Exhbit 10.68
364-DAY CREDIT AGREEMENT
Dated as of July 17, 2001
Among
MIRANT CORPORATION
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CREDIT SUISSE FIRST BOSTON
as Administrative Agent
---------------------
CREDIT SUISSE FIRST BOSTON
Sole Advisor, Lead Arranger and Book Manager
BANK OF AMERICA, N.A.
Co-Arranger and Co-Syndication Agent
CITIBANK, N.A.
Senior Managing Agent and Co-Syndication Agent
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
Senior Managing Agent and Co-Documentation Agent
THE ROYAL BANK OF SCOTLAND PLC
Senior Managing Agent and Co-Documentation Agent
THE BANK OF TOKYO-MITSUBISHI LTD., NEW YORK BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE
DEUTSCHE BANK AG NEW YORK BRANCH
WACHOVIA BANK, N.A.
Senior Managing Agents
TABLE OF CONTENTS
Page
Article I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...............................................................................1
SECTION 1.02. Computation of Time Periods........................................................................13
SECTION 1.03. Accounting Terms...................................................................................13
Article II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.......................................................................................14
SECTION 2.02. Making the Revolving Credit Advances...............................................................14
SECTION 2.03. The Competitive Bid Advances.......................................................................16
SECTION 2.04. Fees...............................................................................................19
SECTION 2.05. Termination or Reduction of the Commitments........................................................20
SECTION 2.06. Repayment of the Revolving Credit Advances.........................................................20
SECTION 2.07. Interest on the Revolving Credit Advances..........................................................20
SECTION 2.08. Interest Rate Determination........................................................................21
SECTION 2.09. Optional Conversion of the Revolving Credit Advances...............................................23
SECTION 2.10. Optional Prepayments of the Revolving Credit Advances..............................................23
SECTION 2.11. Increased Costs....................................................................................23
SECTION 2.12. Illegality.........................................................................................24
SECTION 2.13. Payments and Computations..........................................................................24
SECTION 2.14. Taxes..............................................................................................25
SECTION 2.15. Sharing of Payments, Etc...........................................................................28
SECTION 2.16. Use of Proceeds....................................................................................28
SECTION 2.17. Extension of the Termination Date..................................................................28
Article III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01..............................................30
SECTION 3.02. Condition Precedent to Each Borrowing..............................................................31
SECTION 3.03. Determinations Under Section 3.01..................................................................31
Article IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.....................................................31
Article V
COVENANTS OF THE BORROWER
SECTION 5.01. Covenants of the Borrower..........................................................................33
Article VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................37
Article VII
THE AGENT
SECTION 7.01. Authorization and Action...........................................................................39
SECTION 7.02. Agent's Reliance, Etc..............................................................................39
SECTION 7.03. CSFB and Affiliates................................................................................40
SECTION 7.04. Lender Credit Decision.............................................................................40
SECTION 7.05. Indemnification....................................................................................40
SECTION 7.06. Successor Agent....................................................................................40
Article VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc....................................................................................41
SECTION 8.02. Notices, Etc.......................................................................................42
SECTION 8.03. No Waiver; Remedies................................................................................42
SECTION 8.04. Costs and Expenses, Etc............................................................................42
SECTION 8.05. Right of Set-off...................................................................................45
SECTION 8.06. Binding Effect.....................................................................................45
SECTION 8.07. Assignments and Participations.....................................................................45
SECTION 8.08. Confidentiality....................................................................................49
SECTION 8.09. Governing Law......................................................................................51
SECTION 8.10. Execution in Counterparts..........................................................................51
SECTION 8.11. Jurisdiction, Etc..................................................................................51
SECTION 8.12. No Bankruptcy Proceedings..........................................................................51
SECTION 8.13. Waiver of Jury Trial...............................................................................51
Schedules
Schedule I........- List of Applicable Lending Offices
Schedule II.......- Terms of Subordination
Exhibits
Exhibit A-1.......- Form of Revolving Credit Note
Exhibit A-2.......- Form of Competitive Bid Note
Exhibit B-1.......- Form of Notice of Revolving Credit Borrowing
Exhibit B-2.......- Form of Notice of Competitive Bid Borrowing
Exhibit C-1.......- Form of Assignment and Acceptance
Exhibit C-2.......- Form of Confidentiality Agreement
Exhibit D.........- Form of Opinion of Counsel for the Borrower
Exhibit E.........- Form of Opinion of Counsel for the Agent
Exhibit F.........- Form of Designation Agreement
364-DAY CREDIT AGREEMENT
Dated as of July 17, 2001
MIRANT CORPORATION, a Delaware corporation (the "Borrower"), the financial
institutions (the "Initial Lenders") listed on the signature pages hereof and
CREDIT SUISSE FIRST BOSTON ("CSFB"), as agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
Article I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person (other than an individual), any other
Person (other than an individual) that, directly or indirectly through one or
more intermediaries, Controls, is Controlled by or is under common Control with
such Person.
"Affiliate Subordinated Debt" has the meaning specified in Schedule II
hereto.
"Agent" has the meaning set forth in the introductory paragraph hereto.
"Agent's Account" means the account of the Agent maintained by the Agent at
The Bank of New York, ABA No. 021 00 0018, Account No. 8900387734, Account Name:
CSFB Agency Clearing Account, Ref: Mirant Corporation.
"Applicable Facility Fee Percentage" means, as of any date, a percentage
per annum determined by reference to the Credit Ratings in effect on such date
as set forth below:
-------------------------------- -----------------------------
Credit Rating Applicable Facility Fee
S&P/Moody's Percentage
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 1
A-/A3 or above .100%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 2
BBB+/Baa1 .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
BBB/Baa2 .150%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 4
BBB-/Baa3 .200%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 5
BB+/Ba1 or below .300%
-------------------------------- -----------------------------
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a Competitive Bid Advance, the office of such Lender notified by
such Lender to the Agent as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Credit Ratings in effect on such date as set
forth below:
--------------------------- ------------------------------ ------------------------------
Credit Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurodollar Rate Advances
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Level 1
A-/A3 or above 0% .525%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Level 2
BBB+/Baa1 0% .625%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Level 3
BBB/Baa2 0% .775%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Level 4
BBB-/Baa3 0% .800%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Level 5
BB+/Ba1 or below .500% 1.500%
--------------------------- ------------------------------ ------------------------------
provided, however, that on each date on which the aggregate of the
unpaid Advances exceeds 33-1/3% of the aggregate of the Commitments,
the Applicable Margin for Eurodollar Rate Advances shall be increased
for such date by a percentage per annum determined by reference to the
Credit Ratings in effect on such date as set forth below:
-------------------------------- -----------------------------
Credit Rating Increase in Applicable
Margin for Eurodollar
S&P/Moody's Rate Advances
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 1
A-/A3 or above .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 2
BBB+/Baa1 .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
BBB/Baa2 .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 4
BBB-/Baa3 .250%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 5
BB+/Ba1 or below .500%
-------------------------------- -----------------------------
"Arrangers" means the Lead Arranger and the Co-Arranger.
"Assets" with respect to any Person means all or any part of its business,
property and assets, wherever situated.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and one or more Eligible Assignees, and accepted by the Agent and,
if required hereby, by the Borrower, in substantially the form of Exhibit C-1
hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by CSFB in New York, New
York, from time to time, as CSFB's base rate; and
(b) .5% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrower" has the meaning set forth in the introductory paragraph hereto.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means any day other than a Saturday, Sunday or any day on
which banks are not required or authorized by law to close in New York City and,
if the applicable Business Day relates to any Eurodollar Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank market.
"Cash Available for Corporate Debt Service" for a particular period means
(a) EBITDA with reference to the Borrower's consolidated financial statements;
plus (b) cash received (net of transaction costs and expenses) during such
period by the Borrower and its consolidated Subsidiaries from asset sales or
other dispositions not required to prepay debt.
"Co-Arranger" means Bank of America, N.A., as Co-Arranger and
Co-Syndication Agent.
"Commitment" means, with respect to any Lender (i) the amount set forth
opposite such Lender's name on Schedule I hereto, (ii) if such Lender has become
a Lender pursuant to Section 8.01(b), the amount of the Commitment of such
Lender set forth in the relevant supplemental agreement referred to in Section
8.01(b) or (iii) if such Lender has entered into an Assignment and Acceptance,
the amount set forth for such Lender in the Register maintained by the Agent
pursuant to Section 8.07(d), as any such amount may be reduced pursuant to
Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to the Borrower as
part of a Competitive Bid Borrowing resulting from the competitive bidding
procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such borrowing has been accepted under
the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" means, with respect to any Lender at any time,
such Lender's Pro Rata Share of the aggregate amount of the Competitive Bid
Advances outstanding at such time.
"Confidential Information" means information concerning the Borrower or its
Affiliates which is non-public, confidential or proprietary in nature, or any
information that is marked or designated confidential by or on behalf of the
Borrower, which is furnished to any Lender by the Borrower or any of its
Affiliates directly or through the Agent or the Lead Arranger in connection with
this Agreement or the transactions contemplated hereby (at any time on, before
or after the date hereof), together with all analyses, compilations or other
materials prepared by such Lender or its respective directors, officers,
employees, agents, auditors, attorneys, consultants or advisors (collectively,
"Representatives") which contain or otherwise reflect such information.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Consolidated Net Worth" means the aggregate of the capital stock and other
equity accounts (including, without limitation, retained earnings and paid in
capital) of the Borrower.
"Control" (including the terms "Controlling", "Controlled by" and "under
common Control with") of a Person (other than an individual) means the power to
direct or to cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Corporate Interest" means, for any period, the aggregate of the Borrower's
accrued obligations during such period to pay interest on Recourse Debt and
Non-Affiliate Subordinated Debt.
"Credit Rating" means, as of any date, the highest credit rating that has
been most recently established in writing by either S&P or Moody's, as the case
may be, for the Borrower or for any class of non-credit-enhanced long-term
senior unsecured debt issued by the Borrower. For purposes of the foregoing, (a)
if only one of S&P and Moody's shall have in effect a Credit Rating, the
Applicable Margin, any change in the Applicable Margin pursuant to the proviso
in the definition of such term and the Applicable Facility Fee Percentage shall
be determined by reference to the available Credit Rating; (b) if neither S&P
nor Moody's shall have in effect a Credit Rating, the Applicable Margin, any
such change and the Applicable Facility Fee Percentage will be set in accordance
with Level 5 under the table or tables contained in the definition of
"Applicable Margin" or "Applicable Facility Fee Percentage", as the case may be;
(c) if the ratings established by S&P and Moody's shall fall within different
but adjoining Levels (e.g., Levels 2 and 3), the Applicable Margin, any such
change and the Applicable Facility Fee Percentage will be set in accordance with
the higher of such Levels under the table or tables contained in the definition
of "Applicable Margin" or "Applicable Facility Fee Percentage", as the case may
be; (d) if the ratings established by S&P and Moody's shall fall within
different and non-adjoining Levels (e.g., Levels 2 and 4), the Applicable
Margin, any such change and the Applicable Facility Fee Percentage (x) if such
Levels are separated by one Level (e.g., Levels 1 and 3) or by three Levels
(e.g., Levels 1 and 5) will be set in accordance with the Level midway between
such Levels (e.g., Level 2 or Level 3, respectively) under the table or tables
contained in the definition of "Applicable Margin" or "Applicable Facility Fee
Percentage", as the case may be, or (y) if such Levels are separated by two
Levels (e.g., Levels 1 and 4) will be set in accordance with the Level under the
table or tables contained in the definition of "Applicable Margin" or
"Applicable Facility Fee Percentage", as the case may be, immediately below the
higher of such Levels in such table or tables (e.g., Level 2); (e) if any Credit
Rating established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is notified in writing to the
Borrower, or is announced publicly, by the rating agency making such change; and
(f) if S&P or Moody's shall change the basis on which ratings are established,
each reference to the Credit Rating announced by S&P or Moody's, as the case may
be, shall refer to the then equivalent rating by S&P or Moody's, as the case may
be.
"CSFB" has the meaning set forth in the introductory paragraph hereto.
"Debt" means, for any Person, any obligations of such Person for or in
respect of (a) moneys borrowed or raised (whether or not for cash) by whatever
means (including acceptances, deposits, discounting, letters of credit,
factoring (other than on a non-recourse basis), Finance Leases and any other
form of financing which is recognized in such Person's financial statements as
being in the nature of a borrowing (excluding, for the avoidance of doubt, share
capital, share premium account and any capital prepayment reserve), (b) the
deferred purchase price of Assets or services (other than goods and services
obtained on normal commercial terms in the ordinary course of business or
operations) and (c) guarantees by such Person of obligations which constitute
Debt of another Person under clause (a) or (b) above.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Designated Lender" means a special purpose corporation that is identified
as such on the signature pages hereof or of an Assignment and Acceptance next to
the caption "Designated Lender" as well as each special purpose corporation that
(a) shall have become a party to this Agreement pursuant to Section 8.07(i) and
(b) is not otherwise a Lender.
"Designated Lender Note" means a Note evidencing the obligation of the
Borrower to repay Advances made by a Designated Lender.
"Designating Lender" means each Lender that is identified as such on the
signature pages hereof or of an Assignment and Acceptance next to the caption
"Designating Lender" and immediately below the signature of its Designated
Lender, as well as each Lender that shall designate a Designated Lender pursuant
to Section 8.07(i).
"Designation Agreement" means a designation agreement in substantially the
form of Exhibit F attached hereto, entered into by a Lender and a Designated
Lender and accepted by the Borrower and the Agent.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"EBITDA" for a particular period means with reference to the Borrower's
consolidated financial statements (a) income from continuing operations before
income taxes and minority interest; plus (b) depreciation and amortization; plus
(c) Corporate Interest; plus (d) losses attributable to minority interest; minus
(e) income attributable to minority interest; minus (f) cash income taxes paid,
adjusted, if appropriate, to reflect any minority investors' pro rata share of
cash income taxes paid (including cash payments to Affiliates of the Borrower
related to corporate tax sharing arrangements); plus (g) cash income taxes
received, adjusted, if appropriate, to reflect any minority investors' pro rata
share of cash income taxes received (including cash tax refunds and cash
payments from Affiliates of the Borrower related to corporate tax sharing
arrangements). "EBITDA" shall not include the effect of (i) gains or losses on
sales or dispositions of assets and (ii) non-recurring items to the extent they
do not affect cash.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such country,
so long as such bank is acting through a branch or agency located in the country
in which it is organized or another country that is described in this clause
(v); (vi) a finance company, insurance company or other financial institution or
fund (whether a corporation, partnership, trust or other entity) that is engaged
in making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (vii) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; provided,
however, that neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee; provided further that the entities listed in
items (iii)-(vii) above shall have a short-term credit rating of at least
"Prime-2" (or the then equivalent grade) by Moody's or "A-2" (or the then
equivalent grade) by S&P, or, if no short-term credit rating is available, a
long-term credit rating of at least Baa1 (or the then equivalent grade) by
Moody's or BBB+ (or the then equivalent grade) by S&P; provided further that if
any entity listed in item (vii) above shall have no short-term or long-term
credit rating, the relevant credit rating shall be the short-term or long-term
credit rating of the country of which such entity is the central bank.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for each Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing, an interest rate
per annum equal to the London inter-bank offered rate fixed by the British
Bankers' Association (as set forth by any service selected by the Agent which
has been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for deposits in
U.S. dollars to be outstanding for a period equal to such Interest Period at
approximately 11:00 a.m. (London time) on the date which is two Business Days
prior to the beginning of such Interest Period; provided that, to the extent
that the "Eurodollar Rate" is not ascertainable pursuant to the foregoing
provisions of this definition, the "Eurodollar Rate" shall be the interest rate
per annum determined by the Agent to be the average (rounded to the nearest
1/10,000th of 1% per annum) of the rates per annum at which deposits in U.S.
dollars are offered to prime banks in the London inter-bank market in London,
England by the Reference Banks at approximately 11:00 a.m. (London time) on the
date which is two Business Days prior to the beginning of such Interest Period
in amounts substantially equal to the amounts of the respective Eurodollar Rate
Advances made or to be made by the Reference Banks as part of such Borrowing and
to be outstanding for a period which is coterminous with such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(ii).
"Events of Default" has the meaning specified in Section 6.01.
"Excepted Assets" means (i) Assets sold or otherwise disposed of in the
ordinary course of business (including, without limitation, Assets distributed
to shareholders), (ii) Assets the net proceeds of the sale of which are invested
in Assets in similar or related lines of business of the Borrower or its
Subsidiaries and/or applied to repay Debt of the Borrower or its Subsidiaries
(including the purchase of debt securities for cancellation), in each case
within 18 months of the receipt of such net proceeds, (iii) Assets the net
proceeds of the sale of which are retained by the Borrower or its Subsidiaries
as cash or marketable securities, and (iv) Assets being transferred from one
wholly owned Subsidiary of the Borrower to another wholly-owned Subsidiary of
the Borrower.
"Extension Date" has the meaning specified in Section 2.17(b).
"Extension Request Date" has the meaning specified in Section 2.17(a).
"Federal Funds Rate" means, for any period, a 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.
"Finance Lease" means, for any Person, any lease, or any hire purchase,
conditional sale or other form of title retention agreement which is recognized
in such Person's financial statements as being in the nature of a borrowing.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
"Four-Year Credit Agreement" means the Four-Year Credit Agreement dated as
of the date hereof among the Borrower, the initial lenders named therein and
CSFB, as agent.
"GAAP" has the meaning specified in Section 1.03.
"Information Memorandum" means the information memorandum dated June 14,
2001 used by the Lead Arranger in connection with the syndication of this
Agreement and the Four Year Credit Agreement.
"Initial Lenders" has the meaning set forth in the introductory paragraph
hereto.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Revolving Credit Borrowing and for each LIBO Rate Advance comprising
part of the same Competitive Bid Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or LIBO Rate Advance or the date of the Conversion
of any Base Rate Advance into such Eurodollar Rate Advance and ending on the
last day of the period selected by the Borrower pursuant to the provisions below
(in the case of a Eurodollar Rate Advance) or, subject to the provisions below,
pursuant to the relevant Notice of Competitive Bid Borrowing (in the case of a
Competitive Bid Advance) and, thereafter with respect to each Eurodollar Rate
Advance or Competitive Bid Advance, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day
of the period selected by the Borrower pursuant to the provisions below (in the
case of a Eurodollar Rate Advance) or, subject to the provisions below, pursuant
to the relevant Notice of Competitive Bid Borrowing (in the case of a
Competitive Bid Advance). The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the later of the Termination Date and the Maturity
Date;
(ii) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Revolving Credit
Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same
duration;
(iii)whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Later Day" has the meaning specified in Section 2.17(a).
"Law" means any constitution, decree, judgment, legislation, order,
ordinance, regulation, statute, treaty or other legislative measure having the
force of law (and "lawful" and "unlawful" shall be construed accordingly).
"Lead Arranger" means Credit Suisse First Boston, as Sole Advisor, Lead
Arranger and Book Manager.
"Lenders" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Section 8.01(b) or 8.07(a) and the Designated Lenders,
if any; provided, however, that the term "Lender" shall exclude each Designated
Lender when used in reference to an Advance (except to the extent a Designated
Lender is the obligee of an Advance actually funded by it pursuant to Section
2.01(c)), terms relating to the Advances (except as noted above) and the
Commitments.
"Level" means any of Level 1 through Level 5 specified in the table or
tables under the definition of "Applicable Margin" or "Applicable Facility Fee
Percentage".
"LIBO Rate" means, for each Interest Period for each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the London inter-bank offered rate fixed by the British Bankers'
Association (as set forth by any service selected by the Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for deposits in U.S. dollars to
be outstanding for a period equal to such Interest Period at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to the beginning
of such Interest Period; provided that, to the extent that the "LIBO Rate" is
not ascertainable pursuant to the foregoing provisions of this definition, the
"LIBO Rate" shall be the interest rate per annum determined by the Agent to be
the average (rounded to the nearest 1/10,000th of 1% per annum) of the rates per
annum at which deposits in U.S. dollars are offered to prime banks in the London
inter-bank market in London, England by the Reference Banks at approximately
11:00 a.m. (London time) on the date which is two Business Days prior to the
beginning of such Interest Period in amounts substantially equal to the amounts
that would be the Reference Banks' respective ratable shares of such Borrowing
if such Borrowing were a Revolving Credit Borrowing and to be outstanding for a
period which is coterminous with such Interest Period, subject, however, to the
provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance bearing interest based
on the LIBO Rate.
"Lien" means any mortgage, pledge, lien, hypothecation, security interest
or other charge, encumbrance or other arrangement in the nature of a security
interest in property to secure the payment or performance of Debt; provided,
however, that the term "Lien" shall not include any easements, rights-of-way,
zoning restrictions, leases, subleases, licenses, sublicenses, other
restrictions on the use of property, defects in title to property or other
similar encumbrances.
"Liquidity Lender" means for any Designated Lender, at any date of
determination, the Designating Lender or, with the prior written consent of the
Borrower, another financial institution which at such date is providing
liquidity or credit support facilities to or for the account of such Designated
Lender to fund such Designated Lender's obligations hereunder or to support the
securities, if any, issued by such Designated Lender to fund such obligations.
"Material Adverse Effect" means a material adverse change in, or material
adverse effect on, the financial condition, operations, business or properties
of the Borrower which would have a material adverse effect on the ability of the
Borrower to pay amounts owed by it from time to time hereunder.
"Maturity Date" has the meaning specified in Section 2.06.
"Moody's" means Moody's Investors Service, Inc.
"Non-Affiliate Subordinated Debt" has the meaning specified in Schedule II
hereto.
"Non-Consenting Lender" has the meaning specified in Section 2.17(b).
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in Section
2.02(a).
"Other Taxes" has the meaning specified in Section 2.14.
"Person" means any individual, company, corporation, firm, partnership,
joint venture, undertaking, association, organization, trust, state or agency of
a state (in each case, whether or not having separate legal personality).
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender's Commitment at such time and the denominator of which is
the aggregate of the Commitments at such time.
"Project Finance Debt" means Debt (not exceeding the cost of the
acquisition, construction or creation of the relevant Asset or project) incurred
or existing in connection with the financing or refinancing of any Asset or
project, the repayment of which Debt is to be made from the revenues arising out
of, or other proceeds of realization from, the acquired or created Asset or
project, with recourse to those revenues and proceeds and Assets forming the
subject matter of such Asset or project (including, without limitation,
insurance, contracts and shares or other rights of ownership in the entity(ies)
which own the relevant Assets or project) and other Assets ancillary thereto but
without substantial recourse to any other Asset or otherwise to Borrower;
provided that substantial recourse shall not be deemed to exist by reason of
normal and customary sponsor support arrangements.
"Recourse Capital" means the sum of (a) Consolidated Net Worth and (b) Debt
of the Borrower.
"Recourse Debt" means all Debt of the Borrower other than Subordinated
Debt.
"Reference Banks" means CSFB, Bank of America, N.A. and Citibank, N.A.
"Register" has the meaning specified in Section 8.07(d).
"Representatives" has the meaning specified in the definition of
"Confidential Information".
"Required Lenders" means at any time Lenders owed at least a majority of
the then aggregate unpaid principal amount of the Revolving Credit Advances
owing to Lenders, or, if no such principal amount is then outstanding, Lenders
having at least a majority of the aggregate amount of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders pursuant
to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
"Senior Managing Agents" means Citibank, N.A., as Senior Managing Agent and
Co-Syndication Agent, Commerzbank AG, New York and Grand Cayman Branches, as
Senior Managing Agent and Co-Documentation Agent, The Royal Bank of Scotland
PLC, as Senior Managing Agent and Co-Documentation Agent, and The Bank of
Tokyo-Mitsubishi Ltd., New York Branch, Bayerische Landesbank Girozentrale,
Deutsche Bank AG New York Branch and Wachovia Bank, N.A., as Senior Managing
Agents.
"Subordinated Debt" means Affiliate Subordinated Debt and Non-Affiliate
Subordinated Debt.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the Voting Stock, (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one of more of
its Subsidiaries or by one or more of such Person's other Subsidiaries.
"Taxes" has the meaning specified in Section 2.14.
"Term Loan Conversion Date" means the Termination Date on which all
Advances outstanding on such date are converted into a term loan pursuant to
Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of (a) the day occurring 364 days
after the date hereof, subject to the extension thereof pursuant to Section
2.17, and (b) the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01; provided, however, that the Termination Date of any Lender
that is a Non-Consenting Lender to any requested extension pursuant to Section
2.17 shall be the Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Unused Commitment" means, with respect to any Lender at any time, (a) such
Lender's Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances made by such Lender
outstanding at such time and (ii) such Lender's Competitive Bid Reduction at
such time.
"U.S. Tax Law Change" has the meaning specified in Section 2.14.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person (other than an individual), the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
SECTION 1.02. ...Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ...Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied by the Borrower at the
relevant time ("GAAP").
Article II.
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. ...The Advances. (a) The Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Credit Advances to the Borrower from time to time on any Business
Day during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed such Lender's Unused Commitment on such Business
Day. Each Revolving Credit Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. The Borrower may
make more than one Revolving Credit Borrowing or Competitive Bid Borrowing on
the same day and may make Revolving Credit Borrowings and Competitive Bid
Borrowings on the same day. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
(b) Designated Lenders. For any Lender which is a Designating Lender, any
Advance to be made by such Lender may from time to time be made by its
Designated Lender in such Designated Lender's sole discretion, and nothing
herein shall constitute a commitment to make Advances by such Designated Lender;
provided that, if any Designated Lender elects not to, or fails to, make any
such Advance, its Designating Lender hereby agrees that it shall make such
Advance pursuant to the terms hereof. Any Advance actually funded by a
Designated Lender shall constitute a utilization of the Commitment of the
Designating Lender for all purposes hereunder.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or not later than 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed immediately by
telecopier in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Revolving Credit Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, the initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 11:00 A.M. (New York City time) on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such Lender's ratable
portion of such Revolving Credit Borrowing; provided, however, that if a Notice
of Revolving Credit Borrowing in respect of a proposed Revolving Credit
Borrowing consisting of Base Rate Advances is given on the date of such
Revolving Credit Borrowing, the Lenders shall so make available their ratable
portions of such Revolving Credit Borrowing before 3:00 P.M. (New York City
time) on such date. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower at the Agent's address referred to in Section
8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, the
Borrower may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08(e).
(c) The Borrower shall indemnify each Lender against any actual and
documented loss (excluding any loss of profit and/or margin), cost or expense
reasonably incurred by such Lender as a result of (i) the revocation by the
Borrower of (x) any Notice of Revolving Credit Borrowing for a Revolving Credit
Borrowing that such Notice of Revolving Credit Borrowing specifies is to be
comprised of Eurodollar Rate Advances or (y) any notice given by the Borrower
pursuant to Section 2.09 of the Conversion of Base Rate Advances to Eurodollar
Rate Advances and (ii) any failure to fulfill on or before the date specified in
a Notice of Revolving Credit Borrowing for a Revolving Credit Borrowing that
such Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurodollar Rate Advances the applicable conditions set forth in Article III,
including, without limitation in each such case, any loss (excluding loss of
profit and/or margin), cost or expense reasonably incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Revolving Credit Advance to be made by such Lender as part of such
Revolving Credit Borrowing or as a result of such Conversion when such Revolving
Credit Advance, as a result of such revocation or failure, is not made on the
date specified therefor in the relevant Notice of Revolving Credit Borrowing or
when such Base Rate Advances, as a result of such revocation, are not converted
to Eurodollar Rate Advances, but excluding, however, any such losses, costs and
expenses resulting from any such revocation or failure which has occurred more
than 60 days prior to demand being made to the Borrower by such Lender for
indemnification. The payment of such indemnity to a Lender shall be made within
30 days of a demand by such Lender complying with Section 8.04(d).
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Revolving Credit Borrowing that such Lender will not make available
to the Agent such Lender's ratable portion of such Revolving Credit Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit Borrowing in accordance with Section
2.02(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
Lender shall not have so made such ratable portion available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may make one or more Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, the aggregate amount of the
Competitive Bid Borrowings made on any Business Day shall not exceed the
aggregate amount of the Unused Commitments on such Business Day.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section by delivering to the Agent, by telecopier, a
notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of
Exhibit B-2 hereto, specifying therein the requested (t)
date of such proposed Competitive Bid Borrowing, (u)
aggregate amount of such proposed Competitive Bid Borrowing,
(v) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, the Interest Period or Periods therefor,
(w) the maturity date for repayment of the Competitive Bid
Advances to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than, in
the case of each LIBO Rate Advance to be made as part of
such Competitive Bid Borrowing, the date occurring one month
after the date of such Competitive Bid Borrowing or, in all
cases, later than the Termination Date), (x) interest
payment date or dates relating thereto, (y) provisions
related to assignments of, and sales of participations in,
the related Competitive Bid Advances and (z) other terms (if
any) to be applicable to such Competitive Bid Borrowing, not
later than 11:00 A.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall specify in the Notice
of Competitive Bid Borrowing that the rates of interest to
be offered by the Lenders shall be fixed rates per annum
(the Competitive Bid Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed
Rate Advances") and (B) at least four Business Days prior to
the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid
Borrowing that the Competitive Bid Advances comprising such
Competitive Bid Borrowing shall be LIBO Rate Advances. The
Agent shall give to each Lender by telecopier prompt notice
of each Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof
to the Borrower), (A) before 9:30 A.M. (New York City time)
on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances and (B) before 10:00 A.M. (New York City time)
three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, of (w) the
minimum amount and maximum amount of each Competitive Bid
Advance which such Lender would be willing to make as part
of such proposed Competitive Bid Borrowing (which amounts of
such proposed Competitive Bid may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), (x) in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances,
the rate or rates of interest therefor, (y) in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances,
the margin over the LIBO Rate therefor, and (z) such
Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; provided that if CSFB in its
capacity as a Lender shall, in its sole discretion, elect to
make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on
which notice of such election is to be given to the Agent by
the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the Agent before
the time by which such offer would have had to have been
made, and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(iii)The Borrower shall, in turn, (A) before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and (B) before 11:00 A.M.
(New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances
either:
(x) cancel such Competitive Bid Borrowing by giving the Agent notice to
that effect, or
(y) accept one or more of the offers made by any Lender or Lenders pursuant
to paragraph (ii) above, in its sole discretion, by giving notice to the Agent
of the amount of each Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect. The Borrower shall accept the offers made by any Lender
or Lenders to make Competitive Bid Advances in order of the lowest to the
highest rates of interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the amount that each such
Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above,
the Agent shall give prompt notice thereof to the Lenders
and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above,
the Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of
the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by
such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to
be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive
Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall,
before 11:00 A.M. (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received
from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have
received notice from the Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at its address
referred to in Section 8.02, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds,
the Agent will make such funds available to the Borrower at
the location specified by the Borrower in its Notice of
Competitive Bid Borrowing. Promptly after each Competitive
Bid Borrowing the Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(vi) Unless otherwise specified by the Borrower in the related
Notice of Competitive Bid Borrowing, the Borrower shall
indemnify each Lender against any actual and documented loss
(excluding any loss of profit and/or margin), cost or
expense reasonably incurred by such Lender as a result of
(i) the revocation by the Borrower of its acceptance of any
offer made by such Lender pursuant to paragraph (iii)(y)
above or (ii) any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing
for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any
loss (excluding any loss of profit and/or margin), cost or
expense reasonably incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such revocation
or failure, is not made on such date, but excluding,
however, any such losses, costs and expenses resulting from
any such revocation or failure which has occurred more than
60 days prior to demand being made to the Borrower by such
Lender for indemnification. The payment of such indemnity to
a Lender shall be made within 30 days of a demand by such
Lender complying with Section 8.04(d).
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower shall be in
compliance with the limitation set forth in the proviso to the first sentence of
Section 2.03(a).
(c) Within the limits and on the conditions set forth in this Section 2.03,
the Borrower may from time to time borrow under this Section 2.03, repay or
prepay pursuant to subsection (d) below, and reborrow under this Section 2.03;
provided that, subject to Section 2.01, a Competitive Bid Borrowing shall not be
made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Agent for the account of each Lender
that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i) and provided
in the Competitive Bid Note evidencing such Competitive Bid Advance), the then
unpaid principal amount of such Competitive Bid Advance. The Borrower shall have
no right to prepay any principal amount of any Competitive Bid Advance unless,
and then only on the terms, specified by the Borrower for such Competitive Bid
Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance to the
date the principal amount of such Competitive Bid Advance is repaid in full, at
the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to Section 2.03(a)(ii), payable on the interest payment date or dates
specified by the Borrower for such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i), as
provided in the Competitive Bid Note evidencing such Competitive Bid Advance.
Unless otherwise specified by the Borrower in the related Notice of Competitive
Bid Borrowing, upon the occurrence and during the continuance of an Event of
Default under Section 6.01(a), the Borrower shall pay interest on the amount of
unpaid principal of and interest on each Competitive Bid Advance owing to a
Lender, payable in arrears on the date or dates interest is payable thereon, at
a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance.
(f) The indebtedness of the Borrower resulting from each Competitive Bid
Advance made to the Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing, the Borrower
shall pay a non-refundable fee of $3,500 to the Agent for its own account.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower shall pay to the Agent
for the account of each Lender a facility fee on the aggregate amount of such
Lender's Commitment, irrespective of usage, (i) in the case of each Initial
Lender, from the date of this Agreement, (ii) in the case of a Lender which
becomes a Lender pursuant to Section 8.01(b), from the date the supplemental
agreement referred to in Section 8.01(b) becomes effective as therein provided
and (iii) in the case of each other Lender, from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender, until the
later of the Termination Date and the Maturity Date at a rate per annum equal to
the Applicable Facility Fee Percentage in effect from time to time, payable in
arrears on the last Business Day of each March, June, September and December,
and on the later of the Termination Date and the Maturity Date.
(b) Other Fees. The Borrower shall pay to the Agent for the account each
Lender and to the Agent and the Lead Arranger for their own respective accounts
such fees as may from time to time be agreed between the Borrower and the Lead
Arranger.
SECTION 2.05. Termination or Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days' notice to the Agent, to
terminate in whole or reduce ratably in part the Unused Commitments; provided
that each partial reduction shall be in the aggregate amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment of the Revolving Credit Advances. The Borrower
shall, subject to the next succeeding sentence, repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding. The Borrower may, upon
notice to the Agent on any Business Day occurring on or before the Termination
Date, elect (the "Term Loan Election") to convert all of the Revolving Credit
Advances outstanding on the Termination Date in effect at such time into a term
loan which the Borrower shall repay in full ratably to the Lenders on the date
specified in such notice occurring not later than the first anniversary of such
Termination Date (the "Maturity Date"); provided that the Term Loan Election may
not be exercised if a Default or an Event of Default has occurred and is
continuing on the date of notice of the Term Loan Election or on the date on
which the Term Loan Election is to be effected. All Revolving Credit Advances
converted into a term loan pursuant to this Section 2.06 shall continue to
constitute Advances except that the Borrower may not reborrow pursuant to
Section 2.01 after all or any portion of such Revolving Credit Advances have
been prepaid pursuant to Section 2.10.
SECTION 2.07. Interest on the Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Advance
until such principal amount shall be paid in full, at the following rates per
annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (x) the Base Rate in effect
from time to time plus (y) the Applicable Margin in effect
from time to time, payable in arrears on the last Business
Day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a
rate per annum equal at all times during each Interest
Period for such Revolving Credit Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in
effect from time to time, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs
during such Interest Period every three months from the
first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Borrower shall pay interest on (i)
the unpaid principal amount of each Revolving Credit Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Revolving Credit Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder or under any Note
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Base Rate Advances
pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees
to furnish to the Agent, at its request, timely information for the purpose of
determining each Eurodollar Rate and LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii)
or for a LIBO Rate Advance.
(b) If (i) the Agent is unable for any reason to determine the Eurodollar
Rate for any Interest Period, (ii) if applicable, fewer than two Reference Banks
furnish timely information to the Agent for determining the Eurodollar Rate for
any Interest Period pursuant to Section 2.08(a) or (iii) the Required Lenders
notify the Agent by 12:00 noon (London time) two Business Days prior to the
first day of any Interest Period that the Required Lenders were unable to
obtain, at approximately 11:00 A.M. (London time) on such Business Day and at
the applicable Eurodollar Rate, U.S. dollar deposits for a period equal to such
Interest Period and in amounts substantially equal to such Required Lenders'
respective Eurodollar Rate Advances comprising part of the Revolving Credit
Borrowing to be outstanding during such Interest Period, the Agent shall
promptly notify the Borrower and the Lenders of such event, whereupon:
(A) within five Business Days of receipt of such
notification, the Agent and the Borrower shall enter
into good faith negotiations for a period of 15 days
(or such shorter period as is required to agree to the
alternative basis referred to in this clause (A)) with
a view to agreeing on an alternative basis for
determining the rate of interest applicable to such
Eurodollar Rate Advances;
(B) any alternative basis agreed under clause (A) above
with the approval of the Required Lenders and any
interest rate determined pursuant thereto will be
binding on all the parties hereto and will be
retroactive to, and take effect from, the first day of
the applicable Interest Period;
(C) if no alternative basis is agreed under clause (A)
above within the 15-day period there specified, the
Agent, upon instructions of the Required Lenders,
shall, on behalf of each of the Lenders, set forth an
alternative basis for determining the rate of interest
applicable to such Eurodollar Rate Advances on or
before the last day of the Interest Period to which the
notification relates or, if earlier, within ten days
after the expiration of the 15-day period set forth in
clause (A) above. Each Lender shall certify to the
Agent and to the Borrower such Lender's actual cost of
funds for funding its applicable Eurodollar Rate
Advances, and the Required Lenders shall certify to the
Agent and the Borrower in reasonable detail the
alternative basis for determining the rate of interest
to be applicable to such Eurodollar Rate Advances and
such interest rate as so determined;
(D) any interest rate determined pursuant to clause (C)
above shall not, in any event, exceed (x) the Required
Lenders' reasonable determination of the cost to the
Lenders, as certified by them pursuant to clause (C)
above, of funding their applicable Eurodollar Rate
Advances plus (y) the Applicable Margin;
(E) each alternative basis so certified and each interest
rate determined pursuant thereto shall be binding on
the Borrower and the Lenders and shall be retroactive
to, and take effect from, the first day of the
applicable Interest Period; and
(F) so long as any alternative basis referred to above is
in force, the Agent, in consultation with the Borrower
and the Required Lenders, shall from time to time, but
not less frequently than monthly, review whether or not
the circumstances referred to in this Section 2.08(b)
still prevail with a view to returning to the normal
provisions of this Agreement in relation to the method
of determining interest as soon as practicably
possible.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, then on the
last day of the then existing Interest Period therefor the longest Interest
Period not longer than three months that the Borrower could have selected for
such Eurodollar Rate Advances in accordance with such provisions shall be
applicable to such Eurodollar Rate Advances or, if the Borrower could not have
selected any Interest Period for such Eurodollar Rate Advances in accordance
with such provisions, such Eurodollar Rate Advances will automatically, on such
last day, Convert into Base Rate Advances, and the Agent shall promptly notify
the Borrower and the Lenders thereof.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default
(i) each Eurodollar Rate Advance and LIBO Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Eurodollar Rate Advances into, Eurodollar Rate Advances shall be suspended until
all Events of Default have been cured or waived.
SECTION 2.09. Optional Conversion of the Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.01. Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Credit Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Revolving Credit Advance.
SECTION 2.10. Optional Prepayments of the Revolving Credit Advances. The
Borrower may, upon at least three Business Days' notice (in the case of
Eurodollar Rate Advances) or one Business Day's notice (in the case of Base Rate
Advances) to the Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Revolving Credit Advances comprising part of
the same Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. The Borrower agrees to indemnify each Lender
for its actual and documented increased costs that are the result of a change of
Law or in the official interpretation thereof or compliance with any guideline
or request from any central bank or other governmental authority having
jurisdiction over such Lender (whether or not having the force of law) adopted
or made (i) in the case of the Initial Lenders, after the date of this
Agreement, (ii) in the case of any other Lender, after the date such Lender
shall have become a party to this Agreement by executing and delivering an
Assignment and Acceptance, and (iii) in the case of a Lender which has a
Competitive Bid Advance outstanding, after the date of such Lender's offer with
respect to such Competitive Bid Advance pursuant to Section 2.03, which costs
are reasonably incurred by such Lender and are the result of (x) such Lender
agreeing to make or making, funding or maintaining Eurodollar Rate Advances or,
unless otherwise specified by the Borrower in the related Notice of Competitive
Bid Borrowing, LIBO Rate Advances or (y) any increase in the amount of capital
required to be maintained by such Lender or any corporation controlling such
Lender, based upon the existence of such Lender's commitment to lend hereunder
and other commitments of this type, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder). The foregoing indemnity shall not apply
to (A) any such change of Law or interpretation or any adoption or making of any
such guideline or request that is anticipated on the applicable date set forth
above, (B) any period or periods ending more than 120 days prior to demand for
indemnification being made or (C) any such increased costs resulting from (a)
Taxes or Other Taxes (as to which Section 2.14 shall govern) or (b) changes in
the basis of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the laws of which
such Lender is organized or has its Applicable Lending Office or any political
subdivision thereof. The Borrower shall from time to time, within 30 days
following demand by such Lender complying with Section 8.04(d) (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
costs.
SECTION 2.12. Illegality. If as a result of a change in Law or in the
official interpretation thereof (i) in the case of the Initial Lenders, after
the date of this Agreement, (ii) in the case of any other Lender, after the date
such Lender shall have become a party to this Agreement by executing and
delivering an Assignment and Acceptance, and (iii) in the case of a Lender which
has made an offer with respect to a LIBO Rate Advance pursuant to Section 2.03,
after the date of such offer, it shall have become unlawful, or if after the
applicable date set forth above any central bank or other governmental authority
having jurisdiction over such Lender asserts that it is unlawful, for such
Lender to (i) allow all or part of its commitment to make Eurodollar Rate
Advances or its obligation to make LIBO Rate Advances to remain outstanding or
(ii) make, fund or allow to remain outstanding all or part of its Eurodollar
Rate Advances or LIBO Advances, such Lender may notify the Borrower and the
Agent thereof in reasonable detail (together with supporting documentation) of
such event, whereupon:
(x) such Lender's obligations to make Eurodollar Rate Advances and LIBO
Rate Advances shall be suspended and, 45 days following such notification, shall
be canceled if such unlawfulness shall then be continuing; and
(y) the Borrower will prepay such Lender's Eurodollar Rate Advances or LIBO
Rate Advances or Convert such Eurodollar Rate Advances to Base Rate Advances at
the time or times and to the extent necessary to avoid such unlawfulness,
together with unpaid accrued interest thereon, unpaid accrued fees and any other
amounts due and payable to such Lender, unless, in either case, prior thereto,
the Borrower shall have given notice to such Lender that the Borrower will
require such Lender to assign and transfer all of its interests in this
Agreement pursuant to Section 8.07(b) and shall have caused such Lender to have
so assigned and transferred such interests.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes without deduction for any counterclaim,
defense, recoupment or set-off not later than 11:00 A.M. (New York City time) on
the day when due in U.S. dollars to the Agent at the Agent's Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or facility fees to the Lenders
ratably in accordance with such amounts owing to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the
Revolving Credit Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurodollar Rate, the LIBO Rate or the
Federal Funds Rate and of facility fees shall be made by the Agent on the basis
of a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day. Any such extension or reduction of time
shall be included in the computation of payment of interest or facility fee, as
the case may be.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders 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 Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with
Section 2.13, without deduction for any Taxes or Other Taxes (each as
defined below).
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
pursuant to this Agreement or any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Lender and the Agent, taxes imposed
on its income, net worth or gross receipts and franchise or similar taxes
imposed on it by a jurisdiction under the laws of which such Lender or the Agent
(as the case may be) is organized or in which its principal executive office is
located or any political subdivision thereof or, in the case of each Lender, in
which its Applicable Lending Office is located or any political subdivision
thereof and (ii) in the case of each Lender any United States withholding tax
imposed on such payments except to the extent that such Lender is subject to
United States withholding tax by reason of a U.S. Tax Law Change.
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
"U.S. Tax Law Change" means with respect to any Lender the occurrence (x)
in the case of the Initial Lenders, after the date of this Agreement, (y) in the
case of any other Lender, after the date such Lender shall have become a party
to this Agreement by executing and delivering an Assignment and Acceptance, and
(z) in the case of a Lender that has a Competitive Bid Advance outstanding,
after the date of such Lender's offer under Section 2.03 with respect to such
Competitive Bid Advance pursuant to Section 2.03, of the adoption of any
applicable United States federal law or regulation relating to taxation, or any
change therein or in the official interpretation thereof, or the entry into
force, modification or revocation of any income tax convention or treaty to
which the United States is a party.
If the Borrower shall be required by Law to deduct any Taxes or Other Taxes
from or in respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof.
(b) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of actual and documented Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.14) paid by such Lender or the Agent (as the case may be)
as the result of any U.S. Tax Law Change and any actual and documented liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto paid by such Lender or the Agent (as the case may be), but excluding,
however, any Taxes or Other Taxes so paid by such Lender or the Agent more than
120 days prior to demand being made to the Borrower by such Lender or the Agent
for indemnification. The payment of such indemnity shall be made within 30 days
from the date such Lender or the Agent (as the case may be) makes written demand
therefor complying with Section 8.04(d).
(c) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of the Initial Lenders and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of any other
Lender, and from time to time thereafter as requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two completed and duly
executed original Internal Revenue Service forms 1001, 4224 or W-8BEN, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, or other documentation reasonably requested by the Borrower or the
Agent, certifying that such Lender is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the
Notes. If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form. If any form or document referred to in this subsection (c) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001, 4224 or W-8BEN, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Borrower and shall not
be obligated to include in such form or document such confidential information.
(d) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form or document (or information required by such
form or document) described in Section 2.14(c) (other than if such failure is
due to a U.S. Tax Law Change), such Lender shall not be entitled to payments
without deduction and indemnification under Section 2.14(a) or (b) with respect
to any Taxes or Other Taxes which would not have been payable had such form or
document (or information required thereby) been so provided; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form or document (or information required thereby), required
hereunder, the Borrower shall take such reasonable steps as the Lender shall
request to assist the Lender to recover such Taxes (it being understood,
however, that the Borrower shall have no liability to such Lender in respect of
such Taxes).
(e) If the Borrower is required to indemnify or pay additional amounts to
or for the account of any Lender pursuant to this Section 2.14, then such Lender
will take such action (including changing the jurisdiction of its Applicable
Lending Office) as in the reasonable judgment of such Lender (i) will eliminate
or reduce any such additional payment which may thereafter accrue and (ii) is
not otherwise commercially unreasonable.
(f) Each Lender and the Agent shall use its reasonable efforts to obtain in
a timely fashion any refund, deduction or credit of any Taxes and Other Taxes
paid or reimbursed by the Borrower pursuant to this Section 2.14. If any Lender
or the Agent receives a benefit in the nature of a refund, deduction or credit
(including a refund in the form of a deduction from or credit against taxes that
are otherwise payable by the Lender or the Agent) of any Taxes or Other Taxes
with respect to which the Borrower has made a payment under Section 2.14(a) or
(b), such Lender or the Agent (as the case may be) agrees to reimburse the
Borrower to the extent of the benefit of such refund, deduction or credit
promptly after the Agent or such Lender reasonably determines that such refund
deduction or credit has become final; provided, however, that nothing contained
in this paragraph (f) shall require any Lender or the Agent (as the case may be)
to make available its tax returns (or any other information relating to its
taxes which it deems to be confidential) or to attempt to obtain any such
refund, deduction or credit, which attempt would be inconsistent with any
reporting position otherwise taken by the Agent or such Lender on its applicable
tax returns.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.02(c), 2.04, 2.11, 2.12, 2.14 or 8.04) in
excess of its ratable share of payments on account of the Revolving Credit
Advances obtained by all the Lenders, such Lender shall forthwith purchase from
the other Lenders such participations in the Revolving Credit Advances owing to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The Borrower will use the proceeds of the
Advances to repay Debt and for general corporate purposes.
SECTION 2.17. Extension of the Termination Date. (a) At least 30 days but
not more than 45 days prior to a Termination Date, the Borrower, by written
notice to the Agent, may request an extension of such Termination Date by 364
days from its then scheduled expiration; provided, however, that the Borrower
shall not have made the Term Loan Election on the date (an "Extension Request
Date") it makes such request. The Agent shall promptly notify each Lender of
such request, and each Lender shall in turn, in its sole discretion, not later
than the later of the 30th day prior to the Termination Date and the 10th day
following the relevant Extension Request Date (such later day being the "Later
Day"), notify the Agent in writing as to whether such Lender will consent to
such extension. If any Lender shall fail to notify the Agent in writing of its
consent to any such request for extension of the Termination Date by the Later
Day, such Lender shall be deemed to be a Non-Consenting Lender with respect to
such request. The Agent shall notify the Borrower promptly after the Later Day
of the decision of the Lenders regarding the Borrower's request for an extension
of the relevant Termination Date.
(b) If all the Lenders consent in writing to any such request in accordance
with Section 2.17(a), the Termination Date in effect at such time shall,
effective as at such Termination Date (the "Extension Date"), but subject to
Section 2.17(d)(ii), be extended for 364 days. If less than all of the Lenders
consent in writing to any such request in accordance with Section 2.17(a), the
Termination Date in effect at such time shall, effective as at the applicable
Extension Date, be extended as to those Lenders that so consented (each, a
"Consenting Lender") but shall not be extended as to any other Lender (each, a
"Non-Consenting Lender"). To the extent that a Termination Date is not extended
as to any Lender pursuant to this Section 2.17 and the Commitment of such Lender
is not assigned in accordance with Section 2.17(c) on or prior to the applicable
Extension Date, the Commitment of such Non-Consenting Lender shall automatically
terminate in whole on such Termination Date without any further notice or other
action by the Borrower, such Lender or any other Person; provided that such
Non-Consenting Lender's rights under Sections 2.11, 2.14 and 8.04, and its
obligations under Sections 2.14, 7.05, 8.04(e), 8.07(g) and 8.08 shall survive
such Termination Date as to matters occurring prior to such date. No Lender
shall have any obligation whatsoever to agree to any request made by the
Borrower for any extension of any Termination Date.
(c) If less than all of the Lenders consent to any request pursuant to
Section 2.17(a), the Agent shall promptly so notify the Consenting Lenders, and
each Consenting Lender may, in its sole discretion, give written notice to the
Agent not later than five days following the Later Day of the amount of the
Non-Consenting Lenders' Commitments with respect to which (A) it is willing to
accept an assignment effective as of the Extension Date and (B) it agrees to
consent to the relevant request pursuant to Section 2.17(a). If the Consenting
Lenders notify the Agent that they are willing to accept assignments of
Commitments in an aggregate amount that exceeds the amount of the Commitments of
the Non-Consenting Lenders and that, with respect to such Commitments, they are
willing to consent to the relevant request pursuant to Section 2.17(a), the
Agent shall so notify the Borrower and the Lenders, and such Commitments shall
be allocated among the Consenting Lenders willing to accept such assignments in
such amounts as are agreed between the Borrower and the Agent. If the Consenting
Lenders do not so notify the Agent, the Agent shall so notify the Borrower and
the Lenders and the Borrower may arrange for one or more Eligible Assignees to
accept assignments, effective as of the Extension Date, of Non-Consenting
Lenders' Commitments as to which the Consenting Lenders have not so notified the
Agent; provided, however, that the amount of the Commitment of any such Eligible
Assignee which is not a Consenting Lender as a result of such assignments shall
be in an amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof; provided further that the Non-Consenting Lenders' rights under Sections
2.11, 2.14 and 8.04, and its obligations under Sections 2.14, 7.05, 8.04(e),
8.07(g) and 8.08 shall survive such assignments as to matters occurring prior to
the date of substitution.
(d)
(i) The assignments of the Commitments contemplated by this
Section shall be effected pursuant to Assignments and
Acceptances in compliance with Section 8.07, which
Assignment and Acceptances shall include the Assignee's
consent to the extension of the relevant Termination
Date. The "Effective Date" of such Assignments and
Acceptances shall be the relevant Extension Date.
(ii) It shall be a condition to the extension of any
Termination Date pursuant to this Section that on the
relevant Extension Date the representations and
warranties contained in Section 4.01 (except those
contained in Sections 4.01(h) and (j)) shall be correct
on and as of such Extension Date as though made on and
as of such Extension Date and that the Borrower shall
have delivered to the Agent on such Termination Date a
certificate to such effect signed by a duly authorized
officer of the Borrower.
(e) If a Termination Date shall be extended pursuant to this Section 2.17,
all references in this Agreement and in the Notes to the "Termination Date"
shall, with respect to each Consenting Lender and each Eligible Assignee,
effective from the relevant Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Eligible Assignee) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Eligible Assignee.
Article III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) The Borrower shall have notified the Agent in writing as to the
proposed Effective Date.
(b) The Borrower shall have paid all accrued fees and expenses of the Agent
and the Lenders (including the accrued fees and expenses of counsel to the
Agent) that are then due and payable.
(c) On the Effective Date, the representations and warranties contained in
Section 4.01 shall be correct as though made on and as of the Effective Date,
and the Agent shall have received for the account of each Lender a certificate
to such effect signed by a duly authorized officer of the Borrower.
(d) The Agent shall have received on or before the Effective Date the
following, each dated such day and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes to the Lenders,
respectively.
(ii) Certified copies of the certificate of incorporation
and the bylaws of the Borrower.
(iii)Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and
the Notes, and of all documents evidencing other
necessary corporate action and governmental approvals,
if any, with respect to this Agreement and the Notes.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized
to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(v) An opinion of Troutman Sanders LLP, counsel for the
Borrower, substantially in the form of Exhibit D
hereto.
(vi) An opinion of Shearman & Sterling, counsel for the
Agent, in substantially the form of Exhibit E hereto.
The Agent shall notify the Lenders of the occurrence of the Effective Date.
SECTION 3.02. Condition Precedent to Each Borrowing. The obligation of each
Lender to make an Advance on the occasion of each Borrowing shall be subject to
the conditions precedent that the Effective Date shall have occurred and that on
the date of such Borrowing the representations and warranties contained in
Section 4.01 (except those contained in Sections 4.01(h) and (j)) shall be
correct on and as of the date of such Borrowing, 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 (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty made herein by the Borrower to
such effect).
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
Article IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) Organization. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Power and Authority. The Borrower has the corporate power to execute,
deliver and perform its obligations under this Agreement and the Notes and to
take all action necessary to consummate the transactions contemplated by this
Agreement and the Notes.
(c) Due Authorization. The execution, delivery and performance by the
Borrower of this Agreement and the Notes have been duly authorized by all
necessary corporate action and do not (i) contravene its certificate of
incorporation or bylaws or (ii) conflict with or contravene any Law to which it
is subject which would have a Material Adverse Effect.
(d) Governmental Approval. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority is required for the
due execution, delivery and performance by the Borrower of this Agreement and
the Notes, except for those which have been duly obtained or made and are in
full force and effect.
(e) Binding and Enforceable. This Agreement and the Notes constitute the
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with their terms, subject to laws affecting the
enforcement of creditors' rights generally and to general principles of equity.
(f) No Violation. The execution, delivery and performance by the Borrower
of this Agreement and the Notes do not violate, in a manner which would have a
Material Adverse Effect, any agreement binding on it.
(g) No Default. No Default or Event of Default has occurred and is
continuing under this Agreement, other than any Default or Event of Default
which has been waived.
(h) Litigation. No litigation, arbitration or administrative proceeding is
currently pending or, to the Borrower's knowledge, threatened against it (i) to
restrain the entry by the Borrower into, the enforcement of, or exercise of, any
rights by the Lenders or the Agent under, or the performance or compliance by
the Borrower with any obligations under, this Agreement and the Notes, or (ii)
which has had or would reasonably be expected to have a Material Adverse Effect.
(i) Financial Condition. The consolidated balance sheets of the Borrower
and its consolidated subsidiaries as at December 31, 2000 and March 31, 2001 and
the related consolidated statements of income, retained earnings and cash flow
for the fiscal year and fiscal quarter then ended, heretofore furnished to the
Lenders, fairly present in all material respects the consolidated financial
condition of the Borrower and its consolidated subsidiaries as at said dates and
the consolidated results of their operations for said fiscal year and fiscal
quarter, respectively, in accordance with GAAP, subject, in the case of such
financial statements as at and for the fiscal quarter ended March 31, 2001, to
year-end audit adjustments.
(j) Material Adverse Change. There has been no material adverse change in
the business, condition (financial or otherwise) or results of operations of the
Borrower since March 31, 2001.
(k) Accuracy of Information. To the Borrower's knowledge (i) the
Information Memorandum (other than the projections included therein) was correct
in all material respects at the date thereof for the purpose for which the
Information Memorandum was prepared and (ii) all financial projections contained
in the Information Memorandum were prepared in good faith and based upon
assumptions which management of the Borrower believed to be not unreasonable at
the time the projections were prepared (it being understood that (w) such
projections are subject to significant uncertainties and contingencies, many of
which are beyond the Borrower's control, (x) no assurance can be given that the
projections will be realized and (y) no representation or warranty can be made
as to the accuracy of such projections).
Article V
COVENANTS OF THE BORROWER
SECTION 5.01. Covenants of the Borrower. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Ratio of Cash Available for Corporate Debt Service to Corporate
Interest. At the end of each fiscal quarter (including the fourth fiscal
quarter) of the Borrower for which financial statements have most recently been
delivered to the Agent by the Borrower pursuant to Section 5.01(f) or (g), cause
the ratio of Cash Available for Corporate Debt Service to Corporate Interest to
be at least 1.5:1.0, calculated for the period comprised of the four fiscal
quarters ending on the date of such financial statements and on the date of
delivery of such financial statements.
(b) Ratio of Recourse Debt to Recourse Capital. At the end of each fiscal
quarter (including the fourth fiscal quarter) of the Borrower for which
financial statements have most recently been delivered to the Agent by the
Borrower pursuant to Section 5.01(f) or (g), cause the ratio of Recourse Debt to
Recourse Capital to be not more than .55:1.00, calculated as of the end of such
fiscal quarter and on the date of delivery of such financial statements.
(c) Liens. Not create or have outstanding any Lien on or over its non-cash
Assets to secure the payment of Debt except for:
(i) Liens arising solely by operation of law or by order of
a court or tribunal or other governmental authority (or
by an agreement of similar effect);
(ii) Liens arising in the ordinary course of business or
operations, in respect of overdue amounts which either
(A) have not been overdue for more than 30 days or (B)
are being contested in good faith;
(iii)Liens created for the sole purpose of refinancing all
of the Advances;
(iv) Liens arising out of title retention or like provisions
in relation to the acquisition of goods or equipment
acquired in the ordinary course of business or
operations;
(v) Liens created or arising on ownership interests and
documents evidencing ownership interests in (i) a
Person which is the primary obligor in respect of
Project Finance Debt or (ii) a Person substantially all
the Assets of which consist of ownership interests and
documents evidencing ownership interests in (x) a
Person described in the preceding clause (i) or (y)
another Person described in this clause (ii), which
Liens secure such Project Finance Debt;
(vi) Liens on deposits to secure, or any Lien otherwise
securing, the performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, surety bonds, appeal bonds, performance
bonds and other obligations of a like nature incurred
in the ordinary course of business;
(vii)Liens securing reimbursement obligations under letters
of credit, guarantees and other forms of credit
enhancement given in the ordinary course of business;
(viii) Liens created arising over any Asset which is
acquired, constructed or created by the Borrower, but
only if (x) such Lien secures only principal amounts
(not exceeding the cost of such acquisition,
construction or creation) raised for the purposes of
such acquisition, construction or creation, together
with any costs, expenses, interest and fees incurred in
relation thereto or a guarantee given in respect
thereof, (y) such Lien is created or arises on or
before 90 days after the completion of such
acquisition, construction or creation and (z) such Lien
is confined solely to the property so acquired,
constructed or created;
(ix) Liens (x) outstanding on or over any Asset acquired
after the date hereof, (y) in existence at the date of
such acquisition and (z) where the Borrower does not
take any step to increase the principal amount secured
thereby from that so secured and outstanding at the
time of such acquisition (other than in the case of
Liens for a fluctuating balance facility, by way of
utilization of that facility within the limits
applicable thereto at the time of acquisition);
(x) Liens constituted by a right of set off or rights over
a margin call account or any form of cash collateral or
any similar arrangement for obligations incurred in
respect of any currency, commodity or interest rate
swap, option, forward rate, or futures contracts or any
other arrangement for the hedging or management of
risks entered into on commercial terms;
(xi) Liens in favor of a plaintiff or defendant in any
action before a court or tribunal as security for costs
or expenses where such action is being prosecuted or
defended in the bona fide interest of the Borrower;
(xii)Liens described in any of sub-paragraphs (iv) through
(x) above or (xiii) through (xv) below and renewed or
extended upon the renewal or extension or refinancing
or replacement of the indebtedness secured thereby,
provided that there is no increase in the principal
amount of the indebtedness secured thereby over the
principal, capital or nominal amount thereof
outstanding immediately prior to such refinancing;
(xiii) Liens existing on the date hereof;
(xiv)Liens on the property of a Person existing at the time
such Person is merged into or consolidated with the
Borrower and not incurred in contemplation with such
merger or consolidation; and
(xv) Liens created or outstanding on or over Assets of the
Borrower provided that the aggregate outstanding
principal, capital or nominal amount secured by all
Liens created or outstanding under this clause (xv) on
or over Assets of the Borrower shall not at any time
exceed 15% of the Borrower's Consolidated Net Worth.
(d) Compliance with Law. Comply with the requirements of the Laws
applicable to the Borrower in the conduct of its business, where failure to do
so would reasonably be expected to have a Material Adverse Effect.
(e) Maintenance of Existence. Preserve and maintain its legal existence as
a corporation, except that the Borrower may be merged or consolidated with or
into another corporation if the continuing or surviving corporation is the
Borrower or a corporation existing under the laws of one of the States of the
United States or the District of Columbia which expressly assumes all of the
obligations of the Borrower under this Agreement and the Notes and if
immediately before the consummation of such transaction there is no Default or
Event of Default and such consummation shall not result in a Default or Event of
Default.
(f) Annual Financial Statements, Etc. Within 120 days after the end of each
fiscal year of the Borrower (beginning with the first fiscal year ending after
the date hereof), deliver to the Agent copies for the Lenders of its
consolidated financial statements as of the end of and for such fiscal year duly
certified by the independent accountants of the Borrower. Such financial
statements shall be prepared in accordance with GAAP and shall be accompanied by
certificates of the chief financial officer, the treasurer or the comptroller of
the Borrower as to compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate compliance with
Sections 5.01(a) and (b).
(g) Interim Financial Statements, Etc. Within 60 days after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower
(beginning with the first such fiscal quarter to end after the date hereof),
deliver to the Agent copies for the Lenders of its unaudited consolidated
financial statements as of the end of and for such fiscal quarter duly certified
(subject to year-end adjustments) by the chief financial officer, the treasurer
or the comptroller of the Borrower as having been prepared in accordance with
GAAP. Such financial statements shall be accompanied by certificates of the
chief financial officer, the treasurer or the comptroller of the Borrower as to
compliance with the terms of this Agreement and setting forth in reasonable
detail the calculations necessary to demonstrate compliance with Sections
5.01(a) and (b).
(h) Other Information. Deliver to the Agent as soon as reasonably
practicable such other information relating to the then existing financial
condition of the Borrower and its consolidated Subsidiaries as the Agent may
from time to time reasonably request except such information the disclosure of
which is prohibited by Law.
(i) Notice of Default. Promptly, and in any event within 10 Business Days,
notify the Agent of the occurrence of any Default or Event of Default of which
the chief financial officer, treasurer or comptroller of the Borrower has
knowledge.
(j) Incurrence of Recourse Debt, Etc. Not (i) incur any Recourse Debt
(other than Recourse Debt the proceeds of which are applied to the concurrent
repayment of Recourse Debt), (ii) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of capital stock of the Borrower or (iii)
purchase, redeem or otherwise acquire for value any shares of any class of
capital stock of the Borrower or any warrants, rights or options to acquire any
such shares, now or hereafter outstanding except that the Borrower may
(x) declare and make any dividend payment or other distribution payable in
common stock of the Borrower, (y) purchase, redeem or otherwise acquire shares
of its common stock or warrants, rights or options to acquire any such shares
with the proceeds received from the substantially concurrent contribution to the
Borrower's capital or issue of new shares of the Borrower's common stock and (z)
take any action specified in clause (i), (ii), or (iii) above if, at the end of
the fiscal quarter (including the fourth fiscal quarter) of the Borrower for
which financial statements have most recently been delivered to the Agent by the
Borrower pursuant to Section 5.01(f) or (g) on or preceding the date on which
the Borrower takes such action, the ratio of Cash Available for Corporate Debt
Service to Corporate Interest was at least 2.0:1.0, calculated for the period
comprised of the four fiscal quarters ending on the date of such financial
statements and with effect from the date of such delivery of such financial
statements.
(k) Inspection Rights, Etc. Permit the Agent or any Lender or any agents or
representatives thereof to examine and make copies of and abstracts from records
and books of, and visit the properties of the Borrower to discuss the affairs,
finances and accounts of, the Borrower with any of its officers or directors and
with its independent certified public accountants from time to time during
normal business hours upon reasonable notice. The Lenders and the Agent agree
that the Agent shall coordinate and consolidate visits by Lenders and their
agents and representatives (including the examination of records and books and
the making of copies and abstracts of records and books) at mutually convenient
times and in such a manner so as to minimize the disruption to the operations of
the Borrower and to the costs associated with such visits.
(l) Granting of Benefits under Certain Circumstances. If in connection with
obtaining a waiver or a curative amendment of a "default" or an "event of
default" under a document under which any Debt of the Borrower in a principal or
notional amount equal to or in excess of $50,000,000 is outstanding or which
evidences any such Debt any creditor in respect of such Debt will obtain any
benefit (including collateral security, a guarantee or other third-party support
and improved financial terms), the Borrower will offer to the Lenders the same
benefit (including ratable collateral security and guarantees and third-party
support and comparably improved terms) and, upon the acceptance by the Required
Lenders of such offer, will cause such benefit to be made available to the
Lenders concurrently with making such benefit available, and on substantially
the same terms as it is made available, to such other creditor.
(m) Notice of Change of Credit Rating. Promptly after the Borrower is
notified thereof in writing by S&P or Moody's or the Borrower becomes aware of
the public announcement thereof by S&P or Moody's, notify the Agent of any
change in the Credit Rating by S&P or Moody's, as the case may be.
(n) Sale of Assets. Not sell, lease, transfer, convey or otherwise dispose
of Assets (other than Excepted Assets), or permit any Subsidiary to do so, if
the aggregate net book value of all such Assets sold, leased, transferred or
otherwise disposed of since the date of this Agreement would exceed 25% of the
Borrower's consolidated assets at the end of the last fiscal quarter (including
the fourth fiscal quarter) of the Borrower for which financial statements have
most recently been delivered to the Agent by the Borrower pursuant to Section
5.01(f) or 5.01(g).
Article VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Payments. The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance or any payment of fees or other amounts payable under
this Agreement within five Business Days after the same becomes due and payable;
or
(b) Representations and Warranties. Any representation or warranty made by
the Borrower herein shall prove to have been materially incorrect when made and,
if such representation or warranty is susceptible of cure, it shall not have
been cured within 10 days after written notice thereof has been given by the
Agent to the Borrower (or such longer period as the Required Lenders may
permit); or
(c) Covenants. The Borrower shall fail to perform or comply with any
material term, covenant or agreement contained in this Agreement on its part to
be performed or observed and such failure shall remain unremedied for 30 days
after written notice thereof has been given by the Agent to the Borrower (or
such longer period as the Required Lenders may permit); or
(d) Cross-default. The Borrower shall fail to pay any principal of, or
premium or interest on, any Debt of the Borrower that is outstanding in a
principal or notional amount equal to or in excess of $50,000,000 (but excluding
Debt outstanding under this Agreement and Subordinated Debt of the Borrower if
the relevant payment is prohibited by the terms thereof) when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under the agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or any such Debt shall be declared due and payable, or be
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the scheduled maturity thereof by reason of default; or
(e) Judgment. Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower and there shall be any period
of 60 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(f) Bankruptcy, Etc. The Borrower 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 a substantial part of its property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the U.S. Bankruptcy Code (as now or hereafter in effect) or
any similar law of any applicable jurisdiction, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, or (v) fail
to controvert in a timely and appropriate manner, or acquiesce in writing to,
any petition filed against it in an involuntary case under the U.S. Bankruptcy
Code or any similar law of any applicable jurisdiction; or a proceeding or case
shall be commenced, without the application or consent of the Borrower, in any
court of competent jurisdiction, seeking (x) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts, (y)
the appointment of a trustee, receiver, custodian, liquidator or the like of the
Borrower or of all or any substantial part of its assets, or (z) similar relief
in respect of the Borrower under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue unstayed and in effect for a period of 90 or
more days; or
(g) Change of Control. (i) Any person or group (within the meaning of Rule
13d-5 of the Securities Exchange Act of 1934, as amended) shall own
beneficially, directly or indirectly, more than 50% of the Voting Stock of the
Borrower or (ii) a majority of the seats (other than vacant seats) on the board
of directors of the Borrower shall at any time be occupied by persons who were
neither (a) nominated by the board of directors of the Borrower, nor (b)
appointed by directors so nominated; then, and in any such event, the Agent (i)
shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the obligation of each Lender to make Advances
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Advances and the Notes, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances and the Notes, 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; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances and the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
Any Default or Event of Default which has been waived in the manner
required by the applicable provisions of this Agreement shall not be considered
to be continuing from and after the time as of which such waiver has become
effective.
Article VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Revolving Credit Notes), 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 Lenders, and such instructions shall be
binding upon all Lenders 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 this Agreement or applicable law. The
Agent agrees to give to each Lender prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. 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 this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
payee of any Revolving Credit Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Revolving Credit Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal
counsel (including counsel for the Borrower), 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; (iii) makes no warranty or representation to
any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection
with this Agreement; (iv) 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
this Agreement on the part of the Borrower or to inspect the property (including
the books and records) of the Borrower; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. CSFB and Affiliates. With respect to its Commitment, the
Advances made by it and the Note issued to it, CSFB shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include CSFB in its individual capacity. CSFB and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from, and generally engage
in any kind of business with, the Borrower, any of its Subsidiaries and any
Person who may do business with, or own securities of, the Borrower or any such
Subsidiary, all as if CSFB were not the Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, any Arranger or any Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent,
any Arranger or any Lender 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 this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Revolving Credit Notes then held by each of them (or if
no Revolving Credit Notes are at the time outstanding or if any Revolving Credit
Notes are held by Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement (collectively, the "Indemnified Costs"); provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct; provided further that no
Designated Lender shall be liable for any payment under this Section 7.05 so
long as, and to the extent that, its Designating Lender makes such payment.
Without limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Borrower shall have the right to appoint a successor Agent, subject
to the approval of the Required Lenders, such approval not to be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Borrower and approved by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent subject
to the approval of the Borrower and the Required Lenders, such approval not to
be unreasonably withheld or delayed, which 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 $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 the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
Article VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. Subject to Section 8.01(b), no amendment or
waiver of any provision of this Agreement or the Revolving Credit Notes, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by or on behalf of the
Borrower and the Required Lenders, 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 by or on behalf of the Borrower and all the Lenders, do any
of the following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Revolving
Credit Notes, or the number of Lenders, that shall be required for the Lenders
or any of them to take any action hereunder or (f) amend this Section 8.01; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by or on behalf of 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 any Revolving Credit Note. Each Designating Lender may act on
behalf of its Designated Lender with respect to any rights of its Designated
Lender to grant or withhold any amendment, waiver or consent hereunder or with
respect to the Revolving Credit Notes.
(b) Notwithstanding Section 8.01(a) but provided there is not more than one
Interest Period in effect at the time the agreements referred to below become
effective as provided below, the Borrower, one or more financial institutions
and the Agent may, on or before August 17, 2001, enter into one or more
agreements supplementing this Agreement for the purpose of causing such
financial institutions to become Lenders having Commitments aggregating not more
than $87,500,000. Such supplemental agreements shall become effective on the
same Business Day which shall be (i) the Business Day specified in such
supplemental agreements if on such Business Day no Interest Period is in effect
or (ii) the last day of such Interest Period. The Agent will furnish a copy of
such supplemental agreement to each Lender promptly after the execution thereof.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier communication) and
mailed, telecopied, or delivered, if to the Borrower, at its address at 1155
Perimeter Center West, Atlanta, Georgia 30338-5416, Attention: Treasurer, with a
copy to Manager, Loan Administration, facsimile: 678-579-6981; if to an Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at 11 Madison Avenue, New York, New York 10010, Attention:
Julia Kingsbury, telephone: 212-325-9937, facsimile: 212-325-8304; or, as to the
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Agent. All such notices and communications shall, when
mailed or telecopied, be effective when deposited in the mails or telecopied,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart hereof or of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses, Etc. (a) The Borrower agrees to pay, upon
demand and presentation to the Borrower of a statement of account, all
reasonable and documented third-party out-of-pocket costs and expenses of the
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under this Agreement.
The Borrower further agrees to pay, upon demand and presentation to the Borrower
of a statement of account, all reasonable and documented third-party
out-of-pocket costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable fees and expenses of counsel), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and the Lenders in connection with the enforcement of
rights under this Section 8.04(a), provided that the Borrower shall be required
to pay the reasonable fees and expenses of only one counsel selected by the
Indemnified Parties as contemplated by the proviso to Section 8.04(b)(iii).
(b)
(i) The Borrower agrees to indemnify each of the Arrangers,
the Senior Managing Agents, the Agent, the Lenders, the
Affiliates of the foregoing and the respective
officers, directors, employees and agents of the
foregoing (each, an "Indemnified Party") from, and hold
each of them harmless against, any and all losses,
liabilities, claims, damages and expenses incurred by
any of them as a result of, or arising out of, any
investigation, litigation or other proceeding (whether
or not any of the Indemnified Parties is a party
thereto) related to the entering into of this
Agreement, the issuance of the Notes and the actual or
proposed use of the proceeds of the Advances and the
consummation of any matter contemplated by this
Agreement, including, without limitation and to the
extent hereinafter provided, the reasonable fees and
disbursements of counsel incurred in connection with
any such investigation, litigation or other proceeding;
provided that the Borrower shall not be responsible for
any such losses, liabilities, claims, damages or
expenses of any Indemnified Party to the extent
incurred by reason of gross negligence or willful
misconduct on the part of such Indemnified Party.
(ii) The Borrower shall be entitled to participate in any
action or proceeding of which it has been notified by
any Indemnified Party except any action or proceeding
brought by or for the benefit of the Borrower or any
Subsidiary of the Borrower against an Indemnified
Party.
(iii)Promptly after receipt by an Indemnified Party of
written notice of any loss, liability, claim, damage or
expense in respect of which indemnity may be sought by
it hereunder, such Indemnified Party will, if a claim
is to be made against the Borrower, notify the Borrower
thereof in writing, but the omission so to notify the
Borrower will not relieve the Borrower from (i) any
liability under this Section which it may have to such
Indemnified Party except to the extent the Borrower was
prejudiced by such omission or (ii) any liability other
than under this Section. Thereafter, the Indemnified
Party and the Borrower shall consult, to the extent
appropriate, with a view to minimizing the cost to the
Borrower of its obligations hereunder. In case any
Indemnified Party receives written notice of any
liability, loss, claim, damage or expense in respect of
which indemnity may be sought by it hereunder and it
notifies the Borrower thereof, the Borrower will be
entitled to participate therein, and to the extent that
it may elect by written notice delivered to the
Indemnified Party promptly after receiving the
aforesaid notice from the Indemnified Party, to assume
the defense thereof with counsel reasonably
satisfactory to the Indemnified Parties (and, if the
Agent or one or more Lenders are the Indemnified
Parties, the Agent and such Lenders shall be entitled
jointly to direct the conduct of their defense);
provided, however, that if the parties against which
any loss, claim, damage, expense or liability arises
include both an Indemnified Party and the Borrower and
such Indemnified Party shall have reasonably concluded
that (i) there may be legal defenses available to it or
other Indemnified Parties which are different from or
additional to those available to the Borrower or any
Subsidiary of the Borrower and may conflict therewith
or (ii) if any liability, loss, claim, damage or
expense arises out of actions brought by or for the
benefit of the Borrower or any Subsidiary of the
Borrower, the Indemnified Parties collectively shall
have the right to select one separate counsel to assume
such legal defenses and otherwise to participate in the
defense of such loss, claim, damage or liability on
behalf of the Indemnified Parties. Upon receipt by the
Indemnified Party of notice from the Borrower of its
election to assume the defense of such liability, loss,
claim, damage or expense and approval by the
Indemnified Party of counsel, the Borrower shall not be
liable to the Indemnified Party for any legal or other
expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof unless (i) the
Indemnified Party shall have employed such counsel in
connection with the assumption of legal defenses in
accordance with the proviso to the next preceding
sentence, (ii) the Borrower shall not have employed and
continued to employ counsel reasonably satisfactory to
the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of
commencement of the action or (iii) the Borrower shall
have authorized in writing the employment of separate
counsel for the Indemnified Party at the expense of the
Borrower. At the Borrower's request, an Indemnified
Party will settle, compromise or consent to the entry
of any order adjudicating or otherwise disposing of any
loss, claim, damage or liability for which the Borrower
is liable hereunder if such settlement, compromise or
consent to entry of any order (A) includes a provision
unconditionally releasing each Indemnified Party from
and holding each Indemnified Party harmless against all
liability in respect of claims by any releasing party
relating to or arising out of this Agreement, the Notes
and the matters contemplated herein, (B) does not
require any admission or acknowledgment of culpability
or wrongdoing by such Indemnified Party and (C) does
not involve performance by, or the payment of money
damages by, such Indemnified Party. The Borrower shall
not be liable for any settlement, compromise or consent
to the entry of any order adjudicating or otherwise
disposing of any loss, claim, damage or liability
effected without its consent.
(c) The Borrower agrees to indemnify each Lender for its actual and
documented losses (excluding any loss of profit and/or margin), costs and
expenses reasonably incurred by it resulting from any payment or prepayment of
principal of any Eurodollar Rate Advance or, unless otherwise specified by the
Borrower in the related Notice of Competitive Bid Borrowing, LIBO Rate Advance
under this Agreement or the Notes, which payment or prepayment is made on a day
other than the last day of the relevant Interest Period, or, unless otherwise
specified by the Borrower in the related Notice of Competitive Bid Borrowing,
from any payment or prepayment of principal of a Fixed Rate Advance other than
on the scheduled maturity date of such payment, excluding, however, any such
losses, costs and expenses resulting from a payment or prepayment made more than
60 days prior to demand being made to the Borrower by such Lender for
indemnification. The payment of such indemnity to a Lender shall be made within
30 days of a demand by such Lender complying with Section 8.04(d).
(d) Any demand by a Lender for payment under Section 2.02(c), 2.03(a)(vi),
2.11, 2.14, 8.04(b) or 8.04(c) or under any other indemnity made by the Borrower
under this Agreement shall be made in writing to the Borrower (with a copy to
the Agent) and shall be accompanied by a certificate of an officer of the Agent
or the relevant Lender, as may be appropriate, setting forth in reasonable
detail the calculation of the amount demanded.
(e) To the extent permitted by law, if any Lender notifies the Borrower
that additional amounts will be due under Section 2.11 or that any of the events
outlined in Section 2.12 have occurred, such Lender will change its Applicable
Lending Office if as a result thereof such increased costs would not be required
to be so paid or it would not be illegal for such Lender to make, fund or
maintain its Eurodollar Rate Advances, and provided such Lender determines that
such change is not commercially unreasonable. The Borrower will reimburse such
Lender for all reasonable expenses it may incur as a result of complying with
this Section 8.04(e).
(f) If any circumstances arise which result, or such Lender becomes aware
of any circumstances which might result, in the Borrower having to make such
compensation or indemnification or in it becoming illegal for such Lender to
make, fund or maintain such Lender's Eurodollar Rate Advances, such Lender will
promptly notify the Borrower thereof and, in consultation with the Borrower,
such Lender shall take all such steps, if any, as it determines are reasonable
and the Borrower determines are acceptable to mitigate the effect of those
circumstances.
(g) Without prejudice to the survival of any other agreement of the
Borrower or of the Lenders hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and 8.04 and the obligations of the
Lenders contained in Sections 2.14, 8.04, 8.07(g) and 8.08 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes.
SECTION 8.05. Right of Set-off. Upon declaration by the Agent that the
Advances and the Notes are due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by
such Lender to, or for the credit or the account of, the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Notes held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been executed
by the Borrower and the Agent and when the Agent shall have been notified by the
Initial Lenders that such Initial Lenders have executed it and thereafter shall
be binding upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may assign
(i) without the approval of the Borrower, to one or more Eligible Assignees if
the Eligible Assignee is a Lender or is an Affiliate of the assigning Lender
which satisfies the credit rating requirements of the second proviso of the
definition of "Eligible Assignee", (ii) without the approval of the Borrower, to
one or more Persons (which need not be Eligible Assignees) after the occurrence
and during the continuation of an Event of Default, provided, however, that if
such Person is not an Eligible Assignee the approval of each Issuing Bank shall
have been obtained, such approval not to be unreasonably withheld or delayed,
(iii) with the approval of the Borrower, such approval not to be unreasonably
withheld or delayed, to any Eligible Assignee in any case not contemplated by
the preceding clause (i) or (ii) and (iv) with the approval of the Borrower,
each Issuing Bank and the Agent, to one or more Persons in any case not
contemplated by the preceding clause (i), (ii) or (iii), all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Revolving Credit Advances owing to it and
the Revolving Credit Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall be $10,000,000 or a larger
integral multiple of $1,000,000, (iii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, and, if the relevant Eligible Assignee is not listed in clause (i) of
the definition of "Eligible Assignee", to the Borrower for its acceptance, an
appropriate Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment and a processing and recordation fee of $3,500 unless
the relevant Eligible Assignee is an Affiliate of the assigning Lender and (iv)
notwithstanding the foregoing, Competitive Bid Advances may be assigned as
contemplated by the related Notice of Competitive Bid Borrowing. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (other than under Sections
2.14(f), 8.07(g) and 8.08) (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto).
(b) If any Lender (i) shall make a demand under Section 8.04(d) for payment
in respect of a claim under Section 2.11 or shall give a notice under Section
2.12 of any unlawfulness or assertion of unlawfulness contemplated by such
Section or any demand shall be made or any amount shall be payable with respect
to any Lender under Section 2.14 or (ii) is a Non-Consenting Lender, the
Borrower may, by written notice given to such Lender within 45 days of the
making by such Lender of such demand, the giving by such Lender of such notice
or such Lender becoming a Non-Consenting Lender, require by written notice to
such Lender that such Lender assign, by executing and delivering an Acceptance
and Assignment, within 15 days of the giving by the Borrower of such notice but
on at least three Business Days' notice to one or more Persons in accordance
with Section 8.07(a) such Lender's Commitment and its Advances against payment
to such Lender in immediately available funds of the principal amount of such
Advances, all interest accrued thereon to the date of payment, all fees accrued
by such Lender to the date of payment, any amounts payable to such Lender under
Section 8.04(c) and all other amounts payable hereunder to such Lender.
(c) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender 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 this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender 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
this Agreement; (v) such assignee confirms that it is an Eligible Assignee or
that it is an entity that has been approved by the Borrower and the Agent under
Section 8.07(a); (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(d) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee or
that it is an entity that has been approved by the Borrower and the Agent under
Section 8.07(a), together with any Revolving Credit Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C-1 hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) promptly give notice and a copy thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Agent in exchange for the
surrendered Revolving Credit Note a new Revolving Credit Note to such Eligible
Assignee or other entity in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Revolving Credit Note to the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Note or Notes, shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A-1 hereto.
(f) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation and (vi) notwithstanding the
foregoing, each Lender may sell participations in Competitive Bid Advances as
contemplated by the related Notice of Competitive Bid Borrowing. Each Lender
selling participations shall provide prompt notice to the Borrower and the Agent
of such participations and the purchasers of such participations.
(g) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any
Confidential Information; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall have executed
and delivered to such Lender and to the Borrower a duly authorized
confidentiality agreement substantially in the form of Exhibit C-2.
(h) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(i) Any Lender may at any time designate with the prior written consent of
the Borrower (such consent not to be unreasonably withheld or delayed) not more
than one Designated Lender to fund Advances on behalf of such Designating Lender
subject to the terms of this Section 8.07(i) and the provisions of Sections
8.07(a) through (h) shall not apply to such designation. No Lender may have more
than one Designated Lender at any time. Such designation may occur either by the
execution before the Effective Date of the signature pages of an Assignment and
Acceptance by such Lender and Designated Lender next to the appropriate
"Designating Lender" and "Designated Lender" captions, or by execution by such
parties of a Designation Agreement on or after the Effective Date; provided that
any Lender and its Designated Lender executing the signature pages of any
Assignment and Acceptance as "Designating Lender" and "Designated Lender",
respectively, before the Effective Date shall be deemed to have executed a
Designation Agreement, and shall be bound by the respective representations,
warranties and covenants contained therein. The parties to each such designation
occurring on or after the Effective Date shall execute and deliver to the Agent
and the Borrower for their acceptance a Designation Agreement. Upon such receipt
of an appropriately completed Designation Agreement executed by a Designating
Lender and a designee representing that it is a Designated Lender and consented
to by the Borrower, the Agent will accept such Designation Agreement and will
give prompt notice thereof to the Borrower and the other Lenders, whereupon (i)
the Borrower shall execute and deliver to the Designating Lender a Designated
Lender Note payable to the order of the Designated Lender, (ii) from and after
the effective date specified in the Designation Agreement, the Designated Lender
shall become a party to this Agreement with a right to make Advances on behalf
of its Designating Lender pursuant to Section 2.01(b) and (iii) the Designated
Lender shall not be required to make payments with respect to any obligations in
this Agreement except to the extent of excess cash flow of such Designated
Lender which is not otherwise required to repay obligations of such Designated
Lender which are then due and payable; provided, however, that regardless of
such designation and assumption by the Designated Lender, the Designating Lender
shall be and remain obligated to the Borrower, the Agent and the Lenders for
each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 7.05 hereof, and any sums
otherwise payable to the Borrower by the Designated Lender. Each Designating
Lender, or specified branch or affiliate thereof, shall serve as the
administrative agent of its Designated Lender and shall on behalf of its
Designated Lender: (i) receive any and all payments made for the benefit of such
Designated Lender and (ii) give and receive all communications and notices and
take all actions hereunder, including, without limitation, votes, approvals,
waivers, consents and amendments under or relating to this Credit Agreement. Any
such notice, communication, vote, approval, waiver, consent or amendment shall
be signed by a Designating Lender, or specified branch or affiliate thereof, as
administrative agent for its Designated Lender and need not be signed by such
Designated Lender on its own behalf. The Borrower, the Agent and the Lenders may
rely thereon without any requirement that the Designated Lender sign or
acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder, other than via an assignment to its
Designating Lender or Liquidity Lender, if any, or otherwise in accordance with
the provisions of Section 8.07(a) through (h) hereof.
SECTION 8.08. Confidentiality. (a) Neither the Agent nor any Lender shall,
without the prior written consent of the Borrower, (i) disclose the Confidential
Information to any Person except as permitted by Section 8.07(g) or this Section
8.08 or (ii) use, either directly or indirectly, any of the Confidential
Information except in concert with the Borrower and in connection with this
Agreement and the transactions contemplated hereby.
(b) The Agent and each Lender may disclose the Confidential Information (i)
to their respective Representatives who need to know the Confidential
Information for the purpose of administering this Agreement and the transactions
contemplated hereby or for the discharge of their duties, who are informed by
the Agent or such Lender of the confidential nature of the Confidential
Information, and who agree to be bound by the terms and conditions of this
Agreement to the same extent as the Agent or such Lender and (ii) to any party
hereto.
(c) Each of the Agent and each Lender agrees that, without the Borrower's
prior written consent, it shall not disclose to any person (except as otherwise
expressly permitted herein) the fact that the Confidential Information has been
made available or any of the terms, conditions or other facts with respect to
the Confidential Information.
(d) The provisions contained in this Section 8.08 shall be inoperative as
to any portion of the Confidential Information that (i) is or becomes generally
available to the public on a nonconfidential basis through no fault or action by
the Agent, the Lead Arranger, any Lender or their respective Representatives, or
(ii) is or becomes available to the Agent, the Lead Arranger or any Lender on a
nonconfidential basis from a source other than the Borrower, its Affiliates or
Representatives or the Agent or the Lead Arranger or their Representatives,
which source, to the best knowledge of the Agent, the Lead Arranger or any
Lender, as may be appropriate, is not prohibited from disclosing such
Confidential Information to the Agent, the Lead Arranger or such Lender by a
contractual, legal or fiduciary obligation to the Borrower, the Agent, the Lead
Arranger or any Lender.
(e) The Agent and each Lender may disclose the Confidential Information at
the request of any regulatory or supervisory authority having jurisdiction over
it or to the extent necessary for purposes of enforcing this Agreement.
(f) In the event that the Agent or any Lender becomes legally compelled to
disclose any of the Confidential Information otherwise than as contemplated by
Section 8.08(e), the Agent or such Lender shall provide the Borrower with notice
of such event promptly upon its obtaining knowledge thereof (provided that it is
not otherwise prohibited by Law from giving such notice) so that the Borrower
may seek a protective order or other appropriate remedy. In the event that such
protective order or other remedy is not obtained, the Agent or such Lender shall
furnish only that portion of the Confidential Information that it is legally
required to furnish and shall cooperate with the Borrower's counsel to enable
the Borrower to obtain a protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information.
(g) In the event of any breach of this Section 8.08, the Borrower shall be
entitled to equitable relief (including injunction and specific performance) in
addition to all other remedies available to it at law or in equity.
(h) Neither the Agent nor any Lender shall make any public announcement,
advertisement, statement or communication regarding the Borrower, its Affiliates
or this Agreement or the transactions contemplated hereby without the prior
written consent of the Borrower.
(i) Any Designated Lender may disclose any Confidential Information to any
rating agency, commercial paper dealer or Liquidity Lender to such Designated
Lender; provided, however, that each of such Persons is informed by the
Designated Lender of the confidential nature of the Confidential Information and
each such commercial paper dealer and Liquidity Lender agrees to be bound by the
terms and conditions of this Section 8.08 to the same extent as the Designated
Lender.
(j) The obligations of the Agent and each Lender under this Section 8.08
shall survive the termination or expiration of this Agreement.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. 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.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court, New York County, United States
District Court for the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such federal court. Each of the parties hereto 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 Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.12. No Bankruptcy Proceedings. Each of the Borrower, the Lenders
and the Agent agrees that it will not institute against any Designated Lender or
join any other Person in instituting against any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Designated Lender.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent and the
Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
The Borrower
MIRANT CORPORATION
By: /s/ Sean P. Murphey
---------------------------------------------------
Name: Sean P. Murphey
Title: Treasurer
The Agent
CREDIT SUISSE FIRST BOSTON as Agent
By: /s/ Julia P. Kinsbury
---------------------------------------------------
Name: Julia P. Kingsbury
Title: Vice President
By: /s/ illegible signature
---------------------------------------------------
Name: illegible signature
Title: Vice President
The Initial Lenders
CREDIT SUISSE FIRST BOSTON
By: /s/ So Venna Day-Goins
---------------------------------------------------
Name: So Venna Day-Goins
Title: Vice President
By: /s/ illegible signature
---------------------------------------------------
Name: illegible signature
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Gretchen P. Burud
------------------------------------------
Name: Gretchen P. Burud
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH
By: /s/ Gary L. England
---------------------------------------
Name: Gary L. England
Title: Vice President and Manager
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH
By: /s/ Peter Obermann
---------------------------------------
Name: Peter Obermann
Title: Senior Vice President
CITIBANK, N.A.
By: /s/ Daniel J. Brill
---------------------------------------
Name: Daniel J. Brill
Title: Managing Director
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Subash R. Viswanathan
---------------------------------------
Name: Subash R. Viswanathan
Title: Senior Vice President
By: /s/ W. David Suttles
---------------------------------------
Name: W. David. Suttles
Title: Senior Vice President
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/ Joel Makowsky
---------------------------------------
Name: Joel Makowsky
Title: Vice President
By: /s/ Hans-Christian Narberhaus
---------------------------------------
Name: Hans-Christian Narberhaus
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Clark McGinn
---------------------------------------
Name: Clark McGinn
Title: Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ John T. Seeds
-----------------------------------------
Name: John T. Seeds
Title: Senior Vice President
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Graham Lofts
---------------------------------------
Name: Graham Lofts
Title: Managing Director
By: /s/ Frederic Lahner
---------------------------------------
Name: Frederic Lahner
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
---------------------------------------
Name: F.C.H Ashby
Title: Senior Manager, Loan Operations
BARCLAYS BANK PLC
By: /s/ Sydney G. Dennis
---------------------------------------
Name: Sydney G. Dennis
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK BRANCH
By: /s/ William M. Hunter
---------------------------------------
Name: William M. Hunter
Title: Director
By: /s/ Shannon Batchman
---------------------------------------
Name: Shannon Batchman
Title: Director
CIBC INC.
By: /s/ John P. Burke
---------------------------------------
Name: John P. Burke
Title: Executive Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Attila Koc
-----------------------------------------
Name: Attila Koc
Title: Senior Vice President
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
By: /s/ William J. Procasky
---------------------------------------
Name: William J. Procasky
Title: Vice President
By: /s/ Richard W. Wilbert
---------------------------------------
Name: Richard W. Wilbert
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Robert D. Lanigan
-----------------------------------------
Name: Robert D. Lanigan
Title: Managing DIrector
TORONTO DOMINION (TEXAS), INC.
By /s/ Alva J. Jones
---------------------------------------
Name: Alva J. Jones
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Thomas R. Salzano
---------------------------------------
Name: Thomas R. Salzano
Title: Director
Banking Products Services, US
By: /s/ Wilfred V. Saint
---------------------------------------
Name: Wilfred V. Saint
Title: Associate Director
Banking Products Services, US
EXPORT DEVELOPMENT CORPORATION
By: /s/ Mehdi Hassan
---------------------------------------
Name: Mehdi Hassan
Title: Financial Services Manager
By: /s/ Leslie Kenway
---------------------------------------
Name: Leslie Kenway
Title: Director
INTESABCI S.P.A., NEW YORK BRANCH
By: /s/ Stuart L. Barrowcliff
---------------------------------------
Name: Stuart L. Barrowcliff
Title: Director
By: /s/ Nicholas A. Matacchieri
---------------------------------------
Name: Nicholas A. Matacchieri
Title: Director
KBC BANK N.V.
By: /s/ Jean-Pierre Diels
---------------------------------------
Name: Jean-Pierre Diels
Title: First Vice President
By: /s/ Eric Raskin
---------------------------------------
Name: Eric Raskin
Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
By: /s/ Felicia La Forgia
---------------------------------------
Name: Felicia La Forgia
Title: Vice President
By: /s/ Anthony Alessandro
-----------------------------------------
Name: Anthony Alessandro
Title: Manager
LANDESBANK RHEINLAND-PFALZ GIROZENTRALE
By: /s/ Richard Kuhn
-----------------------------------------
Name: Richard Kuhn
Title: Senior Vice President
By: /s/ Stefan Huber
-----------------------------------------
Name: Stefan Huber
Title:
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ William M. Ginn
---------------------------------------
Name: William M. Ginn
Title: General Manager
BANK HAPOALIM B.M
By: /s/ Marc Bosc
---------------------------------------
Name: Marc Bosc
Title: Vice President
By: /s/ Laura Anne Raffa
-----------------------------------------
Name: Laura Anne Raffa
Title: Senior Vice President and Corporate Manager
SCHEDULE I
MIRANT CORPORATION
364 DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Initial Lenders Commitments Domestic Lending Offices Eurodollar Lending Offices
- --------------- ----------- ------------------------ --------------------------
Sole Lead Arranger and
Administrative Agent
Credit Suisse First Boston
$75,000,000 11 Madison Avenue
New York, NY 10010
Attention: Andrea Chicas
Telephone: 212-325-9941
Facsimile: 212-325-8304
Co-Arranger and
Co-Syndication Agent
Bank of America, N.A. $65,000,000 100 North Tryon Street
16th Floor
NC1-007-16-13
Charlotte, NC 28255
Attention: Gretchen Burud
Telephone: 704-386-8394
Facsimile: 704-386-1319
Senior Managing Agent and
Co-Syndication Agent
Citibank, N.A.
$65,000,000 399 Park Avenue
New York, NY 10043
Attention: Dhaya Ranganathan
Telephone: 212-559-4824
Facsimile: 212-793-6130
Senior Managing Agents and
Co-Documentation Agents
Commerzbank AG
$65,000,000 Commerzbank AG Atlanta Agency Commerzbank AG Atlanta Agency
1230 Peachtree Street, N.E., 1230 Peachtree Street, N.E.,
Suite 3500 Suite 3500
Atlanta, GA 30309 Atlanta, GA 30309
Attention: Brian Campbell Attention: Brian Campbell
Telephone: 404-888-6518 Telephone: 404-888-6518
Facsimile: 404-888-6539 Facsimile: 404-888-6539
The Royal Bank of Scotland $65,000,000 101 Park Avenue
plc New York, NY 10178
Attention: Brian McInnes
Telephone: 212-401-3739
Facsimile: 212-401-3456
Senior Managing Agents
The Bank of $65,000,000 1251 Avenue of the Americas
Tokyo-Mitsubishi, Ltd. New York, NY 10020-1104
Attention: Gary England
Telephone: 404-222-4205
Facsimile: 404-577-1155
Bayerische Landesbank $65,000,000 560 Lexington Avenue
Grozentrale New York, NY 10022
Attention: Sean O'Sullivan
Telephone: 212-310-9913
Facsimile: 212-310-9868
Deutsche Bank AG $65,000,000 Deutsche Bank AG New York Branch Deutsche Bank AG
31 West 52nd Street Cayman Islands Branch
New York, NY 10019 c/o Deutsche Bank AG
Attention: Joel Makowsky New York Branch
Telephone: 212-469-7896 31 West 52nd Street
Facsimile: 212-469-5711 New York, NY 10019
Wachovia Bank, N.A. $65,000,000 191 Peachtree Street N.E.
29th Floor, Mailcode: GA-3940
Atlanta, GA 30303
Attention: John Seeds
Telephone: 404-332-5184
Facsimile: 404-332-5905
Managing Agent
Dresdner Bank AG $55,000,000 75 Wall Street
New York, NY 10005-2889
Attention: Fred Thurston
Telephone: 212-429-2029
Facsimile: 212-429-2192
Senior Co-Agent
The Bank of Nova Scotia $45,000,000 The Bank of Nova Scotia, Atlanta Agency
Suite 2700
600 Peachtree Street, N.E.
Atlanta, GA 30308
Attention: Pat. Brown
Telephone: 404-877-1506
Facsimile: 404-888-8998
Co-Agents
Barclays Bank PLC $37,500,000 222 Broadway
New York, NY 10038
Attention: Chris Kinney
Telephone: 212-412-2756
Facsimile: 212-412-6709
Bayerische Hypo-und $37,500,000 150 East 42nd Street Bayerische Hypo-und Vereinsbank AG
Vereinsbank AG New York, NY 10017 Grand Cayman Branch
Attention: William Hunter c/o Bayerische Hypo-und
Telephone: 212-672-5340 Vereinsbank AG
Facsimile: 212-672-5530 150 East 42nd Street
New York, NY 10017
CIBC Inc. $37,500,000 CIBC, Inc.
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Attention: Beverly Bowman
Telephone: 770-319-4824
Facsimile: 770-319-4950
Credit Lyonnais $37,500,000 1301 Avenue of the Americas
New York, NY 10019
Attention: Bindu Menon
Telephone: 212-261-7633
Facsimile: 917-849-5440
DG Bank $37,500,000 609 Fifth Avenue 609 Fifth Avenue
New York, NY 10017-1021 New York, NY 10017
Attention: William J.Procasky
Telephone: 212-745-1575
Facsimile: 212-745-1556/1550
Fleet National Bank $37,500,000 100 Federal Street
Energy & Utilities
MADE 10008A
Boston, MA 02110
Attention: Bob Lanigan
Telephone: 617-434-6515
Facsimile: 617-434-3652
Toronto Dominion (Texas), $37,500,000 909 Fannin Street, 17th Floor 909 Fannin St., 17th Floor
Inc. Houston, TX 77010 Houston, TX 77010
Attention: Betty Chang
Telephone: 212-827-7772
Facsimile: 212-827-7244
UBS AG $37,500,000 677 Washington Blvd.
Stamford, CT 06901
Attention: Wendy Field
Telephone: 212-821-3337
Facsimile: 212-821-3330
Participants A
Export Development $25,000,000 151 O'Connor Street
Corporation Ottawa, Ontario
Canada K1A 1K3
Attention: Mehdi Hassan
Telephone: 613-598-3281
Facsimile: 613-598-3167
IntesaBci S.p.A. $25,000,000 One William Street
New York, NY 10004
Attention: Nicholas A. Matacchieri
Telephone: 212-607-3865
Facsimile: 212-607-3966
KBC Bank NV $25,000,000 125 West 55th Street
New York, NY 10019
Attention: Rose Pagan
Telephone: 212-541-0657
Facsimile: 212-956-5581
Westdeutsche Landesbank $25,000,000 1211 Avenue of the Americas
New York, NY 10036
Attention: Felicia La Forgia
Telephone: 212-852-6096
Facsimile: 212-852-6307
Participants B
Landesbank Rheinland-Pfalz $12,500,000 Grosse Bleiche 54-56
D-55098 Mainz Germany
Attention: Dept. 3-12, Stefan Huber
Telephone: 39-6131-13-33-64
Facsimile: 39-6131-13-35-11
Sumitomo-Mitsui $12,500,000 277 Park Avenue
New York, NY 10172
Attention: Brady S. Sadek
Telephone: 312-876-7794
Facsimile: 312-876-6432
Bank Hapoalim B.M. $5,000,000 1177 Avenue of the Americas
New York, NY 10036
Attention: Marc Bosc
Telephone: 212-782-2181
Facsimile: 212-782-2382
Total Commitments: $1,125,000,000
SCHEDULE II
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
TERMS OF SUBORDINATION
Terms defined in the Credit Agreements referred to below are used in these
Terms of Subordination with their defined meanings except as otherwise defined
herein.
I. SUBORDINATION TERMS OF AFFILIATE SUBORDINATED DEBT.
SECTION 1. "Affiliate Subordinated Debt" Defined. "Affiliate Subordinated
Debt" means, for purposes of these Terms of Subordination (this "Agreement"),
[describe the specific Affiliate Subordinated Debt that is being subordinated
hereby--to include all amounts payable in connection therewith], which
constitutes Debt of the Borrower originally issued to a Person that is an
Affiliate of the Borrower and which is subordinated on the terms set forth
below. Debt of the Borrower payable to any entity that is formed by the Borrower
or an Affiliate of the Borrower for the purpose of issuing securities in the
public or capital markets, or in a private placement, shall not constitute
"Affiliate Subordinated Debt" for all purposes hereof.
SECTION 2. Agreement to Subordinate. The holder hereof (the "Subordinated
Creditor") and the Borrower each agree that the Affiliate Subordinated Debt is
and shall be subordinate, to the extent and in the manner hereinafter set forth,
to the prior payment in full of all obligations of the Borrower now or hereafter
existing under (a) the Four-Year Credit Agreement and the 364-Day Credit
Agreement, each dated as of July __, 2001, as from time to time in effect (the
"Credit Agreements"), among the Borrower, the financial institution(s) party
thereto and Credit Suisse First Boston, as Agent for such financial
institution(s), and the Notes issued pursuant thereto and (b) such instruments
and documents as may be listed on Schedule I hereto on the date of execution
hereof or from time to time added to said Schedule I by a writing signed by the
Borrower and the Subordinated Creditor (such instruments and documents being
referred to herein collectively as the "Senior Debt Documents", which phrase
"Senior Debt Documents" shall not include any such instruments and/or documents
as may be deleted from said Schedule I from time to time by a writing signed by
the Borrower and the Subordinated Creditor, which deletion or deletions shall
require the consent of no other Person or Persons except to the extent that the
Borrower has otherwise agreed in writing with, or for the benefit of, such other
Person or Persons), whether for principal, interest (including, without
limitation, interest, as provided in the Notes and in the debt instruments
included in the Senior Debt Documents (such debt instruments included in the
Senior Debt Documents being referred to herein collectively as the "Senior Debt
Instruments"), accruing after the filing of a petition initiating any proceeding
referred to in Section 3(a), whether or not such interest accrues after the
filing of such petition for purposes of the Federal Bankruptcy code or is an
allowed claim in such proceeding), fees, expenses or otherwise (such obligations
of the Borrower under the Credit Agreements and the Senior Debt Documents being
the "Obligations"). For the purposes of this Agreement, the Obligations shall
not be deemed to have been paid in full until (i) with respect to the Lenders,
the Termination Date under each Credit Agreement shall have occurred and (ii)
with respect to each Senior Creditor, the obligation under each of its
respective Senior Debt Documents to extend credit, disburse funds or acquire a
debt instrument shall have terminated and unless the Lenders, the creditors
under the Senior Debt Documents and the holders (other than the Lenders) of the
Senior Debt Instruments (such creditors and holders being referred to
collectively herein as the "Senior Creditors") shall have received payment of
their respective Obligations in full in cash. The Borrower and the Subordinated
Creditor shall endorse on any instrument evidencing Affiliate Subordinated Debt
a statement to the effect that it is subject to these terms of subordination.
SECTION 3. Events of Subordination. (a) In the event of any dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Borrower or its debts, whether voluntary or
involuntary, in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or other similar case or proceeding under any Federal or
State bankruptcy or similar law or upon an assignment for the benefit of
creditors or any other marshaling of the assets and liabilities of the Borrower
or otherwise, the Lenders and the Senior Creditors shall be entitled to receive
payment in full of their respective Obligations before the Subordinated Creditor
is entitled to receive any payment of all or any of the Affiliate Subordinated
Debt, and any payment or distribution of any kind (whether in cash, property or
securities) that otherwise would be payable or deliverable upon or with respect
to the Affiliate Subordinated Debt in any such case, proceeding, assignment or
marshaling (including any payment that may be payable by reason of any other
Debt of the Borrower being subordinated to payment of the Affiliate Subordinated
Debt) shall be paid or delivered directly to Credit Suisse First Boston, as
Agent under the Credit Agreements, for the account of the Lenders, and to the
Senior Creditors or to a trustee or other agent for the Senior Creditors or for
any group of the Senior Creditors (any such trustee or agent being referred to
herein as a "Representative") which may be listed on Schedule I hereto, pro rata
according to the principal amount of the Obligations then owed by the Borrower
to each of the Lenders and the Senior Creditors, for application (in the case of
cash) to, or as collateral (in the case of non-cash property or securities) for,
the payment or prepayment of the Obligations until the Obligations shall have
been paid in full.
(b) In the event that (i) any Default or Event of Default described in
Section 6.01(a) of a Credit Agreement or any payment default by the Borrower
under a Senior Debt Document shall have occurred and be continuing, (ii) any
Event of Default or any "event of default" under a Senior Debt Document that
would entitle the creditors under such Senior Debt Document to accelerate the
maturity of indebtedness evidenced by such Senior Debt Document (a "Senior Event
of Default") (other than as referred to in the preceding clause (i)) shall have
occurred and be continuing or (iii) any judicial proceeding shall be pending
with respect to any Event of Default or Senior Event of Default, then no payment
(including any payment that may be payable by reason of any other Debt of the
Borrower being subordinated to payment of the Affiliate Subordinated Debt) or
distribution of any kind, whether in cash, property or securities, shall be made
by or on behalf of the Borrower for or on account of any Affiliate Subordinated
Debt, and the Subordinated Creditor shall not take or receive from the Borrower,
directly or indirectly, in cash or other property or by set-off in any other
manner, including, without limitation, from or by way of collateral, payment of
all or any of the Affiliate Subordinated Debt until the Obligations shall have
been paid in full.
(c) Until the Termination Date under each Credit Agreement shall have
occurred and the Obligations thereunder then owed by the Borrower to the Lenders
shall have been paid in full in cash, no payment (including any payment that may
be payable by reason of any other Debt of the Borrower being subordinated to the
payment of the Affiliate Subordinated Debt) or distribution of any kind, whether
in cash, property or securities, shall be made by or on behalf of the Borrower
for or on account of any Affiliate Subordinated Debt, and the Subordinated
Creditor shall not take or receive from the Borrower, directly or indirectly, in
cash, property or securities or by set-off or in any other manner, including,
without limitation, from or by way of collateral, payment of all or any of the
Affiliate Subordinated Debt at any time unless at the end of the fiscal quarter
(including the fourth fiscal quarter) of the Borrower for which financial
statements have most recently been delivered to the Agent by the Borrower
pursuant to Section 5.01(f) or (g) of the Credit Agreements on or preceding the
date on which the Borrower takes such action, the ratio of Cash Available for
Corporate Debt Service to Corporate Interest was at least 2.0:1.0, calculated
for the period comprised of the four fiscal quarters ending on the date of such
financial statements and with effect from the date of delivery of such financial
statements.
SECTION 4. In Furtherance of Subordination. The Subordinated Creditor
agrees as follows:
(a) If any proceeding referred to in Section 3(a) above is commenced by or
against the Borrower,
(i) Credit Suisse First Boston, as Agent for the Lenders,
and the Senior Creditors, acting directly or through
one or more Representatives, are hereby irrevocably
authorized and empowered (in their own names or in the
name of the Subordinated Creditor or otherwise), but
shall have no obligation, to demand, sue for, collect
and receive every payment or distribution referred to
in Section 3(a) to which they are entitled thereunder
and give acquittance therefor and to file claims and
proofs of claim and take such other action (including,
without limitation, voting the Affiliate Subordinated
Debt pro rata according to the principal amount of the
Obligations then owed by the Borrower to each of the
Lenders and the Senior Creditors or enforcing any
security interest or other lien securing payment of the
Affiliate Subordinated Debt) as it may deem necessary
or advisable for the exercise or enforcement of any of
the rights or interests of the Agent, the Lenders, the
Representatives and the Senior Creditors hereunder; and
(ii) the Subordinated Creditor shall duly and promptly take
such reasonable action as Credit Suisse First Boston,
as Agent for the Lenders, and the Senior Creditors or
the Representatives may request (A) to permit Credit
Suisse First Boston, as Agent for the Lenders, and the
Senior Creditors or the Representatives to collect the
Subordinated Debt for the account of the Lenders and
the Senior Creditors and to file appropriate claims or
proofs of claim in respect of the Subordinated Debt,
(B) to execute and deliver to Credit Suisse First
Boston, as Agent for the Lenders, and to the Senior
Creditors or their Representatives such documents as
Credit Suisse First Boston, as Agent for the Lenders,
and the Senior Creditors or the Representatives may
reasonably request in order to enable Credit Suisse
First Boston, as Agent for the Lenders, and the Senior
Creditors or the Representatives to enforce any and all
claims with respect to, and any security interests and
other liens securing payment of, the Subordinated Debt,
and (C) to collect and receive any and all payments or
distributions which may be payable or deliverable upon
or with respect to the Subordinated Debt, which
payments and distributions shall be distributed pro
rata according to the principal amount of the
Obligations then owed by the Borrower to each of the
Lenders and the Senior Creditors.
(b) All payments or distributions upon or with respect to the Affiliate
Subordinated Debt which are received by the Subordinated Creditor contrary to
the provisions of this Agreement shall be received in trust for the benefit of
the Lenders and the Senior Creditors pro rata according to the principal amount
of the Obligations then owed by the Borrower to each of the Lenders and the
Senior Creditors, shall be segregated from other funds and property held by the
Subordinated Creditor and shall be forthwith paid over to Credit Suisse First
Boston, as Agent for the Lenders, for the account of the Lenders, and to the
Senior Creditors or their Representatives pro rata according to the principal
amount of the Obligations then owed by the Borrower to each of the Lenders and
the Senior Creditors, in the same form as so received (with any necessary
endorsement) to be applied (in the case of cash) to, or held as collateral (in
the case of non-cash property or securities) for, the payment or prepayment of
the Obligations in accordance with the terms of the Credit Agreements and the
Senior Debt Documents. Any portion of a payment or distribution received by a
Lender or Senior Creditor (or by the Agent or a Representative) which is in
excess of its pro rata portion of such payment or distribution shall be held in
trust by such Lender or Senior Creditor (or Agent or Representative) for the
benefit of the other Lenders and Senior Creditors to be paid promptly to the
other Lenders and Senior Creditors (or to the Agent and the Representatives on
behalf of such Lenders and Senior Creditors) pro rata according to the principal
amount of the Obligations then owed by the Borrower to each of such Lenders and
Senior Creditors.
(c) Credit Suisse First Boston, as Agent for the Lenders, and the Senior
Creditors or their Representatives are hereby authorized to seek specific
performance of this Agreement, whether or not the Borrower shall have complied
with any of the provisions hereof applicable to it, at any time when the
Subordinated Creditor shall have failed to comply with any of the provisions of
this Agreement applicable to it.
SECTION 5. No Commencement of Any Proceeding. The Subordinated Creditor
agrees that, so long as the Obligations shall not have been paid in full in
cash, the Subordinated Creditor will not sue for payment of all or any of the
Affiliate Subordinated Debt, or commence, or join with any creditor other than
the Lenders, Credit Suisse First Boston, as Agent for the Lenders, the Senior
Creditors and the Representatives, in commencing any proceeding referred to in
Section 3(a); provided, however, that the foregoing provisions shall not prevent
the Subordinated Creditor from commencing and prosecuting to judgment any action
necessary to enforce such Affiliate Subordinated Debt during the period
commencing one year prior to the expiration of the limitation period governing
such Affiliate Subordinated Debt under any applicable statute of limitations.
SECTION 6. Rights of Subrogation. The Subordinated Creditor agrees that no
payment or distribution to Credit Suisse First Boston, as Agent for the Lenders,
the Lenders, the Senior Creditors or the Representatives pursuant to the
provisions of this Agreement shall entitle the Subordinated Creditor to exercise
any right of subrogation in respect thereof until the Obligations shall have
been paid in full. From and after the payment in full of the Obligations, the
Subordinated Creditor shall be subrogated to all rights of the Agent, the
Lenders, the Senior Creditors and the Representatives to receive any further
payments or distributions applicable to the Obligations until the Affiliate
Subordinated Debt shall have been paid in full, in addition to all other rights
of subrogation that the Subordinated Creditor may have. For purposes of any such
subrogation, no payments or distributions on the Obligations pursuant to this
Agreement shall, as between the Borrower, its creditors other than the Lenders
and the Senior Creditors, and the Subordinated Creditor, be deemed to be a
payment by the Borrower to or on account of the Obligations, and no payments or
distributions to the Subordinated Creditor of assets by virtue of the
subrogation herein provided for shall, as between the Borrower, its creditors
other than the Lenders and the Senior Creditors, and the Subordinated Creditor,
be deemed to be a payment to or on account of the Affiliate Subordinated Debt.
The provisions of this Agreement are and are intended solely for the purpose of
defining the relative rights of the Subordinated Creditor, on the one hand, and
the Lenders, the Agent for the benefit of the Lenders, the Senior Creditors and
the Representatives, on the other hand, and nothing contained in this Agreement
is intended to or shall impair the obligation of the Borrower, which is
unconditional and absolute, to pay the principal of (and premium, if any) and
interest on the Affiliate Subordinated Debt as and when the same shall become
due and payable in accordance with its terms, or, except as provided in Section
10 below, to affect the relative rights of the Subordinated Creditor and the
creditors of the Borrower other than the Lenders and the Senior Creditors, nor
shall anything herein prevent the Subordinated Creditor from exercising all
remedies otherwise permitted by applicable law upon default under the Affiliate
Subordinated Debt, subject to the rights, if any, under this Agreement, of the
Lenders, the Agent, for the benefit of the Lenders, the Senior Creditors and the
Representatives in respect of cash, property or securities of the Borrower
otherwise payable or delivered to the Subordinated Creditor upon the exercise of
any such remedy.
SECTION 7. Agreements in Respect of Affiliate Subordinated Debt. The
Subordinated Creditor will not sell, assign, pledge, encumber or otherwise
dispose of any of the Affiliate Subordinated Debt unless such sale, assignment,
pledge, encumbrance or disposition (i) is to a person or entity other than the
Borrower and (ii) is made expressly subject to this Agreement.
SECTION 8. Obligations Hereunder Not Affected. All rights and interest of
Credit Suisse First Boston, as Agent for the Lenders, the Lenders, the Senior
Creditors and the Representatives hereunder, and all agreements and obligations
of the Subordinated Creditor and the Borrower under this Agreement, shall remain
in full force and effect irrespective of:
(i) any lack of validity or enforceability of a Credit
Agreement, a Note, a Senior Debt Document or any other
agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to
any departure from a Credit Agreement, a Note or a
Senior Debt Document, including, without limitation,
any increase in the Obligations resulting from the
extension of additional credit to the Borrower or
otherwise;
(iii)any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment
or waiver of or consent to departure from any guaranty,
for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any
manner of sale or other disposition of any collateral
for all or any of the Obligations or any other assets
of the Borrower or any of its subsidiaries;
(v) any change, restructuring or termination of the
corporate structure or existence of the Borrower; or
(vi) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, the Borrower
or a subordinated creditor.
This Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by Credit Suisse First Boston, as Agent for the
Lenders, any Lender, any Senior Creditor or any Representative upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as
though such payment had not been made.
SECTION 9. Waiver. The Subordinated Creditor and the Borrower each hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations and this Agreement and any requirement that
Credit Suisse First Boston, as Agent for the Lenders, any Lender, any Senior
Creditor or any Representative protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against the Borrower or any other person or entity or any collateral.
SECTION 10. Extension of Subordination. The Borrower and the Subordinated
Creditor shall not subordinate the Affiliate Subordinated Debt for the benefit
of any one or more other creditors of the Borrower, now or hereafter existing,
upon any terms other than those set forth in this Agreement. The Borrower and
the Subordinated Creditor shall have the right to subordinate the Affiliate
Subordinated Debt for the benefit of any one or more other creditors of the
Borrower, now or hereafter existing, upon the same terms as are set forth in
this Agreement.
II. SUBORDINATION TERMS OF NON-AFFILIATE SUBORDINATED DEBT.
SECTION 1. "Non-Affiliate Subordinated Debt" Defined. "Non-Affiliate
Subordinated Debt" means, for purposes of these Terms of Subordination (this
"Agreement"), [describe the specific Non-Affiliate Subordinated Debt that is
being subordinated herein -- to include all amounts payable in connection
therewith] which constitutes (i) Debt of the Borrower owed to a Person that is
not an Affiliate of the Borrower and which is subordinated on the terms set
forth below or (ii) Debt of the Borrower payable to any entity that is formed by
the Borrower or an Affiliate of the Borrower for the purpose of issuing
securities in the public or capital markets, or in a private placement, and
which is subordinated on the terms set forth below.
SECTION 2. Agreement to Subordinate. The Representative of the holder of
the Non-Affiliated Subordinated Debt, by its acceptance thereof (the
"Subordinated Creditor") and the Borrower each agree that the Non-Affiliate
Subordinated Debt is and shall be subordinate, to the extent and in the manner
hereinafter set forth, to the prior payment in full of all obligations of the
Borrower now or hereafter existing under (a) the Four-Year Credit Agreement and
the 364-Day Credit Agreement, each dated as of July __, 2001, as from time to
time in effect (the "Credit Agreements"), among the Borrower, the financial
institutions party thereto and Credit Suisse First Boston, as Agent for such
financial institutions, and the Notes issued pursuant thereto and (b) such
instruments and documents as may be listed on Schedule I hereto on the date of
execution hereof or from time to time added to said Schedule I by a writing
signed by the Borrower and the Subordinated Creditor (such instruments and
documents being referred to herein collectively as the "Senior Debt Documents",
which phrase "Senior Debt Documents" shall not include any such instruments
and/or documents as may be deleted from said Schedule I from time to time by a
writing signed by the Borrower and the Subordinated Creditor, which deletion or
deletions shall require the consent of no other Person or Persons except to the
extent that the Borrower has otherwise agreed in writing with, or for the
benefit of, such other Person or Persons), whether for principal, interest
(including, without limitation, interest, as provided in the Notes and in the
debt instruments included in the Senior Debt Documents (such debt instruments
included in the Senior Debt Documents being referred to herein collectively as
the "Senior Debt Instruments"), accruing after the filing of a petition
initiating any proceeding referred to in Section 3(a), whether or not such
interest accrues after the filing of such petition for purposes of the Federal
Bankruptcy Code or is an allowed claim in such proceeding), fees, expenses or
otherwise (such obligations of the Borrower under the Credit Agreements and the
Senior Debt Documents being the "Obligations"). For the purposes of this
Agreement, the Obligations shall not be deemed to have been paid in full until
the (i) with respect to the Lenders, the Termination Date under each Credit
Agreement shall have occurred and (ii) with respect to each Senior Creditor, the
obligation under each of its respective Senior Debt Documents to extend credit,
disburse funds or acquire a debt instrument shall have terminated and unless the
Lenders, the creditors to the Senior Debt Documents and the holders of the
Senior Debt Instruments (such creditors and holders being referred to
collectively herein as the "Senior Creditors") shall have received payment of
their respective Obligations in full in cash. The Borrower shall endorse on any
instrument evidencing such Non-Affiliate Subordinated Debt a statement to the
effect that is subject to these terms of subordination.
SECTION 3. Events of Subordination. (a) In the event of any dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Borrower or its debts, whether voluntary or
involuntary, in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or other similar case or proceeding under any Federal or
State bankruptcy or similar law or upon an assignment for the benefit of
creditors or any other marshaling of the assets and liabilities of the Borrower,
the Lenders and the Senior Creditors shall be entitled to receive payment in
full of the Obligations before the Subordinated Creditor is entitled to receive
any payment of all or any of the Non-Affiliate Subordinated Debt, and any
payment or distribution of any kind (whether in cash, property or securities)
that otherwise would be payable or deliverable upon or with respect to the
Non-Affiliate Subordinated Debt in any such case, proceeding, assignment or
marshaling (including any payment that may be payable by reason of any other
Debt of the Borrower being subordinated to payment of the Non-Affiliate
Subordinated Debt) shall be paid or delivered directly to Credit Suisse First
Boston, as Agent under the Credit Agreements for the account of the Lenders, and
to the Senior Creditors or to a trustee or other agent for the Senior Creditors
(any such trustee or agent being referred to herein as a "Representative") which
may be listed on Schedule I hereto, pro rata according to the principal amount
of the Obligations of the Lenders and the Senior Creditors, for application (in
the case of cash) to, or as collateral (in the case of non-cash property or
securities) for, the payment or prepayment of the Obligations until the
Obligations shall have been paid in full. For purposes of this Section "property
or securities" of the Borrower shall not be deemed to include shares of stock of
the Borrower as reorganized or readjusted, or securities of the Borrower or any
other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated to the Obligations at least to the extent
provided in this Section to the payment of all Obligations that may at the time
be outstanding, provided, however, that (i) the Obligations are assumed by the
new corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the Lenders under the Credit Agreements and of the Senior
Creditors under the Senior Debt Documents are not, without their consent,
altered by such reorganization or readjustment.
(b) Upon the maturity of the Obligations, whether by acceleration or
otherwise, no payment (including any payment that may be payable by reason of
any other Debt of the Borrower being subordinated to the Non-Affiliate
Subordinated Debt) shall be made by or on behalf of the Borrower for or on
account of any Non-Affiliate Subordinated Debt, and the Subordinated Creditor
shall not take or receive from the Borrower, directly or indirectly, in cash or
other property or by set-off or in any other manner, including, without
limitation, from or by way of collateral, payment of all or any of the
Non-Affiliate Subordinated Debt until the Obligations shall have been paid in
full.
(c) In the event that, notwithstanding the foregoing, the Borrower shall
make any payment to the Subordinated Creditor prohibited by the foregoing
provisions of this Section 3, then in such event such payment shall be held in
trust and paid over and delivered forthwith to the Agent, for the benefit of the
Lenders, and to the Senior Creditors or their Representatives pro rata according
to the principal amount of the Obligations of the Lenders and the Senior
Creditors, for application to the Obligations.
SECTION 4. Trust Monies Not Subordinated. Notwithstanding anything
contained in this Agreement to the contrary, funds (other than funds paid in
violation of the provisions of this Agreement) held in trust by a trustee (or
other designated representative) for the Subordinated Creditor for the payment
of the principal of, premium, if any, and interest on the Non-Affiliate
Subordinated Debt shall not be subordinated to the prior payment of any
Obligations or subject to the restrictions set forth in this Agreement, and no
holder of the Non-Affiliate Subordinated Debt nor such trustee (or other
designated representative) shall be obligated to pay over such amount to the
Borrower, the Lenders or the Agent, for the benefit of the Lenders, any other
designated representative of the Lenders, the Senior Creditors or the
Representative, or any other creditor of the Borrower.
SECTION 5. Payment Permitted if No Default. Nothing contained in this
Agreement shall prevent the Borrower, at any time except during the pendency of
any proceeding referred to in Section 3(a) hereof or under the conditions
described in Section 3(b) hereof, from making payments owing to the Subordinated
Creditor. Further, nothing in this Agreement shall have any effect on the right
of the Subordinated Creditor or its representatives to accelerate the maturity
of the Non-Affiliate Subordinated Debt upon the occurrence of a default or an
event of default thereunder or to exercise any or all of its remedies against
the Borrower permitted by applicable law in respect of the Non-Affiliate
Subordinated Debt, but, in that event, no payment may be made in violation of
the provisions of this Agreement.
SECTION 6. Obligations Hereunder Not Affected. (a) No right of the Lenders,
the Agent, for the benefit of the Lenders, the Senior Creditors or the
Representatives, to enforce the subordination provisions provided herein shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Borrower or by any act or any failure to act, in good faith, by
the Agent, any such Lender, any Senior Creditor or any Representative or by any
noncompliance by the Borrower with the terms, provisions and covenants of this
Agreement.
(b) Without in any way limiting the generality of the foregoing paragraph,
the Lenders, the Agent, the Senior Creditors and the Representatives may, at any
time and from time to time, without the consent of or notice to the Subordinated
Creditor, without incurring responsibility to the Subordinated Creditor and
without impairing or releasing the subordination provided in this Agreement or
the obligations hereunder of the Subordinated Creditor to the Lenders or the
Senior Creditors, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
the Obligations, or otherwise amend or modify in any manner the Credit
Agreements, the Notes or the Senior Debt Documents; (ii) permit the Borrower to
borrow, repay and then reborrow any or all of the Obligations; (iii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing the Obligations; (iv) release any Person liable in any manner
for the collection of Obligations; (v) exercise or refrain from exercising any
rights against the Borrower and any other Person; or (vi) apply any sums
received by them to the Obligations.
SECTION 7. Provisions Solely to Define Relative Rights. The provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the Subordinated Creditor on the one hand and the Lenders and
the Senior Creditors on the other hand. Nothing contained in this Agreement is
intended to or shall (a) impair, as among the Borrower, its creditors other than
the Lenders, the Senior Creditors (and the Agent and the Representative
respectively on their behalf) and the Subordinated Creditor, the obligation of
the Borrower, which is absolute and unconditional (and which, subject to the
rights under this Agreement, is intended to rank equally with all other general
obligations of the Borrower), to pay to the Subordinated Creditor the principal
of, premium, if any, and interest on the Non-Affiliate Subordinated Debt as and
when the same shall become due and payable in accordance with its terms; or (b)
affect the relative rights against the Borrower, the Subordinated Creditor and
creditors of the Borrower other than the Subordinated Creditor; or (c) prevent
the Subordinated Creditor from exercising all remedies otherwise permitted by
applicable law with respect to the Non-Affiliate Subordinated Debt upon default,
subject to the rights, if any, under this Agreement of the Lenders, the Agent,
for the benefit of the Lenders, the Senior Creditors and the Representatives.
SECTION 8. Rights of Subrogation. The Subordinated Creditor agrees that no
payment or distribution to Credit Suisse First Boston, as Agent for the Lenders,
to the Lenders, to the Senior Creditors or to the Representatives pursuant to
the provisions of this Agreement shall entitle the Subordinated Creditor to
exercise any right of subrogation in respect thereof until the Obligations shall
have been paid in full. For purposes of such subrogation, no payments or
distributions on the Obligations pursuant to this Agreement shall, as between
the Borrower, its creditors other than the Lenders and the Senior Creditors, and
the Subordinated Creditor, be deemed to be a payment by the Borrower to or on
account of the Obligations, and no payments or distributions to the Subordinated
Creditor of assets by virtue of the subrogation herein provided for shall, as
between the Borrower, its creditors other than the Lenders and the Senior
Creditors, and the Subordinated Creditor, be deemed to be a payment to or on
account of the Non-Affiliate Subordinated Debt.
SECTION 9. Extension of Subordination. The Borrower and the Subordinated
Creditor shall not subordinate the Non-Affiliate Subordinated Debt for the
benefit of any one or more other creditors of the Borrower, now or hereafter
existing upon any terms other than those set forth in this Agreement. The
Borrower and the Subordinated Creditor shall have the right to subordinate the
Non-Affiliate Subordinated Debt for the benefit of any one or more other
creditors of the Borrower, now or hereafter existing, upon the same terms as are
set forth in this Agreement.
SCHEDULE I
Senior Debt Documents
Title and Date Party(ies) Representative
EXHIBIT A-1
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, _____
FOR VALUE RECEIVED, the undersigned, MIRANT CORPORATION, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the later of the Termination Date and the Maturity Date (each
as defined in the Credit Agreement referred to below) the principal sum of
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Revolving Credit Advances made by the Lender to the
Borrower pursuant to the 364-Day Credit Agreement dated as of July __, 2001
among the Borrower, the Lender and certain other financial institutions parties
thereto and Credit Suisse First Boston, as Agent for the Lender and such other
financial institutions (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the later of the Termination Date and the Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Credit Suisse First Boston, as Agent, at 11 Madison Avenue,
New York, New York 10010, in same day funds. Each Revolving Credit Advance owing
to the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
debt of the Borrower resulting from each such Revolving Credit Advance being
evidenced by this Promissory Note, and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
MIRANT CORPORATION
By:
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Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
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EXHIBIT A-2
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, MIRANT CORPORATION, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the 364-Day Credit Agreement dated as of July __,
2001 among the Borrower, the Lender and certain other financial institutions
parties thereto, and Credit Suisse First Boston, as Agent for the Lender and
such other financial institutions (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined)), on _______________, ____, the principal amount of
U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____
days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United
States of America to Credit Suisse First Boston, as Agent, for the account of
the Lender at the office of the Agent, at 11 Madison Avenue, New York, New York
10010 in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
MIRANT CORPORATION
By:
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Title:
EXHIBIT B-1
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
Credit Suisse First Boston, as Agent for the Lenders parties to the Credit
Agreement referred to below [address] [Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, Mirant Corporation, refers to the 364-Day Credit
Agreement, dated as of July __, 2001 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain financial institutions parties thereto
and Credit Suisse First Boston, as Agent for said financial institutions, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Revolving Credit Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Revolving Credit Borrowing (the "Proposed Revolving
Credit Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing
is _______________, ____.
(ii) The Type of Revolving Credit Advances comprising the
Proposed Revolving Credit Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].
(iii)The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv)The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit
Borrowing is __________ month[s].]
The undersigned hereby certifies that on the date hereof and on the date of
the Proposed Revolving Credit Borrowing the representations and warranties
contained in Section 4.01 of the Credit Agreement (except those contained in
Sections 4.01(h) and (j)) are or will be, as the case may be, correct, before
and after giving effect to the Proposed Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date.
Very truly yours,
MIRANT CORPORATION
By:
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Title:
EXHIBIT B-2
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Credit Suisse First Boston, as Agent for the Lenders parties to the Credit
Agreement referred to below
[address]
[Date]
Attention: --------------------------------
Ladies and Gentlemen:
The undersigned, Mirant Corporation, refers to the 364-Day Credit
Agreement, dated as of July __, 2001 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain financial institutions parties thereto
and Credit Suisse First Boston, as Agent for said financial institutions, and
hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit
Agreement that the undersigned hereby requests a Competitive Bid Borrowing under
the Credit Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Proposed Competitive Bid Borrowing __________________
(B) Amount of Proposed Competitive Bid Borrowing __________________
(C) Interest Period(s) __________________
(D) Maturity Date __________________
(E) Interest Rate Basis __________________
(F) Interest Payment Date(s) __________________
(G) Prepayment Provisions __________________
(H) Assignment and Participation Provisions __________________
(I) __________________ __________________
The undersigned hereby certifies that on the date hereof and on the date of
the Proposed Competitive Bid Borrowing the representations and warranties
contained in Section 4.01 (except those contained in Sections 4.01(h) and (j))
of the Credit Agreement are or will be, as the case may be, correct, before and
after giving effect to the Proposed Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
and the aggregate amount of the Proposed Competitive Bid Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is equal to or
less than the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing
is to be made available to it in accordance with Section 2.03(a)(v) of the
Credit Agreement.
Very truly yours,
MIRANT CORPORATION
By:
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Title:
EXHIBIT C-1
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of July __, 2001
(as amended or modified to the Effective Date specified below, the "Credit
Agreement") among Mirant Corporation, a Delaware corporation (the "Borrower"),
certain financial institutions parties thereto and Credit Suisse First Boston,
as agent for said financial institutions (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement as of the Effective
Date equal to the percentage interest specified on Schedule 1 hereto. After
giving effect to such sale and assignment, the Assignee's Commitment and the
amount of the Revolving Credit Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) 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 or any other instrument or document furnished
pursuant thereto; (iii) 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 or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note held by the Assignor and requests
that the Agent exchange such Revolving Credit Note for a new Revolving Credit
Note payable to the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto or new Revolving Credit Notes payable to the Assignee
in an amount equal to the Commitment assumed by the Assignee pursuant hereto and
the Assignor in an amount equal to the Commitment retained by the Assignor under
the Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender 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; (iii) confirms that it is an Eligible Assignee or that it is an
entity that has been approved by the Borrower and the Agent under Section
8.07(a) of the Credit Agreement; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations (other than under Sections 2.14(f), 8.07(g) and
8.08) under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Revolving Credit
Advances assigned: $_______________
Principal amount of Revolving Credit Note payable to Assignee: $_______________
Principal amount of Revolving Credit Note payable to Assignor: $_______________
Effective Date*: _______________, _____
[NAME OF ASSIGNOR], as Assignor
By:
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Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By
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Title:
Domestic Lending Office: [Address]
Eurodollar Lending Office: [Address]
Accepted this __________ day of _______________, ____
CREDIT SUISSE FIRST BOSTON, as Agent
By:_____________________
Title:
By:_____________________
Title:
**Agreed this ___ day of _______________, _________
MIRANT CORPORATION
By:_____________________
Title:
EXHIBIT C-2
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
CONFIDENTIALITY AGREEMENT
Memorandum To: Proposed Assignee or Participant
From: Lender
Date: [___________]
Subject: Credit Agreement for Mirant Corporation
In connection with your possible interest in becoming a Lender or
participant under the 364-Day Credit Agreement dated as of July__, 2001(as from
time to time in effect, the "Credit Agreement") among Mirant Corporation (the
"Company"), certain financial institution(s) party thereto and Credit Suisse
First Boston, as Agent for such financial institution(s), you will receive
certain information which is non-public, confidential or proprietary in nature.
That information and any other information concerning the Company and its
affiliates or the Credit Agreement furnished to you by the Company and its
affiliates, Credit Suisse First Boston (the "Lead Arranger") or any Lender in
connection with the Credit Agreement (at any time on, before or after the date
of this Confidentiality Agreement), together with analyses, compilations or
other materials prepared by you or your directors, officers, employees, agents,
auditors, attorneys, consultants or advisors (collectively, "Representatives")
which contain or otherwise reflect such information or your review of or
interest in the Credit Agreement is hereinafter referred to as the
"Information". In consideration of your receipt of the Information, you agree
that:
1. You will not, without the prior written consent of the Company, use,
either directly or indirectly, any of the Information except in concert with the
Company or in connection with the Credit Agreement.
2. You agree to reveal the Information only to your Representatives who
need to know the Information for the purpose of evaluating the Credit Agreement,
who are informed by you of the confidential nature of the Information, and who
agree to be bound by the terms and conditions of this Agreement. You agree to be
responsible for any breach of this Agreement by any of your Representatives.
3. Without the Company's prior written consent, you shall not disclose to
any person (except as otherwise expressly permitted herein) the fact that the
Information has been made available, or any of the terms, conditions or other
facts with respect to the Credit Agreement.
4. This Agreement shall be inoperative as to any portion of the Information
that (i) is or becomes generally available to the public on a nonconfidential
basis through no fault or action by you or your Representatives, or (ii) is or
becomes available to you on a nonconfidential basis from a source other than the
Company or its affiliates, the Lead Arranger, the Agent or any Lender or their
Representatives, which source, to the best of your knowledge, is not prohibited
from disclosing such Information to you by a contractual, legal or fiduciary
obligation to the Company, the Lead Arranger, the Agent or any Lender.
5. You may disclose the Information at the request of any regulatory or
supervisory authority having jurisdiction over you.
6. In the event that you become legally compelled to disclose any of the
Information or the existence of the Credit Agreement, you shall provide the
Company with notice of such event promptly upon your obtaining knowledge thereof
(provided that you are not otherwise prohibited by law from giving such notice)
so that the Company may seek a protective order or other appropriate remedy. In
the event that such protective order or other remedy is not obtained, you shall
furnish only that portion of the Information that is legally required and shall
cooperate with the Company's counsel to enable either the Company to obtain a
protective order or other reliable assurance that confidential treatment will be
accorded the Information.
7. In the event that discussions with you concerning the Credit Agreement
are discontinued, you shall redeliver to the Company the copies of the
Information that were furnished to you by or on behalf of the Company and
represent to the Company that you have destroyed all other copies thereof. All
of your obligations hereunder and all of the Company's rights and remedies
hereunder shall survive any return or destruction of the Information.
8. You acknowledge that disclosure of the Information in violation of the
terms of this Agreement could have serious consequences, and agree that, in the
event of any breach by you or your Representatives of this Agreement, the
Company may be entitled to equitable relief (including injunction and specific
performance) in addition to all other remedies available to it at law or in
equity.
9. You will not make any public announcement, advertisement, statement or
communication regarding the Company, its affiliates or the Credit Agreement
without the prior written consent of the Company.
10. This Agreement shall be governed in all respects, whether as to
validity, construction, capacity, performance or otherwise, by and under the
laws of the State of New York.
11. All provisions of this Agreement are severable, and the
unenforceability or invalidity of any of the provisions of this Agreement shall
not affect the validity or enforceability of the remaining provisions of this
Agreement.
12. No waiver of any provision of this Agreement, or of a breach hereof,
shall be effective unless it is in writing, signed by the party waiving the
provision, or the breach hereof. No waiver of a breach of this Agreement
(whether express or implied) shall constitute a waiver of a subsequent breach
hereof.
13. The Company is a party to and an intended beneficiary of this
Agreement.
If you are prepared to accept the Information on this basis, please sign
and return this Confidentiality Agreement to us at ________________________ and
to the Company at ___________________________________________________,
Attention: Treasurer.
By:
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Name:
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Title:
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Institution:
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EXHIBIT D
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE BORROWER
July __, 2001
To the financial institutions party to the Credit Agreement referred to
below and to Credit Suisse First Boston, as Agent for such financial
institutions
Ladies and Gentlemen:
We have acted as counsel to Mirant Corporation (the "Company"), a
corporation organized under the laws of the State of Delaware, in connection
with the 364-Day Credit Agreement, dated as of __, 2001 (the "Credit
Agreement"), among the Company and each of you. This opinion letter is rendered
to you pursuant to Section 3.01(d)(v) of the Credit Agreement. Unless otherwise
defined herein, capitalized terms used herein shall have the respective meanings
assigned to such terms in the Credit Agreement.
In the capacity described above, we have examined originals or copies of
each of the Credit Agreement and the Revolving Credit Notes issued on the date
hereof (collectively, the "Loan Documents").
We have also been furnished with, and with your consent have relied upon,
certificates of officers of the Company with respect to factual matters. In
addition, we have obtained and relied upon such certificates and assurances from
public officials as we have deemed necessary for the purposes of expressing the
following opinions. In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons executing documents, the
authenticity of all documents submitted to us as originals and the conformity to
authentic original documents of all documents submitted to us as copies.
We have made such legal and factual inquiries for the purpose of rendering
this opinion as we have deemed necessary (except where a statement is qualified
as to knowledge or awareness in which case we have made such limited inquiry as
is indicated below). The partners of the firm that are rendering this opinion
are admitted to practice in the State of Georgia only, and we are rendering
opinions as indicated herein only to the effect of the federal laws of the
United States of America, the internal laws of the State of Georgia and the
General Corporation Law of the State of Delaware; however, we express no opinion
with respect to the applicability or the effect of federal laws of the United
States of America governing health, safety or the environment, and we express no
opinion as to the effect of the laws of any other jurisdiction or municipal law
or the laws of any local agencies within any state, including, without
limitation, Georgia.
Whenever a statement herein is qualified by "to our knowledge" or a similar
phrase, it means, among other things, that those attorneys in the firm who have
devoted substantive attention to the transaction described herein do not have
current actual knowledge of the inaccuracy of such statement. However, except as
otherwise expressly indicated, we have not undertaken any independent
investigation to determine the accuracy of such statement, and no inference that
we have any knowledge of any matters pertaining to such statement should be
drawn from our representation of the Company. No actual or constructive
knowledge of any attorneys in the firm shall be imputed to the firm as to any of
the matters set forth herein. Without limiting the generality of the foregoing,
we have not made any examination of any accounting, financial or economic
matters, and express no opinion with respect thereto or with respect to the
ability of any party to perform under any documents. All assumptions made by us
herein have been made, with your approval, without any investigation or
verification by us.
In rendering the opinions set forth herein, no opinion is expressed
regarding compliance with the laws relating to interest or usury, the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or the
Georgia Securities Act of 1973, as amended, or the effect of the failure to
comply with any such laws.
On the basis of the foregoing, and in reliance thereon, and subject to the
limitations, qualifications, assumptions, exceptions and other matters set forth
herein, we are of the opinion, as of the date hereof, that:
1. The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware, with corporate power and
authority under such laws to own, lease and operate its properties and conduct
its business.
2. Each of the Loan Documents has been duly authorized, executed and
delivered by the Company.
3. The execution and delivery by the Company of the Loan Documents do not,
as of the date hereof, (a) violate the Certificate of Incorporation or Bylaws of
the Company, (b) result in a material breach or violation of any of the terms
and provisions of, or constitute a default under, any material published
statute, rule or regulation of any court, regulatory body, administrative
agency, government or governmental body of the United States or the State of
Georgia, applicable to the Company, (c) to our knowledge, constitute a default
under any material written agreement of the Company or result in the creation of
any Lien (other than in favor of the Lenders) upon the property of the Company,
or (d) require any authorization, approval, consent or other action by, or
notice to or filing with, any governmental authority or regulatory body of the
United States or of the State of Georgia other than those that have been
obtained or made.
The term "material written agreement" used in paragraph 3 above includes
only those documents filed as Exhibits 10.1 through 10.32, inclusive to the
Company's annual report on Form 10-K for the fiscal year ended December 31, 2000
filed with the United States Securities and Exchange Commission. We express no
opinion as to compliance by any parties other than the Company to the documents
and agreements discussed herein with any state or federal laws or regulations
applicable to the subject transactions because of the nature of their business.
The opinions expressed herein represent the judgment of this law firm as to
certain legal matters, but they are not guarantees or warranties and should not
be construed as such. Further, the opinions expressed above are given only as of
the date hereof, and we do not assume (and we shall not have) any duty or
obligation to update such opinions.
A copy of this opinion letter may be delivered by you to any Person that
becomes a Lender in accordance with the provisions of the Credit Agreement. Any
such Lender may rely on the opinions expressed above as if this opinion letter
were addressed and delivered to such Lender on the date hereof.
This opinion letter is provided to you for your exclusive use solely in
connection with the matters contemplated by the Loan Documents. Except as
expressly set forth in the immediately preceding paragraph, this opinion may not
be relied upon by you for any other purpose, or furnished to, quoted or relied
upon by any other person, firm or corporation for any purpose, without our prior
written consent in each instance.
Very truly yours,
Troutman Sanders LLP
EXHIBIT E
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE AGENT
July __, 2001
To the financial institutions party to the Credit Agreement referred to
below and to Credit Suisse First Boston, as Agent for such financial
institutions
Mirant Corporation
364-Day Credit Agreement
Ladies and Gentlemen:
We have acted as special New York counsel to Credit Suisse First Boston, as
Agent (the "Agent"), in connection with the 364-Day Credit Agreement, dated as
of July __, 2001 (the "Credit Agreement") among Mirant Corporation (the
"Borrower"), a Delaware corporation, and each of you. This opinion is being
delivered to you pursuant to Section 3.01(d)(vi) of the Credit Agreement. Terms
defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined executed originals or copies certified
or otherwise identified to our satisfaction of each of the following (the "Loan
Documents"):
(1) the Credit Agreement; and
(2) the Revolving Credit Notes issued on the date hereof.
In our examination of the Loan Documents, we have assumed, without
independent investigation, (a) the due execution and delivery of each Loan
Document by each of the parties thereto, (b) the authenticity of all documents
submitted to us as originals, (c) the genuineness of all signatures and the
legal capacity of all natural persons and (d) the conformity to the originals of
all documents submitted to us as copies and the authenticity of all originals of
such copies.
With your permission, in rendering the opinion set forth below, we have
also assumed, without independent investigation, that (a) each of the parties to
the Loan Documents (the "Loan Parties") is a corporation, partnership or other
entity duly organized and validly existing under the laws of the jurisdiction of
its organization, (b) each Loan Party has full power and authority (corporate,
partnership and otherwise) to execute, deliver and perform the Loan Documents to
which it is a party, (c) the execution, delivery and performance by each Loan
Party of the Loan Documents to which it is a party have been duly authorized by
all necessary action (corporate, partnership or otherwise) and do not (i)
contravene the certificate of incorporation, bylaws, general partnership
agreement or other constituent documents of any of such Loan Party, (ii) except
with respect to Generally Applicable Law (as defined below and as to which we
make no assumption), violate any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to such Loan Party, or
(iii) conflict with or result in the breach of any document or instrument
binding on any such Loan Party, (d) except with respect to Generally Applicable
Law (as to which we make no assumption), no authorization, approval, consent or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due execution,
delivery or performance by any Loan Party of the Loan Documents to which it is a
party, or, if any such authorization, approval, consent, action, notice or
filing is required thereof, it has been duly obtained or made and is in full
force and effect, and (e) the Lenders and the Agent will perform and exercise
their rights under the Loan Documents to which they are a party reasonably and
in good faith and will act reasonably and in good faith in taking action,
exercising discretion and making determinations thereunder. As used in the
preceding sentence, "Generally Applicable Law" means federal law of the United
States of America and the law of the State of New York and any rule or
regulation promulgated thereunder or pursuant thereto applicable to the
execution, delivery or performance of the Loan Documents and which are generally
applicable to the execution, delivery or performance of documents with terms and
provisions of the type contained in the Loan Documents; provided, however, that
Generally Applicable Law shall not include any law, rule or regulation which is
applicable to the execution, delivery or performance of any Loan Document by any
Loan Party thereto because of the specific nature of the assets or business of
such Loan Party or any of its affiliates.
Based upon the foregoing we advise you that, in our opinion:
1. The Credit Agreement constitutes the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms.
2. The Revolving Credit Notes issued on the date hereof constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
Our opinions above are subject to the following qualifications:
(a) Our opinions expressed above are subject to the effect of general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law). Such principles of equity are of general
application, and in applying such principles a court, among other things, might
not allow a creditor to accelerate the maturity of a debt upon the occurrence of
a default deemed immaterial or might decline to order the Borrower to perform
covenants. Such principles applied by a court might include a requirement that
the creditors act with reasonableness and good faith. Such a requirement might
be applied, for example, to the provisions of the Credit Agreement purporting to
authorize conclusive determinations by the Agent or any Lender.
(b) Our opinions expressed above are also subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar law
affecting creditors' rights generally and to possible judicial action giving
effect to governmental actions affecting creditors' rights.
(c) We express no opinion as to any provisions of the Credit Agreement
insofar as it provides that (i) any Person purchasing a participation from any
Lender pursuant thereto may exercise set-off or similar rights with respect to
such participation or that any Lender or any other Person may exercise set-off
or similar rights other than in accordance with law or (ii) any party thereto
shall make payments without set-off, defense or counterclaim.
(d) The ability of one party to any of the Loan Documents to bring a
dispute against any other party to any of the Loan Documents in a Federal court
of the United States sitting in the Borough of Manhattan, City of New York is
subject to the applicable requirements of subject matter and diversity
jurisdiction.
(e) With respect to any provision of the Credit Agreement that provides
that the obligations thereunder of any Loan Party shall be absolute and
unconditional irrespective of any changes to, or amendments of, any other Loan
Documents to which such Loan Party has not consented, such provision may be
enforceable only to the extent that such changes or amendments were not so
material as to constitute a new contract among the parties.
(f) We express no opinion as to the effect of any public policy
considerations or court decisions which may limit the rights of any party to
obtain indemnification under the Credit Agreement or as to the effect of any
provision of the Credit Agreement relating to indemnification or exculpation in
connection with willful, reckless or criminal acts or gross negligence of the
indemnified or exculpated Person.
(g) The enforceability of any provision of the Credit Agreement to the
effect that terms may not be waived or modified except in writing may be limited
under certain circumstances.
(h) We express no opinion as to any waiver of subject-matter jurisdiction
in respect of, or any right based on improper venue or forum non conveniens in
any proceeding in, the Federal courts of the United States.
Our opinions expressed above are limited to the law of the State of New
York and the Federal law of the United States, and we do not express any opinion
herein concerning any other law. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Lender may be located or wherein
enforcement of any Loan Document may be sought that limits the rates of interest
legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to any Person
that becomes a Lender in accordance with the provisions of the Credit Agreement.
Any such Lender may rely on the opinion expressed above as if this opinion
letter were addressed and delivered to such Lender on the date hereof.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other Lender that is permitted
to rely on the opinion expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind, including any change
of law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any Lender relying on this opinion letter at any time after the
date hereof should seek advice of its counsel as to the proper application of
this opinion letter at such time.
Very truly yours,
JAM/CC
EXHIBIT F
MIRANT CORPORATION
364-DAY CREDIT AGREEMENT
DESIGNATION AGREEMENT
Dated ----------
Reference is made to that certain 364-Day Credit Agreement dated as of
July__, 2001 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement") by and among MIRANT CORPORATION, the Lenders parties
thereto and CREDIT SUISSE FIRST BOSTON, as Administrative Agent. Terms defined
in the Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNATING LENDER] (the "Designating Lender"), [NAME OF DESIGNEE]
(the "Designee"), the Agent and Borrower agree as follows:
1. Pursuant to Section 8.07(i) of the Credit Agreement, the Designating
Lender hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Advances pursuant to Article II of the
Credit Agreement. Any delegation by Designating Lender to Designee of its rights
to make an Advance pursuant to such Article II shall be effective at the time of
the funding of such Advance and not before such time.
2. Except as set forth in Section 7 below, the Designating Lender makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with the Credit Agreement or any
document related thereto (each, a "Loan Document") or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument and document furnished pursuant thereto and (b) the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
writing Article IV of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Agent, the Designating Lender or any
other Lender 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 any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Agent to take such action as Agent on
its behalf and to exercise such powers and discretion under any Loan Document as
are delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (e) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of any Loan Document are required to be performed by it as a Lender.
4. The Designee hereby appoints [Designating Lender or a specified branch
or affiliate of Designating Lender] as Designee's agent and attorney in fact and
grants to [Designating Lender or a specified branch or affiliate of Designating
Lender] an irrevocable power of attorney to receive payments made for the
benefit of Designee under the Credit Agreement, to deliver and receive all
communications and notices under the Credit Agreement and other Loan Documents
and to exercise on Designee's behalf all rights to vote and to grant and make
approvals, waivers, consents of amendments to or under the Credit Agreement or
other Loan Documents. Designee shall not have any right to approve any waiver or
amendment of the Credit Agreement or of any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such waiver,
amendment or consent would reduce the principal of, or interest on, the Notes or
any fees or any other amounts payable under the Credit Agreement or postpone any
date fixed for any payment of principal of, or interest on, the Notes or any
fees or any other amounts payable under the Credit Agreement. Any document
executed by such agent on the Designee's behalf in connection with the Credit
Agreement or other Loan Documents shall be binding on the Designee. The
Borrower, the Agent and each of the Lenders may rely on and are beneficiaries of
the preceding provisions.
5. Following the execution of this Designation Agreement by the Designating
Lender, its Designee and the Borrower, it will be delivered to the Agent for
acceptance and recording by the Agent. The effective date for this Designation
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Agent, unless otherwise specified on the signature page thereto.
6. Each of the Borrower, the Designating Lender and the Agent hereby (i)
acknowledges that the Designee is relying on the non-petition provisions of
Section 8.12 of the Credit Agreement as agreed to by all signatories thereto and
(ii) reaffirms that it will not institute against the Designee or join any other
Person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any federal or state
bankruptcy or similar law for one year and one day after the payment in full of
the latest maturing commercial paper note issued by the Designee.
7. The Designating Lender unconditionally agrees to pay or reimburse the
Designee and save the Designee harmless against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Loan Documents against the Designee, in its
capacity as such, in any way relating to or arising out of this Agreement or any
other Loan Documents or any action taken or omitted by the Designee hereunder or
thereunder, provided that the Designating Lender shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to make
Advances as a Designated Lender pursuant to Article II of the Credit Agreement
and the rights and obligations of a Designated Lender related thereto; provided,
however, that the Designee shall not be required to make payments with respect
to such obligations except to the extent of excess cash flow of the Designee
which is not otherwise required to repay obligations of the Designee Lender
which are then due and payable. Notwithstanding the foregoing, the [Designating
Lender or a specified branch or affiliate of Designating Lender], as
administrative agent for the Designee, shall be and remain obligated to the
Borrower, the Agent and the Lenders for each and every of the obligations of the
Designee and the Designating Lender with respect to the Credit Agreement,
including, without limitation, any indemnification obligations under Section
7.05 of the Credit Agreement and any sums otherwise payable to the Borrower by
the Designee.
9. This Designation Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. This Designation 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. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designating Lender and the Designee intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
[NAME OF DESIGNATING LENDER], as Designating Lender
By:
--------------------------------------------------
Name:
Title:
[NAME OF DESIGNEE], as Designee
By:
---------------------------------------------------
Name:
Title:
Lending Office (and address for notices):
MIRANT CORPORATION, as Borrower
By:
----------------------------------------------------
Name:
Title:
Accepted this __ day of ________, ____
Effective Date:
CREDIT SUISSE FIRST BOSTON as Agent
By:
-----------------------------------------------
Name:
Title:
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
** Include if Borrower's consent is required.