EXECUTION COPY
EXHIBIT 99.02
$100,000,000 SENIOR UNSECURED TERM LOAN FACILITY
CREDIT AGREEMENT
DATED AS OF JANUARY 22, 2003
AMONG
XCEL ENERGY INC.
AND
VARIOUS LENDERS
Table of Contents
Page
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ARTICLE I: DEFINITIONS.....................................................1
Section 1.1. Defined Terms....................................1
Section 1.2. Terms Generally..................................5
Section 1.3. Specified Times and Dates; Determinations........6
ARTICLE II: THE LOAN.......................................................6
Section 2.1. Loan.............................................6
Section 2.2. Repayment of Loan................................6
Section 2.3. Ranking..........................................6
Section 2.4. Pro Rata Shares..................................6
Section 2.5. Use of Proceeds..................................7
Section 2.6. Evidence of Debt; Notes..........................7
Section 2.7. Interest.........................................7
Section 2.8. Fees.............................................8
Section 2.9. Prepayment of Loan...............................8
Section 2.10. Payments.........................................8
Section 2.11. Adjustments; Set-off.............................9
Section 2.12. Increased Costs; Capital Adequacy...............10
Section 2.13. Taxes; Withholding, etc.........................11
ARTICLE III: REPRESENTATIONS AND WARRANTIES...............................13
Section 3.1. Representations and Warranties of the Company...13
Section 3.2. Representations and Warranties of the Lenders...14
ARTICLE IV: CONDITIONS....................................................15
Section 4.1. Effective Date..................................15
Section 4.2. Additional Conditions...........................15
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Table of Contents
(continued)
Page
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ARTICLE V: COVENANTS......................................................16
ARTICLE VI: EVENTS OF DEFAULT.............................................16
ARTICLE VII: MISCELLANEOUS................................................17
Section 7.1. Notices.........................................17
Section 7.2. Amendment and Waiver............................17
Section 7.3. Expenses; Indemnity; Damage Waiver..............18
Section 7.4. Successors and Assigns..........................18
Section 7.5. Survival........................................21
Section 7.6. Severability....................................21
Section 7.7. Governing Law; Consent to Jurisdiction; Waiver
of Jury Trial..................................21
Section 7.8. Headings........................................22
Section 7.9. Counterparts....................................22
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THIS CREDIT AGREEMENT (the "Agreement"), dated as of January 22, 2003,
is among XCEL ENERGY INC. (the "Company") and the Lenders party hereto from time
to time. The parties hereto hereby agree as follows:
ARTICLE I: DEFINITIONS
Section 1.1. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Applicable Documents" means the 7% Senior Notes due 2010 Documents,
7.5% Senior Convertible Notes due 2007 Indenture, and the Five-Year Credit
Agreement dated as of November 10, 2000 among the Company, the Banks listed on
the signature page thereof and The Bank of New York, as Administrative Agent, as
amended by Amendment No. 1 dated as of August 2, 2002, in each case, as such
documents exist as of January 17, 2003 without giving effect to any subsequent
amendment or waiver.
"Assignment Agreement" means an Assignment Agreement substantially in
the form of Exhibit A.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"Benefitted Lender" has the meaning set forth in Section 2.11(a).
"Business Day" means a day other than a Saturday, Sunday or any day on
which commercial banks in New York, New York are authorized or required by law
to close.
"Commitment" means the commitment of a Lender to make or otherwise fund
a Loan pursuant to Section 2.1 hereof; and "Commitments" means such commitments
of all Lenders in the aggregate. The amount of each Lender's Commitment is set
forth on Appendix A or in the applicable Assignment Agreement, subject to the
terms and conditions hereof. The aggregate amount of the Commitments as of the
Effective Date is $100,000,000.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, other
than administrative functions, whether through the ability to exercise voting
power, by contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"Credit Documents" means this Agreement, any Note executed by the
Company pursuant to Section 2.6(b), and any other documents hereafter delivered
to the Lenders by the Company evidencing the Loan.
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"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.1 are satisfied.
"Eligible Assignee" means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time, under the Securities
Act) or a qualified institutional buyer and which extends credit or buys loans
as one of its businesses; provided, that no Affiliate of Company shall be an
Eligible Assignee.
"Event of Default" has the meaning set forth in Article VI.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Final Maturity Date" means the date that is 270 days after the
Effective Date or such earlier date on which the Loan shall become due and
payable in accordance with the terms of this Agreement, whether by acceleration
or otherwise.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to loans or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services, (e) all Indebtedness of others
secured by any Lien on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (f) all guarantees by such
Person of Indebtedness of others, (g) all the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person under generally accepted accounting principles in
the United States of America, (h) all
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obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor. The
Indebtedness of any Person shall not include current accounts payable incurred
in the ordinary course of business.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Lender" means each financial institution listed on the signature pages
hereto as a Lender, and any other Person that becomes a party hereto pursuant to
an Assignment Agreement.
"Lending Date" means the date on which the Loan is to be made by the
Lenders to the Company.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset.
"Loan" means the Loan made pursuant to Section 2.1.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Company and its
Subsidiaries (other than NRG) on a consolidated basis, or (b) the ability of the
Company to perform any material obligations under any Credit Document. A
Material Adverse Effect shall not be deemed to have occurred solely as a result
of a downgrade of the ratings of the Company and/or any of its Subsidiaries.
"Non-U.S. Lender" as defined in Section 2.13(c).
"Note" means a promissory note in the form of Exhibit B, as it may be
amended, supplemented or otherwise modified from time to time.
"NRG" means NRG Energy, Inc. and its subsidiaries.
"Obligations" means any now existing or hereafter arising obligations
of the Company to the Lenders, whether primary or secondary, direct or indirect,
absolute or contingent, joint or several, secured or unsecured, due or not,
liquidated or unliquidated, arising under any Credit Document whether for
principal, interest, fees, expenses or otherwise, together with all costs of
collection or enforcement, including, without limitation, reasonable attorneys'
fees incurred in any collection efforts or in any action or proceeding.
"Parent" has the meaning set forth in Section 2.12(b).
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"Person" means any natural person, corporation, limited liability
company, limited partnership, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Principal Office" means, for each Lender, the address for notices as
set forth on each Lender's signature page hereto, or such other office that a
Lender may from time to time designate in writing to the Company and each
Lender.
"Pro Rata Share" means with respect to all payments, computations and
other matters relating to the making of the portion of the Loan by any Lender,
and for all other purposes with respect to each Lender, the percentage obtained
by dividing (a) the Commitment of that Lender by (b) the aggregate Commitment of
all Lenders.
"Related Fund" means, with respect to any Lender that is an investment
fund, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Requisite Lenders" means one or more Lenders having or holding
Commitments or Loans representing more than 66 2/3% of the sum of the
Commitments or Loans of all Lenders.
"SEC" means the United States Securities and Exchange Commission.
"SEC Orders" means the orders issued by the SEC in Holding Co. Act
Release No. 27218 (Aug. 22, 2000) and Holding Co. Act Release No. 27597
(November 7, 2002) authorizing the incurrence by the Company of debt in the
aggregate principal amount not exceeding $400,000,000 in connection with the
refinancing of a credit facility that became due on November 8, 2002, subject to
certain conditions set forth in such orders.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Securities Laws" means the Securities Act, the Exchange Act and any
other applicable United States securities laws
"7% Senior Notes due 2010" means the 7% Senior Notes, series due 2010
of the Company governed by (i) an Indenture, dated as of December 1, 2000,
between the Company and Xxxxx Fargo Bank Minnesota, National Association, as
trustee, providing for issuance of debt securities (the "December 1, 2000
Indenture") and (ii) Supplemental Indenture No. 1., dated as of December 15,
2000, from the Company to Xxxxx Fargo Bank Minnesota, National Association,
trustee for the Indenture, dated as of December 1, 2000 (together with the
December 1, 2000 Indenture, the "7% Senior Notes due 2010 Documents").
"7.5% Senior Convertible Notes due 2007" means the 7.5% Senior
Convertible Notes due 2007 of the Company governed by an indenture dated as of
November 21, 2002 between the Company and Xxxxx Fargo Bank Minnesota, National
Association, as trustee (the "7.5% Senior Convertible Notes due 2007
Indenture").
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"Significant Subsidiary" means each "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X) of the Company.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, in determining the percentage of ownership interests of any
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the former Person shall be deemed to be outstanding.
"Tax" means any present or future tax, levy, impost, duty, assessment,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided, "Tax on the overall net income" of a Person shall be
construed as a reference to a tax or similar charge imposed by the jurisdiction
in which that Person is organized or in which that Person's applicable Principal
Office (and/or, in the case of a Lender, its lending office) is located or in
which that Person (and/or, in the case of a Lender, its lending office) is
deemed to be doing business on all or part of the net income, profits or gains
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise)
of that Person (and/or, in the case of a Lender, its lending office).
"Transactions" means the execution, delivery, and performance by the
Company of the Credit Documents, the borrowing and repayment of the Loan, the
payment of interest and fees thereunder and the use of the proceeds of the Loan.
Section 1.2. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes," and "including"
shall be deemed to be followed by the phrase "without limitation." The word
"will" shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein," "hereof," and
"hereunder," and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, and Schedules shall be construed to
refer to Articles and Sections of, and Schedules to, this Agreement and (e) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
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Section 1.3. Specified Times and Dates; Determinations. All times
specified in this Agreement shall be determined, unless specifically herein to
the contrary, on the basis of the prevailing time in New York City. Unless
specifically herein to the contrary, if any day or date specified in this
Agreement for any notice, action or event is not a Business Day, then the due
date for such notice, action or event shall be extended to the immediately
succeeding Business Day; provided that interest shall accrue on any payments due
by Company which are extended by the operation of this Section 1.3. Any
determination by the Lenders hereunder shall, in the absence of manifest error,
be conclusive and binding.
ARTICLE II: THE LOAN
Section 2.1. Loan.
(a) Loan. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender severally agrees to
make, at any time on any Business Day on or after the Effective Date a loan to
the Company in an amount equal to each Lender's Commitment. The Company may make
only one borrowing under the Commitment. Any amount borrowed under this Section
2.1(a) and subsequently repaid or prepaid may not be reborrowed. Each Lender's
Commitment shall terminate immediately and without further action on the earlier
to occur of (i) the Lending Date or (ii) 270 days after the Effective Date.
(b) Borrowing Mechanics for the Loan. (i) A request for the Loan shall
be made by the Company by delivering a borrowing request to all Lenders not
later than 12:00 p.m., New York City time, in writing at least two Business Days
(or such shorter period as shall be agreed to by the Lenders) before the
requested Lending Date. Such request shall be irrevocable and shall specify (i)
the requested Lending Date (which shall be a Business Day) and (ii) the account
to which the Company would like the Lenders to credit the proceeds of all
Commitments of the Lenders.
(ii) Each Lender shall fund its Loan to the Company by wire
transfer of immediately available funds not later than 12:00 p.m., New York City
time, on the Lending Date. Upon satisfaction or waiver of the conditions
precedent specified herein, each Lender shall make the proceeds of the Loan
available to the Company on the Lending Date by causing an amount of same day
funds in Dollars equal to the proceeds of such Lender's Commitment to be
credited to the account designated in the borrowing request.
Section 2.2. Repayment of Loan. The Company shall repay the unpaid
principal amount of the Loan on the Final Maturity Date.
Section 2.3. Ranking. Obligations of the Company with respect to the
Loan shall at all times rank pari passu in right of payment with: (a) the 7%
Senior Notes due 2010 and (b) the 7.5% Senior Convertible Notes due 2007.
Section 2.4. Pro Rata Shares. The Loan shall be made, and all
participations purchased, by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in such
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other Lender's obligation to make a Loan requested hereunder or purchase a
participation required hereby nor shall any Commitment of any Lender be
increased or decreased as a result of a default by any other Lender in such
other Lender's obligation to make a Loan requested hereunder or purchase a
participation required hereby.
Section 2.5. Use of Proceeds. The proceeds of the Loan shall be applied
by the Company for working capital and general corporate purposes of the Company
and its Subsidiaries. No portion of the proceeds of the Loan shall be used in
any manner that causes or might reasonably be expected to cause the Loan or the
application of such proceeds to violate Regulation T, Regulation U or Regulation
X of the Board of Governors of the Federal Reserve System or any other
regulation thereof or to violate the Exchange Act.
Section 2.6. Evidence of Debt; Notes.
(a) Lenders' Evidence of Debt. Each Lender shall maintain on its
internal records an account or accounts evidencing the Indebtedness of the
Company to such Lender, including the amount of the Loan made by it and each
repayment and prepayment in respect thereof. Any such recordation shall be
conclusive and binding on the Company, absent manifest error; provided, however,
that failure to make any such recordation, or any error in such recordation,
shall not affect the Company's Obligations in respect of any applicable Loans.
(b) Notes. The Company shall execute and deliver to such Lender on the
Lending Date (and/or to any Person who is an assignee of such Lender pursuant to
Section 7.4 on the effective date of the Assignment Agreement pursuant to which
such Lender became a "Lender" hereunder) a Note to evidence such Lender's
portion of the Loan to the Company.
Section 2.7. Interest.
(a) Loan. The Loan shall bear interest on the unpaid principal amount
thereof from the date thereof until payment of the Loan in full. Interest shall
be payable in arrears on April 22, 2003, July 22, 2003 and the Final Maturity
Date.
(b) Interest Rate. The interest rate for the Loan shall be 9.0% per
annum.
(c) Default Interest. After the occurrence and during the continuance
of an Event of Default, to the extent permitted by applicable law, the Company
shall pay on demand, on the unpaid principal amount of the Loan, interest at a
rate per annum equal to 11.0% per annum.
(d) Maximum Interest Rate. Notwithstanding anything herein to the
contrary, in no event shall the interest charged hereunder exceed the maximum
rate of interest permitted under applicable law. Any payment made which if
treated as interest would cause the interest charged to exceed the maximum rate
permitted shall instead be held by the Lenders and applied to future interest
payments as and when such amount becomes due and payable hereunder.
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(e) Calculations. Interest shall be calculated on the basis of a year
of 360 days. In computing interest on the Loan (or interest on such interest),
the Lending Date shall be included and the date of payment of the Loan shall be
excluded.
Section 2.8. Fees.
(a) Commitment Fee. The Company agrees to pay, on the Effective Date, a
fee equal to one and a half percent (1.5%) of the Commitment.
(b) Termination and Extension Fees. (i) During the period beginning on
the Effective Date and ending 90 days thereafter, the Company agrees to pay fees
as follows: (1) if the Company terminates this Agreement during such period, one
and a half percent (1.5%) of the Commitments outstanding on the date of
termination and (2) if the Company does not terminate this Agreement, one
percent (1%) of the Commitments outstanding on the date that is 90 days after
the Effective Date as an extension fee.
(ii) During the period beginning on the date that is 91 days
after the Effective Date and ending on the date that is 180 days after the
Effective Date, the Company agrees to pay fees as follows: (1) if the Company
terminates this Agreement during such period, one percent (1%) of the
Commitments outstanding on the date of termination and (2) if the Company does
not terminate this Agreement, one percent (1%) of Commitments outstanding on the
date that is 180 days after the Effective Date as an extension fee.
(c) Prepayment Fee. In addition to any other fee payable hereunder, the
Company agrees to pay a fee equal to one and a half percent (1.5%) of the Loan
on the date (if any) that the Company prepays the Loan.
All fees referred to in this Section 2.8 shall be paid by the Company to each
Lender at its Principal Office in an amount equal to its Pro Rata Share thereof.
Section 2.9. Prepayment of Loan.
(a) Optional. Subject to the terms and conditions herein, the Company
shall have the right to prepay the Loan at any time prior to the Final Maturity
Date; provided, however, that the prepayment must be for the entire unpaid
principal amount of the Loan plus all interest accrued and fees payable with
respect thereto.
(b) Notices. Any prepayment may only be made on at least two Business
Days' (or such shorter period as shall be agreed to by the Lenders) irrevocable
prior written notice to the Lenders.
Section 2.10. Payments. (i) All payments by the Company of principal,
interest, fees and other Obligations shall be made in immediately available
funds in Dollars, without any set-off, counterclaim, withholding or deduction of
any kind (except as provided in Section 2.13), free of any restriction or
condition, and delivered to each Lender.
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(ii) All payments in respect of the principal amount of the Loan
shall include payment of accrued interest on the principal amount being repaid
or prepaid. All payments shall be applied by the Lenders as follows: first, to
the payment of all accrued but unpaid fees, costs or expenses under the Credit
Documents; second, to the payment of all accrued but unpaid interest under the
Credit Documents; third, to the repayment of then outstanding principal amount
of the Loan; and fourth, the balance, if any, to the Company or to whomsoever
may be entitled to such amounts as determined by Lenders in its reasonable
discretion.
(iii) The Lenders shall deem any payment by or on behalf of the
Company hereunder that is not made in same day funds prior to 12:00 p.m., New
York City time, to be a non-conforming payment. Any such payment shall not be
deemed to have been received by the Lenders until the later of (i) the time such
funds become available funds and (ii) the next succeeding Business Day. The
Lenders shall give prompt telephonic notice to the Company if any payment is
non-conforming. Any non-conforming payment may constitute or become a Default or
Event of Default in accordance with the terms of Article VI. Interest shall
continue to accrue on any principal as to which a non-conforming payment is made
until such funds become available funds (but in no event less than the period
from the date of such payment to the next succeeding Business Day) at the
applicable rate determined pursuant to Section 2.7.
All payments referred to in this Section 2.10 shall be paid by the Company to
each Lender at its Principal Office in an amount equal to its Pro Rata Share
thereof.
Section 2.11. Adjustments; Set-off.
(a) Except to the extent otherwise agreed upon by all of the Lenders,
if any Lender (a "Benefitted Lender") shall, at any time after the Loan and
other amounts payable hereunder shall immediately become due and payable
pursuant to Article VI, receive any payment of all or part of the Obligations
owing to it (whether voluntarily or involuntarily, by set-off or otherwise), in
a greater proportion than any such payment to any other Lender, if any, in
respect of the Obligations owing to such other Lender, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender as shall be necessary
to cause such Benefitted Lender to share the excess payment ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such Benefitted Lender, such purchase shall
be rescinded, and the purchase price returned, to the extent of such recovery,
but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Company, any
such notice being expressly waived by the Company to the extent permitted by
applicable law, upon any amount becoming due and payable by the Company
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provision or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Company. Each Lender agrees promptly
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to notify the Company after any such setoff and application made by such Lender,
provided, that the failure to give such notice shall not affect the validity of
such setoff and application.
Section 2.12. Increased Costs; Capital Adequacy.
(a) Increased Costs. Compensation For Increased Costs and Taxes.
Subject to the provisions of Section 2.13 (which shall be controlling with
respect to the matters covered thereby), in the event that any Lender shall
determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the adoption of
any new law, treaty or governmental rule, regulation or order), or any
determination of a court or governmental authority, in each case that becomes
effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law): (i) subjects such Lender (or its applicable
lending office) to any additional Tax (other than any franchise Tax or any Tax
on the overall net income of such Lender) with respect to this Agreement or any
of the other Credit Documents or any of its obligations hereunder or thereunder
or any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; (ii) imposes, modifies or
holds applicable any reserve (including any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Lender; or (iii) imposes
any other condition (other than with respect to a Tax matter) on or affecting
such Lender (or its applicable lending office) or its obligations hereunder; and
the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its contribution to the Loan hereunder
or to reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; then, in any such case, the Company shall
promptly pay to such Lender, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine) as may be necessary to compensate
such Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to the Company a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this Section 2.12(a), which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
(b) Capital Adequacy. In the event that any Lender shall have
determined that, after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law, but if not having the force of law, the
compliance with which is in accordance with the general practice of the Lender
for borrowers similarly situated to the Company with respect to extensions of
credit of the type contemplated by this Agreement) of
10
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender (or any
Person controlling such Lender (the "Parent")) as a consequence of the Lender's
obligations hereunder to a level below that which such Lender (or its Parent)
could have achieved but for such adoption, change or compliance (taking into
consideration the Lender's policies with respect to capital adequacy), then from
time to time, within five (5) Business Days after receipt by the Company from
such Lender of a statement referred to in the next sentence, the Company shall
pay to such Lender (or its Parent, as the case may be) such additional amount or
amounts as will compensate such Lender (or its Parent, as the case may be) on an
after-tax basis for such reduction. Such Lender shall deliver to the Company a
written statement setting forth in reasonable detail the basis for calculating
the additional amounts owed to the Lender under this Section 2.12(b), which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
Section 2.13. Taxes; Withholding, etc.
(a) Payments to Be Free and Clear. All sums payable by the Company
hereunder and under the other Credit Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a franchise Tax or a Tax on the
overall net income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision
in or of the United States of America or any other jurisdiction from or to which
a payment is made by or on behalf of the Company.
(b) Withholding of Taxes. If the Company or any other Person is
required by law to make any deduction or withholding on account of any Tax
(other than a franchise Tax or a Tax on the overall net income of any Lender)
from any sum paid or payable by the Company to any Lender under any of the
Credit Documents: (i) the Company shall notify the Lenders of any such
requirement or any change in any such requirement as soon as the Company becomes
aware of it; (ii) the Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is
imposed on the Company) for its own account or (if that liability is imposed on
such Lender) on behalf of and in the name of such Lender; (iii) the sum payable
by the Company in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, that such Lender
receives on the due date a sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and (iv) within thirty
(30) days after the date of payment of any Tax which it is required by clause
(ii) above to pay, the Company shall deliver to the Lenders satisfactory
evidence of such deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority; provided, no such additional amount
shall be required to be paid to any Lender under clause (iii) above except to
the extent that any change after the date hereof (in the case of each Lender
listed on the signature pages hereof on the Effective Date) or after the
effective date of the Assignment Agreement pursuant to which such Lender became
a Lender (in the case of each other Lender) in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect at the date hereof or at the date of such Assignment Agreement, as the
case may be, in respect of payments to such Lender.
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(c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that
is not a United States Person (as such term is defined in Section 7701(a)(30) of
the Internal Revenue Code) for U.S. federal income tax purposes (a "Non-U.S.
Lender") shall deliver to the Company, on or prior to the Effective Date (in the
case of each Lender listed on the signature pages hereof on the Effective Date)
or on or prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of the Company, in the reasonable exercise
of its discretion, (i) two original copies of Internal Revenue Service Form
W-8BEN or W-8ECI (or any successor forms), properly completed and duly executed
by such Lender, and such other documentation required under the Internal Revenue
Code and reasonably requested by the Company to establish that such Lender is
not subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of principal, interest, fees or other
amounts payable under any of the Credit Documents, or (ii) if such Lender is not
a "bank" or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Service Form W-8BEN or W-8ECI
pursuant to clause (i) above, a certificate re non-bank status together with two
original copies of Internal Revenue Service Form W-8 (or any successor form),
properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested
by Company to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to
such Lender under any of the Credit Documents. Each Lender required to deliver
any forms, certificates or other evidence with respect to United States federal
income tax withholding matters pursuant to this Section 2.13(c) hereby agrees,
from time to time after the initial delivery by such Lender of such forms,
certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly deliver to
the Company two new original copies of Internal Revenue Service Form W-8BEN or
W-8ECI, or a certificate re non-bank status and two original copies of Internal
Revenue Service Form W-8, as the case may be, properly completed and duly
executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by Company to confirm or
establish that such Lender is not subject to deduction or withholding of United
States federal income tax with respect to payments to such Lender under the
Credit Documents, or notify the Company of its inability to deliver any such
forms, certificates or other evidence. The Company shall not be required to pay
any additional amount to any Non-US Lender under Section 2.13(b)(iii) if such
Lender shall have failed (1) to deliver the forms, certificates or other
evidence referred to in the second sentence of this Section 2.13(c) or (2) to
notify the Company of its inability to deliver any such forms, certificates or
other evidence, as the case may be; provided, if such Lender shall have
satisfied the requirements of the first sentence of this Section 2.13(c) on the
Effective Date or on the date of the Assignment Agreement pursuant to which it
became a Lender, as applicable, nothing in this last sentence of Section 2.13(c)
shall relieve the Company of its Obligation to pay any additional amounts
pursuant to Section 2.13(a) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not subject to
withholding as described herein.
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(d) Each Non-U.S. Lender shall take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its lending
office) to avoid any requirement that the Company make any deduction or
withholding for taxes from amounts payable to such Non-U.S. Lender.
(e) In the event that an additional payment is made under this
Section 2.13 for the account of any Lender and such Lender, in its reasonable
judgment, determines that it has finally and irrevocably received or been
granted a credit against or release or remission for, or repayment of, any tax
paid or payable by it in respect of or calculated with reference to the
deduction or withholding giving rise to such payment, such Lender shall, to the
extent that it determines that it can do so without prejudice to the retention
of the amount of such credit, relief, remission or repayment, pay to the Company
such amount as such Lender shall, in its reasonable judgment, have determined to
be attributable to such deduction or withholding and which will leave such
Lender (after such payment) in no worse position than it would have been in if
the Company had not been required to make such deduction or withholding. Nothing
herein contained shall interfere with the right of a Lender to arrange its tax
affairs in whatever manner it thinks fit nor oblige any Lender to claim any tax
credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender to do anything that would
prejudice its ability to benefit from any other credits, reliefs, remissions or
repayments to which it may be entitled.
ARTICLE III: REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Company. In
order to induce Lenders to enter into this Agreement, the Company by executing
and delivering this Agreement represents and warrants to the Lenders on the
Effective Date and on the Lending Date that the following statements are true
and correct:
(a) Organization; Powers Authorization. Each of the Company
and its Significant Subsidiaries is duly organized or formed, validly existing
and in good standing (if and to the extent applicable) under the laws of the
jurisdiction of its organization or formation, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in
every jurisdiction where such qualification is required. The Transactions are
within the Company's corporate powers and have been duly authorized by all
necessary corporate action.
(b) Enforceability. Each Credit Document has been duly
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(c) SEC Filings. The Company has filed with the SEC all
information and reports required for it to be in compliance with its obligations
under the Securities Laws and the
13
information contained in such reports shall be true, correct and complete to the
extent required by the Securities Laws.
(d) No Defaults. Neither the Company nor any of its
Significant Subsidiaries (other than NRG) is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
with respect to any of its funded Indebtedness outstanding. No Default or Event
of Default has occurred and is continuing.
(e) Ownership of Property; Liens. The Company has title in fee
simple to, or a valid leasehold interest in, all its real property material to
its business (if any), and, good title to, or a valid leasehold interest in, all
its other property, and none of such property is subject to any Lien, except
such as (i) are disclosed in public filings of the Company with the XXX xxxxx xx
Xxxxxxx 00, 0000, (xx) are permitted under the terms and provisions of the
Applicable Documents or (iii) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and/or its Subsidiaries.
(f) Applicable Documents. All liabilities to third parties
under the Applicable Documents are solely the senior unsecured obligations of
the Company and do not constitute obligations of its Subsidiaries or Affiliates.
Section 3.2. Representations and Warranties of the Lenders.
Each Lender by executing and delivering this Agreement represents and warrants
to the Company and to each other Lender on the Effective Date and on the Lending
Date the following:
(a) Institutional Investor. Such Lender is an institutional
investor and has knowledge and experience in financial and business matters and
is capable of evaluating the merits and risks of its investment in the Notes and
is able to bear the economic risk of such investment.
(b) Investment Intent. The Note being acquired by such Lender
is being acquired for investment and not with a view to the resale or
distribution of such Note or any interest therein, but without prejudice,
however, to the right of such Lender to sell or otherwise dispose of all or any
interest in the Note in accordance with applicable securities laws; it being
understood that the disposition of the Note by such Lender shall at all times
remain entirely within its control.
(c) Registration. Such Lender understands and acknowledges
that (i) the Notes have not been and will not be registered under the Securities
Act in reliance upon the exemption provided in Section 4(2) of the Securities
Act or other applicable exemption, (ii) the Notes have not been and will not be
registered or qualified under the securities or "blue sky" laws of any
jurisdiction, (iii) the Notes may be resold or otherwise transferred only if so
registered or qualified or if an exemption from registration or qualification is
available and (iv) the Company is not obligated to register the Notes.
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ARTICLE IV: CONDITIONS
Section 4.1. Effective Date. The obligations of the Lenders to
make the Loan to the Company hereunder shall not become effective until each of
the following conditions is satisfied:
(a) the Lenders shall have received sufficient copies of each
Credit Document originally executed and delivered by the Company for each
Lender;
(b) the Lenders shall have received satisfactory legal
opinions regarding the Company as to the organization or formation, existence
and good standing (if and to the extent applicable) of the Company, the
authorization of the Transactions, the execution, delivery and enforceability of
the Credit Documents, other legal matters relating to the Company, the Credit
Documents or the Transactions, all in form and substance reasonably satisfactory
to the Lenders and their counsel;
(c) the Lenders shall have received a certification from an
officer of the Company that all Governmental Authorizations and consents of
other Persons, in each case that are necessary or advisable in connection with
the Transactions, shall have been obtained and shall be in full force and
effect;
(d) the Lenders shall have received the fee payable on the
Effective Date pursuant to Section 2.8(a); and
(e) No material adverse change shall have occurred in the
business, property, operations or condition (financial or otherwise) of the
Company since September 30, 2002, except as disclosed in public filings with the
SEC prior to January 17, 2003.
Section 4.2. Additional Conditions. On the Lending Date:
(a) the Lenders shall have received a request for such Loan
executed by an authorized officer of the Company;
(b) the representations and warranties set forth in Article
III hereof and in any documents delivered herewith, shall be true and correct
with the same effect as though made on and as of such date;
(c) the Company shall be in compliance with all the terms and
provisions contained herein and in the Credit Documents to be observed or
performed, and no Default or Event of Default shall have occurred and be
continuing;
(d) the Lenders shall have received any fees due and payable
pursuant to Section 2.8(b); and
(e) the Lenders shall have received a certification from an
officer of the Company that the SEC Orders authorize the Company's incurrence of
Indebtedness under the Loan.
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ARTICLE V: COVENANTS
Until the termination of the Commitment and the principal of and interest on the
Loan and all fees and other Obligations payable under the Credit Documents shall
have been paid in full, the Company covenants and agrees with the Lenders that:
(a) the Company and each of its Significant Subsidiaries
(other than NRG) will pay its liabilities (including tax liabilities), that, if
not paid, could reasonably be expected to result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) the Company has set aside on its books adequate reserves with
respect thereto and (iii) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect;
(b) the Company will comply with the covenants set forth in
the Applicable Documents; and
(c) the Company shall not, and shall not permit any
Significant Subsidiary to, grant any Lien to secure any Indebtedness under the
Applicable Documents without simultaneously causing the Obligations to be
secured equally and ratably by such Lien. The Company shall not permit any
Significant Subsidiary to guarantee, assume or otherwise become liable for any
Indebtedness under the Applicable Documents without simultaneously causing such
Significant Subsidiary to guarantee, assume or otherwise become liable for the
Obligations on a pari passu basis.
ARTICLE VI: EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) an Event of Default (as such term is defined in the
Applicable Documents) under the Applicable Documents; or
(b) failure by the Company to pay (i) when due any principal
of any Loan, whether at stated maturity, by acceleration, by notice of voluntary
prepayment or otherwise; or (ii) any interest on any Loan or any fee or any
other amount due hereunder within five (5) days after the date due,
then in every such event (other than an event described in Section 7.1(4) or
7.1(5) of the December 1, 2000 Indenture), and at any time thereafter during the
continuance of such event, the Lenders may by notice to the Company, take any or
all of the following actions, at the same or different times: (i) terminate the
Commitment, and thereupon the Commitment shall terminate immediately, and (ii)
declare the Loan, if then outstanding, to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loan so declared to be due and payable, together with accrued interest
thereon and all fees and other Obligations of the Company accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Company; and
16
in case of any event with respect to the Company described in Section 7.1(4) or
7.1(5) of the December 1, 2000 Indenture, the Commitment shall automatically
terminate and the principal of all Loans then outstanding, together with accrued
interest thereon and all fees and other Obligations of the Company accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Company.
ARTICLE VII: MISCELLANEOUS
Section 7.1. Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by U.S. mail or sent by telecopy (with
confirmed receipt or followed by overnight delivery) to the addresses (or
telecopy numbers) set forth on the signature pages hereof. Any party hereto may
change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt or, if
mailed, the third (3rd) Business Day following the date so mailed, if earlier.
Section 7.2. Amendment and Waiver. No amendment or waiver of
any provision of the Credit Documents, nor consent to any departure by the
Company therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Company and the Requisite 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:
(a) no amendment, waiver or consent shall, unless in writing
and signed by all of the Lenders, do any of the following at any time:
(i) waive any of the conditions to the Lending Date
specified in Article IV or waive or amend any other provision
such that any condition to the Lending Date is thereby waived
or amended,
(ii) change the amount of the Commitments or the
aggregate unpaid principal amount of the Loans outstanding,
(iii) amend the definition of "Requisite Lenders" or
this Section 7.2, or
(iv) limit the liability of the Company hereunder;
and
(b) no amendment, waiver or consent shall, unless in writing
and signed by the Requisite Lenders and each Lender that has a Commitment if
such Lender is directly affected by such amendment, waiver or consent,
(i) increase the Commitment of such Lender,
(ii) reduce the principal of, or interest on, the
Note(s) held by such Lender or any fees or other amounts
payable hereunder to such Lender, or
17
(iii) postpone any date fixed for any payment of
principal of, or interest on, the Note(s) held by such Lender
or any fees or other amounts payable hereunder to such Lender.
Section 7.3. Expenses; Indemnity; Damage Waiver.
(a) The Company shall pay all reasonable out-of-pocket
expenses incurred by the Lenders, including but not limited to fees and
disbursements of counsel (in-house or outside) for the Lenders, in connection
with the negotiation and preparation of the Credit Documents, any amendments,
modifications or waivers of the provisions thereto requested or agreed to by the
Company (whether or not the transactions contemplated hereby or thereby shall be
consummated), the administration of the Credit Documents including in connection
with the addition or release of any collateral or the enforcement or protection
of the Lenders' rights in connection with any Credit Document, including its
rights under this Section in connection with the Loan made hereunder or any
workout, restructuring or negotiations in respect thereof.
(b) The Company shall indemnify the Lenders and each of their
respective Affiliates, directors, officers, partners, principals, managers,
employees, agents and advisors (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees and
disbursements of counsel for any Indemnitee (the "Losses"), incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of, any actual or prospective claim, litigation, investigation or
proceeding relating to (i) the execution or delivery of any Credit Document, the
performance of the parties hereto of their respective Obligations thereunder or
the consummation of the Transactions or (ii) the Loan or the use of the proceeds
therefrom, in each case, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
Losses are determined by a final judgement of a court of competent jurisdiction
to have been incurred by reason of gross negligence, bad faith or willful
misconduct of such Indemnitee.
(c) To the extent permitted by applicable law, the Company
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, any Credit Document or any agreement or instrument contemplated
thereby, the Transactions, each Loan or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable
promptly after written demand therefor.
Section 7.4. Successors and Assigns.
(a) Generally. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of the Lenders.
The Company may not assign or delegate any of its rights or obligations
hereunder or any interest therein without the prior written consent of all
Lenders. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person
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(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, Affiliates of
each of the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement. No assignment or transfer of any Commitments or Loan
by a Lender shall be effective unless and until an Assignment Agreement
effecting the assignment or transfer has been executed and delivered to the
Company. Prior to such delivery of an Assignment Agreement, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the assigning
Lender, and any request, authority or consent of such assigning Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitment or Loan.
(b) Right to Assign. Each Lender shall have the right after
the Lending Date to sell, assign or transfer all or a portion of its rights and
obligations under this Agreement, including, without limitation, all or a
portion of its Loan owing to it or other Obligation (provided, however, that
each such assignment shall be of a uniform, and not varying, percentage of all
rights and obligations under and in respect of any Loan):
(i) to any Person meeting the criteria of clause (i)
of the definition of the term of "Eligible Assignee" upon the giving of notice
to the Company; and
(ii) to any Person meeting the criteria of clause
(ii) of the definition of the term of "Eligible Assignee", to any such Person
consented to by the Company (such consent not to be (x) unreasonably withheld or
delayed or, (y) required at any time an Event of Default shall have occurred and
then be continuing); provided, that each such assignment pursuant to this
Section 7.4(b)(ii) shall be in an aggregate amount of not less than $1,000,000
(or such lesser amount as may be agreed to by the Company or as shall constitute
the aggregate amount of Loans of the assigning Lender).
(c) Mechanics. The assigning Lender and the assignee thereof
shall execute and deliver to the Company, an Assignment Agreement and (ii) such
forms, certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver to the Company pursuant to Section 2.13(c).
(d) Representations and Warranties of Assignee. Each Lender,
upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of the
Effective Date or as of the Lending Date (as defined in the applicable
Assignment Agreement) that (i) it is an Eligible Assignee, (ii) it has
experience and expertise in investing in commitments such as the applicable Loan
and (iii) it will invest in the Loan for its own account in the ordinary course
of its business and without a view to distribution of such Loan within the
meaning of the Securities Act or the Exchange Act or other federal securities
laws (it being understood that, subject to the provisions of this Section 7.4,
the disposition of such Loans or any interests therein shall at all times remain
within its exclusive control).
(e) Effect of Assignment. Subject to the terms and conditions
of this Section 7.4, as of the "Effective Date" specified in the applicable
Assignment Agreement: (i) the assignee thereunder shall have the rights and
obligations of a "Lender" hereunder to the extent
19
such rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement and shall thereafter be a party hereto and a "Lender" for
all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned thereby pursuant to
such Assignment Agreement, relinquish its rights (other than any rights which
survive the termination hereof under Section 7.5) and be released from its
obligations hereunder (and, in the case of an Assignment Agreement covering all
or the remaining portion of an assigning Lender's rights and obligations
hereunder, such Lender shall cease to be a party hereto; provided, anything
contained in any of the Credit Documents to the contrary notwithstanding, such
assigning Lender shall continue to be entitled to the benefit of all indemnities
hereunder as specified herein with respect to matters arising out of the prior
involvement of such assigning Lender as a Lender hereunder); and (iii) if any
such assignment occurs after the issuance of any Note hereunder, the assigning
Lender shall, upon the effectiveness of such assignment or as promptly
thereafter as practicable, surrender its applicable Note(s) to the Company for
cancellation, and thereupon the Company shall issue and deliver new Note(s), if
so requested by the assignee and/or assigning Lender, to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the outstanding
Loan of the assignee and/or the assigning Lender.
(f) Participations. Each Lender shall have the right at any
time to sell one or more participations to any Person (other than the Company,
any of its Subsidiaries or any of its Affiliates) in all or any part of its
Commitments, Loans or any other Obligation. The Company agrees that each
participant shall be entitled to the benefits of Section 2.12 and 2.13 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 7.4; provided, that (i) a participant
shall not be entitled to receive any greater payment under Section 2.12 or 2.13
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such participant, unless the sale of the participation
to such participant is made with the Company's prior written consent and (ii) a
participant that would be a Non-U.S. Lender if it were a Lender shall not be
entitled to the benefits of Section 2.13 unless the Company is notified of the
participation sold to such participant and such participant agrees, for the
benefit of the Company, to comply with Section 2.13 as though it were a Lender.
To the extent permitted by law, each participant also shall be entitled to the
benefits of Section 2.11(b) as though it were a Lender, provided that such
participant agrees to be subject to Section 2.11(a) as though it were a Lender.
(g) Certain Other Assignments. In addition to any other
assignment permitted pursuant to this Section 7.4, (i) any Lender may assign
and/or pledge all or any portion of its Loans, the other Obligations owed by or
to such Lender, and its Notes, if any, to secure obligations of such Lender
including, without limitation, to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any operating circular issued by the applicable Federal
Reserve Bank; provided, no Lender, as between the Company and such Lender, shall
be relieved of any of its obligations hereunder as a result of any such
assignment and pledge, and provided further, in no event shall the applicable
Federal Reserve Bank be considered to be a "Lender" or be entitled to require
the assigning Lender to take or omit to take any action hereunder.
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Section 7.5. Survival. All covenants, agreements,
representations and warranties made by the Company in any Credit Document and in
the certificates or other instruments delivered in connection with or pursuant
to any Credit Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of each Credit
Document and the making of the Loan. Notwithstanding anything herein or implied
by law to the contrary, the agreements of the Company set forth in Section
2.11(b), 2.12, 2.13 and the agreements of the Lenders set forth in Section 2.11
shall survive the payment of the Loan and the termination hereof.
Section 7.6. Severability. Any provision of any Credit
Document held to be invalid, illegal or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without effecting the validity, legality and
enforceability of the remaining provisions thereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
Section 7.7. Governing Law; Consent to Jurisdiction; Waiver of
Jury Trial.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflict of laws principles thereof.
(b) CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST THE COMPANY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS AGREEMENT, THE COMPANY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE COMPANY AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH SECTION 7.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE COMPANY IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE LENDERS RETAIN THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT
DOCUMENTS OR ANY DEALINGS
21
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO
RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 7.7(C) AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN MADE
HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
Section 7.8. Headings. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
Section 7.9. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Agreement or of any other Credit Document by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement or of such other Credit Document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
22
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
COMPANY:
XCEL ENERGY INC.
By: ________________________
Name: ________________________
Title: ______________________
NOTICE ADDRESS FOR COMPANY:
Xcel Energy Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxx Day
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
23
LENDERS:
PERRY PRINCIPALS INVESTMENTS LLC
By: __________________________
Name:_________________________
Title:________________________
NOTICE ADDRESS:
c/o Perry Capital LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
00
XXXX XXXXXX XXXXXXX, X.X.
By: King Street Advisors, LLC.,
General Partner of
King Street Capital, L.P.
/s/ O. Xxxxxxx Xxxxxx, Xx.
----------------------
Name: O. Xxxxxxx Xxxxxx, Xx.
Title: Co-Managing Director of
King Street Advisors, LLC
NOTICE ADDRESS:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Cyrus Borzooyeh
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
25
Appendix A
Loan Commitments
---------------------------------------- -------------------------------- ---------------
LENDER LOAN COMMITMENT PRO RATA SHARE
---------------------------------------- -------------------------------- ---------------
Perry Principals Investments LLC $50,000,000 50%
---------------------------------------- -------------------------------- ---------------
King Street Capital, L.P. $50,000,000 50%
---------------------------------------- -------------------------------- ---------------
TOTAL $100,000,000 100%
---------------------------------------- -------------------------------- ---------------
26
EXHIBIT A TO
CREDIT AGREEMENT
ASSIGNMENT AGREEMENT
This Assignment Agreement (the "Assignment") is dated as of the
Effective Date set forth below and is entered into by and between [insert name
of Assignor] ("Assignor") and [insert name of Assignee] ("Assignee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as it may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
receipt of a copy of which is hereby acknowledged by Assignee. The Standard
Terms and Conditions set forth in Annex 1 hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set
forth herein in full.
For an agreed consideration, Assignor hereby irrevocably sells
and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes
from Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date noted below, the
interest in and to all of Assignor's rights and obligations under the Credit
Agreement and any other documents or instruments delivered pursuant thereto that
represents the amount and percentage interest identified below of all of
Assignor's outstanding rights and obligations under the respective facilities
identified below (including, to the extent included in any such facilities,
letters of credit) (the "Assigned Interest"). Such sale and assignment is
without recourse to Assignor and, except as expressly provided in this
Assignment and the Credit Agreement, without representation or warranty by
Assignor.
1. Assignor: [______________________]
2. Assignee: [______________________]
3. Company: Xcel Energy Inc. ("Company")
4. Credit Agreement: The Credit Agreement dated as of
January 22, 2003 among Xcel Energy Inc. and various
Lenders from time to time parties thereto
6. Assigned Interest:
Aggregate Amount of Amount of Percentage Assigned of
Commitment/Loans Commitment/Loans Commitment/Loans
for all Lenders Assigned [********]
--------------- -------- ----------
$100,000,000 $______________ ____________%
---------------------
[********] Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
Exhibit A-1
Effective Date: [______________], 2003
7. NOTICE AND WIRE INSTRUCTIONS:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
Notices: Notices:
------- -------
------------------------- -------------------------
------------------------- -------------------------
------------------------- -------------------------
Attention: Attention:
Telecopier: Telecopier:
with a copy to: with a copy to:
------------------------- -------------------------
------------------------- -------------------------
------------------------- -------------------------
Attention: Attention:
Telecopier: Telecopier:
Wire Instructions: Wire Instructions:
----------------- -----------------
Exhibit A-2
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
---------------------------------
By:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
---------------------------------
By:
Title:
[Consented to:[**********]
XCEL ENERGY INC.
---------------------------------
By:
Title:]
----------------------------
[**********] To be added only if the consent of Company is required by the terms
of the Credit Agreement.
Exhibit A-3
ANNEX 1
TO ASSIGNMENT AGREEMENT
STANDARD TERMS AND CONDITIONS
FOR ASSIGNMENT AGREEMENT
1. Representations and Warranties.
1.1 Assignor. Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the
Assigned Interest, (ii) the Assigned Interest is free
and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and
has taken all action necessary, to execute and
deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements,
warranties or representations made in or in
connection with any Credit Document, (ii) the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document
delivered pursuant thereto, other than this
Assignment (herein collectively the "Credit
Documents"), (iii) the financial condition of the
Company, any of its Subsidiaries or Affiliates or any
other Person obligated in respect of any Credit
Document or (iv) the performance or observance by the
Company, any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations
under any Credit Document.
1.2 Assignee. Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken
all action necessary, to execute and deliver this
Assignment and to consummate the transactions
contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of
an Eligible Assignee under the Credit Agreement,
(iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement and,
to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has
received a copy 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 Assignment and to
purchase the Assigned Interest on the basis of which
it has made such analysis and decision and (v) if it
is a Non-U.S. Lender, attached to the Assignment is
any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly
completed and executed by Assignee; and (b) agrees
that (i) it will, independently and without reliance
on Assignor or any other Lender and based on such
documents and information as it shall deem
appropriate at that time, continue to make its own
credit decisions in taking or not taking action under
the Credit Documents and (ii) it will perform in
accordance with their terms all of the obligations
which by the terms of the Credit Documents are
required to be performed by it as a Lender.
Exhibit A-4
2. Payments. From and after the Effective Date, the Company shall
make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other
amounts) to Assignor for amounts which have accrued to but
excluding the Effective Date and to Assignee for amounts which
have accrued from and after the Effective Date.
3. General Provisions. This Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment may be
executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart
of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of
this Assignment. This Assignment shall be governed by, and
construed in accordance with, the internal laws of the State
of New York without regard to conflict of laws principles
thereof.
Exhibit A-5
EXHIBIT B TO
CREDIT AGREEMENT
NOTE
$[1][___,___,___]
[2][MM/DD/YY]
FOR VALUE RECEIVED, XCEL ENERGY INC., a Minnesota corporation (the
"Company"), promises to pay [NAME OF LENDER] ("Payee") or its registered assigns
the principal amount of [1] DOLLARS ($[___,___,___][1]) on the Final Maturity
Date (as defined in the hereinafter defined Credit Agreement).
The Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Credit Agreement, dated as of January 22, 2003 (as it may be amended,
supplemented or otherwise modified, the "Credit Agreement"; the terms defined
therein and not otherwise defined herein being used herein as therein defined),
by and among the Company and the Lenders party thereto from time to time.
This Note is one of the "Notes" in the aggregate principal amount of
$100,000,000 and is issued pursuant to and entitled to the benefits of the
Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Loan evidenced hereby was
made and is to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
Principal Office of the Payee or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
the obligations evidenced hereby shall have been executed, the Company and the
Lenders shall be entitled to deem and treat Payee as the owner and holder of
this Note and the obligations evidenced hereby. Payee hereby agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of the date to which interest hereon has been paid;
provided, the failure to make a notation of any payment made on this Note shall
not limit or otherwise affect the obligations of the Company hereunder with
respect to payments of principal of or interest on this Note.
This Note is subject to prepayment at the option of the Company, as
provided in the Credit Agreement.
--------
[1] Lender's Commitment
[2] Date of Issuance
Exhibit B-1
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of the
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times and in the currency
herein prescribed.
The Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in the Credit Agreement, incurred in
the collection and enforcement of this Note. Company and any endorsers of this
Note hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
Exhibit B-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
XCEL ENERGY INC.
---------------------------
By:
Title:
Exhibit B-3
