Exhibit 10.4
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
among
INDIANTOWN COGENERATION, L.P.,
as Borrower
and
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
AND ENTITIES PARTIES HERETO FROM TIME TO TIME
and
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent
dated as of October 10, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. Definitions................................. 1
SECTION 1.2. Construction................................ 6
ARTICLE II
COMMITMENTS AND LOANS
SECTION 2.1. Commitments................................. 7
SECTION 2.2. Making Loans................................ 7
SECTION 2.3. Interest.................................... 8
SECTION 2.4. Repayment................................... 9
SECTION 2.5. Prepayments................................. 9
SECTION 2.6. Fees........................................ 10
SECTION 2.7. Security.................................... 10
SECTION 2.8. Payments.................................... 10
SECTION 2.9. Computation of Interest and Fees............ 10
SECTION 2.10. Payments on Non-Business Days............... 11
SECTION 2.11. Sharing of Payments, Etc.................... 11
SECTION 2.12. Evidence of Debt............................ 11
SECTION 2.13. Increased Costs............................. 11
SECTION 2.14. Capital Adequacy............................ 12
SECTION 2.15. Taxes....................................... 12
SECTION 2.16. Change of Law............................... 15
SECTION 2.17. Non-Availability............................ 15
SECTION 2.18. Assignments by Banks........................ 16
SECTION 2.19. Refinancing Option.......................... 16
SECTION 2.20. Right of Set-off............................ 16
SECTION 2.21. Minimum Amounts............................. 17
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions Precedent to Effectiveness....... 17
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SECTION 3.2. Conditions Precedent to Each Borrowing...... 20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties.............. 21
ARTICLE V
COVENANTS
SECTION 5.1. Covenants................................... 21
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Defaults and Remedies....................... 23
ARTICLE VII
THE AGENT
SECTION 7.1. Authorization and Action.................... 26
SECTION 7.2. Agent's Reliance, Etc....................... 26
SECTION 7.3. Agent and Affiliates........................ 27
SECTION 7.4. Bank Credit Decision........................ 27
SECTION 7.5. Indemnification............................. 27
SECTION 7.6. Successor Agent............................. 27
SECTION 7.7. Collateral.................................. 28
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments, Etc............................. 28
SECTION 8.2. Notices, Etc................................ 29
SECTION 8.3. No Waiver; Remedies......................... 30
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SECTION 8.4. Costs and Expenses.......................... 30
SECTION 8.5. Application of Monies....................... 30
SECTION 8.6. Severability................................ 31
SECTION 8.7. Non-Recourse Liability...................... 31
SECTION 8.8. Binding Effect.............................. 31
SECTION 8.9. Assignments and Participation............... 32
SECTION 8.10. Indemnification............................. 33
SECTION 8.11. Governing Law............................... 34
SECTION 8.12. Consent to Jurisdiction and Venue........... 34
SECTION 8.13. Headings.................................... 35
SECTION 8.14. Execution in Counterparts................... 35
SECTION 8.15. Waiver of Jury Trial........................ 35
Schedule 1.1A Commitments
Schedule 1.1B Notices
Exhibit A Revolving Promissory Note
Exhibit B Notice of Borrowing
Exhibit C Commitment Transfer Supplement
Exhibit D Exemption Certificate
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REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement (this "Agreement"), dated as of October
10, 2003, is entered into by and among (1) INDIANTOWN COGENERATION, L.P., a
Delaware limited partnership (the "Borrower"), (2) the banks and other financial
institutions or entities from time to time party to this Agreement
(collectively, the "Banks") and (3) CREDIT LYONNAIS NEW YORK BRANCH, as agent
(in such capacity, together with its successors in such capacity, the "Agent")
for the Banks.
A. Pursuant to a Trust Indenture dated as of November 1, 1994
(the "Principal Indenture") among Indiantown Cogeneration Funding Corporation, a
Delaware corporation (the "Company"), the Borrower and NationsBank of Florida,
N.A., as trustee (in such capacity, together with its successors in such
capacity (as described in Recital E below), the "Trustee"), and each Series
Supplemental Indenture (as defined in the Principal Indenture) (the Principal
Indenture and all of the Series Supplemental Indentures herein collectively
called the "Indenture"), the Company and the Borrower authorized the creation of
issues of nonrecourse bonds, debentures, promissory notes and other evidences of
indebtedness to be issued in several series (collectively, the "Securities"),
the sale proceeds of which were advanced to the Borrower pursuant to the
Indenture.
B. In connection with the issuance of the Securities under the
Indenture, the Borrower, several banks party thereto and Credit Suisse, as
agent, entered into a Revolving Credit Agreement dated as of November 1, 1994
(the "Original Working Capital Facility") pursuant to which the banks party
thereto agreed to provide revolving loans to the Borrower up to an amount of
$15,000,000 upon the terms and conditions set forth therein.
C. On November 22, 2001, the Original Working Capital Facility
expired by its terms.
D. The Borrower has requested the Agent and the Banks, and the
Agent and the Banks have agreed, to enter into this Agreement to replace the
Original Working Capital Facility. Pursuant to this Agreement, the Banks will
provide revolving loans to the Borrower in an amount up to $10,000,000 upon the
terms and conditions hereinafter set forth.
E. The Bank of New York has succeeded NationsBank of Florida,
N.A. as Trustee, as Tax Exempt Trustee, and as Disbursement Agent.
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. Definitions. (a) Terms defined in the Indenture (in the
form of such terms as they exist on the date of this Agreement (including giving
effect to the Supplemental Indenture) and as they may hereafter be amended from
time to time, but only to the extent that the incorporation of any such
amendments into this Agreement has been consented to by the Required Banks in
writing) have, unless the same are defined herein or the context otherwise
requires, the same meanings when used herein (with appropriate substitutions
including without limitation the following: (i) the word "Indenture" as it
appears in the definition of Governmental
Approvals shall be replaced by the words "Working Capital Facility" and (ii) the
word "Trustee" as it appears in the definition of Officers' Certificate shall be
replaced by the word "Agent").
(b) The following terms are used in this Agreement with the following
respective meanings:
"Additional Contract" means any contract (other than a Project
Contract) providing for (i) the transmission or sale by the Borrower of any of
the Facility's electrical or steam output or (ii) the supply and transportation
of coal to the Facility (it being understood and agreed that the Massey Coal
Contract shall not be deemed to be an "Additional Contract" for any purpose of
this Agreement).
"Adjusted Base Rate" means the higher of (i) the Federal Funds Rate
plus 0.375% and (ii) the Prime Rate.
"Adjusted Base Rate Loan" means a Loan bearing interest at the Adjusted
Base Rate.
"Applicable Margin" means the rate per annum set forth under the
relevant column heading below:
Adjusted LIBOR Rate
Base Rate Loan
Loan
From and including the Closing Date to and excluding the 1.00% 2.00%
second anniversary of the Closing Date
From and including the second anniversary of the Closing 1.25% 2.25%
Date to and excluding the third anniversary thereof
"Borrowing" means a borrowing by the Borrower consisting of Loans made
by the Banks.
"Closing Date" means the date on which the conditions precedent set
forth in Section 3.1 have been fulfilled.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Cogentrix Eastern America" means Cogentrix Eastern America, Inc., a
Delaware corporation.
"Commitment" has the meaning set forth in Section 2.1(a).
"Commitment Transfer Supplement" means a Commitment Transfer Supplement
entered into by a Bank and another Person substantially in the form of Exhibit
C.
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"Company" has the meaning set forth in Recital A.
"Credit Documents" means this Agreement and the Notes.
"Default" means an event that with the giving of any required notice
and/or the lapse of any required time would constitute an Event of Default.
"Default Rate" has the meaning set forth in Section 2.3(a).
"Dollars" and "$" means dollars in lawful currency of the United
States.
"Engineering Advisor" means Energy & Environmental Engineering.
"Event of Default" has the meaning set forth in Section 6.1.
"Excluded Taxes" has the meaning set forth, in Section 2.15(a).
"Expiration Date" means the earliest of (i) the date that is three (3)
years after the Closing Date, unless extended pursuant to Section 2.1(b), in
which case such extended date, (ii) the date on which the Commitments are fully
canceled pursuant to Section 2.1(c), and (iii) the occurrence of an Event of
Default and the Agent's termination in accordance with Section 6.1 of this
Agreement of the obligation of each Bank to make Loans hereunder.
"Federal Funds Rate" means, for any period, the fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"First Amendment to Amended and Restated Management Services Agreement"
means that certain First Amendment to Amended and Restated Management Services
Agreement, dated on or about the date hereof, between the Borrower, as Owner,
and Power Services Company (f/k/a U.S. Generating Company), as Manager.
"First Amendment to Amended and Restated Operation and Maintenance
Agreement" means that certain First Amendment to Amended and Restated Operations
and Maintenance Agreement, dated on or about the date hereof, between the
Borrower, as Owner, and PG&E Operating Services Company (f/k/a U.S. Operating
Services Company), as Operator.
"First Amendment to Amended and Restated Authority Loan Agreement"
means that certain First Amendment to Amended and Restated Authority Loan
Agreement, dated on or about the date hereof, among the Borrower and Martin
County Industrial Development Authority.
"First Amendment to Assignment and Security Agreement" means that
certain First Amendment to Assignment and Security Agreement, dated on or about
the date hereof, among
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the Borrower, Deutsche Bank Trust Company Americas, as Collateral Agent, and The
Bank of New York, as Disbursement Agent.
"First Amendment to Intercreditor Agreement" means the First Amendment
to Collateral Agency and Intercreditor Agreement, dated as of the date hereof,
among the Borrower and the other parties to the Intercreditor Agreement.
"First Supplemental Indenture" means the First Supplemental Indenture
to the Tax-Exempt Indenture, dated on or about the date hereof, between the
Authority and the Tax Exempt Trustee.
"Indemnified Party" has the meaning set forth in Section 8.10.
"Indenture" has the meaning set forth in Recital A.
"Interest Period" means with respect to any LIBOR Rate Loan, an
interest period of one (1) or three (3) months; provided that:
(A) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding
Business Day;
(B) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(C) any Interest Period that would otherwise extend
beyond the W/C Note Repayment Date, shall end on the W/C Note Repayment
Date for such Loan.
"LIBOR Rate" means, with respect to each day during each Interest
Period pertaining to any LIBOR Rate Loan, the rate of interest for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate Service (or otherwise on such service), the "LIBOR Rate" shall be
determined by reference to the London Interbank Fixing Rate as published in the
Financial Times, or if normal publication of the Financial Times is suspended
for more than two days at a time that a quotation for a "LIBOR Rate" is sought,
the "LIBOR Rate" shall be determined by reference to the London Interbank
Offered Rate as quoted by National Westminster Bank plc (and displayed by
Reuters). In the event that none of the foregoing is available, the "LIBOR Rate"
shall instead be the rate per annum (rounded upward to the nearest 1/100th of
1%) at which the Agent is offered Dollar deposits (in the approximate amount of
the LIBOR Rate Loan to be made) at or about 11:00 A.M., local time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations
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in respect of its LIBOR Rate Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of the LIBOR Rate Loans to be outstanding
during such Interest Period.
"LIBOR Rate Loan" means a Loan bearing interest at the LIBOR Rate.
"Loan" has the meaning set forth in Section 2.1(a).
"Massey Coal Contract" means that certain Coal Purchase and Sales
Agreement, dated as of February 5, 2003, between the Borrower and Massey Coal
Sales Company, Inc., as amended, supplemented or otherwise modified from time to
time.
"Note" has the meaning set forth in Section 2.12(a).
"Notice of Borrowing" has the meaning set forth in Section 2.2(a).
"Obligations" means all of the obligations of the Borrower to the Banks
and the Agent under this Agreement and the Notes, whether for principal,
interest, fees, expenses, indemnification or otherwise.
"Participant" has the meaning set forth in Section 8.9(c).
"Prime Rate" means the variable rate of interest per annum officially
announced or published by the Agent from time to time as its "prime rate," such
rate being set by the Agent as a general reference rate of interest, taking into
account such factors as the Agent may deem appropriate, it being understood that
many of the Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Agent may make various commercial or other loans at rates
of interest having no relationship to such rate. For purposes of this Agreement,
each change in the Prime Rate shall be effective as of the opening of business
on the date announced as the effective date of the change in such "prime rate."
"Principal Indenture" has the meaning set forth in Recital A.
"Purchasing Bank" has the meaning set forth in Section 8.9(a).
"Quarterly Date" has the meaning set forth in Section 2.6.
"Register" has the meaning set forth in Section 2.1.
"Regulatory Change" means, subsequent to the date of this Agreement,
any adoption or change in United States Federal, state or municipal or foreign
law or regulations (including without limitation Regulation D) or the adoption
or change or making of any application, interpretation, directive, request or
guideline of or under any United States Federal, state or municipal or foreign
law or regulations by any court, central bank or Governmental Authority.
"Required Banks" means, at any time, Banks (one of which shall be the
Agent) owed at least 66-2/3 % of the sum of the aggregate unpaid principal
amount of the Loans and/or the
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Commitments; provided, however, that, if and so long as there are only two
Banks, "Required Banks" shall mean both of such Banks.
"Reserve Requirement" means, for LIBOR Rate Loans, the rate (expressed
as a percentage) at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during the Interest Period
therefor under Regulation D by member banks of the Federal Reserve System in New
York City with deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D).
"Securities" has the meaning set forth in Recital A.
"Taxes" means any and all present or future income, stamp, transfer,
turnover and other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and any and all interest, penalties, claims or
other liabilities arising under or relating thereto, including those on any of
the Banks or on payments to be made to or received by any of them from the
Borrower hereunder. The term "Taxes" specifically includes so-called recurring
and nonrecurring intangibles taxes that are imposed under Chapter 199 of the
Florida statutes and documentary stamp taxes that are imposed under Chapter 201
of the Florida statutes.
"Third Supplemental Indenture" means that certain Third Supplemental
Indenture to the Principal Indenture, dated on or about the date hereof, among
the Borrower, the Company and the Trustee.
"Total Commitment Amount" means at any time, the aggregate amount of
the Commitments then in effect; as such amount may be increased pursuant to
Section 8.1; provided, that in no event shall the Total Commitment Amount exceed
$10,000,000 without the consent of the Borrower and the Agent. The Total
Commitment Amount as of the Closing Date is $3,000,000.
"Trustee" has the meaning set forth in Recital A.
"W/C Note Repayment Date" means, in respect of each Loan, ninety (90)
days from the date such Loan is advanced to the Borrower pursuant to the terms
of this Agreement.
SECTION 1.2. Construction. In this Agreement, unless expressly
specified to the contrary: the singular includes the plural and the plural the
singular; words importing any gender include the other genders; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible, visible form; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), recitals,
appendices, exhibits, annexes or schedules are to those of this Agreement;
references to agreements and other instruments shall be deemed to include all
amendments and other modifications to such agreements and instruments, but only
to the extent such amendments and other modifications are not prohibited by the
terms of this Agreement; references to Persons include their respective
permitted successors and assigns and, in the case of Governmental Authorities,
Persons succeeding to their respective functions and capacities; and all
accounting
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terms used in this Agreement shall be interpreted, all accounting determinations
under this Agreement shall be made and all financial statements required to be
delivered under this Agreement shall be prepared in accordance with generally
accepted accounting principles as in effect from time to time, on a basis
consistent with the most recent audited financial statements, if any, of the
relevant Person delivered to the Agent, or otherwise reasonably acceptable to
the Agent.
ARTICLE II
COMMITMENTS AND LOANS
SECTION 2.1. Commitments. (a) Subject to the terms and conditions of
this Agreement, each Bank irrevocably agrees severally to extend credit to the
Borrower from time to time from the Closing Date to the Expiration Date by
making loans to the Borrower (each a "Loan") pursuant to Section 2.2, in an
aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Bank's name on the attached Schedule 1.1A or, if such Bank has
entered into one or more Commitment Transfer Supplements, set forth for such
Bank in the register (the "Register") maintained by the Agent (said agreement by
each Bank, as the same may be reduced from time to time pursuant to the terms of
this Agreement, herein called such Bank's "Commitment"). Within the limits of
each Bank's Commitment, the Borrower may borrow under Section 2.2, prepay Loans
under Sections 2.5(a) and (b) and reborrow under Section 2.2 in accordance with
the terms of this Agreement.
(b) Upon receipt from the Borrower of a written request not more than
ten (10) months and not less than nine (9) months prior to the original
Expiration Date or any extension thereof pursuant to this Section 2.1(b), the
Banks may, in their sole discretion, extend the original or extended Expiration
Date, as the case may be, for an additional year. If the Banks agree to extend
the Expiration Date, the Agent shall notify the Borrower of the Banks' decision
regarding such extension at least six (6) months prior to the then current
Expiration Date. The Banks have no obligation to respond to a request to extend
then Expiration Date and if the Agent does not respond to such a request at
least six (6) months prior to the then current Expiration Date, the Banks shall
be deemed to have rejected such request. If the Banks agree to extend the then
current Expiration Date, the Expiration Date shall, effective from the date of
the Agent's notice to the Borrower, be the date referred to in the Agent's
notice.
(c) The Borrower shall have the right, from time to time upon at least
five (5) Business Days' notice to the Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the Banks.
SECTION 2.2. Making Loans. (a) Each Borrowing shall be made on notice,
given by the Borrower to the Agent not later than 10:00 a.m., New York time, at
least two (2) Business Days before the date of the proposed Borrowing, provided,
however, if such Borrowing will bear interest at the LIBOR Rate, such notice
shall be given not later than 10:00 a.m., New York time at least three (3)
Business Days before the date of the proposed Borrowing, and the Agent shall
give each Bank prompt notice thereof by facsimile. Each such notice of a
Borrowing shall be in the form of Exhibit B (a "Notice of Borrowing"), or by
telephone confirmed promptly in a Notice of Borrowing, by an Authorized
Representative of the Borrower, specifying (i) the
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requested date of such Borrowing (which shall be a Business Day), (ii) the
requested aggregate amount of such Borrowing, (iii) whether such Borrowing will
bear interest at the LIBOR Rate or the Adjusted Base Rate and, in the case of
LIBOR Rate borrowings, the Interest Period applicable thereto, and (iv) the fact
that the statements set forth in Section 3.2(b) are true as of the date of such
Notice of Borrowing. Each Bank shall, before 11:00 a.m., New York time, on the
date of such Borrowing, make available to the Agent at its address set forth in
Section 8.2, in immediately available funds, such Bank's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Section 3.2, the Agent will make such funds
available to the Borrower by transferring such funds to the Revenue Account
established and held by the Disbursement Agent.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(c) Unless the Agent receives notice from a Bank before the date of any
Borrowing that such Bank will not make available to the Agent such Bank's
ratable portion of such Borrowing, the Agent may assume that such Bank has made
such portion available to the Agent on the date of such Borrowing in accordance
with Section 2.2(a), and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Bank has not made such ratable portion available to the Agent,
and the Agent has made such amount available to the Borrower, the Agent shall
first make written demand upon such Bank for payment and shall be entitled to
recover such corresponding amount on demand from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Agent's demand therefor,
the Agent shall promptly notify the Borrower and the Borrower shall immediately
repay such corresponding amount to the Agent; provided, that if the Borrower
repays such corresponding amount to the Agent and such Bank subsequently makes
available to the Agent its ratable portion of such borrowing, the Agent shall
promptly make the proceeds thereof available to the Borrower. The Agent shall
also be entitled to recover from such Bank or the Borrower, as the case may be,
without duplication, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by the Agent to
the Borrower to the date such corresponding amount is recovered by the Agent at
the following interest rates: (A) with respect to interest from the Borrower, at
the applicable interest rate selected by the Borrower with respect to such
amount and (B) with respect to interest from such Bank, at the Federal Funds
Rate. If such Bank repays to the Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan as part of such Borrowing for purposes
of this Agreement.
(d) The failure of any Bank to make the Loan to be made by it as part
of any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on the date of any Borrowing.
SECTION 2.3. Interest. (a) The Borrower shall pay interest on the
unpaid principal amount of each Loan made by each Bank, from the date of such
Loan until such principal amount has been repaid in full, at a rate per annum
equal to (a) so long as no Event of Default has occurred and is continuing,
either (i) the sum of the Adjusted Base Rate in effect from time to time plus
the Applicable Margin or (ii) the sum of the LIBOR Rate in effect from time to
time plus the Applicable Margin and (b) on and after the date of the occurrence
of any Event of
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Default, so long as such Event of Default is continuing, the sum of the Adjusted
Base Rate in effect from time to time plus the Applicable Margin plus 2.0% per
annum (the "Default Rate"). Interest payable pursuant to this Section 2.3 shall
be payable monthly in arrears on the first Business Day of each month.
(b) Each Loan made pursuant to Section 2.2 shall initially bear
interest based on the Adjusted Base Rate as in effect from time to time plus the
Applicable Margin; provided, however, that prior to the making of any Loan, the
Borrower may give the Agent written notice of the Borrower's election that such
Loan shall bear interest based on the LIBOR Rate. Such notice shall be
irrevocable and shall be effective only if received by the Agent not later than
10:00 a.m. (New York time) three (3) Business Days prior to the date of the
proposed Borrowing. The Agent shall promptly notify the Banks of the contents of
each such notice. Subject to Sections 2.3(d), 2.17 and 2.21, such Loan shall
then bear interest based on the LIBOR Rate plus the Applicable Margin from the
date of such Loan.
(c) Subject to Sections 2.3(d), 2.17 and 2.21, unless an Event of
Default shall have occurred and be continuing, the Borrower may at any time, (i)
upon three (3) Business Days' irrevocable written notice to the Agent, convert
any Adjusted Base Rate Loan to a LIBOR Rate Loan or (ii) upon two (2) Business
Days' irrevocable written notice to the Agent, convert any LIBOR Rate Loan to an
Adjusted Base Rate Loan, provided that a LIBOR Rate Loan may be converted only
on the last day of the applicable Interest Period. The Agent shall promptly
notify the Banks of the contents of each such notice. In the event that the
Borrower fails to select the applicable interest rate, within the time period
and otherwise as provided in this Section 2.3(c), such Loan (if outstanding as a
LIBOR Rate Loan) will be automatically converted into an Adjusted Base Rate Loan
on the last day of the then-current Interest Period for such Loan or (if
outstanding as an Adjusted Base Rate Loan) will remain as an Adjusted Base Rate
Loan.
(d) The Borrower shall pay to the Agent for the account of each Bank,
upon the request of such Bank through the Agent, such amount or amounts as shall
be sufficient (in the reasonable opinion of such Bank) to compensate it for any
loss, cost or expense which such Bank determines is attributable to any failure
for any reason (i) of any LIBOR Rate Loan, pursuant to a notice given under
Section 2.2(a) to occur or (ii) of the Borrower to convert an Adjusted Base Rate
Loan from such Bank to a LIBOR Rate Loan as and when specified in the relevant
notice given pursuant to Section 2.3(c).
SECTION 2.4. Repayment. The Borrower shall repay each Loan on the
applicable W/C Note Repayment Date. In addition, the Borrower shall repay all
outstanding Loans in full at least once each calendar year, and the Borrower
shall not make any Borrowing for a period of at least 10 consecutive Business
Days thereafter.
SECTION 2.5. Prepayments. (a) The Borrower may, at any time and from
time to time on any Business Day, upon prior written notice to the Agent not
later than 10:00 a.m., New York time, (i) at least two (2) Business Days before
the day of any prepayment in the case of Adjusted Base Rate Loans and (ii) at
least three (3) Business Days before the day of any prepayment in the case of
LIBOR Rate Loans, such notice stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
without premium or penalty the outstanding principal amounts of the Loans making
up
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one or more Borrowings in whole or in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid.
(b) The Borrower agrees to indemnify each Bank and hold each Bank
harmless from any direct loss (but excluding any indirect, consequential or
incidental loss or damage), cost or out-of-pocket expense which such Bank incurs
as a result of a prepayment of any LIBOR Rate Loan on a date which is not the
last day of an Interest Period applicable thereto.
(c) All prepayments made hereunder shall be applied by the Agent and
the Banks against the principal amount of outstanding Loans in the order they
were made.
SECTION 2.6. Fees. The Borrower shall pay to the Agent for the
respective accounts of the Banks, during the period from the Closing Date to the
Expiration Date, a nonrefundable commitment fee at the rate of 0.50% per annum
on the average daily amount for the applicable quarter by which the Total
Commitment Amount exceeds the aggregate principal amount of all Loans
outstanding for such quarter, payable quarterly in arrears on the first Business
Day of March, June, September and December (each such Business Day, a "Quarterly
Date") of each year, commencing December 2003.
SECTION 2.7. Security. The Obligations shall be secured by the Security
Documents, the rights and remedies in respect of which shall be exercised
pursuant to the Intercreditor Agreement.
SECTION 2.8. Payments. (a) The Borrower shall make each payment
hereunder and under the Notes not later than 10:00 a.m., New York time, on the
day when due in Dollars to the Agent at its address set forth in Section 8.2, in
immediately available funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest or fees
ratably (other than amounts payable pursuant to Section 8.4) to the Banks and
like funds relating to the payment of any other amount payable to any Bank to
such Bank, in each case to be applied in accordance with the terms of this
Agreement.
(b) Unless the Agent receives notice from the Borrower before the date
on which any payment is due to the Banks hereunder 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 may, in reliance upon
such assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due to such Bank. If and to the extent that the
Borrower has not so made such payment in full to the Agent, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date on which such Bank repays such amount to
the Agent, at the Federal Funds Rate.
SECTION 2.9. Computation of Interest and Fees. All computations of
interest and fees hereunder shall be made on the basis of a year of three
hundred sixty (360) days (or, in the case of interest on Adjusted Base Rate
Loans that are based on Prime Rate, three hundred sixty five (365) days or three
hundred sixty six (366) days, as the case may be) for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such
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interest or fees are payable. Each calculation and each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes absent manifest error.
SECTION 2.10. Payments on Non-Business Days. Whenever any payment
hereunder or under any Note is stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest or fees, as the case may be. If no due date is specified for the
payment of any amount payable by the Borrower hereunder, such amount shall be
due and payable not later than ten (10) Business Days after receipt by the
Borrower of written demand from the Agent for payment thereof.
SECTION 2.11. Sharing of Payments, Etc. If any Bank obtains any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of its Commitment or the Loans made by it (other than
pursuant to Section 8.4) in excess of its ratable share of payments on account
of the Commitments or the Loans obtained by all of the Banks, then such Bank
shall be deemed to have received such payment as agent for and on behalf of all
the Banks and shall immediately advise the Agent of the receipt of such funds
and promptly transmit the amount thereof to the Agent for prompt distribution
among the Banks as provided for in this Agreement and such funds transmitted to
the Agent shall be credited as a payment by the Borrower under this Agreement;
provided, that such Bank so transmitting funds to the Agent shall not be deemed
to have received, and the Borrower shall be deemed not to have made to such Bank
(to the extent funds are transmitted to the Agent) any payment transmitted to
the Agent by such Bank pursuant to this Section 2.11.
SECTION 2.12. Evidence of Debt. (a) The indebtedness of the Borrower
resulting from all Loans made by each Bank from time to time shall be evidenced
by an appropriately completed Revolving Promissory Note substantially in the
form of Exhibit A (each a "Note"), delivered by the Borrower to such Bank.
(b) The books and accounts of the Agent shall be conclusive evidence,
absent manifest error, of the amounts of all Loans, fees, interest and other
amounts advanced, due, outstanding, payable or paid pursuant to this Agreement
or any Note.
SECTION 2.13. Increased Costs. If, after the date hereof, any
introduction of or change in any Law or in the interpretation thereof by any
Governmental Authority charged with the administration thereof either (a)
imposes, modifies or makes applicable any reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of, or
credit extended by, the Agent or any Bank or (b) imposes on the Agent or any
Bank any other condition regarding this Agreement, the Agent, such Bank or the
making of Loans hereunder, and the result of any event referred to in the
preceding clause (a) or (b) is to increase the cost to the Agent or such Bank of
making Loans hereunder, reduce the amount of any payment receivable by the Agent
or such Bank hereunder or reduce the rate of return on any Bank's capital as a
consequence of its obligations hereunder below that which such Bank would have
achieved but for such circumstance, then, in each such case, upon demand by the
Agent or such Bank, the Borrower shall pay to the Agent or such Bank, from time
to time as specified thereby, additional amounts sufficient to compensate the
Agent or such Bank for such increased costs, reduction in payments receivable or
reduction in a rate of return. A certificate as to the amount
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of such increased cost, submitted to the Borrower by the Agent or by any Bank
through the Agent, shall be conclusive and binding for all purposes, absent
manifest error.
SECTION 2.14. Capital Adequacy. If the Agent or any Bank reasonably
determines that compliance with any Law affects or would affect the amount of
capital required or expected to be maintained by the Agent or such Bank or any
corporation controlling the Agent or such Bank and that the amount of such
capital is increased by or based upon the existence of such Bank's Commitment or
the making of Loans hereunder, then, upon demand by the Agent or such Bank, the
Borrower shall pay to the Agent or such Bank, from time to time as specified
thereby, additional amounts sufficient to compensate the Agent or such Bank in
light of such circumstances, to the extent that the Agent or such Bank
reasonably determines such increase in capital to be allocable to the existence
of such Bank's Commitment or the making of Loans hereunder. A certificate as to
such amounts submitted to the Borrower by the Agent or by any Bank through the
Agent shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.15. Taxes. (a)Payments by the Borrower to each of the Banks
under this Agreement and the Notes will be made free and clear of and without
deduction for Taxes, other than Taxes based on the net income of such Bank
(including franchise taxes imposed in lieu of net income taxes) imposed by (x)
the United States federal government, (y) the jurisdiction where such Bank is
organized or has its principal office or (z) the jurisdiction of the branch of
such Bank maintaining any Loan or the branch of the Agent through which it
renders its services as Agent ("Excluded Taxes"). If the Borrower is required by
law to deduct Taxes (other than Excluded Taxes) from such a payment, then the
sum payable under the instrument to which the payment relates will be increased
so that there is no diminution in the amount any Bank actually receives on
account of the deduction.
(b) The Borrower hereby indemnifies and holds harmless each Bank from
and against, and agrees to reimburse each Bank on an after-tax basis (computed
taking into account any deductions or other benefits available for federal
income tax purposes for the Bank if it is a United States taxpayer and any
deductions and benefits available for income tax purposes in any jurisdiction in
which such Bank is a taxpayer) on demand for, any and all Taxes paid or incurred
by such Bank in connection with the transactions contemplated by this Agreement;
provided, however, that the foregoing indemnity does not cover Excluded Taxes.
Reimbursement on an "after-tax basis" means on a basis such that the Bank is
made whole after taking into account income taxes that the Bank will owe on the
indemnity or reimbursement payment in any jurisdiction and any related tax
benefits, assuming the Bank is subject to income taxes at the highest marginal
rates. Nothing in this paragraph shall interfere with the right of any Bank to
arrange its tax affairs in whatever manner it thinks fit and, in particular, no
Bank is under any obligation to claim a deduction or other benefit relating to
these transactions ahead of any other claim, relief, credit, deduction or other
benefit to which it is entitled. The applicable Bank shall promptly give written
notice to the Borrower (but in no event later than sixty (60) days) after such
Bank has actual knowledge of the imposition of any Taxes subject to
indemnification hereunder; provided, however, that failure to give such notice
within such sixty (60) day period will not relieve the Borrower of the
obligation to indemnify such Bank in accordance with the terms hereof, except to
the extent of interest that would have been avoided had the notice been given
prior to the end of such sixty (60) day period.
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(c) All payments made by the Borrower to each of the Banks under this
Agreement and the Notes will be made without setoff, counterclaim or other
defense.
(d) (i)The Borrower will provide evidence that all Taxes imposed on
payments under this Agreement, any Loan or the Notes, have been fully paid to
the appropriate authorities by delivering official receipts, notarized copies or
confirmations by the Disbursement Agent or the Trustee of payment thereof to the
Agent within thirty (30) days after payment. The Borrower will compensate any
Bank that has to pay any Taxes because the Borrower failed to timely furnish
such evidence; provided, that prior to paying such Taxes, such Bank shall have
given the Borrower notice of its intent to make such payment and a reasonable
opportunity to contest such Taxes as described in the following paragraph.
(ii) If the Borrower so requests promptly in writing after
receipt of any notice under this Section 2.15, such Bank will contest in good
faith the Taxes at the Borrower's expense, keep the Borrower fully informed
about the progress of the contest, consult in good faith with the Borrower's
counsel regarding conduct of the contest, and not compromise or otherwise settle
the contest without the Borrower's consent (which shall not be unreasonably
withheld or delayed); provided that the Bank may in its sole discretion select
the forum for the contest and determine whether the contest will be by resisting
payment of the Taxes or by paying the Taxes and seeking a refund; provided,
further that the Bank will be under no obligation to contest unless (V) if the
Bank requests, the Borrower has provided the Bank an opinion of independent tax
counsel selected by the Borrower and reasonably acceptable to the Bank to the
effect that there is a reasonable basis for the contest, (W) the amount in
controversy is at least $75,000, (X) the Bank has received satisfactory
indemnification and security for any liability, loss, cost or expense arising
out of the contest (including, but not limited to, all reasonable legal and
accounting fees and expenses, penalties, interest and additions to tax), (Y) if
requested by the Bank, the Borrower has admitted in writing its duty to
indemnify the Bank for the Taxes if the contest is lost (but such admission
shall not preclude the Borrower from raising a defense to liability if a court
of competent jurisdiction has rendered a decision articulating the cause of such
Taxes, and the cause is not one for which the Borrower is responsible under this
Section 2.15), and (Z) if the contest is conducted in a manner that requires
paying all or part of the Taxes, the Borrower has paid the amount required.
(iii) If the Borrower so requests within ten (10) days of
notice to the Borrower of the imposition of any Taxes on payments to any of the
Banks of a type not generally imposed on United States or foreign lenders making
loans of the types contemplated hereunder, such Banks shall (consistent with
legal and regulatory restrictions) comply with Section 2.20 hereof.
(e) Each Bank (or Participant) that is not a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") agrees that it will
deliver to the Agent (or, in the case of a Participant, to the Bank from which
the related participation shall have been purchased) and the Borrower two copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI, or, in the case
of a Non-U.S. Lender claiming exemption from United States federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a statement substantially in the form of Exhibit D and a
Form W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, United States
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federal withholding tax on all payments made by the Borrower under this
Agreement and the other Credit Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes party to this Agreement (or, in
the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver such
forms before the expiration, obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the United States taxing authorities for such
purpose). Notwithstanding any other provision of this paragraph, (A) a Non-U.S.
Lender shall not be required to deliver any form pursuant to this paragraph that
such Non-U.S. Lender is not legally able to deliver, and (B) in the event that a
Non-U.S. Lender cannot legally deliver any form as of the date such Non-U.S.
Lender becomes a party to this Agreement, the Borrower shall be under no
obligation to pay any additional amount or indemnity pursuant to this Section
2.15 (or otherwise) with respect to any United States withholding taxes that are
in effect and that would apply to a payment under this Agreement or the Notes
made to such Non-U.S. Lender as of such date; provided, however, that this
clause (B) shall not apply to the extent such Non-U.S. Lender's assignor (or the
Bank from whom such participation was purchased) (if any) was entitled, at the
time of the assignment (or sale of participation), to receive additional amounts
or indemnity from the Borrower. The provisions of this Section 2.15(e) shall
apply to any successor holder of a Note. Each Bank that is a "U.S. Person" as
defined in Section 7701(a)(30) of the Code and is not a corporation or other
exempt recipient shall deliver to the Agent (or, in the case of a Participant,
to the Bank from which the related participation shall have been purchased) and
the Borrower two copies of United States Internal Revenue Service Form W-9 on or
before the date such Bank becomes a party to this Agreement and before the
expiration of any such form previously delivered by such Bank.
(f) Notwithstanding the foregoing, if (A)(i) any Non-U.S. Lender has
previously delivered a Form W-8ECI or a successor applicable form and (ii) by
virtue of any action taken or not taken voluntarily by such Non-U.S. Lender,
such Non-U.S. Lender is not lawfully entitled to deliver a subsequent Form
W-8ECI or applicable successor form solely as a result of such Non-U.S. Lender's
failure to be engaged in the active conduct of a trade or business in the United
States or a determination that all amounts to be paid to such Non-U.S. Lender
hereunder are not effectively connected to such trade or business or (B) any
Non-U.S. Lender fails to comply with the requirements of paragraph (e) of this
Section when such Non-U.S. Lender is qualified to so comply, the Borrower shall
be under no obligation to compensate or indemnify such Non-U.S. Lender under
this Section 2.15 or otherwise with respect to any Tax required to be paid or
withheld under United States federal income tax law that would not have been
required to be paid or withheld had such Non-U.S. Lender so complied.
(g) Notwithstanding anything contained in this Section 2.15, the
Borrower shall not be required to indemnify or reimburse any Bank who has failed
to make available to the Agent its portion of any Loan on the date required to
be made available to the Agent pursuant to this Agreement after the Agent has
made written demand upon such Bank for such payment for any additional
documentary stamp taxes or intangibles taxes incurred by such Bank solely as a
result of such failure.
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SECTION 2.16. Change of Law. (a) Notwithstanding any other provision of
this Agreement, if any Regulatory Change, or compliance by any Bank with any
Regulatory Change, makes it unlawful or impossible for any Bank to make,
maintain or continue its proportionate interest in any Loan, then such Bank
shall promptly give notice together with evidence thereof to the Borrower and
the Agent, and the Borrower shall pay forthwith all amounts outstanding, accrued
or payable under this Agreement to such Bank and cause such Bank to be released
from all obligations of such Bank under this Agreement.
(b) Notwithstanding any other provision of this Agreement, if on or
after the date of this Agreement any Regulatory Change, or compliance by any
Bank with any Regulatory Change, makes it unlawful or impossible for any Bank to
make, maintain or continue its proportionate interest in any LIBOR Rate Loan
provided hereunder, then such Bank shall promptly give notice together with
evidence thereof to the Borrower and the Agent and the obligation of such Bank
to make or continue, or to convert Loans into LIBOR Rate Loans shall be
immediately suspended and during such suspension be converted into an obligation
to do the same with respect to Adjusted Base Rate Loans; provided, however, that
if such Bank determines that it may lawfully continue to maintain and fund any
outstanding LIBOR Rate Loans until the end of the Interest Period then in effect
applicable thereto, upon written notice from the Borrower to such Bank and the
Agent, such outstanding Loans shall be converted into Adjusted Base Rate Loans
on the last day of the then current Interest Period applicable to such Loans.
(c) A Bank shall (consistent with legal and regulatory restrictions)
designate a different lending office for the Loans (or commitments therefor)
affected pursuant to this Section 2.16 before giving any notice to the Borrower
and the Agent pursuant to this Section 2.16 if such designation will avoid the
need for giving such notice and will not, in the sole opinion of such Bank, be
disadvantageous to such Bank, except that such Bank shall have no obligation to
designate a lending office located in the United States of America. If the
Borrower so requests within ten (10) days of receipt of the notice referred to
above (which notice is based on circumstances not generally applicable to United
States or foreign lenders making loans of the types contemplated hereunder),
such Bank shall (consistent with legal and regulatory restrictions) comply with
Section 2.18 hereof.
SECTION 2.17. Non-Availability. (a) If at any time Dollar deposits in
the principal amount of any Bank's proportionate interest in, or obligation
under, any LIBOR Rate Loan are not available to such Bank in the London
interbank market for the next Interest Period, such Bank shall so notify the
Agent, who shall so notify the Borrower, and the obligation of such affected
Bank to make or continue, or to convert Loans into LIBOR Rate Loans shall be
immediately suspended and during such suspension be converted into an obligation
to do the same with respect to Adjusted Base Rate Loans; provided, however, that
outstanding LIBOR Rate Loans shall be converted into Adjusted Base Rate Loans on
the last day of the then current Interest Period applicable to such Loans.
(b) If at any time the Interest Rate then in effect based on the LIBOR
Rate does not adequately and fairly reflect, in the reasonable judgment of any
Bank, the cost for such Bank of advancing or maintaining its respective
proportionate interest in any LIBOR Rate Loan during any Interest Period, then
such Bank shall notify the Agent, who shall so notify the Borrower, and
15
interest on such Bank's proportionate share of the Loans shall for any
subsequent Interest Period accrue at the Adjusted Base Rate.
(c) If the Borrower so requests after the suspension of a Bank's
obligation to make LIBOR Rate Loans under this Section 2.17 for at least thirty
(30) consecutive days on at least two separate occasions based on circumstances
not generally applicable to United States or foreign lenders making loans of the
types contemplated hereunder, such Bank shall (consistent with legal and
regulatory restrictions) comply with Section 2.18 hereof.
SECTION 2.18. Assignments by Banks. If (i) a Bank is required to comply
with this Section 2.18 after a request from the Borrower pursuant to Sections
2.15, 2.16 or 2.17 or (ii) the Borrower requests that the provisions of this
Section 2.18 apply to a Bank within ten (10) days after it receives a notice
from the Agent that (A) such Bank has failed to make available to the Agent its
portion of any Loan on the date required to be made available to the Agent
pursuant to this Agreement after the Agent has made written demand upon such
Bank for such payment or (B) such Bank has provided the Agent with notice that
such Bank shall not make available to the Agent such portion of any Loan
required to be made available to the Agent pursuant to this Agreement or (C)
such Bank has failed to reimburse the Agent pursuant to the terms of this
Agreement, such Bank shall assign, all or a part, as specified by the Borrower,
of its proportionate share of the Loans and its Commitment, to a replacement
Bank (which may be, but is not required to be, one of the other Banks)
designated by the Borrower; provided that any assignment or transfer made by a
Bank to a replacement Bank shall satisfy the following conditions: (i) the
Borrower shall promptly pay when due all reasonable fees and expenses which such
Bank incurs in connection with such transfer or assignment and (ii) any
assignment of all or part of the Loans or Obligations shall be made without
recourse, representation or warranty, and the Borrower shall cause the
replacement Bank to pay to the Agent for the account of the assigning Bank in
immediately available funds all amounts outstanding or payable under this
Agreement to such Bank assigning its interest in the Loans.
SECTION 2.19. Refinancing Option. The Borrower shall have the right to
refinance the Commitment and any outstanding Loans without premium or penalty
upon at least ten (10) Business Days' prior written notice to the Agent;
provided, however, the Borrower agrees to indemnify each Bank and hold each Bank
harmless from any direct loss (but excluding any indirect, consequential or
incidental loss or damage), cost or out-of-pocket expense which such Bank incurs
as a result of a refinancing pursuant to this Section 2.19 of any LIBOR Rate
Loan on a date which is not the last day of an Interest Period applicable
thereto.
SECTION 2.20. Right of Set-off. The Borrower hereby authorizes each
Bank (in addition to, and without limitation of, any right of set-off, banker's
lien or counterclaim a Bank may otherwise have), upon the occurrence and during
the continuance of any Event of Default, at any time and from time to time,
without notice to the Borrower or any Person other than the Collateral Agent
(any such notice being hereby expressly waived by the Borrower to the extent it
may legally do so) to set off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held, and
other indebtedness at any time owing, by such Bank in any of its offices,
wherever located (whether such deposits or indebtedness be in Dollars or in any
other currency), to or for the credit or the account of the Borrower against any
16
and all of the Obligations and liabilities of the Borrower now or hereafter
existing under this Agreement.
SECTION 2.21. Minimum Amounts. (a) Anything in this Agreement to the
contrary notwithstanding, the aggregate principal amount of LIBOR Rate Loans
shall be in an amount at least equal to $1,000,000 or in multiples of $500,000
in excess thereof and, if any LIBOR Rate Loans would otherwise be in a lesser
principal amount for any period, such Loans shall bear interest based on the
Adjusted Base Rate during such period. Prepayments pursuant to Sections 2.13,
2.14, 2.15 or 2.16 shall not be subject to such minimum amount.
(b) Not more than six (6) LIBOR Rate Loans may be outstanding at one
time.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions Precedent to Effectiveness. The effectiveness
of this Agreement is subject to the following conditions precedent:
(a) Agreements; Notes. The Agent shall have received the
following documents, each dated on the Closing Date, in form and
substance satisfactory to the Agent and in the number of originals or
copies reasonably required by the Agent:
(i) this Agreement and the Notes, each duly executed by
the Borrower;
(ii) the Debt Service Reserve LOC Reimbursement
Agreement and the Reimbursement Agreement, each
duly executed by the parties thereto;
(iii) the Third Supplemental Indenture, the First
Supplement Indenture, the First Amendment to
Amended and Restated Authority Loan Agreement, the
Disbursement Agreement (for the avoidance of doubt,
as amended and restated on or about the date
hereof), the First Amended to the Intercreditor
Agreement and the First Amendment to Assignment and
Security Agreement, each duly executed by the
parties thereto; and
(iv) the First Amendment to Amended and Restated
Operation and Maintenance Agreement and the First
Amendment to Amended and Restated Management
Services Agreement, each as duly executed by the
parties thereto.
(b) Other Financing Documents and Project Agreements. The
Agent shall have received true and complete copies of all material
Financing Documents and Project Agreements (in each case that remain in
effect on the Closing Date), together with any amendments, supplements
and modifications to each thereof as of the Closing Date, each duly
executed by the parties thereto, certified by the Borrower as such on
the Closing Date, in form and substance satisfactory to the Agent and
in the number of copies reasonably required by the Agent.
17
(c) Full Force and Effect. All agreements referred to in
Section 3.1(a) and (b) shall be in full force and effect on the Closing
Date.
(d) Legal Opinions. The Agent shall have received written
opinions of (i) Latham & Watkins LLP, New York counsel to the Borrower,
(ii) Gunster, Yoakley & Stewart, P.A., Florida counsel to the Borrower,
and (iii) in-house counsel to the Borrower, in each case dated the
Closing Date and addressed to the Agent and the Banks, as to such
matters as the Agent may reasonably request.
(e) Evidence of Authorization. The Agent shall have received:
(i) copies, certified on the Closing Date, of the partnership action of
the Borrower authorizing the execution, delivery and performance by the
Borrower of this Agreement, the other Credit Documents, the Debt
Service Reserve LOC Reimbursement Agreement, the Reimbursement
Agreement, the Disbursement Agreement (for the avoidance of doubt, as
amended and restated on or about the date hereof), the First Amendment
to Intercreditor Agreement, the Third Supplemental Indenture, the First
Supplemental Indenture, the First Amendment to Amended and Restated
Authority Loan Agreement, the First Amendment to Assignment and
Security Agreement, the First Amendment to Amended and Restated
Operation and Maintenance Agreement, the First Amendment to Amended and
Restated Management Services Agreement and the other agreements to be
executed by the Borrower pursuant to this Article III, (ii)
certificates, dated the Closing Date, as to the incumbency and
signature of each individual signing this Agreement on behalf of the
Borrower; (iii) a certified copy of the partnership agreement of the
Borrower; and (iv) evidence of the existence and good standing of the
Borrower in the State of its organization and of the Borrower's
qualification to do business in the State of Florida.
(f) Financial Statements. The Agent shall have received: (i) a
copy of the most recent audited financial statements of the Borrower
and (ii) a copy of the most recent unaudited financial statements of
the Borrower, certified by an Authorized Representative thereof. Such
financial statements shall be satisfactory to the Agent, and no
material adverse change shall have occurred in the business, operations
or financial condition of the Borrower since the date of such financial
statements that could reasonably be expected to have a Material Adverse
Effect.
(g) Financial Projections. The Agent shall have received
detailed financial projections for the Project covering the period from
January 1, 2004 through the Final Maturity Date (as defined in the Debt
Service Reserve LOC Reimbursement Agreement), including therein
projections of revenues, operating expenses, cash flow, debt service
and other related items for the Project, in form and substance
satisfactory to the Agent and the Independent Engineer and showing (i)
a minimum Total Debt Service Coverage Ratio for each year of at least
1.20 to 1.0 and (ii) an average Total Debt Service Coverage Ratio
during such period of at least 1.35 to 1.00, in each case, certified as
of the Closing Date by an Authorized Representative of the Borrower, as
being based on reasonable assumptions and prepared in good faith in
full consideration of all information known to such officer.
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(h) Fees and Expenses. The Borrower shall have paid all
accrued fees and expenses (as provided in Sections 2.6 and 8.4) of the
Agent and the Banks (including the reasonable accrued fees and
disbursements of Simpson Thacher & Bartlett LLP), to the extent that
one or more statements for such fees and expenses have been presented
for payment.
(i) Conditions Precedent Under Other Facilities. The
conditions precedent contained in Section 3.1 of the Debt Service
Reserve LOC Reimbursement Agreement and Section 3.1 of the
Reimbursement Agreement shall have been satisfied.
(j) Tax Exempt Debt Service Reserve Account. The Tax Exempt
Debt Service Reserve Account shall have $12,501,000 on deposit therein
on the Closing Date and the Agent shall have received satisfactory
evidence thereof.
(k) Continuation of Title and Priority. The Collateral Agent
and the Agent shall have received from the relevant title companies a
continuation endorsement of the title policies which currently cover
the Mortgage, which title endorsement shall (i) insure that the
Mortgage secures all amounts payable under this Agreement and the other
Financing Documents and other Secured Obligations, and (ii) insure that
since the date of any previous such endorsement (or, if none, since the
effective date of said title insurance policies), there has been no
change in the state of title to the Project and that there are no Liens
(other than Permitted Liens) affecting the Project.
(l) Recordation; Lien Search. The Agent shall have received:
(i) satisfactory evidence that all filings, recordings,
registrations and other actions necessary to
create, perfect and maintain the first priority
security interest of the Collateral Agent in the
Collateral are in full force and effect; and
(ii) the results of a recent lien search in each of the
jurisdictions where assets of the Borrower are
located, and such search shall reveal no liens on
any assets of the Borrower except for Liens in
favor of the Collateral Agent pursuant to the
Security Documents and Permitted Liens.
(m) Insurance Coverage; Additional Insured. The Agent shall
have received and found satisfactory a certificate signed by the
Borrower's independent insurance broker which complies with Section
5.18 of the Principal Indenture. The Agent shall have received
satisfactory evidence that the Agent and the Banks are named as
additional insured on all applicable insurance policies.
(n) No Default, Event of Eminent Domain or Event of Loss. No
Default, Event of Default, Event of Eminent Domain or Event of Loss
shall have occurred and be continuing.
(o) Representations and Warranties. The Agent shall have
received an Officer's Certificate of the Borrower, dated the Closing
Date, stating that the representations and
19
warranties of the Borrower and each Affiliate thereof incorporated by
reference in this Agreement or contained in any Security Document are
true and correct in all material respects, except to the extent that
such representations and warranties relate solely to an earlier date,
in which case such representations and warranties shall have been true
and correct on and as of such earlier date.
(p) Termination of Original Working Capital Facility. The
Agent shall have received satisfactory evidence from the Borrower that
all commitments of the lenders that are parties to the Original Working
Capital Facility to make loans thereunder have been terminated and no
loans remain outstanding thereunder.
(q) Engineering Advisor's Letter Report. The Agent shall have
received a letter report from its Engineering Advisor satisfactory to
the Agent with respect to fuel arrangements for the Project and any
other matter reasonably requested by the Agent or any Bank.
SECTION 3.2. Conditions Precedent to Each Borrowing. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
limitations of such Bank's Commitment and to the satisfaction of the following
conditions precedent:
(a) Notice of Borrowing. The Agent shall have received a
Notice of Borrowing properly completed in all material respects with
respect to such Loan.
(b) Representations and Warranties, No Default. The following
statements shall be true (and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such
statements are true):
(i) the representations and warranties of the
Borrower and the Company incorporated by reference into this
Agreement or contained in any Security Document are true in
all material respects on and as of the date of such Borrowing
(except to the extent that such representations and warranties
relate solely to an earlier date, in which case such
representations and warranties are deemed made as of such
earlier date), before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, except as affected by the
consummation of the transactions contemplated by this
Agreement and except to the extent that any such failure to be
true would not reasonably be expected to have a Material
Adverse Effect; and
(ii) no event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds thereof, that with the giving of notice or lapse
of time or both constitutes an Event of Default.
(c) Other Documents. The Agent shall have received such
invoices or other evidence of amounts due evidencing the uses
contemplated for the requested Loan as it may reasonably request.
20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. The Borrower hereby makes
on the Closing Date for the benefit of the Agent and the Banks all of the
representations and warranties of the Borrower and the Company made in the
Principal Indenture (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such representations
and warranties are deemed made as of such earlier date), in the form of such
representations and warranties as they exist on the date of this Agreement and
as they may hereafter be amended from time to time, but only to the extent that
the incorporation of any such amendments into this Agreement has been consented
to in accordance with Section 8.1. Such representations and warranties are
incorporated herein by reference (with appropriate substitutions and
modifications including without limitation the following: (i) each reference to
"Partnership" shall be deemed to be a reference to the Borrower, (ii) each
reference to Project Agreements shall be deemed to include all Financing
Documents, (iii) each reference to the term "Securities" shall be deemed to
include the Obligations, (iv) the words "Indenture", "Trustee" and "Holder" as
they appear in Article 3 of the Principal Indenture shall be replaced by the
words "Working Capital Facility", "Agent" and "Bank", respectively, and (v) the
phrase "purchase and ownership of the Securities" as it appears in line 3 of
Section 3.6(b) of the Principal Indenture shall be replaced by the words "making
Loans") as if set forth at length in this Agreement.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants. So long as any Commitment is in effect or any
Obligation remains unpaid, unless compliance has been waived in writing by the
Required Banks:
(a) Covenants under the Principal Indenture. All of the
covenants of the Borrower contained in Article V of the Principal
Indenture (other than Section 5.14(a) thereof), together with any
schedules referred to therein (in the form of such covenants and
schedules as they exist as of the date of this Agreement and as they
may hereafter be amended from time to time, but only, to the extent
that the incorporation of any such amendments into this Agreement has
been consented to in accordance with Section 8.1), are hereby
incorporated and made applicable by reference (with appropriate
substitutions and modifications including without limitation the
following: (i) each reference to "Partnership" shall be deemed to be a
reference to the Borrower; (ii) each reference to Project Agreements
shall be deemed to include all Financing Documents (including the
Credit Documents); (iii) each reference to "Indenture", except in
Section 5.13 thereof, shall be deemed to be a reference to the Working
Capital Facility; (iv) each reference to "Trustee", except in Sections
5.21 and 5.22 thereof, shall be deemed to be a reference to the Agent;
(v) the reference to "the principal of, and premium, if any, and
interest on, all other amounts payable in respect of, the Securities of
each series in accordance with their terms and the terms of this
Indenture and of the related Series Supplemental Indenture" in Section
5.1 of the Principal Indenture shall be deemed to be a reference to all
Obligations under this Working Capital Facility in accordance with the
terms of this Working Capital
21
Facility; and (vi) each reference the word "Securities" as it appears
in lines 5, 6 and 9 of Section 5.22 of the Principal Indenture shall be
deemed to be a reference to the Obligations) as if set forth at length
in this Agreement, and the Borrower will observe and perform all of
such incorporated covenants.
(b) Termination or Amendment of Other Financing Documents. The
Borrower will not, and will not permit the Company to, terminate, amend
or otherwise modify any provision of the Indenture, the Tax Exempt
Indenture, the Authority Loan Agreement, the Intercreditor Agreement,
the Mortgage, the Security Agreement, the Debt Service Reserve LOC
Reimbursement Agreement, the Reimbursement Agreement or any
Subordinated Loan Agreement if such termination, amendment or other
modification would, in the reasonable opinion of the Required Banks, be
expected to have a material adverse effect on the rights and benefits
of the Banks or the Agent.
(c) Use of Proceeds. The Borrower will use the proceeds of the
Loans only to pay Operation and Maintenance Costs and to pay principal,
interest, fees and other amounts payable hereunder.
(d) Amendments to Contracts. The Borrower shall not terminate,
amend, replace or modify (other than immaterial amendments or
modifications as certified by the Borrower) any Project Contract (other
than the Power Purchase Agreement, the Energy Services Agreement, the
Coal Purchase Agreement (except the Massey Coal Contract) or any
replacement of any of the foregoing, with respect to which agreements
the proviso below in this paragraph (d) shall apply) as such Project
Contract is then in effect on the date of such proposed termination,
amendment, replacement or modification, unless (i) the Borrower
certifies that such termination, amendment, replacement or modification
is not reasonably expected to have a Material Adverse Effect and such
termination, amendment, replacement or modification is not reasonably
expected to materially increase the likelihood of the occurrence of a
future Material Adverse Effect and (ii) the Independent Engineer does
not within thirty (30) days of receipt of such certificate disagree in
writing with the certification provided pursuant to clause (i);
provided, that the Borrower shall not, without the prior written
consent of the Required Banks, agree to or acquiesce in the
cancellation, suspension, replacement or termination (other than the
normal expiration of an agreement in accordance with its terms) of the
Power Purchase Agreement, the Energy Services Agreement or the Coal
Purchase Agreement (except the Massey Coal Contract) or any material
amendment, supplement or modification of, or material consent or waiver
with respect to, any of the provisions of the agreements referred to in
this proviso (other than the Massey Coal Contract).
(e) Additional Information. In addition to the information
required to be provided to the Agent under Article V of the Principal
Indenture (as incorporated and made applicable in this Agreement by
reference), the Borrower shall furnish to the Agent the following:
(i) notice of the termination, material amendment,
replacement or material modification of any material Project
Contract or the execution and
22
delivery of any material Additional Contract (in each case,
together with a copy thereof if requested by the Agent); and
(ii) a copy of each material notice, document, demand
or waiver delivered by or received by the Borrower pursuant to
any material Project Contract.
(f) Additional Contracts. The Borrower will not enter into any
Additional Contract unless (i) the Borrower certifies that the
execution of such Additional Contract could not reasonably be expected
to have a Material Adverse Effect and (ii) the Independent Engineer
does not within thirty (30) days of receipt of such certificate
disagree in writing with the certification provided pursuant to clause
(i).
(g) Security Interest. The Borrower agrees that (i) the
Obligations constitute "Secured Obligations," the Banks are "Senior
Parties," and this Agreement constitutes a "Financing Document," each
as contemplated by and as defined in the Mortgage and the other
Security Documents, and (ii) the Mortgage and the Security Agreement
each secure the payment and performance of the Obligations.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Defaults and Remedies. If any one of the following events
(each an "Event of Default") shall occur and be continuing:
(a) any amount due under any Credit Document shall not be paid
in full within 15 days after its due date;
(b) any representation or warranty made by or on behalf of the
Borrower in this Agreement (including by incorporation by reference),
or in any certificate furnished to the Agent or the Banks shall prove
to have been false or misleading in any respect as of the time made,
confirmed or furnished and the inaccuracy has had or is reasonably
expected to have a Material Adverse Effect and such misrepresentation
shall continue uncured for thirty (30) or more days from the discovery
thereof; provided that if the Borrower or the Company commences efforts
to cure the factual situation resulting in such misrepresentation
within such thirty (30) day period, the Borrower or the Company may
continue to effect such cure of the misrepresentation, and such
misrepresentation shall not be deemed an Event of Default, for an
additional sixty (60) days so long as an Authorized Representative of
the Borrower or the Company, as the case may be, provides an Officer's
Certificate stating that no other Event of Default has occurred and is
continuing and the Borrower or the Company is diligently pursuing the
cure;
(c) either the Borrower or the Company shall fail to perform
or observe any covenant or agreement contained in Section 5.2
(Insurance) of the Principal Indenture as incorporated in Section
5.1(a) of this Agreement;
23
(d) either the Borrower or the Company shall fail to perform
or observe any covenant or agreement contained in Sections 5.4
(Maintenance of Existence and Governmental Approvals), 5.9 (Compliance
with Laws), 5.10 (Prohibition on Fundamental Changes and Disposition of
Assets), 5.14 (Amendments to Contracts), 5.19 (Liens), 5.21
(Indebtedness) or 5.24 (Restricted Payments) of the Principal Indenture
as incorporated in Section 5.1(a) of this Agreement or in Section
5.1(b) of this Agreement, and such failure shall continue uncured for
thirty (30) or more days after the Borrower or the Company has actual
knowledge of such failure;
(e) either the Borrower or the Company shall fail to perform
or observe any of its covenants contained (including by incorporation
by reference) in any other provision of this Agreement (other than
those referred to in paragraphs (a), (b), (c) and (d) above) and such
failure shall continue uncured for thirty (30) or more days after the
Borrower or the Company has actual knowledge of such failure; provided
that if the Borrower or the Company commences efforts to cure such
default within such thirty (30) day period, the Borrower or the Company
may continue to effect such cure of the default (and such default shall
not be deemed an "Event of Default" hereunder) for an additional ninety
(90) days so long as an Authorized Representative of the Borrower or
the Company, as the case may be, provides an Officers' Certificate
stating that no other Event of Default has occurred and is continuing
and the Borrower or the Company is diligently pursuing the cure;
(f) an "Event of Default" under the Reimbursement Agreement
shall occur and be continuing until the earlier of the expiration of
thirty (30) days or an acceleration under the Reimbursement Agreement;
(g) an "Event of Default" under the Indenture shall occur and
be continuing until the earlier of the expiration of thirty (30) days
or an acceleration under the Indenture;
(h) an "Event of Default" under the Tax Exempt Indenture shall
occur and be continuing until the earlier of the expiration of thirty
(30) days or an acceleration under the Tax Exempt Indenture;
(i) either the Borrower or the Company shall (i) apply for or
consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or
substantially all of its property, (ii) admit in writing its inability,
or be generally unable, to pay its debts as such debts become due,
(iii) make a general assignment of the benefit of its creditors, (iv)
commence a voluntary case under the Bankruptcy Code, (v) file a
petition seeking to take advantage of any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment
of debts, (vi) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against such Person in
an involuntary case under the Bankruptcy Code, or (vii) take any
partnership or other action for the purpose of effecting any of the
foregoing;
(j) a proceeding or case shall be commenced without the
application or consent of either the Borrower or the Company in any
court of competent jurisdiction, seeking (i)
24
its liquidation, reorganization, dissolution, winding-up, or the
composition or readjustment of debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of such Person
under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding
or case shall continue undismissed, or any order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of ninety (90) or more
consecutive days, or any order for relief against such Person shall be
entered in an involuntary case under the Bankruptcy Code;
(k) any grant of a Lien contained in the Security Documents
shall cease to be effective to grant a perfected Lien to the Collateral
Agent on the Collateral described therein with the priority purported
to be created thereby and such cessation has had or could reasonably be
expected to have a Material Adverse Effect; provided, however, that the
Borrower shall have ten (10) days from actual knowledge thereof to cure
any such cessation;
(l) PG&E Enterprises and Cogentrix Eastern America directly or
indirectly through one or more wholly-owned subsidiaries, shall fail to
continue to control the management and operations of the Borrower and
to maintain constituent general partnership interests in the Borrower,
provided, however, that failure to maintain such control shall not
constitute a default if the Borrower provides a letter from each of
S&P, Moody's, and Fitch (except that no such letter shall be required
from any such rating agency not then currently rating the Securities
issued under the Indenture) confirming that such failure will not in
and of itself result in (x) a downgrading of the rating on the
Securities to below Investment Grade if such agency is then rating the
Securities as Investment Grade or (y) any downgrading of the rating on
the Securities if the Securities are then rated as below Investment
Grade by such agency;
(m) at any time during the term of the Securities, PG&E
Enterprises, and Cogentrix Eastern America directly or indirectly
through one or more wholly owned subsidiaries, shall fail to maintain
partnership interests representing at least 20% in the aggregate of the
partnership interests of the Borrower, provided that failure to
maintain such partnership interests shall not constitute a default if
the Borrower provides a letter from each of S&P, Moody's, and Fitch
(except that no such letter shall be required from any such rating
agency not then currently rating the Securities) confirming that such
failure will not in and of itself result in (x) a downgrading of the
rating on the Securities to below Investment Grade if such agency is
then rating the Securities as Investment Grade or (y) any downgrading
of the rating on the Securities if the Securities are then rated as
below Investment Grade by such agency; or
(n) an "Event of Default" under the Debt Service Reserve LOC
Reimbursement Agreement shall occur and be continuing until the earlier
of the expiration of thirty (30) days or an acceleration under the Debt
Service Reserve LOC Reimbursement Agreement;
then, and in any such event, the Agent shall at the request, or may with the
consent, of the Required Banks, by notice to the Borrower, (i) declare the
obligation of each Bank to make Loans to be terminated, whereupon the same shall
forthwith terminate, and (ii) declare the
25
Obligations, all interest thereon and all other amounts payable under this
Agreement and the Notes to be forthwith due and payable, whereupon the
Obligations, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.1. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Credit Documents (including
enforcement of and collection under any Credit Document or other Project
Agreement), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to any Credit Document or other Project Agreement or applicable law. In
performing its function and duties hereunder, the Agent shall act solely as the
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower or any other party to any Project Agreement.
SECTION 7.2. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Credit
Document or other Project Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent (a) may treat any Bank that has signed a Commitment
Transfer Supplement as the holder of the applicable portion of the Obligations;
(b) may consult with legal counsel (including counsel for the Borrower or any
Affiliate), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations made in or in
connection with any Credit Document or other Project Agreement; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Credit Document or other
Project Agreement on the part of the Borrower or any Affiliate thereof or to
inspect the property (including the books and records) of the Borrower or any
Affiliate thereof; (e) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Credit Document or other Project Agreement or any other instrument or
document furnished pursuant hereto or thereto; and (f) shall incur no liability
under or in respect of any Credit Document or other Project Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by facsimile or otherwise) believed by it to be genuine and signed or sent by
the proper party or parties.
26
SECTION 7.3. Agent and Affiliates. With respect to its Commitment, the
Loans made by it and the Note issued to it, Credit Lyonnais New York Branch
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Credit Lyonnais New
York Branch in its individual capacity. Credit Lyonnais New York Branch and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any Affiliate thereof and any Person that may do business with or own securities
of the Borrower or any Affiliate thereof, all as if Credit Lyonnais New York
Branch were not the Agent and without any duty to account therefor to the Banks.
SECTION 7.4. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance on the Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance on the Agent or any other Bank
and based on such documents and information as it deems appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 7.5. Indemnification. The Banks agree to indemnify the Agent
(to the extent not promptly reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the respective
principal amounts of the Obligations then held by each of them and/or the
respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever that may at
any time (including without limitation, at any time following the payment of any
Obligations or termination of this Agreement) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of any Credit
Document or other Project Agreement or any action taken or omitted by the Agent
under any Credit Document or other Project Agreement; provided, however, that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Borrower under Section 8.4, to the extent that the Agent is not reimbursed
for such costs and expenses by the Borrower.
SECTION 7.6. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be removed
at any time with cause with the written approval of the Required Banks. Upon any
such resignation or removal, the Required Banks shall have the right to appoint
a successor Agent with the consent of the Borrower, which shall not be
unreasonably withheld. If no successor Agent has been so appointed by the
Required Banks, and has accepted such appointment, within thirty (30) days after
the retiring Agent's giving of notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent with the consent of the Borrower (which shall
not be unreasonably withheld), which successor Agent shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least five hundred million
Dollars
27
($500,000,000). Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from any further duties and
obligations under the Credit Documents and the other Project Agreements. After
any retiring Agent's resignation or removal hereunder as Agent, the provisions
of this Article 7 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was agent under this Agreement.
SECTION 7.7. Collateral. (a) Except as expressly provided herein, the
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in respect of the Collateral. The Agent shall
incur no liability as a result of any private sale of the Collateral.
(b) The Banks hereby consent, and agree upon written request by the
Agent to execute and deliver such instruments and other documents as the Agent
may deem desirable to confirm such consent, to the release of the Liens on the
Collateral, including any release in connection with any sale, transfer or other
disposition of the Collateral or any part thereof, in accordance with the
Project Agreements.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any Note, or consent to any departure by the Borrower
therefrom, shall be effective unless in writing and signed or consented to (in
writing) by the Required Banks (and, in the case of amendments, the Borrower),
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed or consented to
(in writing) by all of the Banks, do any of the following: (a) waive any of the
conditions specified in Article III; (b) increase the Commitments of the Banks
or subject the Banks to any additional obligations; (c) reduce the principal of,
or interest on, the Loans or any fees or other amounts payable hereunder; (d)
postpone any date fixed for (i) payment of principal of, or interest on, the
Loans or (ii) payment of fees or other amounts payable hereunder; (e) change the
percentage of the Commitments or of the Loans outstanding, or the number of
Banks, required for the Banks or any of them to take any action hereunder; or
(f) amend this Section 8.1; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Persons required above to take such action, affect the rights or duties of the
Agent under this Agreement or the Notes. Notwithstanding anything to the
contrary in the foregoing sentence, this Agreement may be amended at any time
and from time to time to increase the Total Commitment Amount, with the consent
of the Borrower and the Agent but without the consent of any Bank unless such
amendment purports to increase such Bank's Commitment hereunder; provided that
if there are Loans outstanding at the time of such an amendment increasing the
Total Commitment Amount, the Banks party hereto prior to the effectiveness of
such amendment shall promptly assign a portion of their respective Loans to the
Bank(s) providing such increased Commitment(s) such that each Bank's (including
for the avoidance of doubt each Bank providing a new Commitment) pro rata share
of the aggregate amount of Loans
28
is equal to such Bank's pro rata share of the Total Commitment Amount as
increased by such amendment, such assignment to be effected in accordance with
the assignment provisions of Section 8.9.
SECTION 8.2. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including by facsimile and shall be
mailed, faxed or delivered as follows:
if to the Borrower by overnight delivery, to
Indiantown Cogeneration, L.P.
13303 Southwest Silver Fox Lane
Indiantown, FL 34956-9704
Attention: General Manager
Telephone No.: (772) 597-6500
Fax No.: (772) 597-6520
if to the Borrower by U.S. Mail, to
Indiantown Cogeneration, L.P.
P.O. Box 1799
Indiantown, FL 34956-9704
Attention: General Manager
Telephone No.: (772) 597-6500
Fax No.: (772) 597-6520
with a copy to:
National Energy & Gas Transmission, Inc.
7600 Wisconsin Avenue
Bethesda, MD 20814-3657
Attention: General Counsel
Telephone No.: (301) 280-6800
Fax No.: (301) 280-6900
if to the Agent, to
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
Attention: Project Finance Portfolio Management
Telephone No.: (212) 261-7882
Fax No.: (212) 261-3421
29
if to any Bank, to it at the address or facsimile number set forth opposite its
name on the attached Schedule 1.1B or in the Commitment Transfer Supplement by
which it became a party hereto; or, as to each party, to it at such other
address or facsimile number as designated by such party in a written notice to
the other parties. All such notices and communications shall be deemed received,
(a) if personally delivered, upon delivery, (b) if sent by first-class mail, on
the third Business Day following deposit into the mails and (c) if sent by
facsimile, upon acknowledgment of receipt thereof by the recipient, except that
notices and communications to the Agent pursuant to Article II or VII shall not
be effective until received by the Agent. Notices and other communications to
the Banks hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Agent; provided that the foregoing shall
not apply to notices pursuant to Article II or VII unless otherwise agreed by
the Agent and the applicable Bank. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
SECTION 8.3. No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, and no single or partial exercise of any such right
shall preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
SECTION 8.4. Costs and Expenses. The Borrower agrees to pay within
fifteen (15) days of receipt of an invoice with respect thereto (a) all
reasonable costs and expenses of the Agent and the Banks in connection with the
preparation, execution, delivery, syndication, administration, modification and
amendment of this Agreement, the Notes, the other Credit Documents and the other
documents to be delivered hereunder, including (i) the reasonable fees and
out-of-pocket expenses of counsel for the Agent and the Banks with respect
thereto and with respect to advising the Agent and the Banks as to their rights
and responsibilities, or the perfection, protection or reservation of rights or
interests, under this Agreement, the other Project Agreements and the other
documents to be delivered hereunder, and (ii) the reasonable fees and expenses
of any consultants, auditors or accountants engaged by the Agent with the
written consent (which shall not be unreasonably withheld) of the Borrower
pursuant hereto and (b) all reasonable costs and expenses of the Agent and the
Banks (including reasonable counsel fees and expenses of the Agent and the
Banks) in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the other Credit Documents, the
other Project Agreements and the other documents to be delivered hereunder,
whether in any action, suit or litigation, any bankruptcy, insolvency or similar
proceeding; provided, that all fees payable by the Borrower pursuant to Section
3.1(h) shall be paid on the Closing Date. In addition, the Borrower shall pay
any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of the
aforementioned documents, and the Borrower agrees to indemnify and hold the
Agent and the Bank harmless from and against any and all liabilities with
respect to or resulting from any delay on the part of the Borrower in paying or
omission to pay any of the foregoing.
SECTION 8.5. Application of Monies. If any sum paid or recovered in
respect of the Obligations is less than the amount then due, the Agent shall
apply that sum first to fees then due
30
and owing, second to interest then due and owing, third to principal then due
and owing, and fourth to any other amount then due and owing, in each case under
this Agreement.
SECTION 8.6. Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
SECTION 8.7. Non-Recourse Liability. Satisfaction of the Obligations
shall be had solely from the Collateral. The liability of the Partners with
respect to the Obligations is limited to any unpaid capital contributions
required by the Equity Contribution Agreement, and no recourse shall be had in
the event of any nonperformance by the Borrower of the Obligations to (a) any
assets or properties of the Partners other than their respective interests in
the Collateral and other than with respect to any unpaid capital contributions
required by the Equity Contribution Agreement or (b) any Partner or any
Affiliate of any Partner or the Borrower or any of the officers, directors,
employees, incorporators or stockholders of the Partners or any Affiliate of any
Partner or the Borrower, and no judgment for any deficiency upon the Obligations
shall be obtainable by the Banks or the Agent against any Partner or any
Affiliate of the Borrower or any Partner or any incorporator, stockholder,
officer, employee or director, past, present or future of any Partner or of any
predecessor or successor of any Partner or any Affiliate of any Partner or the
Borrower.
SECTION 8.8. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Agent and the Banks and their
respective successors and assigns, except that the Borrower shall not have the
right to assign any of its rights and obligations hereunder without the prior
written consent of the Required Banks, and, except as provided in Section 8.9,
no Bank shall have the right to assign any of its rights and obligations
hereunder.
31
SECTION 8.9. Assignments and Participation. (a) Any Bank may at any
time (with the consent of the Borrower, such consent not to be unreasonably
withheld or delayed, and the consent of the Agent, such consent not to be
unreasonably withheld or delayed) sell to one or more banks or other entities (a
"Purchasing Bank") all or any part of its rights and obligations under this
Agreement and the Notes (which, except in the case of an assignment to a Person
that, immediately before such assignment, was a Bank shall be equal to at least
$1,000,000) pursuant to a Commitment Transfer Supplement, executed by such
Purchasing Bank, such transferor Bank and the Agent (and, in the case of a
Purchasing Bank that is not then a Bank or an Affiliate thereof, by the
Borrower). Upon (x) such execution of such Commitment Transfer Supplement, and
(y) delivery of a copy thereof to the Borrower and payment of the amount of its
participation to the Agent or such transferor Bank, such Purchasing Bank shall
for all purposes be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank under this Agreement, to the same extent as if it were
an original parry hereto with the commitment percentage as set forth in such
Commitment Transfer Supplement, which shall be deemed to amend this Agreement to
the extent and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of commitment percentages arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. Upon the
consummation of any transfer pursuant to this Section 8.9 the transferor Bank,
the Agent and the Borrower shall make appropriate arrangements so that if
required, replacement Notes are issued to such transferor Bank and new Notes or,
as appropriate, replacement Notes, are issued to such Purchasing Bank, in each
case, in principal amounts reflecting their Commitment.
(b) The Agent shall, on behalf of the Borrower, maintain the Register
for the recordation of the names and addresses of the Banks and the commitment
and the principal amount of any Loans owing to each Bank from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each Bank and the Agent shall treat each Person whose name is
record in the Register as the owner of the Loans for all purposes of this
Agreement. Upon its receipt of a duly completed Commitment Transfer Supplement
executed by the assigning Bank and the Purchasing Bank, the Purchasing Bank's
completed administrative questionnaire (unless the Purchasing Bank shall already
be a Bank hereunder), and the Purchasing Bank's payment of a processing and
recordation fee of $2,500, the Agent shall accept such Commitment Transfer
Supplement and record the information contained therein in the Register.
Notwithstanding anything to the contrary in this Agreement, any assignment of
any Loan shall be effective only upon appropriate entries with respect thereto
being made in the Register.
(c) Any Bank may, from time to time, sell or offer to sell
participating interests in any Loans owing to such Bank, any Notes held by such
Bank, any Commitment of such Bank or any other interests and obligations of such
Bank hereunder, to one or more banks or other entities (each, a "Participant"),
on such terms and conditions as may be redetermined by the selling Bank, without
the consent of or notice to the Borrower, and the grant of such participation
shall not relieve any Bank of its obligations, or impair the rights of any Bank,
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank shall remain solely responsible for the performance
of such Bank's obligations under this Agreement, such Bank shall remain the
holder of any such Notes for all purposes under this Agreement, the Borrower and
the Agent will continue to deal solely and directly with such Bank in connection
32
with such Bank's rights and obligations under this Agreement and such Bank shall
retain the sole right and responsibility to exercise the rights of such Bank,
and enforce the obligations of the Borrower, including, without limitation the
right to approve any amendment, modification, supplement or waiver of any
provision of any Credit Document and the right to take action under Article VI
hereof and such Bank shall not grant any such Participant any voting rights or
veto power over any such action by such Bank under this Agreement (provided that
such Bank may agree not to consent to any modification amendment or waiver of
this Agreement, without the consent of the Participant, that would alter the
principal of or interest on the Loans, postpone the date fixed for any payment
of principal of or interest thereon, release all or substantially all of the
Collateral or extend the term of any Commitment). No Participant shall have any
rights under this Agreement to receive payment of principal, interest or any
other amount except through a Bank and as provided in this Section 8.9. The
Borrower agrees that, upon the occurrence and during the continuance of any
Event of Default, each Participant shall have the right of set-off in respect of
its participating interest in amounts owing under this Agreement and any Notes
as set forth in Section 2.20 hereof to the same extent as if the amount of its
participating interest was owing directly to it as a Bank under this Agreement
or any Notes. The Borrower also agrees that each Participant shall be entitled
to the benefits of Sections 2.5(b), 2.13, 2.14, 2.15 and 2.16 hereof with
respect to its participation granted hereunder; provided that no Participant
shall be entitled to receive any greater amount pursuant to such Sections than
the Bank transferring such participation would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred.
(d) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.9, disclose to
the Purchasing Bank or Participant or proposed Purchasing Bank or Participant
any information relating to the Borrower furnished to such Bank by or on behalf
of the Borrower; provided, however, that prior to any such disclosure, the
Person receiving such disclosure shall sign such confidentiality agreements as
the Borrower may reasonably request. Notwithstanding anything herein to the
contrary, any party to this Agreement (and any employee, representative, or
other agent of any party to this Agreement) may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to it relating to
such tax treatment and tax structure. However, any such information relating to
the tax treatment or tax structure is required to be kept confidential to the
extent necessary to comply with any applicable federal or state securities laws.
SECTION 8.10. Indemnification. The Borrower agrees to indemnify and
hold harmless the Agent and each Bank and each of their respective officers,
directors, employees, agents and affiliates from and against any and all claims,
damages, losses, liabilities, costs and expenses whatsoever that such
indemnified party may incur (or that may be claimed against such indemnified
party by any Person) by reason of (a) any untrue statement or alleged untrue
statement of any material fact by the Borrower concerning the Borrower or the
Collateral, or the omission or alleged omission to state any fact concerning the
Borrower or the Collateral necessary to make any such statement, in light of the
circumstances under which it was made, not misleading; (b) the issuance, sale or
delivery of the Securities or the Notes; (c) the use of the proceeds of the
Securities or any Loan; (d) any reasonable action taken by such indemnified
party in protecting and enforcing the rights and remedies of the Agent and the
Banks under the
33
Project Agreements; (e) any claim of any Person with respect to any finder's
fee, brokerage commission or other similar sum due in connection with any
Project Agreement; or (f) any failure of the Borrower to comply with any
Environmental Requirement; provided, however, that the Borrower shall not be
required to indemnify the Agent or any Bank for any claims, damages, losses,
liabilities, costs or expenses to the extent caused by the Agent's or any Bank's
willful misconduct or gross negligence. The Borrower, upon demand by any party
indemnified or intended to be indemnified pursuant to this Section 8.10 at any
time, shall also reimburse such party, for any reasonable legal or other
expenses incurred in connection with investigating or defending against any of
the foregoing. If any action, suit or proceeding arising from any of the
foregoing is brought against any party indemnified or intended to be indemnified
pursuant to this Section 8.10 (an "Indemnified Party"), such Indemnified Party
shall promptly notify the Borrower in writing, enclosing a copy of all papers
served, but the omission so to notify the Borrower of any such action shall not
relieve it of any liability that it may have to any Indemnified Party otherwise
than under this Section 8.10 unless and to the extent such omission has
materially prejudiced the Borrower's defense of such action, suit or proceeding;
provided, however, that the Borrower shall not be liable for any settlement of
any such action effected without the Borrower's prior written consent. In case
any such action shall be brought against any Indemnified Party and it shall
notify the Borrower of the commencement thereof, the Borrower shall be entitled
to participate in and, to the extent that it shall wish, to assume the defense
thereof with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the Borrower to such Indemnified Party of the Borrower's
election so to assume the defense thereof, the Borrower shall not be liable to
such Indemnified Party for any subsequent legal or other expenses attributable
to such defense, except as provided below, other than reasonable costs of
investigation subsequently incurred by such Indemnified Party in connection with
the defense thereof at the request of the Borrower or the Borrower's counsel.
The Indemnified Party shall have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the employment of counsel by such Indemnified
Party has been authorized by the Borrower, (ii) the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Borrower and the Indemnified Party in the conduct of the defense of such action
(in which case the Borrower shall not have the right to direct the defense of
such action on behalf of the Indemnified Party) or (iii) the Borrower shall not
in fact have employed counsel reasonably satisfactory to the Indemnified Party
to assume the defense of such action.
SECTION 8.11. Governing Law. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF
THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
SECTION 8.12. Consent to Jurisdiction and Venue. Each of the parties
hereto irrevocably (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in any court of the
State of New York or any court of the United States of America located in the
State of New York, (b) consents, for itself and in respect of its property, to
the jurisdiction of each such court in any such suit, action or proceeding and
(c) waives any objection which it may have to the laying of venue of any such
suit, action or
34
proceeding in any of such courts and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. Each of the parties agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Section 8.12 shall affect the right of
any party hereto to serve legal process in any other manner permitted by law.
SECTION 8.13. Headings. The section and subsection headings used herein
have been inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
SECTION 8.14. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 8.15. Waiver of Jury Trial. THE BORROWER, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
INDIANTOWN COGENERATION, L.P.
By: /s/ F. JOSEPH FEYDER
----------------------------------
Name: F. Joseph Feyder
Title: Vice President
Revolving Credit Agreement
CREDIT LYONNAIS NEW YORK BRANCH, as
Agent and as a Bank
By: /s/ JAMES F. GUIDERA
----------------------------------
Name: James F. Guidera
Title: Senior Vice President
Revolving Credit Agreement
HSH NORDBANK, AG, NEW YORK BRANCH,
as a Bank
By: /s/ DREW VON GLAHN
----------------------------------
Name: Drew von Glahn
Title: Senior Vice President
By: /s/ THOMAS K. EMMONS
----------------------------------
Name: Thomas K. Emmons
Title: Senior Vice President
Revolving Credit Agreement
SCHEDULE 1.1A
COMMITMENTS
BANK COMMITMENT
- ----------------------------------------- -------------
Credit Lyonnais New York Branch $1,736,842.11
HSH Nordbank, AG, New York Branch $1,263,157.89
TOTAL COMMITMENTS $3,000,000.00
Revolving Credit Agreement
SCHEDULE 1.1B
NOTICES
INSTITUTION/
MAILING ADDRESS CONTACT
- ------------------------------------ --------------------------------
Credit Lyonnais New York Branch Phillip Nervig
1301 Avenue of the Americas Tel: (212) 261-7882
New York, NY 10019 Fax: (212) 261-3421
Attention: Project Finance Portfolio phillip.nervig@clamericas.com
Management
HSH Nordbank, AG, New York Branch Credit:
590 Madison Avenue Rohan Singh
New York, NY 10022-2540 Tel: (212) 407-6042
Fax: (212) 407-6033
rohan.singh@hsh-nordbank.com
Operations:
Rohan Singh
Tel: (212) 407-6123
Fax: (212) 407-6133
madeleine.ricci@hsh-nordbank.com
Revolving Credit Agreement
EXHIBIT A
REVOLVING PROMISSORY NOTE
$__________ New York, New York
October __, 2003
FOR VALUE RECEIVED, the undersigned, INDIANTOWN COGENERATION, L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of ____________________ (the "Bank") the lesser of (i) the
principal sum of _____________________ Dollars ($___________) and (ii) the
aggregate unpaid principal amount of the Loans made by the Bank to the Borrower
under the Credit Agreement referred to below, on the dates and in the amounts
specified therein.
The Borrower further promises to pay interest on the daily unpaid
principal amount hereof from time to time outstanding on the dates and at the
rates specified in the Credit Agreement. This Note is hereby expressly limited
so that in no contingency or event, whether by reason of acceleration of the
maturity of any indebtedness evidenced hereby or otherwise, shall the interest
contracted for or charged or received by the Bank exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever, interest
would otherwise be payable to the Bank in excess of the maximum lawful amount,
the interest payable to the Bank shall be reduced to the maximum amount
permitted under applicable law, and the amount of interest for any subsequent
period, to the extent less than that permitted by applicable law, shall to that
extent be increased by the amount of such reduction.
Each holder hereof is irrevocably authorized to endorse on the schedule
attached hereto, or on a continuation thereof, the date each such interest
payment is due and the amount of each such interest payment determined in
accordance with the Credit Agreement. Absent manifest error, all such notations
shall constitute prima facie evidence of the accuracy of the information so
recorded and be enforceable against the Borrower with the same force and effect
as if such amounts were each set forth in a separate note executed by the
Borrower.
All payments due hereunder shall be made without setoff, counterclaim
or deduction of any nature to Credit Lyonnais New York Branch, as Agent, at 1301
Avenue of the Americas, New York, New York 10019, in Dollars and in immediately
available funds, or at such other place and in such other manner as may be
specified by the Agent pursuant to the Credit Agreement.
Each holder hereof is irrevocably authorized to endorse on the schedule
attached hereto, or on a continuation thereof, the date and amount of each Loan
made to the Borrower and each payment or prepayment of principal thereof,
provided that the failure of such holder to make, or any error in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement. Absent manifest error, all such
notations shall constitute prima facie evidence of the accuracy of the
information so recorded and be enforceable against the Borrower with the same
force and effect as if such amounts were each set forth in a separate note
executed by the Borrower.
A-1
This Note is the "Note" of the Borrower to the Bank referred to in,
evidences each Loan made by the Bank to the Borrower under, is subject to the
provisions of, and entitles its holder to the benefits of, the Revolving Credit
Agreement dated as of October 10, 2003 (the "Credit Agreement") among the
Borrower, the Bank and the other banks party thereto from time to time, and
Credit Lyonnais New York Branch, as agent for the Bank and such other banks, as
the same may be amended, supplemented or otherwise modified from time to time
and to which reference is hereby made for a more complete statement of the terms
and conditions under which each Loan evidenced hereby is to be made and repaid.
Capitalized terms in this Note that are not specifically defined herein shall
have the meanings ascribed to them in the Credit Agreement.
The Credit Agreement provides for, among other things, the acceleration
of the maturity of the unpaid principal amount hereof upon the occurrence of
certain stated events and for voluntary prepayments in certain circumstances and
upon certain terms and conditions. The obligations of the Borrower under the
Credit Agreement and this Note are secured by, and the holder hereof is entitled
to the benefit of, the Security Documents.
In addition to any and all costs, fees and expenses for which the
Borrower is liable under the Credit Agreement, the Borrower promises to pay all
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred in the collection and enforcement hereof or any appeal of any judgment
rendered hereon.
The Borrower hereby expressly waives diligence, presentment, protest,
demand, dishonor, nonpayment and notice of every kind to the fullest extent
permitted by applicable law. No failure or delay by any holder of this Note to
exercise any right or remedy under this Note or any other document or instrument
entered into pursuant to the Credit Agreement shall operate or be construed as a
waiver or modification hereof or thereof.
This Note shall be binding upon the successors and assigns of the
Borrower and shall inure to the Bank and it; successors, endorsees and assigns.
If any term or provision of this Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof shall in no
way be, affected thereby.
Recourse under this Note is limited in accordance with Section 8.7 of
the Credit Agreement, and the provisions of said Section 8.7 are incorporated
herein by reference.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS
THEREOF THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
The Borrower hereby expressly and irrevocably agrees and consents that
any suit, action or proceeding arising out of or related to this Note may be
instituted in any state or federal court (at Bank's option) sitting in the
County of New York, State of New York, and, by the execution and delivery of
this Note, the Borrower expressly waives any objection which it may have now or
hereafter to the venue or to the jurisdiction of any such suit, action or
proceeding, and
A-2
irrevocably submits generally and unconditionally to the jurisdiction of any
such court in any such suit, action or proceeding.
All excise tax due on this Note has been paid by the Borrower and
proper stamps affixed to the Mortgage securing this Note.
INDIANTOWN COGENERATION, L.P.
By: __________________________________
Name:
Title:
A-3
SCHEDULE
Total
Amount of Date Principal
Principal Principal Unpaid Interest Amount of
Date Amount Paid or Principal Payment is Amount of Loans Notation
Made of Loan Prepaid Balance Due Interest Due Outstanding Made by
- ---- --------- --------- --------- ---------- ------------ ----------- --------
A-4
EXHIBIT B
NOTICE OF BORROWING
[Indiantown Cogeneration, L.P. Letterhead)
[Date - Two Business Days [or Three
Business Days for LIBOR Rate] prior to
W/C Loan advance date]
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Project Finance Portfolio Management re: Indiantown Project
Gentlemen:
Pursuant to the Revolving Credit Agreement, dated as of October 10, 2003 by and
among Indiantown Cogeneration, L.P. (the "Partnership"), the Banks party thereto
from time to time (the "Banks") and Credit Lyonnais New York Branch (the
"Agent") (as the same may be amended, modified or supplemented from time to
time, the "Credit Agreement") (capitalized terms used herein and in the
accompanying schedules, unless otherwise noted, shall have the meanings ascribed
to them in the Credit Agreement). The Partnership hereby requests that the Agent
make available to the Partnership on __________ __, 20__, the following amount:
Funds required by the Partnership to pay
for Operation and Maintenance Costs and
to pay principal, interest, fees and other
amounts payable under the Credit Agreement $_______________
This Borrowing shall bear interest at [choose Adjusted Base Rate or [choose
one-month or three-month] LIBOR Rate as specified in Section 2.3]
Attached hereto are invoices or other evidence of amounts due evidencing the
uses contemplated for the requested Loan. We request that the funds representing
the requested Loan be deposited in the following account:
[Account Number]
In connection with this request for a Loan, the Partnership further certifies
that the proceeds of the Loan being requested herein are to be applied for the
uses permitted by the Credit Agreement.
B-1
The Partnership hereby certifies that the statements set forth in Section 3.2(b)
of the Credit Agreement are true as of the date of this Notice of Borrowing.
INDIANTOWN COGENERATION, L.P.
By: __________________________________
Name:
Title:
B-2
EXHIBIT C
Form of Commitment Transfer Supplement
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among each Transferor Bank set forth in Item 2 of
Schedule I hereto (each, a "Transferor Bank"), each Purchasing Bank set forth in
Item 3 of Schedule I hereto (each, a "Purchasing Bank"), and CREDIT LYONNAIS NEW
YORK BRANCH, as Agent under the Credit Agreement described below.
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is being executed and
delivered in accordance with Section 8.9 of the Revolving Credit Agreement,
dated as of October 10, 2003, by and among (i) Indiantown Cogeneration, L.P., a
Delaware limited partnership (the "Borrower"), (ii) the Banks party thereto from
time to time (collectively, the "Banks"), and (iii) Credit Lyonnais New York
Branch, as agent for the Banks ("Agent") (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Credit Agreement"; terms defined therein being used herein as therein defined);
and
WHEREAS, each Purchasing Bank (if it is not already a Bank party to the
Credit Agreement) desires to become a Bank party to the Credit Agreement; and
WHEREAS, each Transferor Bank is selling and assigning to its
respective Purchasing Bank, certain rights, obligations and commitments under
the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of [ ] ([ ]) fully executed
originals of this Commitment Transfer Supplement, to each of which is attached a
fully completed Schedule I, Schedule II and Schedule III, and each of which has
been executed by each Transferor Bank, each Purchasing Bank and any other Person
required by the Credit Agreement to execute this Commitment Transfer Supplement,
the Agent will transmit to the Borrower, each Transferor Bank and each
Purchasing Bank a Transfer Effective Notice, substantially in the form of
Schedule IV hereto (a "Transfer Effective Notice"). Such Transfer Effective
Notice shall set forth, inter alia, the date on which the transfer effected by
this Commitment Transfer Supplement shall become effective (the "Transfer
Effective Date"), which date shall be the date hereof. From and after the
Transfer Effective Date each Purchasing Bank shall be a Bank party to the Credit
Agreement for all purposes thereof.
2. Each Purchasing Bank shall pay to each of its respective
Transferor Banks an amount equal to the purchase price, as agreed between such
Transferor Bank and each such Purchasing Bank and set forth on Schedule II
hereto (the "Purchase Price"), of the portion being purchased (such Purchasing
Bank's "Purchased Percentage") by such Purchasing Bank of the outstanding
Commitment, Loans and other amounts owing to the respective Transferor Bank
under the Credit Agreement and the Notes (the "Outstanding Obligations"). Each
Purchasing Bank shall pay the appropriate Purchase Price to each of its
respective Transferor Banks, in
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immediately available funds, at or before 12:00 noon, local time of the
appropriate Transferor Bank, on the Transfer Effective Date. Effective upon the
Transfer Effective Date each Transferor Bank hereby irrevocably sells, assigns
and transfers to each of its respective Purchasing Banks, without recourse,
representation or warranty other than as set forth in Section 8 hereof, and each
such Purchasing Bank hereby irrevocably purchases, takes and assumes from each
of its respective Transferor Banks, such Purchasing Bank's Purchased Percentage
of the Commitment, presently outstanding Loans and other amounts owing to each
such Transferor Bank under the Credit Agreement and the Notes, together with all
instruments, documents and collateral security pertaining thereto.
3. Each Transferor Bank has made arrangements with each of its
respective Purchasing Banks with respect to (a) the portion, if any, to be paid,
and the date or dates for payment, by such Transferor Bank to each of its
respective Purchasing Banks of any fees heretofore received by such Transferor
Bank pursuant to the Credit Agreement prior to the Transfer Effective Date and
(b) the portion, if any, to be paid, and the date or dates for payment, by each
such Purchasing Bank to each Transferor Bank of fees or interest received by
each such Purchasing Bank pursuant to the Credit Agreement from and after the
Transfer Effective Date.
4. (a) All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of any
Transferor Bank pursuant to the Credit Agreement and the Notes shall, instead,
be payable to or for the account of the appropriate Transferor Banks and the
appropriate Purchasing Banks, as the case may be, in accordance with their
respective interests as reflected in this Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise
accrue for the account of any Transferor Bank from and after the Transfer
Effective Date pursuant to the Credit Agreement and the Notes shall, instead,
accrue for the account of, and be payable to, the appropriate Transferor Banks
and the appropriate Purchasing Banks, as the case may be, in accordance with
their respective interests as reflected in this Commitment Transfer Supplement.
In the event that any amount of interest, fees, or other amounts accruing prior
to the Transfer Effective Date was included in the Purchase Price paid by any
Purchasing Bank, the appropriate Transferor Bank and such Purchasing Bank will
make appropriate arrangements for payment by such Transferor Bank to such
Purchasing Bank of such amount upon receipt thereof from the Borrower.
5. On or prior to the Transfer Effective Date, each Transferor
Bank will deliver to the Agent its Note[s]. On or prior to the Transfer
Effective Date, if requested by any Transferor Bank or Purchasing Bank, the
Borrower will deliver to the Agent new Notes for such Purchasing Bank or
Transferor Bank, in each case in principal amounts reflecting, in accordance
with the Credit Agreement, their respective "Revised Commitment Percentage" or
"New Commitment Percentage", as the case may be and as set forth in Schedule III
hereto, of the Commitment or, as appropriate, their then outstanding shares of
the Outstanding Obligations (as adjusted pursuant to this Commitment Transfer
Supplement). Promptly after the Transfer Effective Date, the Agent will send to
each requesting Transferor Bank and Purchasing Bank its new Notes[s] with the
superseded Note[s] of each Transferor Bank attached to the new Note[s] (or if
more than one new Note[s], the superseded Note[s] attached to one of such new
Note[s] and copies thereof attached to all other new Note[s]).
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6. Concurrently with the execution and delivery hereof, the
Transferor Banks will provide to each Purchasing Bank (if it is not already a
Bank party to the Credit Agreement) copies of all documents delivered to the
Transferor Banks evidencing satisfaction of the conditions precedent set forth
in the Credit Agreement.
7. Each of the parties to this Commitment Transfer Supplement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, each Transferor Bank and each of its respective Purchasing Banks
confirm to and agree with each other, the Agent and the Banks as follows: (a)
other than the representation and warranty that it is the legal and beneficial
owner of the interest being assigned hereby free and clear of any adverse claim,
each such Transferor Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Notes or any other instrument or document furnished pursuant
thereto, (b) each such Transferor Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement, the Notes or any other instrument or
document furnished pursuant hereto, (c) each such Purchasing Bank confirms that
it has received a copy of the Credit Agreement, together with copies of such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Commitment Transfer Supplement,
(d) each such Purchasing Bank will, independently and without reliance upon the
Agent, its respective Transferor Banks or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, (e) each such Purchasing Bank appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the terms thereof together
with such powers as are reasonably incidental thereto and (f) each such
Purchasing Bank agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank.
9. Schedule III hereto sets forth for each Transferor Bank and
each Purchasing Bank the revised Commitment and Commitment Percentage of each
Transferor Bank and each Purchasing Bank, as well as certain administrative
information with respect to each Purchasing Bank.
10. THIS COMMITMENT TRANSFER SUPPLEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF
THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
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11. This Commitment Transfer Supplement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
12. Execution of this Commitment Transfer Supplement by the Agent
and the Borrower as set forth below shall constitute any consent of such Person
`required pursuant to Section 8.9 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
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SCHEDULE I
TO COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Re: Revolving Credit Agreement,
dated as of October 10, 2003, with
Indiantown Cogeneration, L.P., as Borrower.
Item 1 Date of Commitment [Insert date of
Transfer Supplement: Commitment
Transfer Supplement]
Item 2 Transferor Banks: [Insert names of
Transferor Banks]
Item 3 Purchasing Banks: [Insert names of
Purchasing Banks]
Item 4 Signatures of Parties
to Commitment Transfer
Supplement:
__________________________________, as a
Transferor Bank
By: ____________________________________
Name:
Title:
__________________________________, as a
Purchasing Bank
By: ____________________________________
Name:
Title:
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SCHEDULE I
(Continued)
CREDIT LYONNAIS NEW YORK BRANCH, as Agent
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
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SCHEDULE I
(Continued)
CONSENTED TO AND ACKNOWLEDGED:
INDIANTOWN COGENERATION, L.P.
By: ____________________________________
Name:
Title:
ACCEPTED FOR RECORDATION IN REGISTER:
CREDIT LYONNAIS NEW YORK BRANCH, as Agent
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
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SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
PURCHASE PRICES
Names of
Transferor Banks
- ---------------------------------------------------------------------------------------------------------------------
Names of
Purchasing (Insert name of [Insert name of Transferor [Insert name of
Banks Transferor Bank] Bank] Transferor Bank]
- ---------------------------------------------------------------------------------------------------------------------
[Insert name of Purchasing $[Insert Purchase Price] $[Insert Purchase Price] $[Insert Purchase Price]
Bank]
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
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SCHEDULE III
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES FOR NOTICES,
COMMITMENT AMOUNTS, AND PROPORTIONATE SHARES
- ----------------------------------------------------------------------
Names of Transferor Banks Revised Maximum Commitment
- ----------------------------------------------------------------------
[ ] $
- ----------------------------------------------------------------------
[ ] $
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Names of Transferor Banks Revised
Commitment Percentage
- ----------------------------------------------------------------------
[ ] %
- ----------------------------------------------------------------------
[ ] %
- ----------------------------------------------------------------------
Names of Purchasing Banks New Maximum
Commitment
- ----------------------------------------------------------------------
[ ] $
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Names of Purchasing Banks Commitment
Percentage
- ----------------------------------------------------------------------
[ ] %
- ----------------------------------------------------------------------
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SCHEDULE III
(Continued)
[NAME PURCHASING BANK(S)]
Address for Notices:
Attention:
Telex:
Answerback:
Telephone:
Facsimile:
Clearing Account:
[Insert Acct. #]
Eurodollar Lending Office:
[Insert Address]
Domestic Lending Office:
[Insert Address]
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SCHEDULE IV TO
COMMITMENT
TRANSFER
SUPPLEMENT
TRANSFER EFFECTIVE NOTICE
________________20__
Transferor Banks: [ ]
Purchasing Banks: [ ]
Borrower: Indiantown Cogeneration, L.P.
The undersigned, as Agent under the Revolving Credit Agreement, dated
as of October 10, 2003 by and among (j) Indiantown Cogeneration, L.P., a
Delaware limited partnership (the "Borrower"), (ii) the Banks party thereto from
time to time (collectively, the "Banks"), and (iii) Credit Lyonnais New York
Branch, as agent for the Banks ("Agent") (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Credit Agreement") acknowledges receipt of [ ] ([ ]) copies of the Commitment
Transfer Supplement as described in Annex I hereto, each fully executed. Terms
defined in such Commitment Transfer Supplement are used herein as therein
defined.
1. Pursuant to such Commitment Transfer Supplement, you are advised
that the Transfer Effective Date will be the date hereof.
2. Pursuant to such Commitment Transfer Supplement, each Transferor
Bank is required to deliver to the Agent on or before the Transfer Effective
Date its Note[s].
3. Pursuant to such Commitment Transfer Supplement, the Borrower is
required to deliver to the Agent on or before the Transfer Effective Date the
following Notes:
[Describe each new Note for Transferor Bank and Purchasing Bank as to principal
amount and payee.]
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SCHEDULE IV
Continued
4. Pursuant to such Commitment Transfer Supplement each Purchasing Bank
is required to pay its Purchase Price, in immediately available funds, to the
appropriate Transferor Bank at or before 12:00 noon, local time of the
appropriate Transferor Bank, on the Transfer Effective Date.
Very truly yours,
CREDIT LYONNAIS NEW YORK BRANCH, as
Agent
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
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ANNEX I
INFORMATION FOR
COMMITMENT TRANSFER SUPPLEMENT
Re: Revolving Credit Agreement, dated as of
October 10, 2003, with Indiantown Cogeneration,
L.P., as Borrower
Item 1 Date of Commitment
Transfer Supplement: _____________, 20__
Item 2 Transferor Banks: [ ]
Item 3 Purchasing Banks: [ ]
C-13
EXHIBIT D
EXEMPTION CERTIFICATE
Reference is made to the Revolving Credit Agreement dated as
of October 10, 2003 among Indiantown Cogeneration, L.P. (the "Borrower"), the
Banks party thereto from time to time and Credit Lyonnais New York Branch, as
Agent (the "Working Capital Facility"). Capitalized terms used herein that are
not defined herein shall have the meanings ascribed to them in the Working
Capital Facility.
______________________ (the "Non-U.S. Lender") is providing
this certificate pursuant to Section 2.15(e) of the Working Capital Facility.
The Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank
for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application
made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
D-1
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the date set forth below.
[NAME OF NON-U.S. LENDER]
By: __________________________________
Name:
Title:
Date: ____________________
D-2