AES NY, (b) the Borrower and the AEE Subsidiaries taken as
a whole, (c) any Loan Document or (d) the Collateral. Such an adverse change may
have occurred, and such an event may have occurred or failed to occur, at any
particular time notwithstanding the fact that at such time no Default shall have
occurred and be continuing.
Section 4.07 Additional Adverse Facts.
Except for facts and circumstances disclosed on Schedule 4.04 or
Schedule 4.07, neither the Borrower nor any AEE Entity has Actual Knowledge of
any fact or circumstance, as of the Agreement Date, that, either alone or in
conjunction with all other
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such facts and circumstances, has had or could reasonably be expected to have
(to the Actual Knowledge of the Borrower or any AEE Entity can foresee) a
Materially Adverse Effect on (a) AES NY, (b) the Borrower and the AEE
Subsidiaries taken as whole, (c) any Loan Document or (d) the Collateral. If a
fact or circumstance disclosed on such Schedules or in such notes should in the
future have a Materially Adverse Effect on (w) AES NY, (x) the Borrower and the
AEE Subsidiaries taken as a whole, (y) any Loan Document or (z) the Collateral,
such Materially Adverse Effect shall be a change or event subject to Section
4.06 notwithstanding such disclosure.
ARTICLE 5
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
Section 5.01 Section 5.01 [Reserved].
Section 5.02 Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability.
The Borrower shall and shall cause each AEE Entity to (a) preserve and
maintain its legal existence and all of its other franchises, licenses, rights
and privileges, (b) preserve, protect and obtain all Intellectual Property, and
preserve and maintain in good repair, working order and condition all other
properties, required for the conduct of its business, including the observation
of the life extension programs of the Additional Facilities, (c) engage only in
businesses in substantially the same fields as the businesses conducted on the
Agreement Date, (d) comply with Applicable Law, (e) pay or discharge when due
all Taxes and all Liabilities that are or could reasonably be expected to become
Liens on any of its properties and (f) take all action and obtain all consents
and Governmental Approvals and make all Governmental Registrations required so
that its obligations under the Loan Documents will at all time be legal, valid
and binding and enforceable in accordance with their respective terms, except
that this Section 5.02 (other than clauses (a), in so far as it requires the
Borrower to preserve its legal existence, (c) and (f)) shall not apply in any
circumstance where noncompliance, together with all other noncompliances with
this Section 5.02 will not have a Materially Adverse Effect on (x) any Loan
Document or (y) the Collateral.
Section 5.03 Insurance.
The Borrower shall and shall cause each AEE Entity to maintain
insurance with responsible insurance companies against at least such risks and
in at least such amounts as is customarily maintained by similar businesses, or
as may be required by Applicable Law or reasonably requested by the Required
Banks. Insurance against such risks and in at
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least such amounts as is required from time to time under the Leases shall be
deemed to be what is "customarily maintained by similar businesses" for purposes
of this Section 5.03 in regards to the Additional Facilities.
Section 5.04 Use of Proceeds.
The Borrower shall and shall cause each AEE 2 Entity to use the
proceeds of the Loans only to pay Operating and Maintenance Costs. None of the
proceeds of any of the Loans shall be used to purchase or carry, or to reduce or
retire or refinance any credit incurred to purchase or carry, any margin stock
(within the meaning of Regulations U and X of the Board of Governors of the
Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any margin stock. If requested by any Bank, the Borrower
shall complete and sign Part I of a copy of Federal Reserve Form U-1 referred to
in Regulation U and deliver such copy to such Bank.
Section 5.05 Liens.
The Borrower shall not, and shall not permit any AEE 2 Entity to,
directly or indirectly permit to exist, at any time, any Lien upon any of the
AEE 2 Entities' properties or assets of any character, whether now owned or
hereafter acquired, or upon any income or profits therefrom, except that this
Section 5.05 shall not apply to Permitted Liens, provided, however, for the
purposes of this Section 5.05 and for purposes of this Agreement, clause (e) of
the definition "Permitted Liens" shall read as follows "(e) the Additional
Facilities Mortgage" and clause (f) of the definition "Permitted Liens" shall be
omitted; provided further, however, that if, notwithstanding this Section 5.05,
any Lien to which this Section is applicable shall be created or arise, the
Liabilities of the Borrower under the Loan Documents shall, to the extent such
Lien attaches to any asset that does not constitute Collateral or to any asset
with respect to which such Lien would be prior to the Security Interest,
automatically be secured by such Lien equally and ratably with the other
Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks
security interest shall be perfected, provided further, however, that
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a default by the Borrower in the performance or
observance of this Section 5.05.
Section 5.06 Merger or Consolidation.
The Borrower shall not permit any AEE 2 Entity to merge or consolidate
with any Person or to liquidate, wind up or dissolve.
Section 5.07 Disposition of Assets.
The Borrower shall not permit any AEE 2 Entity to sell, lease, license,
transfer or otherwise dispose of any asset or any interest therein, except that
this Section 5.07 shall not apply to any disposition of any obsolete or retired
property not used or useful in its
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business to the extent that the aggregate Fair Market Value of any such assets,
interests or property so disposed of in any calendar year does not exceed
$500,000.
Section 5.08 Incurrence of Debt.
The Borrower shall not permit any AEE Subsidiary to incur any
Indebtedness, except that this Section 5.08 shall not apply to any AEE 2 Entity
in respect of Indebtedness referred to in clause (a) of Permitted Indebtedness
or the Additional Facilities Mortgage.
Section 5.09 Limitations on Investments.
The Borrower shall not permit any AEE 2 Entity to make or authorize any
investments other than Permitted Investments as set forth in Section 3.12 of the
Depository Agreement.
Section 5.10 Transactions with Affiliates.
The Borrower shall not permit any AEE 2 Entity to effect any
transaction with any Affiliate that is (a) outside the ordinary course of
business or (b) on a basis less favorable than would at the time be obtainable
for a comparable transaction in arms-length dealing with an unrelated third
party.
Section 5.11 Subsidiaries.
The Borrower shall not permit any AEE 2 Entity to create, acquire or
permit to exist any Subsidiary of any AEE 2 Entity, other than AES Westover
L.L.C. and AES Greenidge L.L.C.
Section 5.12 Additional Facilities.
The Borrower shall cause each Additional Facility to be maintained and
operated to the same maintenance and operating standards as AEE is required to
maintain and operate Kintigh Station and Millikin Station under each Lease as in
effect as of the date hereof.
Section 5.13 Payment of Operating and Maintenance Costs.
(a) The Borrower shall not apply or cause the transfer of
monies in the Revenue Account to any Account with a lower order of priority than
the Working Capital Account (i) so long as any Loan is outstanding hereunder or
(ii) during any Rent Payment Period until either (a) the aggregate amount
transferred to the Operating Account with respect to such Rent Payment Period
(including sums properly withdrawn therefrom during such Rent Payment Period to
pay Operating and Maintenance Costs ) is equal to the sum of 125% of the Annual
Operating Budget for such Rent Payment Period plus fuel costs payable for such
Rent Payment Period or (b) all Operating and Maintenance Costs for such Rent
Payment Period have been paid.
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(b) The Borrower shall not, and shall not permit any
Subsidiary to, commingle monies transferred to it from the Operating Account
with any other monies. The Borrower shall, and shall cause each Subsidiary to
hold all monies transferred to it from the Operating Account in a separate
deposit account in which only monies transferred from the Operating Account
shall be deposited. The Borrower shall not and shall not permit any Person to
use monies transferred to it from the Operating Account for any purpose other
than to pay Operating and Maintenance Costs.
Section 5.14 Annual Operating Budget.
The Borrower shall cause each of the Facility, the Related Facility and
the Additional Facilities to be operated and maintained in accordance with the
Annual Operating Budget and shall not permit the aggregate expenditures in any
year for Operating and Maintenance Costs to exceed 125% of the amount set forth
in the Annual Operating Budget. Copies of the Annual Operating Budget for each
calendar year shall be furnished by the Borrower to the Independent Engineer at
least 30 days before final adoption thereof. Any amendment, modification or
reallocation of the Annual Operating Budget by the Borrower that would cause a
change of more than 25% (positive or negative) in the amounts set forth in the
Annual Operating Budget, shall be accompanied by confirmation of the Independent
Engineer that such amendment, modification or reallocation is based on
reasonable assumptions. For purposes of this Section 5.14, fuel costs shall not
be included in the calculation of the percentage change (positive or negative)
in the amounts specified in the Annual Operating Budget.
Section 5.15 AEE Revenues.
The Borrower shall, and shall cause each AEE Subsidiary to, cause all
AEE Revenues to be deposited directly into the Revenue Account (except, to the
extent provided in the Depository Agreement, for any revenues received by any
AEE Entity under any Operation and Maintenance Agreement).
Section 5.16 No Abandonment.
Subject to the prior consent of the Agent, the Borrower shall not, and
shall not permit any AEE Entity to, abandon or agree to abandon the operation or
maintenance of the Facility or otherwise cease to diligently pursue the
operation and maintenance of the Facility in accordance with Prudent Industry
Practice or voluntarily reduce the operations of the Facility in any material
respect (except to the extent required by customary maintenance procedures).
Subject to the prior written consent of the Agent, the Borrower shall not, and
shall not permit any AEE Entity to, abandon or agree to abandon the operation or
maintenance of either of the Additional Facilities or otherwise cease to
diligently pursue the operation and maintenance of such Additional Facilities in
accordance with Prudent Industry Practice (except to the extent required by
customary maintenance procedures), during the expected useful life of such
Additional Facility.
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Section 5.17 Assignment.
The Borrower may not Transfer any Lease or any other Operative Document
or any interests therein without the prior written consent of the Agent (which
may be withheld in its sole discretion).
ARTICLE 6
INFORMATION
Section 6.01 Information to Be Furnished.
From the Agreement Date and until the Repayment Date, the Borrower
shall furnish to the Agent (with sufficient copies for each Bank):
(a) Quarterly Financial Statements.
As soon as reasonably practicable after the end of each fiscal
quarter but in no event later than 60 days after the end of such quarter (i)
unaudited consolidated and consolidating balance sheets of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated and consolidating statements of income for such quarter and for the
portion of the Borrower's fiscal year ended at the end of such quarter, and the
related consolidated statements of cash flows for such quarter and for the
portion of the fiscal year ended at the end of such quarter, in each case
setting forth comparative figures for previous dates and periods, to the extent
available, and prepared in accordance with GAAP (subject to normal year-end
adjustments), and (ii) an Officer's Certificate, in the form of Schedule
6.01(a), of the Borrower stating that (A) the signer has made, or caused to be
made under its supervision, a review of this Agreement and the Operative
Documents; and (B) such review has not disclosed the existence during such
fiscal quarter (and the signer does not have knowledge of the existence as of
the date of such certificate) of any condition or event constituting a Lease
Material Default or Lease Event of Default or an Event of Loss or an Event of
Default or, if any such condition or event existed or exists, specifying the
nature thereof, the period of existence thereof and what action the Borrower has
taken or proposes to take with respect thereto.
(b) Year-End Financial Statements; Accountants' Certificate.
As soon as reasonably practicable after the end of each fiscal
year but in no event later than 120 days after the end of such year, (i) a
consolidated and consolidating balance sheets of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for such
fiscal year (together with footnotes thereto and management discussion and
analysis), setting forth in each case in comparative form the figures for the
previous fiscal year, to the extent available, all prepared in accordance with
GAAP and reported on and audited by an independent public accountant of
nationally recognized standing, together with any other information required to
be filed with the Securities and Exchange
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Commission in respect of the Pass Through Certificates under applicable
securities laws, (ii) an Officer's Certificate of the Borrower, in the form of
Schedule 6.01(a), stating, among other things, that (A) the signer has made, or
caused to be made under its supervision, a review of this Agreement and the
Operative Documents; and (B) such review has not disclosed the existence during
such fiscal year (and the signer does not have knowledge of the existence as of
the date of such certificate) of any condition or event constituting a Lease
Material Default or Lease Event of Default or an Event of Loss or an Event of
Default or, if any such condition or event existed or exists, specifying the
nature thereof, the period of existence thereof and what action the Borrower has
taken or proposes to take with respect thereto and (iii) a copy of FERC Form No.
1 to the extent filed with FERC pursuant to 18 C.F.R. Section 141.1.
(c) Operating Budgets.
The Borrower shall, at least 30 days prior to the commencement
of any fiscal year provide to each Bank the Annual Operating Budget for such
fiscal year demonstrating that the Borrower will meet the Required Coverage
Ratios, together with confirmation by the Independent Engineer that such budget
is based on reasonable assumptions and is prepared in accordance with the
Operative Documents. Such budget shall be furnished to each Bank pursuant to
Section 10.21. Such Annual Operating Budget shall include Pro Forma projections
and projections indicating updated projected Coverage Ratios (taking the
Independent Forecast into account) and shall indicate projected changes, if any,
in the Rent Reserve Account and the Additional Liquidity Account.
(d) Monthly Operations Report.
As soon as practicable following the end of each month, the
Borrower shall deliver to the Agent a Monthly Operations Report for each of the
Facility and the Additional Facilities. The Borrower agrees to amend the Monthly
Operations Report to include such additional operation and maintenance
information as the Agent may reasonably request. The Borrower and the Agent will
work together and establish a mutually acceptable format for such report. The
Monthly Operations Reports shall be deemed confidential for purposes of Section
10.21 of the Agreement.
(e) Notices under each of the Participation Agreements.
At the time such Information is delivered to any Owner
Participant, Owner Trust, Indenture Trustee or Pass Through Trustee the
Information provided to such Owner Participant, Owner Trust, Indenture Trustee
or Pass Through Trustee pursuant to Article 5 or 6 of any Participation
Agreement to the extent not otherwise delivered hereunder provided that each
opinion or certificate so delivered shall also be addressed to the Agent.
(f) Reports and Filings.
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(i) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower or any Subsidiary, or the Board of Directors of
the Borrower or any Subsidiary, by its independent certified public accountants,
including any management letter; (ii) as soon as practicable, copies of all such
financial statements and reports as the Borrower or any Subsidiary shall send to
its stockholders and of all registration statements and all regular or periodic
reports that the Borrower or any Subsidiary shall file, or may be required to
file, with the Securities and Exchange Commission or any successor commission.
(g) Requested Information.
From time to time and promptly upon request of any Bank, such
Information regarding the Loan Documents or the Operative Documents to which the
Borrower or any Subsidiary is a party, the Loans or the business, assets,
Liabilities, financial condition, results of operations or business prospects of
the Borrower and the Subsidiaries as such Bank may reasonably request, in each
case in form and substance and certified in a manner satisfactory to the
requesting Bank.
(h) Notice of Defaults, Material Adverse Changes and Other
Matters.
Prompt notice of:
(i) any Default,
(ii) the threatening or commencement of, or the
occurrence or nonoccurrence of any change or event relating to, any
action, suit or proceeding that would cause the Representation and
Warranty contained in Section 4.05 to be incorrect if made at such
time,
(iii) the occurrence or nonoccurrence of any change or
event that would cause the Representation and Warranty contained in
Section 4.06 to be incorrect if made at such time, and
(iv) any change in the rating given by any nationally
recognized rating agency to any securities issued by the Borrower or
any of its Subsidiaries.
Section 6.02 Accuracy of Financial Statements and Information.
(a) Historical Financial Statements.
The Borrower hereby represents and warrants that (i) Schedule
6.02(a) sets forth a complete and correct list of the financial statements
submitted by the Borrower to the Banks in order to induce them to execute and
deliver this Agreement, (ii) such financial statements present fairly in all
material respects, in accordance with GAAP, the consolidated and consolidating
financial position of the Borrower and the Consolidated Subsidiaries as at their
respective dates and the consolidated and consolidating results of
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operations, retained earnings and, as applicable, changes in financial position
or cash flows of the Borrower and such Subsidiaries for the respective periods
to which such statements relate, and (iii) except as disclosed or reflected in
such financial statements as at or otherwise disclosed in Schedule 4.04 or
Schedule 4.07, neither the Borrower nor any Subsidiary had any Liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, has had or could reasonably be expected to have a Materially
Adverse Effect on the Borrower and the Consolidated Subsidiaries taken as a
whole.
(b) Future Financial Statements.
The financial statements delivered pursuant to Section 6.01(a)
or (b) shall present fairly in all material respects, in accordance with GAAP
(except for changes therein or departures therefrom that are described in the
certificate or report accompanying such statements and that have been approved
in writing by the Borrower's then current independent certified public
accountants), the consolidated and consolidating financial position of the
Borrower and the Consolidated Subsidiaries as at their respective dates and the
consolidated and consolidating results of operations, retained earnings and cash
flows of the Borrower and such Subsidiaries for the respective periods to which
such statements relate, and the furnishing of the same to the Banks shall
constitute a representation and warranty by the Borrower made on the date the
same are furnished to the Banks to that effect and to the further effect that,
except as disclosed or reflected in such financial statements, as at the
respective dates thereof or otherwise disclosed to each Bank pursuant to Section
6.01(f), neither the Borrower nor any Subsidiary had any Liability, contingent
or otherwise, or any unrealized or anticipated loss, that, singly or in the
aggregate, has had or could reasonably be expected to have a Materially Adverse
Effect on the Borrower and the Consolidated Subsidiaries taken as a whole.
(c) Historical Information.
The Borrower hereby represents and warrants that all
Information furnished to the Agent or the Banks by or on behalf of the Borrower
or any Subsidiary prior to the Agreement Date in connection with or pursuant to
the Loan Documents and the relationships established thereunder, at the time the
same was so furnished, but in the case of Information dated as of a prior date,
as of such date, (i) in the case of any Information prepared in the ordinary
course of business, was complete and correct in all materially respects and in
the light of the purpose prepared, and, in the case of any Information the
preparation of which was requested by any Bank, was complete and correct in all
material respects to the extent necessary to give such Bank true and accurate
knowledge of the subject matter thereof, (ii) did not contain any untrue
statement of a material fact, and (iii) did not omit to state a material fact
necessary in order to make the statements contained therein not misleading in
the light of the circumstances under which they were made provided, however,
that the Information insofar as it relates to any Person other than the Borrower
or any AEE Entity is to the best knowledge of the Borrower or any AEE Entity.
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(d) Future Information.
All Information furnished to the Agent or the Banks by or on
behalf of the Borrower or any Subsidiary on or after the Agreement Date in
connection with or pursuant to the Loan Documents or in connection with or
pursuant to any amendment or modification of, or waiver of rights under, the
Loan Documents, shall, at the time the same is so furnished, but in the case of
Information dated as of a prior date, as of such date, (i) in the case of any
Information prepared in the ordinary course of business, be complete and correct
in all material respects and in the light of the purpose prepared, and, in the
case of any Information required by the terms of the Loan Documents or the
preparation of which was requested by any Bank, be complete and correct to the
extent necessary to give such Bank true and accurate knowledge of the subject
matter thereof in all material respects, (ii) not contain any untrue statement
of a material fact, and (iii) not omit to state a material fact necessary in
order to make the statements contained therein not misleading in the light of
the circumstances under which they were made, and the furnishing of the same to
the Agent or any Bank shall constitute a representation and warranty by the
Borrower made on the date the same are so furnished to the effect specified in
clauses (i), (ii) and (iii) provided, however, that the Information insofar as
it relates to any Person other than the Borrower or any AEE Entity is to the
best knowledge of the Borrower or any AEE Entity.
Section 6.03 Additional Covenants Relating to Disclosure.
From the Agreement Date and until the Repayment Date, the Borrower
shall and shall cause each Subsidiary to:
(a) Accounting Methods and Financial Records.
Maintain a system of accounting, and keep such books, records
and accounts (which shall be true and complete), as may be required or necessary
to permit (i) the preparation of financial statements required to be delivered
pursuant to Section 6.01(a) and (b) and (ii) the determination of the compliance
of the Borrower and its Subsidiaries with the terms of the Loan Documents.
(b) Fiscal Year.
Maintain the same opening and closing dates for each fiscal
year as for the fiscal year reflected in the Pro Forma Balance Sheet or, if the
opening and closing dates for the fiscal year reflected in the Pro Forma Balance
Sheet were determined pursuant to a formula, determine the opening and closing
dates for each fiscal year pursuant to the same formula.
(c) Visits, Inspections and Discussions.
Permit or, in the case of premises, property, books, records
or Persons not within its immediate control, promptly upon reasonable notice
take such actions as are necessary or desirable in order to permit,
representatives (whether or not officers or
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employees) of any Bank, from time to time during operating or business hours, as
often as may be reasonably requested, to (i) visit any of its premises or
property or any premises or property of others on which any of its property or
books and records (or books and records of others relating to it) may be
located, (ii) inspect, and verify the amount, character and condition of, any of
its property, (iii) review and make extracts from its books and records and
books and records of others relating to it, including management letters
prepared by its independent certified public accountants, and (iv) discuss with
any Person (including its principal officers, independent certified public
accountants, suppliers, customers, debtors and other creditors) its business,
assets, Liabilities, financial condition, results of operation and business
prospects.
Section 6.04 Authorization of Third Parties to Deliver Information and
Discuss Affairs.
The Borrower hereby authorizes and directs each Person whose
preparation or delivery to the Agent or the Banks of any opinion, report or
other Information is a condition or covenant under the Loan Documents (including
under Article 3 or this Article 6) to so prepare or deliver such Information for
the benefit of the Agent and the Banks. The Borrower further authorizes and
directs all Persons (a) to furnish to the Banks any Information regarding the
matters referred to in Section 6.01(f) that any Bank may request, (b) to permit
representatives of any Bank to make the visits, inspections, reviews and
extracts of premises, property, books and records within their possession and
control contemplated by Section 6.03(c) and (c) to discuss with representatives
of any Bank the matters referred to in Section 6.03(c). The Borrower agrees to
promptly execute and deliver from time to time such further authorizations to
effect the purposes of this Section 6.04 as the Agent or any Bank may reasonably
request.
ARTICLE 7
DEFAULT
Section 7.01 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 nongovernmental body.
(a) (i) Any payment of principal of any of the Loans or the
Notes 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 (ii) any payment of any interest, fees
or other amount under this Agreement or any other Loan Document (other than a
payment which is elsewhere in this Section specifically dealt with) shall not be
made within 5 Business Days after the same shall be
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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.
(b) Any Loan Document Representation and Warranty shall at any
time prove to have been incorrect or misleading in any material respect when
made and, in the case of a representation or warranty pursuant to or under
Section 4.01 or 4.02, if capable of being remedied, such Representation or
Warranty shall continue to be incorrect or misleading in any material respect
for a period of thirty (30) days after notice thereof shall have been given to
the Borrower by the Agent or any other Transaction Party, provided, that if a
good faith effort to remedy is initiated within such thirty (30) day period and
pursued diligently, no Event of Default with respect thereto shall be deemed to
have occurred unless (i) the event resulting in such representation or warranty
being incorrect or misleading in any material respect could or does result in a
Materially Adverse Effect or (ii) such representation or warranty remains
incorrect or misleading in any material respect for 180 days after such notice
is given.
(c) (i) The Borrower shall default in the performance or
observance of:
(A) any term, covenant, condition or
agreement contained in Section 5.02(a) (insofar as such
Section requires the preservation of the corporate existence
of the Borrower), 5.02(f), 5.03 through 5.17 or 6.01(g)(i); or
(B) any term, covenant, condition or
agreement contained in this Agreement or any other Loan
Document (other than a term, covenant, condition or agreement
a default in the performance or observance of which is
elsewhere in this Section specifically dealt with) and, if
capable of being remedied, such default shall continue
unremedied for a period of 30 days after notice shall have
been given by the Agent or any other Transaction Party to the
Borrower requiring that such default be cured provided, that
if such default is capable of being remedied and a good faith
effort to remedy is initiated within such thirty (30) day
period and pursued diligently, no Event of Default with
respect thereto shall be deemed to have occurred until (i)
such default has had a Materially Adverse Effect or (ii) such
default has remained uncured for a period of 180 days after
the notice set forth above shall have been given to the
Borrower by the Agent or any other Transaction Party; or
(ii) The Borrower shall default in the performance or
observance of:
(A) any term, covenant, condition or
agreement contained in Article 1 or Section 3.01(a), (b), (c)
or (d) of the Pledge Agreement; or
(B) any term, covenant, condition or
agreement contained in the Pledge Agreement (other than any
term, covenant, condition or agreement a default in the
performance or observance of which is
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elsewhere in this Section specifically dealt with) and, if
capable of being remedied, such default shall continue
unremedied for a period of 30 days after notice shall have
been given by the Agent to the Borrower requiring that such
default be cured;
(iii) AEE 2 shall default in the performance or observance
of:
(A) any term, covenant, condition or
agreement contained in Section 1.02, 1.03, 2.01, 2.02,
2.03(a)(insofar as such Section requires the preservation of
the legal existence of AEE 2 and the AEE 2 Entities), 2.03(f),
or Sections 2.04 through 2.15 of the Security Agreement; or
(B) any term, covenant, condition or
agreement contained in the Security Agreement (other than any
term, covenant, condition or agreement a default in the
performance or observance of which is elsewhere in this
Section specifically dealt with) and, if capable of being
remedied, such default shall continue unremedied for a period
of 30 days after notice shall have been given by the Agent to
the AEE 2 requiring that such default be cured;
(d) Any AEE Entity or any of its Affiliates asserts, or any
AEE Entity or any of its Affiliates or any other Transaction Party institutes
any proceedings seeking to establish, that (i) any provision of the Loan
Documents is invalid, not binding or unenforceable or (ii) the Security Interest
is not a valid and perfected first priority security interest in the Collateral
subject only to Permitted Liens; or
(e) The Borrower shall at any time beneficially directly own
less than 100% of AEE 2's issued and outstanding Capital Securities.
(f) The limited liability company agreement or other
organizational document of any AEE 2 Entity shall be amended, changed or
modified or supplemented in any material respect.
(g) A Lease Event of Default under any Lease as in effect as
of the date hereof. (See Schedule 7.01(g), for information purposes).
Section 7.02 Remedies upon Event of Default.
During the continuance of any Event of Default (other than one
specified in Section 16(g) or (h) of any Lease) and in every such event, the
Agent, upon notice to the Borrower, may do either or both 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 and (b) terminate, in whole or, from
time to time, in part, the Commitments. Upon the occurrence of an Event of
Default specified in Section 16(g) or (h) of any Lease automatically and without
any notice to the Borrower, (a) the principal of and interest on
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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 7.02) are hereby expressly waived.
ARTICLE 8
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 8.01 Mandatory Suspension and Conversion of Eurodollar Rate
Loans.
A Bank's obligations to make, continue or convert into Eurodollar Rate
Loans of any Type shall be suspended, all such Bank's outstanding Loans of that
Type shall be converted on the last day of their applicable Interest Periods
(or, if earlier, in the case of clause (c) below, on the last day such Bank may
lawfully continue to maintain Loans of that Type or, in the case of clause (d)
below, on the day determined by such Bank to be the last Business Day before the
effective date of the applicable restriction) into, and all pending requests for
the making or continuation of or conversion into Loans of such Type by such Bank
shall be deemed requests for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of that Type for any Interest Period, the Agent determines
that for any reason appropriate information is not available to it for purposes
of determining the Adjusted Eurodollar Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of that Type, such Bank determines that the Adjusted
Eurodollar Rate as determined by the Agent for such Interest Period would not
accurately reflect the cost to such Bank of making, continuing or converting
into a Eurodollar Rate Loan of such Type for such Interest Period;
(c) at any time such Bank determines that any Regulatory
Change Enacted after the Agreement Date makes it unlawful or impracticable for
such Bank or its applicable Lending Office to make, continue or convert into any
Eurodollar Rate Loan of that Type, or to comply with its obligations hereunder
in respect thereof; or
(d) such Bank determines that, by reason of any Regulatory
Change Enacted after the Agreement Date, such Bank or its applicable Lending
Office is restricted, directly or indirectly, in the amount that it may hold of
(i) a category of liabilities that includes deposits by reference to which, or
on the basis of which, the interest rate applicable to Eurodollar Rate Loans of
that Type is directly or indirectly determined or (ii) the category of assets
that includes Eurodollar Rate Loans of that Type.
If, as a result of this Section 8.01, any Loan of any Bank that would
otherwise be made or maintained as or converted into a Eurodollar Rate Loan of
any Type for any Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then,
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unless the corresponding Loan of each of the other Banks is also to be made or
maintained as or converted into a Base Rate Loan, such Loan shall be treated as
being a Eurodollar Rate Loan of such Type for such Interest Period for all
purposes of this Agreement (including the timing, application and proration
among the Banks of interest payments, conversions and prepayments) except for
the calculation of the interest rate borne by such Loan. The Agent shall
promptly notify the Borrower and each Bank of the existence or occurrence of any
condition or circumstance specified in clause (a) above, and each Bank shall
promptly notify the Borrower and the Agent of the existence or occurrence of any
condition or circumstance specified in clause (b), (c) or (d) above applicable
to such Bank's Loans, but the failure by the Agent or such Bank to give any such
notice shall not affect such Bank's rights hereunder.
Section 8.02 Regulatory Changes.
If in the determination of any Bank (a) any Regulatory Change Enacted
after the Agreement Date shall directly or indirectly (i) reduce the amount of
any sum received or receivable by such Bank with respect to any Loan or the
return to be earned by such Bank on any Loan, (ii) impose a cost on such Bank or
any Affiliate of such Bank that is attributable to the making, funding or
maintaining of, or such Bank's commitment to make, any Loan, (iii) require such
Bank or any Affiliate of such Bank to make any payment on or calculated by
reference to the gross amount of any amount received by such Bank under any Loan
Document or (iv) reduce, or have the effect of reducing, the rate of return on
any capital of such Bank or any Affiliate of such Bank that such Bank or such
Affiliate is required to maintain on account of any Loan or such Bank's
commitment to make any Loan and (b) such reduction, increased cost or payment
shall not be fully compensated for by an adjustment in the applicable rates of
interest payable under the Loan Documents, then the Borrower shall pay to such
Bank such additional amounts as such Bank determines will, together with any
adjustment in the applicable rates of interest payable hereunder, fully
compensate for such reduction, increased cost or payment. Such additional
amounts shall be payable, in the case of those applicable to prior periods,
within 15 days after request by such Bank for such payment and, in the case of
those applicable to future periods, on the dates specified, or determined in
accordance with a method specified, by such Bank. Each Bank will promptly notify
the Borrower of any determination made by it referred to in clauses (a) and (b)
above, but the failure to give such notice shall not affect such Bank's right to
compensation.
Section 8.03 Capital Requirements.
If in the determination of any Bank any Regulatory Change relating to
capital adequacy enacted after the Agreement Date requires such Bank or any
Affiliate of such Bank, to maintain capital on account of any Loan or such
Bank's Commitment in a greater amount than such Bank or such Affiliate would
otherwise have to maintain on account of such Loan or Commitment, then, upon
request by such Bank, the Borrower shall from time to time thereafter pay to
such Bank such additional amounts as such Bank determines will fully compensate
for any reduction in the rate of return on the capital that such Bank or such
Affiliate is so required to maintain on account of such Loan or Commitment.
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Such additional amounts shall be payable, in the case of those applicable to
prior periods, within 15 days after request by such Bank for such payment and,
in the case of those relating to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank.
Section 8.04 Funding Losses.
The Borrower shall pay to each Bank, upon request, such amount or
amounts as such Bank determines are necessary to compensate it for any loss,
cost or reasonable expense (but not including loss of anticipated profits)
incurred by it as a result of (a) any payment, prepayment or conversion of a
Eurodollar Rate Loan on a date other than the last day of an Interest Period for
such Eurodollar Rate Loan or (b) a Eurodollar Rate Loan for any reason not being
made or converted, or any payment of principal thereof or interest thereon not
being made, on the date therefor determined in accordance with the applicable
provisions of this Agreement. At the election of such Bank, and without limiting
the generality of the foregoing, but without duplication, such compensation on
account of losses may include an amount equal to the excess of (i) the interest
that would have been received from the Borrower under this Agreement on any
amounts to be reemployed during an Interest Period or its remaining portion over
(ii) the interest component of the return that such Bank determines it could
have obtained had it placed such amount on deposit in the interbank Dollar
market selected by it for a period equal to such Interest Period or its
remaining portion.
Section 8.05 Certain Determinations.
In making the determinations contemplated by Sections 8.01, 8.02 and
8.03, each Bank may make such estimates, assumptions, allocations and the like
that such Bank in good faith determines to be appropriate, and such Bank's
selection thereof in accordance with this Section 8.05, and the determinations
made by such Bank on the basis thereof, shall be final, binding and conclusive
upon the Borrower, except, in the case of such determinations, for manifest
errors in computation or transmission. Each Bank shall furnish to the Borrower
upon request a certificate outlining in reasonable detail the computation of any
amounts claimed by it under Sections 8.02 and 8.03 and the assumptions
underlying such computations.
Section 8.06 Change of Lending Office.
If an event occurs with respect to a Lending Office of any Bank that
obligates the Borrower to pay any amount under Section 2.13, makes operable the
provisions of clause (c) or (d) of Section 8.01 or entitles such Bank to make a
claim under Section 2.13, 8.02 or 8.03, such Bank shall, if requested by the
Borrower, use reasonable efforts to designate another Lending Office or Offices,
the designation of which will reduce the amount the Borrower is so obligated to
pay, eliminate such operability or reduce the amount such Bank is so entitled to
claim, provided that such designation would not, in the sole and absolute
discretion of such Bank, be disadvantageous to such Bank in any manner or
contrary to such Bank's policies. Each Bank may at any time and from time to
time
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change any Lending Office and shall give notice of any such change to the Agent
and the Borrower. Except in the case of a change in Lending Offices made at the
request of the Borrower, the designation of a new Lending Office by any Bank
shall not obligate the Borrower to pay any amount to such Bank under Section
2.13, make operable the provisions of clause (c) or (d) of Section 8.01 or
entitle such Bank to make a claim under Section 2.13 or 8.02 if such obligation,
the operability of such clause or such claim results solely from such
designation and not from a Regulatory Change Enacted thereafter.
Section 8.07 Replacement of Bank in Respect of Increased Costs.
(a) Within fifteen (15) days after receipt by the Borrower of
written notice from any Bank (an "Affected Bank") (i) claiming payment of
additional amounts under Section 2.13, 8.02 or 8.03, or (ii) claiming that it is
unable or unlawful for it to make Eurodollar Loans as set forth in Section 8.01,
the Borrower may, if no Event of Default then exists, at its option, notify the
Agent and such Affected Bank of its intention to replace the Affected Bank. The
Borrower, with the consent of the Agent which shall not be unreasonably
withheld, may obtain, at the Borrower's expense, a replacement bank
("Replacement Bank") for the Affected Bank, which Replacement Bank must be
reasonably satisfactory to the Agent. The Affected Bank must sell and assign its
Loans and Commitments to such Replacement Bank for an amount equal to the
principal balance of all Loans held by the Affected Bank and all accrued
interest and fees with respect thereto through the date of such sale, provided
that the Borrower shall have reimbursed such Affected Bank for the additional
amounts, increased costs and any other amounts that it is entitled to receive
under this Agreement through the date of such sale and assignment.
(b) Notwithstanding the foregoing, the Borrower shall not have
the right to obtain a Replacement Bank if the Affected Bank rescinds its demand
for increased costs or additional amounts within fifteen (15) days following its
receipt of the Borrower's notice of intention to replace such Affected Bank.
Furthermore, if the Borrower gives a notice of intention to replace and does not
so replace such Affected Bank within seventy (70) days thereafter, the
Borrower's rights to replace the Affected Bank as a result of claims based upon
the events given rise to such claim referred to in such written notice shall
terminate. The Borrower shall promptly pay all increased costs or additional
amounts previously demanded by such Affected Bank and shall continue to pay
immediately upon receipt of an invoice therefor all such increased costs and
amounts incurred during any period after such written notice through the date of
such assignment.
ARTICLE 9
THE AGENT
Section 9.01 Appointment and Powers.
Each Bank hereby irrevocably appoints and authorizes Credit Suisse
First Boston, and Credit Suisse First Boston hereby agrees, to act as the agent
for and representative
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(within the meaning of Section 9-105(m) of the Uniform Commercial Code) of such
Bank under the Loan Documents with such powers as are delegated to the Agent and
the Secured Party by the terms thereof, together with such other powers as are
reasonably incidental thereto. The Agent's duties shall be purely ministerial
and it 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 it 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 9.02 Limitation on Agent's Liability.
Neither the Agent nor any of its 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 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
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,
(c) the value or sufficiency of the Collateral or (d) 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,
telecopier, 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 9.03 Defaults.
The Agent shall not be deemed to have knowledge of the occurrence of a
Default (other than the non-payment to it of principal of or interest on Loans
or fees) 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 either or both of
the actions referred to in clauses (a) and (b) of the first sentence of
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Section 7.02 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 9.04 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 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 the 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 Banks.
Section 9.05 Indemnification.
The Banks agree to indemnify the Agent (to the extent not reimbursed by
the Borrower hereunder), ratably on the basis of the respective principal
amounts of the Loans outstanding made by the Banks (or, if no Loans are at the
time outstanding, ratably on the basis of their respective Commitments), 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 hereunder) 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 10.09(b)
or (b) they arise from gross negligence or willful misconduct.
Section 9.06 Non-Reliance on Agent and Other Banks.
Each Bank agrees that it has made and will continue to make,
independently and without reliance on the Agent or any other Bank, and based on
such documents and information as it deems appropriate, its own credit analysis
of the Borrower, its own evaluation of the Collateral 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 or the Collateral.
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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 have no obligation to provide any Bank with any information
concerning the business, status or condition of the Borrower or any Subsidiary,
the Loan Documents or the Collateral that may come into the possession of the
Agent or any of its Affiliates.
Section 9.07 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, (a) the Pledge Agreement, (b) the Security
Agreement, (c) all UCC financing and continuation statements and other documents
the filing or recordation of which are, in the determination of the Agent,
necessary or appropriate to create, perfect or maintain the existence or
perfected status of the Security Interest and (d) 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 Pledge Agreement
and the Security Agreement, 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, (A) consent to any
assignment by the Borrower of any of its rights or obligations under any such
agreement or (B) release any Collateral from the Security Interest, except as
required or contemplated by the Loan Documents.
Section 9.08 Resignation of the Agent.
The Agent may at any time give notice of its resignation to the Banks
and the Borrower. Upon receipt of any such notice of resignation, the Required
Banks may, after consultation with the Borrower, appoint a successor Agent which
shall be acceptable to the Borrower, in its reasonable judgment. 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, then the retiring Agent may, on behalf of the Banks and after
consultation with the Borrower, appoint a successor Agent which shall be a bank
with an office in New York, New York, having a combined capital and surplus of
at least $500,000,000 or an Affiliate of any such bank which Affiliate shall be
reasonably acceptable to the Borrower. 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 and (b) the retiring Agent
shall promptly transfer all Collateral within its possession or control to the
possession or control of the successor Agent and shall execute and deliver such
notices, instructions and assignments as may be necessary or desirable to
transfer the rights of the Agent with respect to the Collateral to the successor
Agent. After any retiring Agent's resignation as Agent, the provisions of this
Article 9 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.
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ARTICLE 10
MISCELLANEOUS
Section 10.01 Notices and Deliveries.
(a) Notices and Materials Other than Collateral.
Except as provided in Section 10.01(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 telecopy transmissions). Notices under Sections
2.02, 2.03(c), 2.05, 2.07 and 7.02 may be by telephone, promptly, in
the case of each notice other than one under Section 7.02, 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 Agent 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 telecopier and
telephone numbers and to the attention of the following individuals or
departments:
(A) if to the Borrower, to it at:
1001 North 19th Street, 20th Floor
Arlington, VA 22209
Telecopier No.: (703) 528-4510
Telephone No.: (703) 522-1315
Attention: Project Manager
(B) if to the Agent, to it at:
Eleven Madison Avenue
New York, NY 10010-3629
Telecopier No.: (212) 325-8321
Telephone No.: (212) 325-9126
Attention: Manager Portfolio Management
Group
(C) if to any Bank, to it at the address or
telex, telecopier 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
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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;
or at such other address or telecopier 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 and each Bank, (y) if the party
to which such information pertains is the Agent, the Borrower and each Bank and
(z) if the party to which such information pertains is a 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 fifth 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 telecopier, when such notice,
communication or material is transmitted to the appropriate telecopier
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 7.02 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 (x)
notices of a change of address, telecopier 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 (y) notices, communications and materials to be given or
delivered to the Agent or any Bank pursuant to Sections 2.02, 2.03(c),
2.05, 2.07 and 2.12(b) and Article 6 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.
(iv) Reasonable Notice.
Any requirement under Applicable Law of reasonable notice
by the Agent 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 or the Banks
of any of their rights thereunder shall be met if notice of such event is given
to the
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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.
(b) Collateral.
Until the Agent shall otherwise specify, all Collateral to be
delivered to the Agent pursuant to the Loan Documents consisting of
instruments, securities, chattel paper, letters of credit or documents
shall be delivered to the Agent at the Agent's Office either by hand
delivery or by registered or certified mail, postage prepaid, return
receipt requested, in either case insured in an amount not less than
the greater of the aggregate face amount and the aggregate fair market
value of the Collateral so being delivered. All other Collateral to be
delivered to the Agent pursuant to the Loan Documents shall be
delivered to such Person, at such address, by such means and in such
manner as the Agent may designate.
Section 10.02 Expenses; Indemnification.
Whether or not any Loans are made hereunder, the Borrower shall:
(a) pay or reimburse the Agent 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;
(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 the
Agent in connection with, or arising out of, or in any way related to (i) the
negotiation, preparation, execution, delivery and syndication 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 or preservation of the Collateral, (B) the protection, preservation,
exercise or enforcement of any of the rights of the Agent or the Banks in, under
or related to the Collateral or the Loan Documents or (C) the performance of any
of the obligations of the Agent or the Banks under or related to the Loan
Documents, (iv) protecting or preserving the Collateral or (v) protecting,
preserving, exercising or enforcing any of the rights of the Agent or the Banks
in, under or related to the Collateral or the Loan Documents , including
defending the Security Interest as a valid, perfected, first priority security
interest in the Collateral subject only to Permitted Liens;
(c) pay or reimburse each Bank for all reasonable costs and
expenses (including fees and disbursements of legal counsel and other experts
employed or retained by such Bank) incurred by such Bank in connection with,
arising out of, or in any way related to (i) consulting during a Default with
respect to (A) the protection, preservation, exercise or enforcement of any of
its rights in, under or related to the Collateral or the
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Loan Documents or (B) the performance of any of its obligations under or related
to the Loan Documents or (ii) protecting, preserving, exercising or enforcing
during a Default any of its rights in, under or related to the Collateral or the
Loan Documents; provided, however, that the agent and each bank shall exercise
reasonable efforts to select one common legal counsel for each jurisdiction and
other common experts except to the extent that the agent or any bank deems in
its reasonable judgment that the use of common legal counsel or other experts
would prejudice its interests; 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 reasonable costs and expenses
(including 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 determined by a judgment of a court that is binding on the Borrower and
such Indemnified Person, final and not subject to review on appeal, to be the
result of acts or omissions on the part of such Indemnified Person constituting
(x) willful misconduct or (y) gross negligence.
Section 10.03 Amounts Payable Due upon Request for Payment.
All amounts payable by the Borrower under Section 10.02 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 10.04 Remedies of the Essence.
The various rights and remedies of the Agent and the Banks under the
Loan Documents are of the essence of those agreements, and the Agent and the
Banks shall be entitled to obtain a decree requiring specific performance of
each such right and remedy.
Section 10.05 Rights Cumulative.
Each of the rights and remedies of the Agent 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 10.06 Amendments; Waivers.
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(i) 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 (A) in the case
of an amendment or waiver with respect to the Loan Documents referred to in
Section 9.07, the Agent, (B) in the case of an amendment or waiver with respect
to any other Loan Document, the Required Banks and, if the rights and duties of
the Agent are affected thereby, by the Agent and (C) 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 (1) changes the amount of such Bank's
Commitment, (2) reduces the principal of or the rate of interest on such Bank's
Loans or Note or the fees payable to such Bank hereunder, (3) postpones any date
fixed (otherwise than as a result of a prepayment pursuant to Section 2.05) for
any payment of principal of or interest on such Bank's Loans or Note or the fees
payable to such Bank hereunder or (4) amends Section 2.14, this Section 10.06 or
any other provision of this Agreement requiring the consent or other action of
all of the Banks. Unless otherwise specified in an amendment or waiver, an
amendment or waiver under the Loan Documents shall be effective only in the
specific instance and for the specific purpose for which given. By entering into
an amendment with, or giving a waiver under, a section of the Loan Documents,
the Banks shall not be deemed to have, or to have intended to have, (aa) waived
any rights that they, or any of them, then or thereafter may have under any
other provisions of the Loan Documents and (bb) if such amendment or waiver was
occasioned by a particular fact or facts, accepted that fact or those facts for
any other purpose or Section of the Loan Documents, including Section 4.06 of
this Agreement, so that, for purposes of Section 4.06, if such fact or facts has
had or could have, either alone, or together with other facts, a Materially
Adverse Effect, such Materially Adverse Effect shall be a change or event
subject to Section 4.06, notwithstanding such amendment or waiver. 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 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 or any Bank
under the Loan Documents or Applicable Law.
Section 10.07 Set-Off; Suspension of Payment and Performance.
The Agent and each Bank is hereby authorized by the Borrower, at any
time and from time to time, without notice, (a) 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 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) and (b) during any Default, to suspend the payment
and performance of such Liabilities owing by such Person or its Affiliates in an
amount
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equal to the amount then due and payable under the Loan Documents and, in the
case of Liabilities that are deposits, to the extent necessary, to return as
unpaid for insufficient funds any and all checks and other items drawn against
such deposits. The Agent or such Bank shall provide the Borrower with written
notice of the set off, provided the failure of the Agent or such Banks to
provide such notice will not effect their rights under this Agreement.
Section 10.08 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 2.14, 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 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). So long
as the purchasing Bank has not advised it to the contrary, each selling Bank may
assume, for purposes of Section 10.09(b), that no Tax is required to withheld or
deducted by the Borrower from, or is otherwise payable by the Borrower in
connection with, any payment by the Borrower to or for the account of such Bank
under the Loan Documents. The Borrower expressly consents to the foregoing
arrangements and agrees that any holder of a participation in any rights
hereunder so purchased or acquired pursuant to this Section 10.08(a) shall, with
respect to such participation, be entitled to all of the rights of a Bank under
Sections 2.13, 8.02, 8.03, 8.04, 8.05, 10.02 and 10.07 (subject to any condition
imposed on a Bank hereunder with respect thereto, including delivery of the
forms and certificates required under Section 2.13(a)(iv)) and may exercise any
and all rights of set-off with respect to such participation as fully as though
the Borrower were directly indebted to the holder of such participation for
Loans 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
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(i) obligations of the Borrower for amounts subject to the sharing provisions of
Section 10.08(a) and (ii) other Liabilities of the Borrower.
Section 10.09 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 (A) in the case of the Loan Documents referred to in Section 9.07,
the Agent and (B) in the case of any of the other Loan Documents, each
Bank, and no assignment of any such obligation shall release the
Borrower therefrom unless the Agent or 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
Persons, without the consent of the Borrower; provided that, except in
the case of the grant of an assignment 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 (unless an
Event of Default specified in Sections 16(g) or 16(h) of the Lease
exists) the Agent, (B) the assignment is to a Bank or an Eligible
Assignee or an Affiliate of a Bank or an Eligible Assignee or is
consented to by the Borrower (unless an Event of Default exists), which
consent shall not be unreasonably withheld, (C) in the case of a
partial assignment, after giving effect thereto, the aggregate amount
of the Commitment and the outstanding principal amount of the Loans of
both the assignor and the assignee shall be not less than $5,000,000,
(D) the assignment shall involve the assignment of a fixed percentage
of all of the assignor's rights and obligations under the Loan
Documents, (E) 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, (F) 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
(G) except in the case of an assignment by the Bank that is the Agent,
the Agent shall have been paid an assignment fee of $3,500. 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 (except in
the case of a partial assignment) receipt of the existing Note of the
assignor Bank, issue a new Note to the assignee Bank.
(iii) Notwithstanding anything to the contrary contained
herein, any Bank (a "Granting Bank") may grant to a special purpose
funding vehicle (a "SPC"), identified as such in writing from time to
time by the Granting Bank to the
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Agent and the Borrower, the option to provide to the Borrower all or
any part of any Loan that such Granting Bank would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting
Bank shall be obligated to make such Loan pursuant to the terms hereof.
The making of an Loan by an SPC hereunder shall utilize the Commitment
of the Granting Bank to the same extent, and as if, such Loan were made
by such Granting Bank. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under
this Agreement (all liability for which shall remain with the Granting
Bank). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in
full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this [assignment clause], any SPC
may (i) with notice to, but without the prior written consent of, the
Borrower and the Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting
Bank or to any financial institutions (consented to by the Borrower and
Agent) providing liquidity and/or credit support to or for the account
of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to
its Loans to any rating agency, commercial paper dealer or provider of
any surety, guarantee or creditor or liquidity enhancement to such SPC.
(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 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 the principal of or the rate of interest on
such Bank's Loans or the fees payable to such Bank hereunder, (ii) postpone any
date fixed for any payment of principal of or interest on such Bank's Loans or
the fees payable to such Bank hereunder, (iii) permit any Loan Party to assign
any of its obligations under the Loan Documents to any other Person or (iv)
release any Collateral from the Security Interest except as required or
contemplated by the Loan Documents. Each holder of a participation in any rights
under the Loan
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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 and may exercise any and all
rights of set-off with respect to such participation as fully as though the
Borrower were directly indebted to the holder of such participation for Loans 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 2.12 or 8.02 unless 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, including a participation sold pursuant to Section 10.08 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 10.10 Governing Law.
The rights and duties of the Borrower, the Agent and the Banks under
this Agreement and the Notes (including matters relating to the Maximum
Permissible Rate), and the other Loan Documents, shall pursuant to New York
General Obligations Law Section 5-1401, be governed by the law of the State of
New York.
Section 10.11 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 judgment rendered thereby in connection
with any Loan Document Related Claim and (b) irrevocably waives 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
10.01(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 the Agent, any Bank or any other Indemnified Person to serve
process in any other manner permitted by law or shall limit the right of the
Agent, any Bank or any other Indemnified Person to bring proceedings against the
Borrower in the courts of any other jurisdiction. Any judicial proceeding by the
Borrower against the Agent or any Bank involving any Loan Document Related Claim
shall be brought only in a court located in, in the case of the Agent, the City
and State of New York and, in the case of a Bank, the jurisdiction in which such
Bank's principal United States office is located. THE BORROWER, THE AGENT AND
EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY
LOAN DOCUMENT RELATED CLAIM.
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Section 10.12 LIMITATION OF LIABILITY.
NEITHER THE AGENT NOR THE BANKS NOR ANY OTHER INDEMNIFIED PERSON SHALL
HAVE ANY LIABILITY WITH RESPECT TO, AND THE BORROWER HEREBY WAIVES, RELEASES AND
AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL, AND, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, PUNITIVE DAMAGES SUFFERED BY THE BORROWER
IN CONNECTION WITH ANY LOAN DOCUMENT RELATED CLAIM.
Section 10.13 Process Agent.
The Borrower hereby agrees that service of all writs, process and
summonses in any such suit, action or proceeding brought in the State of New
York may be made upon CT Corporation, presently located at 1633 Broadway, New
York, New York 10019, U.S.A. (the "Process Agent"), and the Borrower hereby
confirms and agrees that the Process Agent has been duly and irrevocably
appointed as its agent and true and lawful attorney-in-fact in its name, place
and stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the Process Agent to give any notice
of any such service of process to the Borrower shall not impair or affect the
validity of such service or of any judgment based thereon.
Section 10.14 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 10.15 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 10.16 Survival of Obligations.
Except as otherwise expressly provided therein, the rights and
obligations of the Borrower, the Agent, the Banks and the other Indemnified
Persons under the Loan Documents shall survive the Repayment Date and the
termination of the Security Interest.
Section 10.17 Entire Agreement.
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This Agreement and the Notes embody the entire agreement among the
Borrower, the Agent 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 except to the extent expressly set forth
in the Commitment Letter.
Section 10.18 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 10.19 No Fiduciary Relationship Established By Loan Documents.
The relationship between the Borrower and the Banks is that of DEBTOR
and CREDITOR. The Loan Documents are not intended to, and do not, establish a
FIDUCIARY relationship, nor does a FIDUCIARY relationship otherwise exist,
between the Borrower on the one hand, and Agent and the Banks, on the other
hand. The parties hereto have dealt at arm's length in negotiating the Borrower
Loan Documents.
Section 10.20 No Recourse to Affiliates. This Agreement is solely and
exclusively among the Borrower, the Agent and the Banks, and any obligations
created herein shall be the sole obligations of the parties hereto. No party
shall have recourse to any parent, subsidiary, affiliate, director or officer,
as such, of any other party for performance of said obligations unless the
obligations are assumed in writing by the Person against whom recourse is
sought.
Section 10.21 Confidential Information.
Notwithstanding anything to the contrary contained in this Agreement,
each party to any Loan Document agrees that all documents, agreements or other
information received by it pursuant to this Agreement or any other Loan Document
that was, at the time of its delivery, identified in writing by any party hereto
as being confidential will be held by such party in confidence in accordance
with such party's customary procedures for handling confidential information. It
is understood that each party to any Loan Document consistent with any such
procedures, may disclose such confidential information, or portions thereof:
(i) in the case of any Bank, to any bona fide permitted
prospective transferee in connection with any contemplated assignment;
provided, that such transferee is aware of the confidential nature of
such information in accordance with the terms of this Section 10.21;
(ii) to the extent necessary or appropriate to comply
with the request of, or as otherwise customarily disclosed to, any
Governmental Entity or representatives thereof;
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(iii) to any Related Party of such Person and those of any
Subsidiary or Affiliate of such Person;
(iv) to the extent necessary or appropriate to comply
with any subpoena or other court process or in connection with any
litigation or legal proceeding but only after giving each party hereto
the opportunity to obtain an appropriate protective order;
(v) to such Person's independent auditors and
accountants, counsel, and other professional advisers in the course of
their respective duties;
(vi) to the extent necessary to comply with any
Applicable Law;
(vii) in the enforcement of such Person's rights, as
applicable, hereunder, or any other Operative Document during the
continuance of an Event of Default;
(viii) which is, or after delivery to such Person becomes,
otherwise publicly known or generally available to the public other
than as a result of a violation of this Section 10.21 by such Person;
and
(ix) to any of the Rating Agencies in order to rate this
Agreement and the Notes.
Section 10.22 Registered Notes.
A Bank that is a Non-US Bank and that has complied with Section
2.13(a)(iv)(A)(1) may have its Notes issued as Registered Notes, 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 the ownership of Registered Notes, and of the Loans evidenced thereby, may
be transferred only in accordance with the provisions of Section
10.09(a)(ii)(D).
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Agreement Date.
AES EASTERN ENERGY, L.P.
By
---------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Agent
By
---------------------------
Name:
Title:
By
---------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Bank
By
---------------------------
Name:
Title:
By
---------------------------
Name:
Title:
Agreement Date: May 14, 1999
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Schedule 2.02
NOTICE OF BORROWING
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Date:
Gentlemen:
Reference is made to the Secured Revolving O&M Costs Facility, dated as
of May 14, 1999 among AES Eastern Energy, L.P., the Banks listed on the
signature pages thereof and Credit Suisse First Boston, as Agent (the "Credit
Facility"). The undersigned hereby gives notice pursuant to Section 2.02 of the
Credit Facility of its request to have the following Loans made to it on [insert
requested date of borrowing]:
Type of Loan Amount
- ------------------------------- -------------------
- ------------------------------- -------------------
- ------------------------------- -------------------
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The undersigned, on behalf of the Borrower, represents and warrants
that (a) the borrowing requested hereby complies with the requirements of the
Credit Facility, (b) attached to this Notice of Borrowing is a Funding Date
Certificate complying with the requirements of the Depositary Agreement and the
Credit Facility and (c) except to the extent set forth on Annex A hereto, (i)
each Loan Document Representation and Warranty is true and correct at and as of
the date hereof and (except to the extent the undersigned gives notice to the
Banks to the contrary prior to 5:00 p.m. on the Business Day before the
requested date for the making of the Loans) will be true and correct at and as
of the time the Loans are made, in each case both with and without giving effect
to the Loans and the application of the proceeds thereof, and (ii) no Default
has occurred and is continuing as of the date hereof or would result from the
making of the Loans or from the application of the proceeds thereof if the Loans
were made on the date hereof, and (except to the extent the undersigned gives
notice to the Banks to the contrary prior to 5:00 p.m. on the Business Day
before the requested date for the making of the Loans) no Default will have
occurred and be continuing at the time the Loans are to be made or would result
from the making of the Loans or from the application of the proceeds thereof.
AES EASTERN ENERGY, L.P.
By ______________________,
on behalf of the Borrower
Name:
Title:
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Schedule 2.03(c)(iv)
NOTICE OF CONVERSION OR CONTINUATION
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Date:
Gentlemen:
Reference is made to the Secured Revolving O&M Costs Facility, dated as
of May 14, 1999 among AES Eastern Energy, L.P., the Banks listed on the
signature pages thereof and Credit Suisse First Boston, as Agent (the "Credit
Facility"). The undersigned hereby gives notice pursuant to Section 2.03(c)(iv)
of the Credit Facility of its desire to convert or continue the Loans specified
below into or as Loans of the Types and in the amounts specified below on
[insert date of conversion or continuation]:
Loans to be Converted or Continued Converted or Continued Loans
---------------------------------- ----------------------------
Type of Loan Last Day of Current Amount Type of Loan Amount
Interest Period
- ------------ ------------------- ------ ------------ ------
The undersigned represents and warrants that conversions and
continuations requested hereby comply with the requirements of the Credit
Facility.
AES EASTERN ENERGY, L.P.
By_________________________________
Name:
Title:
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Schedule 2.05(a)
NOTICE OF PREPAYMENT
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Date:
Gentlemen:
Reference is made to the Secured Revolving O&M Costs Facility, dated as
of May 14, 1999, among AES Eastern Energy, L.P., the banks listed on the
signature pages thereof and Credit Suisse First Boston, as Agent (the "Credit
Facility"). The undersigned hereby gives notice pursuant to Section 2.05(a) of
the Credit Facility that it will prepay the Loans specified below on [insert
date of prepayment]:
Type of Loan Last Day of Current Amount
Interest Period
- ------------ ------------------- ------
The undersigned represents and warrants that the prepayment requested
hereby complies with the requirements of the Credit Facility.
AES EASTERN ENERGY, L.P.
By__________________________________
Name:
Title:
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Schedule 2.05(c)
NOTICE OF CLEAN-UP PERIOD
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Date:
Gentlemen:
Reference is made to the Secured Revolving O&M Costs Facility, dated as
of May 14, 1999, among AES Eastern Energy, L.P., the banks listed on the
signature pages thereof and Credit Suisse First Boston, as Agent (the "Credit
Facility"). The undersigned hereby gives notice pursuant to Section 2.05(c) of
the Credit Facility of the commencement of a Clean-Up Period on
___________________.
AES EASTERN ENERGY, L.P.
By______________________________________
Name:
Title:
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Schedule 2.13(a)(iv)
NON-US BANK CERTIFICATE
AES Eastern Energy, L.P.
[Insert Address Information]
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Gentlemen:
Reference is made to the Secured Revolving O&M Costs Facility, dated as
of May 14, 1999 among AES Eastern Energy, L.P., the banks listed on the
signature pages thereof and Credit Suisse First Boston, as Agent. Terms used
herein that are defined in such Credit Facility are used with the meanings
therein ascribed to them.
The undersigned hereby (a) certifies to the Borrower and the Agent that
(i) it is a Non-US Bank and (ii) is entitled to submit an Internal Revenue
Service Form W-8 and (b) agrees to indemnify and defend the Borrower and the
Agent from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages, and expenses of any kind arising out of, resulting
from, or in any way connected with the certification made pursuant to clause (a)
being incorrect.
Very truly yours,
[Bank]
By: ______________________________________
Name:
Title:
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Schedule 3.01(b)(vi)
FORM OF BORROWER'S COUNSEL OPINION
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Schedule 3.01(b)(vii)
FORM OF AGENT'S COUNSEL OPINION
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Schedule 4.01
(for information purposes only)
SECTION 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of AEE. AEE
represents and warrants to each of the other parties hereto that, as of the
Closing Date:
(a) Due Organization, etc. (i) AEE is a limited partnership
duly formed, validly existing, and in good standing under the laws of
the State of Delaware, is duly licensed or qualified and in good
standing in each jurisdiction in which the failure to so qualify could
reasonably be expected to result in a Material Adverse Effect, and has
the partnership power and authority to own or hold under lease its
assets and properties, conduct its business as now conducted and as
presently proposed to be conducted and enter into and perform its
obligations under this Agreement and each of the other Operative
Documents to which it is or will be a party. The sole general partner
of AEE is AES NY. The sole limited partner of AEE is AES NY2.
(ii) Each of AES NY, AES NY2, AES NY3 and each AEE
Subsidiary in existence on the Closing Date is a limited
liability company duly organized, validly existing, and in
good standing under the laws of the State of Delaware, is duly
licensed or qualified and in good standing in each
jurisdiction in which the failure to so qualify could
reasonably be expected to result in a Material Adverse Effect,
and has all requisite power and authority to own, or hold
under lease, its assets and properties and conduct its
business as now conducted and as presently proposed to be
conducted.
(b) Due Authorization, Enforceability, etc. The execution,
delivery and performance of this Agreement and each of the other
Operative Documents to which it is or will be a party and the
compliance by it with the terms and provisions hereof and thereof have
been duly authorized by all necessary action of each of AEE and the AEE
Entities, as applicable, and such action does not and will not require
any further action, consent or approval by any trustee or holder of any
Indebtedness of AEE or such AEE Entities, as applicable. This Agreement
and each of the other Operative Documents to which it is or will be a
party has been duly executed and delivered by each of AEE and the AEE
Entities, as applicable. Assuming the due authorization, execution and
delivery by each other party hereto and thereto, this Agreement
constitutes, and when executed and delivered, the other Operative
Documents to which AEE or any AEE Entity is or will be a party will
constitute, the legal, valid and binding obligations of AEE or such AEE
Entity, as applicable, enforceable against AEE or such AEE Entity, as
applicable, in accordance
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with their respective terms, except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
arrangement, moratorium or other laws relating to or affecting the
rights of creditors generally and by general principles of equity.
(c) No Conflicts. The execution, delivery and performance by
each of AEE and the AEE Entities, as applicable, of this Agreement and
each of the other Operative Documents to which it is or will be a
party, the consummation by AEE and such AEE Entities of the
transactions contemplated hereby and thereby, and compliance by AEE and
such AEE Entities with the terms and provisions hereof and thereof, do
not and will not (i) conflict with or result in any breach of any
agreement to which AEE or any AEE Entity is a party (including any
Material Agreement), (ii) conflict with any Applicable Law which could
reasonably be expected to result in a Material Adverse Effect, (iii)
conflict with the partnership agreement of AEE or the organizational
documentation of any AEE Entity or (iv) result in the creation of any
Lien (except Permitted Liens) upon any of the property or assets of AEE
and such AEE Entities pursuant to the terms of any indenture, mortgage,
deed of trust, credit agreement or any other agreement, contract or
instrument to which AEE or such AEE Entity is a party or by which any
of their respective property or assets are bound.
(d) Governmental Actions. Except for the Governmental
Approvals set forth on Schedule 3.1(d)(i) and Schedule 3.1(d)(ii), (i)
no Governmental Approval is required to be obtained in the name of AEE
or any AEE Entity or the Owner Trust in connection with (A) the
acquisition, operation and maintenance of the Facility, the Related
Facility and the Additional Facilities, (B) the issuance of the Pass
Through Certificates and the execution, delivery and performance by AEE
of the Operative Documents to which it is or will be a party, or (C)
the leasing of the Undivided Interest, and (ii) no Governmental
Approval (except Governmental Approvals applicable to the Owner
Participant, the Pass Through Trustees, the Owner Trust, or any
Certificateholder as a result of activities by such Person or any of
its Affiliates not contemplated by the Operative Documents and
Governmental Approvals applicable to such parties other than under the
law of the State of New York or the laws of the United States of
America) is or will be required (A) in connection with the
participation by the Owner Participant, the Pass Through Trustees, the
Owner Trust, or any Certificateholder in the consummation of the Lease
Financing or (B) to be obtained by any of such Persons during the Lease
Term, except in the case of either clause (i) or (ii), such
Governmental Approvals (1) as may be required by Applicable Law not now
in effect, (2) as may be required in consequence of any transfer of
ownership of the Undivided Interest by the Owner Trust, (3) as would be
required by Applicable Law upon termination or expiration of the Lease
in connection with taking possession of an interest in any assets of
AEE in accordance with the Support Agreements or any part thereof or
the property purported to be covered by the Site Lease, (4) as may be
required by Applicable Law, if, after termination or expiration of the
Lease, AEE or any other Person should provide transmission services for
the Owner Trust, (5) as may be required in consequence of any exercise
of remedies or other rights by any such Person in connection with
taking possession of an interest in the Facility or the property
purported to be covered by the Site Lease, or (6) required as filings
pursuant to the terms of a Governmental Approval (which filings AEE
agrees to make promptly when required) and
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other types of routine operating plans and filings required under
Applicable Law. All of the Governmental Approvals set forth on Schedule
3.1(d)(i) have been validly issued, are in full force and effect and
are non-appealable (except as indicated on Schedule 3.1(d)(i)) and
there is no proceeding pending, or to the Actual Knowledge of AEE,
threatened, which seeks to, or which may reasonably be expected to,
rescind, terminate, modify, condition, suspend or otherwise alter any
such Governmental Approval (except as are necessary for the transfer or
reissuance of such Governmental Approvals to AEE or any AEE Entity).
Set forth on Schedule 3.1(d)(ii) are those Governmental Approvals which
are required under existing Applicable Law to be obtained, reissued, or
transferred from time to time after the Closing Date and AEE does not
have any reason to believe that it will be unable to obtain such
Governmental Approvals in the ordinary course of business and at such
time or times as may be necessary to avoid any substantial delay in, or
material impairment to, the performance of the transactions
contemplated by the Operative Documents. Each of AEE and the AEE
Entities has obtained and is in compliance with all Governmental
Approvals required to be obtained by it as of the date hereof unless
the failure to obtain such approvals or such non-compliance therewith,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(e) Litigation. There is no pending or, to the Actual
Knowledge of AEE, threatened action, suit, investigation or proceeding
at law or in equity by or before any Governmental Entity, against or
affecting AEE or any property or other assets or rights of AEE or with
respect to any Operative Document, the Undivided Interest, the Ground
Interest, the Facility, the Facility Site, or any of the other Assigned
Assets that, individually or in the aggregate, if determined adversely
could reasonably be expected to result in a Material Adverse Effect.
(f) No Defaults. Neither AEE nor any AEE Entity is in default,
and no condition exists that with notice or lapse of time or both would
constitute a default, under the Lease or any other Operative Document.
Set forth on Schedule 3.1(f) is a list of all Material Agreements.
Neither AEE nor any AEE Entity is in default under, and neither AEE nor
any AEE Entity, to its Actual Knowledge, is aware of a default by any
other party to, any Material Agreement in any such case where any such
default, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
(g) Location of Chief Place of Business and Chief Executive
Office, etc. The chief executive office and principal place of business
of each of AEE and AEE 2 and the office where each of AEE and AEE 2
keeps its corporate records concerning the Facility, the Facility Site
and the Operative Documents is located at 1001 North 19th Street, 20th
Floor, Arlington, Virginia.
(h) Liens. (i) AEE has good record and marketable fee title in
the Facility Site, the Related Facility Site and the site of each of
the Additional Facilities, in each case free and clear of all Liens
other than Permitted Liens.
(ii) Upon execution and delivery of the Operative
Documents and recording of the instruments referred to in Part
I of Schedule 4.19 in accordance
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with Section 4.19, (A) good and marketable fee simple title to
the Undivided Interest will be duly, validly and effectively
conveyed and transferred to the Owner Trust, free and clear of
all Liens other than Permitted Liens, (B) a good and valid
leasehold interest in the Ground Interest will be duly,
validly and effectively granted to the Owner Trust upon the
terms and conditions in the Site Lease, free and clear of all
Liens other than Permitted Liens, and (C) a good and valid
easement estate in the Easements will be duly, validly and
effectively granted to the Owner Trust upon the terms and
conditions in the Site Lease, free and clear of all Liens
other than Permitted Liens.
(iii) When duly authorized, executed and delivered by
each of the parties thereto, the Indenture will create a valid
Lien in favor of the Indenture Trustee in the Indenture Estate
and no filing, recording, registration or notice with any
federal or state Governmental Entity will be necessary to
establish or, except for such filings and recordings as will
be made pursuant to Section 4.19, to perfect, or give record
notice of, the Lien of the Indenture to the extent such Lien
may be perfected by filings or recordings.
(iv) When duly authorized, executed and delivered by
each of the parties thereto, the Mortgage will create a valid
Lien in favor of the Mortgagee in the Mortgaged Property and
no filing, recording, registration or notice with any federal
or state Governmental Entity will be necessary to establish
or, except for such filings and recordings as will be made
pursuant to Section 4.19, to perfect, or give record notice
of, the Lien of the Mortgagee to the extent such Lien may be
perfected by filings or recordings.
(v) When duly authorized, executed and delivered by
each of the parties thereto, the Assignment of Leases will
create a valid Lien in favor of the assignee thereof in the
Leases and Income (as defined in the Assignment of Leases) and
no filing, registration or notice with any federal or state
Government Entity will be necessary to establish or, except
for such filings and recordings as will be made pursuant to
Section 4.19, to perfect, or give record notice of, the Lien
of such assignee to the extent such Lien may be perfected by
filings or recordings.
(vi) None of the Permitted Liens shall, on and after
the Closing, materially interfere with the use, operation or
possession of the Facility (as contemplated by the Operative
Documents) or the use of or exercise by the Owner Trust of its
rights under the Site Lease with respect to the Facility or
the Facility Site.
(i) Financial Statements. The Pro Forma Balance Sheet, copies
of which have been delivered to the Owner Participant and the Pass
Through Trustees, and the assumptions used in preparing the Pro Forma
Balance Sheet were made in good faith and are reasonable and fairly
present the financial condition of AEE, as of the date of such Pro
Forma Balance Sheet , and all material assumptions with respect to the
Pro Forma Balance Sheet are set forth therein.
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(j) Projections. All projections and budgets (including the
Base Case Projections) which are attached hereto as Schedule 3.1(j) and
which have been furnished to the Owner Participant or the Pass Through
Trustees by or on behalf of AEE (including projections and budgets
furnished by the Independent Engineer at the request of AEE) and the
summaries of significant assumptions related thereto (i) have been
prepared with due care in accordance with Prudent Industry Practices,
(ii) fairly present to the best of AEE's knowledge, AEE's expectations
as to the matters covered thereby as of their date, (iii) are based on
reasonable assumptions as to all factual and legal matters material to
the estimates therein (including interest rates and operation and
maintenance costs) and (iv) are, in all material respects,
comprehensive and consistent with the provisions of the Operative
Documents.
(k) Use of Proceeds. All proceeds of the Purchase Price shall
be used for the acquisition of the Facility.
(l) Regulatory Status/Utility Regulation. Each of AEE and AEE
2 is an "Exempt Wholesale Generator" as such term is defined in Section
32 of PUHCA. Neither AEE nor any of the AEE Entities is regulated as a
"public utility company", or a "holding company", a "subsidiary
company" or an "affiliate", in each case, of either a "holding company"
or a "public utility company", as such terms are defined in PUHCA. None
of the Owner Trust, the Owner Participant, AEE, the AEE Entities, any
Certificateholder nor any of their respective Affiliates is nor, solely
by virtue of the execution, delivery or performance of, or the
consummation of the Lease Financing (and in the case of the Owner
Participant and the Owner Trust, assuming that the representations and
warranties of the Owner Participant and the Owner Trust set forth
herein are true and correct at all times), will be regulated as a
"public utility company," or a "holding company," a "subsidiary
company" or an "affiliate," in each case, of either a "holding company"
or a "public utility company," as such terms are defined in PUHCA nor
subject to any electric utility regulation under New York law. Neither
AEE nor any AEE Entity is subject to electric rate regulation under New
York law.
(m) Investment Company Act. Neither AEE nor any AEE Entity is
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act.
(n) Securities Act. Neither AEE nor any AEE Entity (nor any
Person authorized by any of them) has directly or indirectly offered or
sold any interest in the Beneficial Interest, the Lessor Notes or the
Pass Through Certificates or any part thereof (or in any similar
security or lease, or in any security or lease the offering of which
for the purposes of the Securities Act would be deemed to be part of
the same offering as the offering of the Beneficial Interest, the
Lessor Notes or the Pass Through Certificates or any part thereof), or
solicited any offer to acquire any of the same, in violation of the
registration requirements of Section 5 of the Securities Act.
(o) Compliance With Laws. Each of AEE and the AEE Entities are
in compliance with all Applicable Laws, including, without limitation,
all Environmental
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Laws, and none of such parties has received any written notice from any
Governmental Entity of non-compliance with the need to perform any
work, make repairs or make any capital improvements in order to comply
with, or the imposition or threat of the imposition of penalties under,
Applicable Law, except as specified on Schedule 3.1(o) hereto and
otherwise, in the case of any Applicable Law other than Environmental
Law, where such non-compliance is the subject of appropriate
proceedings and could not reasonably be expected to result in a
Material Adverse Effect.
(p) Taxes. Each of AEE and the AEE Entities have filed, or
caused to be filed, all tax and information returns that are required
to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and
assessments payable by them, to the extent the same have become due and
payable, other than taxes the payment of which is being contested by
appropriate proceedings, in accordance with Section 5.7 and AEE has no
Actual Knowledge of any actual or proposed deficiency or additional
assessment in connection therewith which, either individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect.
(q) ERISA. (i) AEE and each of its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of
ERISA and the Code and the regulations and published interpretations
thereunder to the extent that they relate to any Plan with respect to
which AEE could have a direct or indirect, actual or contingent
liability except where such non-compliance could not reasonably be
expected to result in a Material Adverse Effect. None of AEE or any
ERISA Affiliate maintains or has maintained a Plan subject to Title IV
of ERISA within the last six years with respect to which any liability
continues to exist; provided, however, that pursuant to the Asset
Purchase Agreement, AEE is obligated to establish a Plan subject to
Title IV of ERISA effective as of the Closing Date. AEE is not (A) a
plan described in Section 3(3) of ERISA or Section 4975 of the Code or
(B) a "foreign person" as defined in Section 1445 of the Code.
(ii) Assuming the correctness of the representations of
the other parties hereto and of the Certificateholders in the
Certificates, the Lease Financing will not constitute a
non-exempt "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975(c)(1) of the Code (or in
the case of a governmental plan or church plan (each as
defined in ERISA) any substantially similar federal, state or
local law).
(r) Adequate Rights. (i) Based upon the reasonable
expectations of AEE, and subject to obtaining any necessary licenses,
permits and approvals from Governmental Entities, which under any
Applicable Law on the Closing Date the Owner Trust will be able to
obtain upon or before the expiration or earlier termination of the
Lease Term, (A) the rights and interests made available to the Owner
Trust or its permitted transferees pursuant to the Support Agreements
and the other Operative Documents, together with (B) all materials,
supplies and services, including, but not limited to, all natural gas,
electrical, telephone, water, sanitary waste disposal, ash disposal,
rail, coal supply, septic
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or water treatment system or services and all other utility services
necessary for the present use, operation and maintenance of the
Facility (currently available at the Facility, which to the Actual
Knowledge of AEE are connected under valid permits and in working
order, in all material respects) permit on a commercially practicable
basis commencing with the expiration or sooner termination of the Lease
Term, (1) the occupation, maintenance and repair of the Facility and
the Facility Site, (2) the use, operation, leasing and possession of
the Facility and the Facility Site, (3) the use, operation, leasing,
possession, maintenance, replacement, renewal and repair of all
alterations, modifications, additions, accessions, improvements,
appurtenances, replacements and substitutions thereof and thereto,
subject to the provisions of the Operative Documents, (4) appropriate
ingress to and egress from the Facility for any reasonable purpose in
connection with the exercise of rights under the Support Agreements and
with the Owner Trust's interest in the Facility and the Facility Site,
including, without limitation, access to dedicated public roads and to
the Actual Knowledge of AEE, all other material roads, easements,
servitude, rights-of-way and other rights of ingress and egress as are
necessary for the present operation, maintenance and use of the
Facility, (5) the procurement of other rights and services necessary or
appropriate to utilize the Facility in a commercial manner, (6)
transmission services from the Facility sufficient to enable the Owner
Trust to sell its share of the output of the Facility, and (7) the
operation of the Facility as an independent unit.
(ii) To the Actual Knowledge of AEE, in all material
respects (A) the electrical, plumbing, heating, drainage, air
conditioning, ventilation and other mechanical and electrical
systems on and in the Facility are in good working order and
repair and are adequate in quantity and quality for present
operation of the Facility by AEE under the Lease; and (B) the
Facility is otherwise in safe condition and there are no
structural or other patent defects in the roofs, and other
structural portions of the Facility, including walls, pillars,
supporting columns and foundations.
(iii) To the Actual Knowledge of AEE, other than
Permitted Liens, the use of the Facility does not in any
material respect depend on any variance, special exception or
other municipal approval, permit or consent that has not been
obtained for its present use, and all material building,
construction and use related permits, approvals and consents
necessary for such use have been issued and are in full force
and effect; provided, that no representation is made herein
regarding zoning ordinances or regulations.
(iv) To the Actual Knowledge of AEE, no default or
breach exists under any covenant, condition, restriction,
right-of-way, easement or other agreement affecting all or any
portion of the Facility which is to be performed or complied
with by the owner or occupant of all or any portion of the
Facility the nonperformance of which could reasonably be
expected to result in a Material Adverse Effect.
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(v) As of the Closing Date, there are no subleases,
rental agreements or other agreements conferring on any Person
other than AEE the right to use or occupy all or any portion
of the Facility or the Facility Site except those, if any,
reflected in the Title Policies.
(vi) To the Actual Knowledge of AEE, there are no
public improvements pending or intended that would result in
any charge or special assessment against the Facility, except
those, if any, reflected in the Title Policies delivered
pursuant to Section 4.26. To the Actual Knowledge of AEE, the
Facility is not subject to any material utility "tap-in" fees,
except those, if any, reflected in such Title Policies.
(s) Qualification to do Business. The qualification of the
Owner Participant, the Owner Trust, the Trustee, the Indenture Trustee
or the Pass Through Trustees to do business under the laws of the State
of New York or any political subdivision thereof is not required solely
as a consequence of the execution and delivery of the Operative
Documents, the making of the Equity Investment or the Loans or, prior
to expiration or termination of the Lease, the performance by the Owner
Participant, the Owner Trust, the Trustee, the Indenture Trustee or the
Pass Through Trustees of this Agreement or any other Operative Document
to which it is or will be a party, prior to the exercise of
dispossessing remedies under the Lease or the Indenture.
(t) Jurisdiction. In accordance with Section 16.13 hereof, AEE
has validly submitted to the jurisdiction of the Supreme Court of the
State of New York, New York County and the United States District Court
for the Southern District of New York.
(u) Environmental Matters. For purposes of this Section 3.1(u)
only, "Actual Knowledge" shall include actual knowledge that would have
been obtained after reasonable inquiry in light of the circumstances
prior to signing the Asset Purchase Agreement and the limitations in
the Asset Purchase Agreement.
(i) Except as specifically disclosed in the
Environmental Report and Schedule 3.1(u), neither AEE, nor any
AEE Entity, nor, to the Actual Knowledge of AEE, NYSEG or NGE
has received from any Governmental Entity any written notice,
letter, citation, order, warning, complaint, inquiry, claim or
demand that: (A) there has been a release, or there is a
threat of release, of any Hazardous Substance in, on, under or
from the Facility or the Facility Site except for releases
authorized under or in compliance with Applicable Laws,
including Environmental Laws; (B) AEE, NYSEG or NGE have or
has any material liability for the costs of cleaning up,
remedying or responding to a release of any Hazardous
Substance pertaining to the Facility or the Facility Site or
(C) either the Facility or the Facility Site is subject to a
Lien in favor of any Governmental Entity in response to a
release of any Hazardous Substance;
(ii) Except as specifically disclosed in the
Environmental Report and Schedule 3.1(u), AEE, and to the
Actual Knowledge of AEE, each of NYSEG and
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NGE have taken all required or necessary response actions,
including any removal or remedial or other response action, in
respect of any release, emission, discharge or disposal, or
threat of release, discharge, disposal or emission of any
Hazardous Substance, in, on, under or from the Facility or the
Facility Site, so as to be in material compliance with all
Applicable Laws, including Environmental Laws.
(iii) to the Actual Knowledge of AEE, except as
specifically disclosed in the Environmental Report and
Schedule 3.1(u):
(A) the Facility and the Facility Site and
the ownership, use, maintenance, modification and
operation of the Facility and the Facility Site are
now in compliance with applicable Environmental Laws
in all material respects;
(B) all Hazardous Substances generated,
maintained, produced, manufactured, processed,
distributed, used, treated, managed, stored,
contained, recycled, transported or handled on, to,
at or from the Facility or the Facility Site have
been disposed of in compliance with applicable
Environmental Laws in all material respects;
(C) no material Hazardous Substances are
located in, on, at or under the Facility or the
Facility Site, except to the extent incidental to the
current use of the Facility or the Facility Site, and
AEE, and to the Actual Knowledge of AEE, each of
NYSEG and NGE has not and is not currently
maintaining, producing, manufacturing, processing,
distributing, handling, treating, managing,
containing, recycling, transporting, releasing,
emitting, discharging, depositing, generating,
storing, disposing of or creating any Hazardous
Substances in its ownership, alteration,
modification, construction, use, operation or
maintenance of the Facility or the Facility Site
other than in compliance with applicable
Environmental Laws in all material respects;
(D) there are no material Environmental
Conditions with respect to the Facility or the
Facility Site;
(E) no Hazardous Substances have been
released at, to, under, about or from the Facility or
the Facility Site other than in compliance with all
Environmental Laws in all material respects;
(F) there are not any leaking underground
storage or treatment tanks, sumps, water, gas or oil
wells, or associated piping located at on or under
any of the Facility or the Facility Site;
(G) (1) there is no friable asbestos or urea
formaldehyde insulation contained in, forming any
part of, or contaminating any part of the Facility or
the Facility Site, and (2) no polychlorinated
biphenyls
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(PCBs) are used, stored, located at or contaminate
any part of the Facility or the Facility Site; and
(H) no Lien has attached to the Facility by
reason of any Environmental Condition.
(v) Subsidiaries. The AEE Subsidiaries in existence on the
Closing Date are the sole subsidiaries of AEE. AEE owns 100% of the
membership interests of each such AEE Subsidiary.
(w) No Brokers' Fees. Neither AEE nor any AEE Entity, nor any
Person acting on their behalf, has taken any actions the effect of
which would be to cause any party hereto to be liable for any brokers',
finders' or agents' fees or commissions or costs of any nature or kind
claimed by or on behalf of brokers, finders or agents in respect of the
Lease Financing except to the extent included in Transaction Expenses
or otherwise paid by AEE.
(x) Property. Each of AEE and the AEE Entities shall, upon
consummation of the transactions contemplated by the Asset Purchase
Agreement, have good and marketable title to and possession of, or a
good and valid leasehold interest in, the Assigned Assets (and AEE
shall have good and marketable fee simple title to the Facility Site)
free and clear of all Liens (except Permitted Liens), including all
intellectual property or rights to use intellectual property and other
rights required for the conduct of its respective business, but only to
the extent such intellectual property and other rights are required and
the failure to obtain such property could reasonably be expected to
result in a Material Adverse Effect. AEE is not a party to any contract
or agreement to sell any interest in the Facility other than pursuant
to the Operative Documents and the operative documents executed in
connection with the lease financings contemplated by the Other Leases.
(y) No Event of Loss. No Event of Loss has occurred, and, to
the Actual Knowledge of AEE, no event giving rise to an Event of Loss
is threatened, in each case with the respect to the Facility.
(z) Sales Taxes. Other than any Taxes included within
Transaction Expenses, all Taxes due and payable on the Closing Date in
connection with the sale of the Facility, the Lease of the Undivided
Interest and the Site Lease (and subsequent Site Sublease) of the
Facility Site, the issuance of the Lessor Notes and the Lease Financing
shall have been paid by or on behalf of AEE, and all filings,
reportings or other requirements with respect to such Taxes shall have
been satisfied by AEE. There are no ongoing use taxes applicable to the
foregoing except as set forth in the Base Case Projections.
(aa) Year 2000 Compliant. Each of AEE and the AEE Entities has
reviewed its operations with a view to assessing whether their business
or operations will, in the receipt, transmissions, processing,
manipulation, storage, retrieval, retransmission or other utilization
of data, be vulnerable to any significant risk that computer hardware,
software
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or any equipment containing embedded microchips used in their business
or operations will not in the case of dates or time periods occurring
after December 31, 1999 function at least as effectively as in the case
of dates or time periods occurring prior to January 1, 2000 (the -Year
2000 Issue"). AEE has no reason to believe that the risks associated
with the Year 2000 Issue are reasonably likely to result in a Material
Adverse Effect.
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Schedule 4.02
1. Section 3.1(h)(i) of each of the Participation Agreements is amended
to read as follows:
(h) Liens. (i) AEE has good record and marketable fee title in the
Facility Site and the Related Facility Site, in each case free and clear of all
Liens other than the Permitted Liens.
2. Section 3.1(q)(i) of each of the Participation Agreements is
modified by deleting the second to last sentence thereof.
3. Section 3.1 of each of the Participation Agreements is amended to
add the following sections:
(bb) AEE 2 Liens. (i) AEE 2 has good record and marketable fee
title in each of the Additional Facilities, in each case free and clear
of all Liens other than Permitted Liens.
(ii) None of the Permitted Liens shall, on and after
the Closing, materially interfere with the use, operation or
possession of the Additional Facilities.
(cc) AEE 2 Adequate Rights. (i) AEE 2 is able to obtain all
materials, supplies and services, including, but not limited to, all
natural gas, electrical, telephone, water, sanitary waste disposal, ash
disposal, rail, coal supply, septic or water treatment system or
services and all other utility services necessary for the present use,
operation and maintenance of the Additional Facilities (which to the
Actual Knowledge of AEE 2 and the AEE 2 Entities, all such services are
currently available and are connected under valid permits and in
working order, an all material respects) so as to permit on a
commercially practicable basis (1) the occupation, maintenance and
repair of the Additional Facilities, (2) the use, operation, leasing
and possession of the Additional Facilities, (3) the use, operation,
leasing, possession, maintenance, replacement, renewal and repair of
all alterations, modifications, additions, accessions, improvements,
appurtenances, replacements and substitutions thereof and thereto, (4)
appropriate ingress to and egress from the Additional Facilities for
any reasonable purpose in connection with the exercise of rights under
AEE 2's interest in the Additional Facilities, including, without
limitation, access to dedicated public roads and to the Actual
Knowledge of AEE and the AEE 2 Entities, all other material roads,
easements, servitude, rights-of-way and other rights of ingress and
egress as are necessary for the present operation, maintenance and use
of the Additional Facilities, (5) the procurement of other rights and
services necessary or appropriate to utilize the Additional Facilities
in a commercial manner, (6) transmission services from the Additional
Facilities sufficient to enable AEE 2 to sell the output of the
Additional Facilities, and (7) the operation of the Additional
Facilities as independent units.
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(ii) To the Actual Knowledge of AEE 2 or the AEE 2
Entities, in all material respects (A) the electrical,
plumbing, heating, drainage, air conditioning, ventilation and
other mechanical and electrical systems on and in the
Additional Facilities are in good working order and repair and
are adequate in quantity and quality for present operation of
the Additional Facilities by the AEE 2 Entities; and (B) the
Additional Facilities are otherwise in safe condition and
there are no structural or other patent defects in the roofs,
and other structural portions of the Additional Facilities,
including walls, pillars, supporting columns and foundations.
(iii) To the Actual Knowledge of AEE 2 or the AEE 2
Entities, other than Permitted Liens, the use of the
Additional Facilities do not in any material respect depend on
any variance, special exception or other municipal approval,
permit or consent that has not been obtained for its present
use, and all material building, construction and use related
permits, approvals and consents necessary for such use have
been issued and are in full force and effect.
(iv) To the Actual Knowledge of AEE 2 or the AEE 2
Entities, no default or breach exists under any covenant,
condition, restriction, right-of-way, easement or other
agreement affecting all or any portion of the Additional
Facilities which is to be performed or complied with by the
owner or occupant of all or any portion of the Additional
Facilities the nonperformance of which could reasonably be
expected to result in a Material Adverse Effect.
(v) There are no subleases, rental agreements or
other agreements conferring on any Person other than the AEE 2
Entities the right to use or occupy all or any portion of the
Additional Facilities.
(vi) To the Actual Knowledge of AEE 2 or the AEE 2
Entities, there are no public improvements pending or intended
that would result in any charge or special assessment against
the Additional Facilities, except those, if any, reflected in
the title policies relating to the Additional Facilities.
(dd) Additional Facilities Environmental Matters. For purposes
of this Section 3.1(dd) only, "Actual Knowledge" shall include actual
knowledge that would have been obtained after reasonable inquiry in the
light of the circumstances prior to signing the Asset Purchase
Agreement and the limitations in the Asset Purchase Agreement.
(i) Except as specifically disclosed in the
Environmental Report and Schedule 3.1(u), no AEE 2 Entity has
received from any Governmental Entity any written notice,
letter, citation, order, warning, complaint, inquiry, claim or
demand that: (A) there has been a release, or there is a
threat of release, of any Hazardous Substance in, on, under or
from the Additional Facilities except for releases authorized
under or in compliance with Applicable Laws, including
Environmental Laws, or any release or releases for which, in
the aggregate, no AEE 2 Entity has any material liability for
the costs of cleaning up, remedying or responding to a release
of any Hazardous Substance pertaining to the Additional
Facilities; (B) any
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AEE 2 Entity has any material liability for the costs of
cleaning up, remedying or responding to a release of any
Hazardous Substance pertaining to the Additional Facilities or
(C) any Additional Facility is subject to a Lien in favor of
any Governmental Entity in response to a release of any
Hazardous Substance;
(ii) Except for the conditions specifically disclosed
in the Environmental Report and Schedule 3.1(u), each AEE 2
Entity has taken all required or necessary response actions,
including any removal or remedial or other response action, in
respect of any release, emission, discharge or disposal, or
threat of release, discharge, disposal or emission of any
Hazardous Substance, in, on, under or from the Additional
Facilities, so as to be in material compliance with all
Applicable Laws, including Environmental Laws.
(iii) to the Actual Knowledge of each AEE 2 Entity,
except as specifically disclosed in the Environmental Report
and Schedule 3.1(u):
(A) the Additional Facilities and the
ownership, use, maintenance, modification and
operation of the Additional Facilities are now in
compliance with applicable Environmental Laws in all
material respects;
(B) all Hazardous Substances generated,
maintained, produced, manufactured, processed,
distributed, used, treated, managed, stored,
contained, recycled, transported or handled on, to,
at or from the Additional Facilities have been
disposed of in compliance with applicable
Environmental Laws in all material respects;
(C) no material Hazardous Substances are
located in, on, at or under the Additional
Facilities, except to the extent incidental to the
current use of the Additional Facilities, and each
AEE 2 Entity has not and is not currently
maintaining, producing, manufacturing, processing,
distributing, handling, treating, managing,
containing, recycling, transporting, releasing,
emitting, discharging, depositing, generating,
storing, disposing of or creating any Hazardous
Substances in its ownership, alteration,
modification, construction, use, operation or
maintenance of the Additional Facilities other than
in compliance with applicable Environmental Laws in
all material respects;
(D) there are no material Environmental
Conditions with respect to the Additional Facilities;
(E) no Hazardous Substances have been
released at, to, under, about or from the Additional
Facilities other than in compliance with all
Environmental Laws in all material respects;
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(F) there are not any leaking underground
storage or treatment tanks, sumps, water, gas or oil
wells, or associated piping located at on or under
any of the Additional Facilities, other than any such
for which, in the aggregate, no AEE 2 Entity has any
material liability for the costs of cleaning up,
remedying or responding to a release of any Hazardous
Substance pertaining to the Additional Facilities;
(G) (1) there is no friable asbestos or urea
formaldehyde insulation contained in, forming any
part of, or contaminating any part of the Additional
Facilities, and (2) no polychlorinated biphenyls
(PCBs) are used, stored, located at or contaminate
any part of the Additional Facilities other than any
of the foregoing for which, in the aggregate, no AEE
2 Entity has any material liability for the costs of
cleaning up, remedying or responding to a release of
any Hazardous Substance pertaining to the Additional
Facilities; and
(H) no material Lien has attached to the
Additional Facilities by reason of any Environmental
Condition.
(ee) AEE 2 Property. AEE 2 shall, upon consummation of the
transactions contemplated by the Asset Purchase Agreement, have good
and marketable title to and possession of the Additional Facilities
free and clear of all Liens (except Permitted Liens), including all
intellectual property or rights to use intellectual property and other
rights required for the conduct of its respective business, but only to
the extent such intellectual property and other rights are required and
the failure to obtain such property could reasonably be expected to
result in a Material Adverse Effect. AEE 2 is not a party to any
contract or agreement to sell any interest in the Additional
Facilities.
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Schedule 4.03
SCHEDULE OF REQUIRED CONSENTS AND
GOVERNMENTAL APPROVALS
[TO BE COMPLETED BY THE BORROWER AND APPROVED BY THE AGENT]
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Schedule 4.04
SCHEDULE OF MATERIAL LITIGATION
NONE
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Schedule 4.07
SCHEDULE OF ADDITIONAL MATERIAL ADVERSE FACTS
NONE
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Schedule 5.01
CERTAIN COVENANTS
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Schedule 6.01(a)
AES EASTERN ENERGY, L.P.
CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
I, __________, [President, Chief Financial Officer] of AES Eastern
Energy, L.P., a Delaware limited partnership (the "Borrower"), hereby state,
pursuant to Section 6.01(a) of the Secured Revolving O&M Costs Facility dated as
of May 14, 1999 among the Borrower, the Banks listed on the signature pages
thereof and Credit Suisse First Boston, as Agent (this "Agreement"), that:
(a) I have made, or caused to be made under my supervision, a
review of this Agreement and the Operative Documents; and
(b) such review has not disclosed the existence during such
fiscal quarter/year (and I do not have knowledge of the existence as of the date
of this certificate) of any condition or event constituting a Lease Material
Default or Lease Event of Default or an Event of Loss or an Event of Default
[or, if any such condition or event existed or exists, specifying the nature
thereof, the period of existence thereof and what action the Borrower has taken
or proposes to take with respect thereto].
and I hereby certify, pursuant to such Section 6.01(a), that
1. (a) The accompanying unaudited consolidated and consolidating
financial statements of the Borrower and its Consolidated Subsidiaries as at
__________ and for the quarterly accounting period ending __________, 19__, are
complete and correct and present fairly, in accordance with GAAP (except for
changes therein or departures therefrom described below that have been approved
in writing by Messrs. __________, the Borrower's current independent certified
public accountants), the consolidated and consolidating financial position of
the Borrower and its Consolidated Subsidiaries as at the end of such quarter,
and the consolidated and consolidating results of operations and cash flows for
such quarter, and for the elapsed portion of the fiscal year ended with the last
day of such quarter, in each case on the basis presented and subject only to
normal year-end auditing adjustments.
(b) Except as disclosed or reflected in such financial
statements, as at __________, neither the Borrower nor any Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, have had or might have a Materially Adverse Effect
on the Borrower and its Consolidated Subsidiaries taken as a whole.
2. (a) The changes in and departures from GAAP are as follows:
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All such changes have been approved in writing by Messrs. __________.
[(b) Attached as Annex A are unaudited consolidated and
consolidating financial statements of the Borrower and the Consolidated
Subsidiaries as at __________ and for the quarterly accounting period ending
__________, 19__, which have been prepared in accordance with GAAP without
giving effect to the changes referred to in Paragraph 2(a) of this Certificate
or any previous Certificate. Such financial statements are complete and correct
and present fairly, in accordance with GAAP, the consolidated and consolidating
financial position of the Borrower and the Consolidated Subsidiaries as at the
end of such quarter, and the consolidated and consolidating results of
operations and cash flows for such quarter, and for the elapsed portion of the
fiscal year ending with the last day of such quarter, in each case on the basis
presented and subject only to normal year-end auditing adjustments.]
3. There follow the calculations required to establish whether or not
the Borrower was in compliance with Section 2.05 of the Agreement.
4. Based on an examination sufficient to enable me to make an informed
statement, no Default exists, including, in particular, any such arising under
the provisions of Article 5, except the following:
[If none such exist, insert "None"; if any do exist, specify
the same by Section, give the date the same occurred, and the steps
being taken by the Borrower or a Subsidiary with respect thereto.]
Dated: _____________________________
[President, Chief
Financial Officer]
- ---------------
* Paragraph (b) should be included in, and Annex A attached to, the Certificate
only if changes from Generally Accepted Accounting Principles are specified in
Paragraph 2(a) of this or any previous Certificate.
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Schedule 6.02(a)
SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
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Schedule 7.01(g)
CERTAIN EVENTS OF DEFAULT
Attached to this Schedule 7.01(g) is Section 16 of the Facility Lease
Agreement (Kintigh A-1), dated as of May 14, 1999 between Kintigh Facility Trust
A-1 and AEE.
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SECTION 16
EVENTS OF DEFAULT
Any of the following events shall constitute a "Lease Event of Default"
hereunder (whether any such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any Governmental Entity):
(a) The Lessee shall fail to make any payment of Basic Rent
(other than Deferrable Payments, but only to the extent provided in
Section 3.4), or Termination Value, in each case within 5 Business Days
after the same shall become due.
(b) The Lessee shall fail to make any payment of Supplemental
Rent (other than Termination Value and, unless the Owner Participant
shall have declared a default with respect thereto, Excepted Payments)
after the same shall have become due and such failure shall have
continued for a period of 30 days after receipt by the Lessee of
written notice of such failure from the Owner Participant, the Lessor
or the Indenture Trustee.
(c) The Lessee shall fail to maintain insurance in the amounts
and on the terms set forth in Section 11.
(d) The Lessee shall fail to perform or observe any covenant,
obligation or agreement to be performed or observed by it under this
Lease or any other Operative Document, including without limitation any
covenant made by the Lessee herein or in Section 5 of the Participation
Agreement with respect to any AEE Entity (other than any covenant,
obligation or agreement contained in the Tax Indemnity Agreement or
Section 5.12 of the Participation Agreement or any covenant, obligation
or agreement referred to in clause (a), (b), (c), or (e) of this
Section 16) in any material respect, which shall continue unremedied
for 30 days after receipt by the Lessee of written notice thereof by
the Lessor or the Indenture Trustee; provided, however, that if such
condition cannot be remedied within 30 days, then the period within
which to remedy such failure shall be extended up to an additional 180
days, so long as the Lessee diligently pursues such remedy and such
condition is reasonably capable of being remedied within such
additional 180-day period.
(e) The Lessee shall fail to perform or observe in any
material respect its obligations set forth in Section 6 of the
Participation Agreement.
(f) Any representation or warranty made by the Lessee in the
Operative Documents (other than a Tax Representation) or in any Funding
Date Certificates (as defined in the Depositary Agreement), including
without limitation any representation or
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warranty made by the Lessee in Section 3 of the Participation Agreement
with respect to the Lessee or any AEE Entity, shall prove to have been
incorrect in any material respect when made and continues to be
material and unremedied for a period of 30 days after receipt by the
Lessee of written notice thereof by the Lessor or the Indenture
Trustee; provided, however, that if such condition cannot be remedied
within 30 days, then the period within which to remedy such condition
shall be extended up to an additional 180 days, so long as the Lessee
diligently pursues such remedy and such condition is reasonably capable
of being remedied within such additional 180-day period.
(g) The Lessee, AES NY or AEE 2 shall (i) commence a voluntary
case or other proceeding seeking relief under Title 11 of the
Bankruptcy Code or liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or apply for or consent
to the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property,
or (ii) consent to, or fail to controvert in a timely manner, any such
relief or the appointment of or taking possession by any such official
in any voluntary case or other proceeding commenced against it, or
(iii) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, or (iv) make a general
assignment for the benefit of creditors; or (v) shall take any action
to authorize any of the foregoing.
(h) An involuntary case or other proceeding shall be commenced
against the Lessee, AES NY or AEE 2, seeking (i) liquidation,
reorganization or other relief with respect to it or its debts under
Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other
similar law now or hereafter in effect, or (ii) the appointment of a
trustee, receiver, liquidator, custodian or other similar official with
respect to it or any substantial part of its property or (iii) the
winding-up or liquidation of the Lessee or AES NY or AEE 2; and such
involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 90 days.
(i) The holder of any Permitted Indebtedness of AEE or any AEE
Subsidiary in an aggregate principal amount in excess of $20,000,000
shall have commenced the exercise of any remedies upon a default and
declared such indebtedness due and payable prior to the date on which
it would otherwise have become due and payable, and otherwise
accelerated the indebtedness; provided, however, that a default with
respect to any Other Lease or Related Lease will not result in a Lease
Event of Default.
(j) One or more judgments or decrees shall be entered against
the Lessee, AES NY or AEE 2 involving in the aggregate a liability (not
paid or fully covered by insurance) of $25,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days after the entry thereof.
(k) at any time after the Closing Date:
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(i) AES shall cease to own or control, directly or
indirectly, at least 51% of the voting and economic interests
in the Lessee, which interests shall be free and clear of all
Liens; or
(ii) AES shall cease to own or control, directly or
indirectly, at least 51% of the voting and economic interests
in AES NY, which interests shall be free and clear of all
Liens; or
(iii) AES shall cease to own or control, directly or
indirectly, 51% of the voting and economic interests in AES
NY3, which interests shall be free and clear of all Liens; or
AES NY3 shall cease to own or control, directly or indirectly,
100% of the voting and economic interests in Somerset
Railroad, which interests shall be free and clear of [all
Liens other than any Lien created in connection with the Rail
Credit Facility or any facility replacing, refunding or
refinancing the Rail Credit Facility;] or
(iv) the Lessee shall cease to own and control,
directly or indirectly, 100% of the voting and economic
interests in each of the AEE Subsidiaries, which interests
shall be free and clear of all Liens, other than any Lien
created in connection with the Working Capital Facility or any
facility replacing, refunding or refinancing the Working
Capital Facility and any other Liens securing Permitted
Secured Indebtedness.
(1) The Lessee shall fail (i) to cause the Rent Reserve
Account to be funded in an amount at least equal to the Rent Reserve
Account Required Balance either through amounts available pursuant to a
Payment Undertaking Agreement, through amounts on deposit in the Rent
Reserve Account or through a combination thereof, on three consecutive
Rent Payment Dates (after giving effect to the payment of Basic Rent
(other than Deferrable Payments) on such dates) or (ii) at any time
after the payment in full of the Lessor Notes, to cause the Additional
Liquidity Account to be funded in accordance with the Depositary
Agreement in an amount at least equal to the Additional Liquidity
Required Balance, on three consecutive Rent Payment Dates (after giving
effect to the payment of Basic Rent (other than Deferrable Payments) on
such dates).
(m) The certificate of formation, operating agreement or
partnership agreement or such other organizational document of AEE, AES
NY or AES NY3, as applicable, shall be amended, changed, modified or
supplemented in any material respect.
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Schedule 10.09(a)
NOTICE OF ASSIGNMENT
AES Eastern Energy, L.P.
[Insert Address Information]
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Date:
Gentlemen:
Reference is made to the Secured Revolving O&M Costs Facility, dated as
of May 14, 1999 among AES Eastern Energy, L.P., the Banks listed on the
signature pages thereof and Credit Suisse First Boston, as Agent (the "Credit
Facility"). The undersigned hereby give notice pursuant to Section 10.09(a) of
the Credit Facility that [insert name of Assignor] (the "Assignor") has made the
following assignment to [insert name of Assignee] (the "Assignee"):
Rights and Obligations Assigned:
Effective Date of Assignment:
[The Assignee's Lending Offices and address for notices are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
Notice Address:] *
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The Assignor hereby requests that the Agent [and the Borrower] consent
to the assignment described above by signing a copy of this letter in the space
provided below and returning it to the Assignor. Such consent shall release the
Assignor from all of the obligations described above as having been assigned to
the Assignee.
[NAME OF ASSIGNOR]
By______________________________________
Name:
Title:
[NAME OF ASSIGNEE]
By______________________________________
Name:
Title:
Assignment and release consented to:
Credit Suisse First Boston*
as Agent
By______________________________________
Name:
Title:
AES Eastern Energy, L.P.**
as Borrower
By______________________________________
Name:
Title:
- ---------------------
* Omit if the Assignee is a Bank.
** Only when required pursuant to Section 10.09
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Exhibit A
AES EASTERN ENERGY, L.P.
PROMISSORY NOTE
May 14, 1999
FOR VALUE RECEIVED, AES EASTERN ENERGY, L.P. (the "Borrower") hereby
promises to pay to the order of Credit Suisse First Boston (the "Bank"), for the
account of its applicable Lending Office, the unpaid principal amount of each
Loan made by such Bank under the Credit Facility referred to below, on the dates
and in the amounts specified in Section 2.04 of such Credit Facility, and to pay
interest on the principal amount of each such Loan on the dates and at the rates
specified in Section 2.03 of such Credit Facility. All payments due to the Bank
hereunder shall be made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 2.11 of such Credit Facility.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Loan of the Bank and each payment,
with respect thereto.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Promissory Note evidences Loans made under, and is entitled to the
benefits of, the Secured Revolving O&M Costs Facility, dated as of May 14, 1999,
among the Borrower, the banks listed on the signature pages thereof and Credit
Suisse First Boston, as Agent, as the same may be amended from time to time.
Reference is made to such Credit Facility, as so amended, for provisions
relating to the prepayment and the acceleration of the maturity hereof. This
Promissory Note is also entitled to the Pledge Agreement.
This Promissory Note shall, pursuant to New York General Obligations
Law Section 5-1401, be governed by the law of the State of New York.
AES EASTERN ENERGY, L.P.
By_________________________________
Name:
Title:
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GRID
PROMISSORY NOTE
Date Amount of Loan Amount of Notation Made By
Principal Repaid
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