Exhibit 10.16
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LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
dated as of August 28, 1998
among
LSP ENERGY LIMITED PARTNERSHIP,
CREDIT SUISSE FIRST BOSTON,
as L/C Facility Agent,
CREDIT SUISSE FIRST BOSTON,
as Letter of Credit Issuer,
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
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TABLE OF CONTENTS
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RECITALS...........................................................1
AGREEMENT..........................................................1
ARTICLE 1 DEFINED TERMS; RULES OF INTERPRETATION.................2
Section 1.1 Defined Terms.....................................2
Section 1.2 Rules of Interpretation...........................6
ARTICLE 2 LETTER OF CREDIT FACILITY..............................6
Section 2.1 Letter of Credit Commitment.......................6
Section 2.2 LOC Loans........................................10
Section 2.3 Fees.............................................14
Section 2.4 Other Payment Terms..............................15
Section 2.5 Pro Rata Treatment...............................21
Section 2.6 Change of Circumstances..........................22
Section 2.7 Funding Losses...................................25
Section 2.8 Alternate Office; Minimization of Costs;
Replacement of Letter of Credit Bank.............25
ARTICLE 3 CONDITIONS PRECEDENT..................................27
ARTICLE 4 REPRESENTATIONS AND WARRANTIES........................27
ARTICLE 5 COVENANTS.............................................28
ARTICLE 6 EVENTS OF DEFAULT; REMEDIES...........................28
Section 6.1 Events of Default................................28
Section 6.2 Remedies.........................................28
ARTICLE 7 L/C FACILITY AGENT; SUBSTITUTION......................29
Section 7.1 Appointment, Powers and Immunities...............29
Section 7.2 Reliance.........................................30
Section 7.3 Non-Reliance.....................................31
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Section 7.4 Defaults.........................................31
Section 7.5 Indemnification..................................31
Section 7.6 Successor L/C Facility Agent.....................32
Section 7.7 Authorization....................................33
Section 7.8 L/C Facility Agent as Lender.....................33
Section 7.9 Amendments: Waivers..............................33
Section 7.10 Withholding Tax..................................35
Section 7.11 General Provisions as to Payments................35
Section 7.12 Substitution of Letter of Credit Bank............36
Section 7.13 Participation....................................36
Section 7.14 Transfer of Letter of Credit Commitment..........37
Section 7.15 Assignability to Federal Reserve Lender..........38
Section 7.16 Voting...........................................39
ARTICLE 8 MISCELLANEOUS PROVISIONS..............................40
Section 8.1 Notices..........................................40
Section 8.2 Right to Set-Off.................................40
Section 8.3 Successors and Assigns...........................40
Section 8.4 Survival.........................................40
Section 8.5 No Waiver; Remedies Cumulative...................41
Section 8.6 Headings Descriptive.............................41
Section 8.7 Severability.....................................41
Section 8.8 Reinstatement....................................41
Section 8.9 Counterparts.....................................41
Section 8.10 Accounting Terms.................................41
Section 8.11 Additional Financing.............................42
Section 8.12 No Partnership. Etc..............................42
Section 8.13 Deed of Trust/Collateral Documents...............42
Section 8.14 Limitation on Liability..........................42
Section 8.15 Knowledge and Attribution........................43
Section 8.16 No Approval of Work..............................43
Section 8.17 Governing Law....................................43
Section 8.18 Consent to Jurisdiction..........................43
Section 8.19 Waiver of Jury Trial.............................44
Section 8.20 Indemnities and Expenses.........................44
Section 8.21 Entire Agreement.................................44
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Section 8.22 Third Party Beneficiaries........................44
Section 8.23 Scope of Liability...............................45
SCHEDULE I - LETTER OF CREDIT BANKS AND
LETTER OF CREDIT COMMITMENTS
SCHEDULE II - AMORTIZATION SCHEDULE FOR LOC LOANS
EXHIBIT A - FORM OF VEPCO LETTER OF CREDIT-A
EXHIBIT B - FORM OF VEPCO LETTER OF CREDIT-B
EXHIBIT C - FORM OF VEPCO LETTER OF CREDIT-C
EXHIBIT D - FORM OF REQUEST FOR ISSUANCE
EXHIBIT E - FORM OF LOC LOAN NOTE
EXHIBIT F - NOTICE OF LOC LOANS
EXHIBIT G - FORM OF CONFIRMATION OF INTEREST
PERIOD SELECTION
EXHIBIT H - FORM OF NOTICE OF CONVERSION OF
LOAN TYPE
EXHIBIT I-1 - BANK WITHHOLDING CERTIFICATE (TREATY)
EXHIBIT I-2
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LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT (this
"Agreement"), dated as of August 28, 1998, is by and among LSP ENERGY LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Partner ship"), CREDIT SUISSE
FIRST BOSTON, as agent for the Letter of Credit Banks (as defined below) (in
such capacity, the "L/C Facility Agent"), CREDIT SUISSE FIRST BOSTON, as issuer
of the Letters of Credit hereunder (in such capacity, the "Letter of Credit
Issuer"), and the other financial institutions from time to time party hereto
(collectively with the Letter of Credit Issuer, the "Letter of Credit Banks").
RECITALS
A. The Partnership has entered or will enter into certain Project
Documents and Credit Documents providing for, among other things, the ownership,
development, construction, operation, maintenance and financing of a nominal 800
MW gas-fired combined cycle electric generating facility to be located in
Batesville, Mississippi.
B. Pursuant to the Power Purchase Agreements, the Partnership has
agreed to render, and Aquila and VEPCO, respectively, have agreed to receive and
pay for, the service of providing capacity and energy for the term of each of
the Power Purchase Agreements on the terms and conditions set forth therein.
C. The Partnership is required to provide letters of credit or other
security in favor of VEPCO to support its obligations under the VEPCO PPA.
D. Subject to and upon the terms and conditions herein set forth,
the Letter of Credit Issuer is willing to provide the Letters of Credit to the
Partnership as provided for herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINED TERMS; RULES OF INTERPRETATION
Section 1.1 Defined Terms. (a) Unless otherwise defined herein,
terms defined in Exhibit A to the Common Agreement shall have such defined
meanings when used herein.
(b) The following terms shall have the following respective
meanings:
"Applicable Margin" shall mean:
(i) at all times with respect to the Base Rate LOC Loans, (a) from
and including the Closing Date to but excluding the date of Term-Conversion,
0.625%, (b) from and including the date of Term-Conversion to but excluding the
third anniversary thereof, 0.750%, and (c) from and including the third
anniversary of the date of Term-Conversion to and including the Letter of Credit
Maturity Date, 0.875%; and
(ii) with respect to the LIBOR LOC Loans, (a) from and including the
Closing Date to but excluding the date of Term-Conversion, 1.50%, (b) from and
including the date of Term-Conversion to but excluding the third anniversary
thereof, 1.625%, and (c) from and including the third anniversary of the date of
Term-Conversion to and including the Letter of Credit Maturity Date, 1.75%.
"Availability Date" shall mean: (i) in the case of the VEPCO Letter
of Credit-A, the Closing Date; (ii) in the case of the VEPCO Letter of Credit-B,
on any date on which the Partnership is required to provide additional
Completion Security (as defined in the VEPCO PPA) under Section 3.3(b) of the
VEPCO PPA; and (iii) in the case of the VEPCO Letter of Credit-C, the Commercial
Operation Date (as defined in the VEPCO PPA).
"Base Rate LOC Loan" shall mean any LOC Loan made and/or being
maintained at a rate of interest based upon the Base Rate.
"Capital Adequacy Requirement" shall have the meaning given to such
term in Section 2.6(d).
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"Change of Law" shall have the meaning given to such term in Section
2.6(b).
"Expiration Date" shall mean the expiration date of the relevant
Letter of Credit as set forth therein.
"Interest Period Confirmation" shall have the meaning given to such
term in Section 2.2(f)(ii).
"L/C Facility Agent's Office" shall mean Eleven Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or such other office as the L/C Facility Agent may
hereafter designate in writing as such to the other parties hereto.
"L/C Facility Documents" shall mean this Agreement, each Letter of
Credit, each LOC Loan Note and any other document or instrument entered into in
connection with the transactions contemplated thereby.
"Lending Office" shall mean, with respect to any Letter of Credit
Bank, the office designated as such for such Letter of Credit Bank on Schedule I
or such other office of such Letter of Credit Bank as such Letter of Credit Bank
may specify from time to time to the L/C Facility Agent and the Partnership.
"Letter of Credit Fee" shall have the meaning given to such term in
Section 2.3(a).
"Letter of Credit Commitment" shall mean at any time, for any Letter
of Credit Bank, the amount set forth opposite such Letter of Credit Bank's name
on Schedule I hereto under the heading "Letter of Credit Commitment," as such
amount may be reduced from time to time pursuant to Section 2.1(e) or Section
7.14, or increased pursuant to Section 7.14 in the case of an assignment
thereunder to such Letter of Credit Bank of all or a portion of the Letter of
Credit Commitment, Reimbursement Obligations and LOC Loans of another Letter of
Credit Bank.
"Letters of Credit" shall have the meaning given to such term in
Section 2.1(a).
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"LIBOR Rate LOC Loan" shall mean any LOC Loan made and/or being
maintained at a rate of interest equal to the LIBOR Rate.
"Liquidation Costs" shall have the meaning given to such term in
Section 2.7.
"LOC Loan" shall have the meaning given to such term in Section
2.1(f)(ii).
"LOC Loan Letter of Credit" shall mean the VEPCO Letter of Credit-A
or the VEPCO Letter of Credit-B, as applicable.
"LOC Loan Maturity Date" shall mean the earlier of (i) the date
which is five (5) years from the Termination Date for the LOC Loan Letters of
Credit and (ii) the date on which all outstanding LOC Loans shall become due and
payable pursuant to Section 6.2(a).
"LOC Loan Note" shall have the meaning given to such term in Section
2.2(a).
"Minimum Notice Period" shall mean (i) at least three (3) Banking
Days before (a) the last day of any Interest Period or (b) the date of
conversion of a Type of LOC Loan resulting in whole or in part in the Letter of
Credit Banks making LIBOR LOC Loans, and (ii) at least two (2) Banking Days
before the date of conversion of a Type of LOC Loan resulting in whole of Base
Rate LOC Loans.
"Non-Advancing Letter of Credit Bank" shall have the meaning given
to such term in Section 7.12.
"Notice of Conversion of Loan Type" shall have the meaning given to
such term in Section 2.2(g).
"Notice of LOC Loan" shall have the meaning given to such term in
Section 2.2(b).
"Other Taxes" shall have the meaning given to such term in Section
2.4(d).
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"Pro Rata Share" shall mean as to any Letter of Credit Bank, a
fraction (expressed as a percentage), the numerator of which shall be the
aggregate amount of such Letter of Credit Bank's outstanding LOC Loans and
Letters of Credit (or Letter of Credit Commitments if no LOC Loans or Letters of
Credit are then outstanding), and the denominator of which shall be the
aggregate amount of out standing LOC Loans and Letters of Credit for all of the
Letter of Credit Banks (or the total Letter of Credit Commitments if no LOC
Loans or Letters of Credit are then outstanding).
"Reimbursement Obligation" shall have the meaning given to such term
in Section 2.1(f).
"Request for Issuance" shall have the meaning given to such term in
Section 2.1(b).
"Required Letter of Credit Banks" shall mean Letter of Credit Banks
with an aggregate of Pro Rata Shares of more than sixty-six and two thirds
percent (66 2/3%).
"Stated Amount" shall mean the face amount of the relevant Letter of
Credit as set forth therein.
"Taxes" shall have the meaning given to such term in Section 2.4(d).
"Termination Date" shall mean: (i) in the case of the LOC Loan
Letters of Credit, the earlier of (a) June 1, 2001 and (b) the Commercial
Operation Date (as defined in the VEPCO PPA); and (ii) in the case of the VEPCO
Letter of Credit-C, the date which is three (3) years after the earlier of (a)
June 1, 2000 and (b) the Commercial Operation Date (as defined in the VEPCO
PPA).
"Total Letter of Credit Commitment" shall mean the sum of the Letter
of Credit Commitments of all of the Letter of Credit Banks.
"VEPCO Letter of Credit-A" shall have the meaning given to such term
in Section 2.1(a).
"VEPCO Letter of Credit-B" shall have the meaning given to such term
in Section 2.1(a).
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"VEPCO Letter of Credit-C" shall have the meaning given to such term
in Section 2.1(a).
"Type" means the type of LOC Loan, whether a Base Rate LOC Loan or
LIBOR LOC Loan.
Section 1.2 Rules of Interpretation. Except as otherwise expressly
provided herein, the rules of interpretation set forth in Exhibit A to the
Common Agreement shall apply to this Agreement.
ARTICLE 2
LETTER OF CREDIT FACILITY
Section 2.1 Letter of Credit Commitment. (a) Subject to and upon the
terms and conditions hereof, the Letter of Credit Commitments may be utilized,
upon the written request of the Partnership, by the issuance by the Letter of
Credit Issuer of: (i) an irrevocable stand-by letter of credit substantially in
the form of Exhibit A for the account of the Partnership and naming VEPCO as the
beneficiary thereof to secure the Partnership's obligations under Section 3.3(a)
of the VEPCO PPA prior to the Commercial Operation Date (as defined in the VEPCO
PPA) (the "VEPCO Letter of Credit-A"); (ii) an irrevocable stand-by letter of
credit substantially in the form of Exhibit B for the account of the
Partnership and naming VEPCO as the beneficiary thereof to secure the
Partnership's obligations under Section 3.3(b) of the VEPCO PPA prior to the
Commercial Operation Date (as defined in the VEPCO PPA) (the "VEPCO Letter of
Credit-B"); or (iii) an irrevocable stand-by letter of credit substantially in
the form of Exhibit C for the account of the Partner ship and naming VEPCO as
the beneficiary thereof to secure the Partnership's obligations under Section
3.3(a) of the VEPCO PPA on and after the Commercial Operation Date (as defined
in the VEPCO PPA) (the "VEPCO Letter of Credit-C" and, together with the VEPCO
Letter of Credit-A and the VEPCO Letter of Credit-B, the "Letters of Credit");
provided that in no event shall (i) the aggregate Stated Amount of all Letters
of Credit, together with the aggregate amount of all outstanding Reimbursement
Obligations and LOC Loans, exceed the Total Letter of Credit Commitment as in
effect from time to time, or (ii) the expiration date of any Letter of Credit
extend beyond the Termination Date for such Letter of Credit. Each Letter of
Credit shall, subject to the satisfaction of the terms and conditions set forth
herein, be available on and after the Availability Date for such Letter of
Credit until the Termination Date for such Letter of Credit.
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(b) The Partnership shall give the L/C Facility Agent at least
four (4) Banking Days irrevocable prior written notice, substantially in the
form of Exhibit D (effective upon receipt), specifying the date (which shall be
no later than ninety (90) days preceding the applicable Termination Date) each
Letter of Credit is to be issued, describing in reasonable detail the proposed
terms of such Letter of Credit (including the Stated Amount thereof) and the
nature of the transactions or obligations proposed to be supported thereby (such
notice, a "Request for Issuance"); provided that the expiration date of any
Letter of Credit shall be on or prior to the Termination Date for such Letter of
Credit. Upon receipt of any Request for Issuance, the L/C Facility Agent shall
advise the Letter of Credit Issuer of the contents thereof.
(c) The issuance by the Letter of Credit Issuer of each Letter
of Credit shall, in addition to the conditions precedent set forth in Article 3,
be subject to the conditions precedent that: (i) such Letter of Credit shall be
in such form and contain such terms as shall be satisfactory to the Letter of
Credit Issuer consistent with its then current practices and procedures with
respect to letters of credit of the same type; (ii) such Letter of Credit shall
be posted in connection with the Partnership's obligations under (A) in the case
of the VEPCO Letter of Credit-A, Section 3.3(a) of the VEPCO PPA prior to the
Commercial Operation Date (as defined in the VEPCO PPA), (B) in the case of the
VEPCO Letter of Credit-B, Section 3.3(b) of the VEPCO PPA prior to the
Commercial Operation Date (as defined in the VEPCO PPA), and (C) in the case of
the VEPCO Letter of Credit-C, Section 3.3(a) of the VEPCO PPA on and after the
Commercial Operation Date (as defined in the VEPCO PPA); and (iii) the
Partnership shall have executed and delivered such other instruments and
agreements relating to such Letter of Credit as the Letter of Credit Issuer
shall have reasonably requested consistent with its then current practices and
procedures with respect to letters of credit of the same type.
(d) On each day during the period commencing with the issuance
by the Letter of Credit Issuer of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Letter of Credit Commitment of
each Letter of Credit Bank shall be deemed to be utilized for all purposes
hereof in an amount equal to such Letter of Credit Bank's Pro Rata Share of the
then undrawn face amount of such Letter of Credit. Each Letter of Credit Bank
(other than the Letter of Credit Issuer) agrees that, upon the issuance of any
Letter of Credit hereunder, it shall automatically acquire a participation in
the Letter of Credit Issuer's liability under such Letter of Credit in an amount
equal to such Letter of Credit Bank's Pro Rata Share of such liability, and each
Letter of Credit Bank (other than the Letter of Credit Issuer) thereby shall
absolutely, uncondition-
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ally and irrevocably assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Letter of Credit Issuer to pay and discharge
when due, its Pro Rata Share of the Letter of Credit Issuer's liability under
such Letter of Credit.
(e) Upon at least five (5) Banking Days' prior irrevocable
written notice (or telephonic notice promptly confirmed in writing) to the L/C
Facility Agent (which notice the L/C Facility Agent shall promptly transmit to
each of the Letter of Credit Banks), the Partnership shall have the right,
without premium or penalty, to permanently reduce each Letter of Credit Bank's
Pro Rata Share of all or part of the unused Total Letter of Credit Commitment;
provided that any partial reduction shall be in a minimum aggregate amount of
$1,000,000.
(f) (i) Upon any drawing under the VEPCO Letter of Credit-C,
the Partnership hereby unconditionally agrees to pay and reimburse the L/C
Facility Agent for the account of the Letter of Credit Issuer for the amount of
such drawing (the "Reimbursement Obligation") at or prior to the date on which
payment is to be made by the Letter of Credit Issuer in accordance with the
terms of the VEPCO Letter of Credit-C to the beneficiary thereunder, without
further action on the part of the Letter of Credit Issuer, the L/C Facility
Agent or any Letter of Credit Bank, and without presentment, demand, notice,
protest or other formalities of any kind. In the event that the Partnership does
not pay the full amount of any proposed drawing with respect to the VEPCO Letter
of Credit-C referred to in the preceding sentence on or prior to the date
payment is to be made by the Letter of Credit Issuer, the Partnership shall also
pay, to the L/C Facility Agent for the account of the Letter of Credit Banks,
interest on such amount at a rate per annum equal to the Default Rate.
(ii) Upon any drawing under any LOC Loan Letter of
Credit, unless the Partnership shall pay and reimburse the Letter of Credit
Issuer for the amount of such drawing at or prior to the date on which payment
is to be made by the Letter of Credit Issuer in accordance with the terms of
such LOC Loan Letter of Credit to the beneficiary thereunder, the Partnership
shall be deemed to have received a loan (each an "LOC Loan") from each Letter of
Credit Bank in the amount of the payment made by such Letter of Credit Bank to
the L/C Facility Agent for the account of the Letter of Credit Issuer pursuant
to clause (h) of this Section 2.1.
(g) If the Partnership fails to reimburse the Letter of Credit
Issuer for a demand for payment under any Letter of Credit by the date of
payment by the Letter
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of Credit Issuer thereunder, the L/C Facility Agent shall give each Letter of
Credit Bank prompt notice of the amount of the demand for payment, specifying
such Letter of Credit Bank's Pro Rata Share of the amount of the related demand
for payment.
(h) Each Letter of Credit Bank (other than the Letter of
Credit Issuer) shall pay to the L/C Facility Agent for account of the Letter of
Credit Issuer at the L/C Facility Agent's Office in dollars and in immediately
available funds, the amount of such Letter of Credit Bank's Pro Rata Share of
any payment under any Letter of Credit upon notice by the Letter of Credit
Issuer (through the L/C Facility Agent) to such Letter of Credit Bank requesting
such payment and specifying such amount. Each such Letter of Credit Bank's
obligation to make such payments to the L/C Facility Agent for account of the
Letter of Credit Issuer under this clause (h), and the Letter of Credit Issuer's
right to receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
failure of any other Letter of Credit Bank to make its payment under this clause
(h), the financial condition of the Partnership (or any other account party),
the existence of any Inchoate Default or Event of Default or the termination of
the Letter of Credit Commitments. Each such payment to the Letter of Credit
Issuer shall be made without any offset, abatement, withholding or reduction
whatsoever.
(i) (i) Upon the making of each payment by a Letter of Credit
Bank to the Letter of Credit Issuer pursuant to clause (h) above in respect of
the VEPCO Letter of Credit-C, such Letter of Credit Bank shall, automatically
and without any further action on the part of the L/C Facility Agent, the Letter
of Credit Issuer or such Letter of Credit Bank, acquire (i) a participation in
an amount equal to such payment in the Reimbursement Obligation owing to the
Letter of Credit Issuer by the Partnership hereunder and (ii) a participation in
a percentage equal to such Letter of Credit Bank's Pro Rata Share of any
interest or other amounts payable by the Partnership hereunder in respect of
such Reimbursement Obligation.
(ii) Upon the making of each payment by a Letter of
Credit Bank to the Letter of Credit Issuer pursuant to clause (h) above in
respect of any LOC Loan Letter of Credit, such Letter of Credit Bank shall,
automatically and without any further action on the part of the L/C Facility
Agent, the Letter of Credit Issuer or such Letter of Credit Bank, be deemed to
have made an LOC Loan to the Partnership in the amount of such payment.
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(j) To the extent that any Letter of Credit Bank fails to pay
any amount required to be paid pursuant to clause (h) of this Section 2.1 on the
due date therefor, such Letter of Credit Bank shall pay interest to the Letter
of Credit Issuer (through the L/C Facility Agent) on such amount from and
including such due date to but excluding the date such payment is made (i)
during the period from and including such due date to but excluding the date
three (3) Banking Days thereafter, at a rate per annum equal to the Base Rate
and (ii) thereafter, at a rate per annum equal to the Default Rate.
(k) Promptly following the end of each calendar month, the
Letter of Credit Issuer shall deliver (through the L/C Facility Agent) to each
Letter of Credit Bank and the Partnership a notice describing the aggregate
amount of all Letters of Credit outstanding at the end of such month. Upon the
request of any Letter of Credit Bank from time to time, the Letter of Credit
Issuer shall deliver any other information reasonably requested by such Letter
of Credit Bank with respect to each Letter of Credit then outstanding.
(l) The Partnership hereby indemnifies and holds harmless each
Letter of Credit Bank and the L/C Facility Agent from and against any and all
claims and damages, losses, liabilities, costs or expenses which such Letter of
Credit Bank or the L/C Facility Agent may incur (or which may be claimed against
such Letter of Credit Bank or the L/C Facility Agent by any Person whatsoever)
by reason of or in connection with the execution and delivery or transfer of or
payment or refusal to pay by the Letter of Credit Issuer under any Letter of
Credit; provided that the Partnership shall not be required to indemnify any
Letter of Credit Bank or the L/C Facility Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(a) the willful misconduct or gross negligence of the Letter of Credit Issuer in
determining whether a request presented under any Letter of Credit complies with
the terms of such Letter of Credit or (ii) in the case of the Letter of Credit
Issuer, its failure to pay under any Letter of Credit after the presentation to
it of a request strictly complying with the terms and conditions of such Letter
of Credit. Nothing in this clause (l) is intended to limit the other rights and
obligations of the Partnership, any Letter of Credit Bank or the L/C Facility
Agent under this Agreement or under applicable law.
Section 2.2 LOC Loans. (a) The LOC Loans outstanding to each Letter
of Credit Bank, and the obligation of the Partnership to repay the LOC Loans and
to pay interest thereon at the rates provided herein, shall be evidenced by one
or more promissory notes in substantially the form attached hereto as Exhibit E
(each an "LOC Loan
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Note"), each payable to the order of such Letter of Credit Bank in an aggregate
principal amount equal to the portion of such Letter of Credit Bank's Letter of
Credit Commitment allocated to the LOC Loan Letters of Credit. The Partnership
authorizes each Letter of Credit Bank to record on the schedule annexed to such
Letter of Credit Bank's LOC Loan Note the date and amount of each LOC Loan made
by such Letter of Credit Bank and each payment or prepayment of principal
thereunder, and the Partnership agrees that all such notations shall constitute
prima facie evidence of the accuracy of the matters noted. The Partnership
further authorizes each Letter of Credit Bank to attach to and make a part of
such Letter of Credit Bank's LOC Loan Note continuations of the schedule
attached thereto as necessary. No failure to make any such notations, nor any
errors in making any such notations, shall affect the validity of the
Partnership's obligations to repay the full unpaid principal amount of the LOC
Loans in accordance with this Agreement.
(b) On each date on which LOC Loans are made pursuant to
Section 2.1(f)(ii), the Partnership shall submit a written notice to the L/C
Facility Agent substantially in the form of Exhibit F (each a "Notice of LOC
Loans"), which notice shall specify, for the LOC Loans made on such date: (i)
the dollar amount of LOC Loans which are to be Base Rate LOC Loans; (ii) the
dollar amount of LOC Loans which are to be LIBOR LOC Loans; and (iii) for any
LOC Loans which are to be LIBOR LOC Loans, the Interest Periods applicable to
such LOC Loans. The L/C Facility Agent shall promptly notify each Letter of
Credit Bank of the contents of each Notice of LOC Loans.
(c) The Partnership shall pay to the L/C Facility Agent for
the benefit of the Letter of Credit Banks the aggregate principal amount of the
LOC Loans outstanding on the Termination Date for the LOC Loan Letters of Credit
in installments payable on each Repayment Date occurring on or after such
Termination Date in accordance with the schedule set forth in Schedule II. Any
remaining principal amounts outstanding shall be due and payable on the LOC Loan
Maturity Date. The Stated Amounts of the LOC Loan Letters of Credit shall not be
reinstated upon repayment of the principal of any LOC Loan.
(d) (i) The Partnership shall pay interest on the unpaid
principal amount of each Base Rate LOC Loan from the date of the making of such
Base Rate LOC Loan until such Base Rate LOC Loan shall be paid in full or
converted to a LIBOR LOC Loan at a rate per annum which shall be equal to the
sum of the Base Rate in effect from time to time plus the Applicable Margin.
Interest accruing at the Base Rate will
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be calculated on the basis of the actual number of days elapsed in a year of 365
or 366 days, as appropriate.
(ii) The Partnership shall pay interest on the unpaid
principal amount of each LIBOR LOC Loan from the date of the making of such
LIBOR LOC Loan until such LIBOR LOC Loan shall be paid in full or converted to a
Base Rate LOC Loan at a rate per annum which shall be equal to the sum of the
relevant LIBOR Rate plus the Applicable Margin. Interest accruing at the LIBOR
Rate will be calculated on the basis of the actual number of days elapsed in a
year of 360 days.
(e) The Partnership shall pay accrued interest on the unpaid
principal amount of each LOC Loan (i) in the case of each Base Rate LOC Loan, on
the last Banking Day of each calendar quarter, (ii) in the case of each LIBOR
LOC Loan, on the last day of each Interest Period related to such LIBOR LOC Loan
and, if such Interest Period is longer than three months, every three months
after the date of such LIBOR LOC Loan, and (iii) in all cases, upon prepayment
(to the extent thereof and including any optional prepayments or mandatory
prepayments), upon conversion from one Type of LOC Loan to another Type, and at
maturity (whether by acceleration or otherwise).
(f) (i) The initial and subsequent Interest Period for LIBOR
LOC Loans shall be a maximum of one month until the earlier to occur of (A) the
L/C Facility Agent notifies the Partnership that syndication of the Letter of
Credit Commitments is complete or (B) the expiration of the one (1) year period
immediately following the Closing Date; provided that the L/C Facility Agent may
other wise approve, in its sole discretion, a longer Interest Period which is
requested by the Partnership and otherwise complies with the following
provisions of this clause (f). Thereafter, each subsequent Interest Period
(including any Interest Period referenced in the proviso of the first sentence
of this clause (f)) selected by the Partnership for all LIBOR LOC Loans shall be
one, two, three, six, nine or twelve months; provided, however, that (A) any
Interest Period which would otherwise end on a day which is not a Banking Day
shall be extended to the next succeeding Banking Day unless such next Banking
Day falls in another calendar month, in which case such Interest Period shall
end on the immediately preceding Banking Day; (B) any Interest Period which
begins on the last Banking Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Banking Day of a calendar month; (C) the
Partnership may not select Interest Periods which would leave a greater
principal amount of LOC Loans subject to Interest Periods ending after a date
upon which LOC Loans are or may
12
be required to be repaid than principal amount of LOC Loans scheduled to be
outstanding after such date; (D) the Partnership may not select an Interest
Period for an LOC Loan which would end after the LOC Loan Maturity Date; and (E)
the Partnership may not at any time have outstanding more than seven (7)
different Interest Periods relating to LIBOR LOC Loans.
(ii) Subject to the provisions of clause (i) immediately
above, the Partnership shall specify the initial Interest Period for each LOC
Loan (or portion thereof) in the Notice of LOC Loans submitted in connection
with such LOC Loan. The Partnership may contact the L/C Facility Agent at any
time prior to the end of such initial and each subsequent Interest Period for a
quotation of interest rates in effect at such time for given Interest Periods
and the L/C Facility Agent shall promptly provide such quotation. The
Partnership may select an Interest Period telephonically within the Minimum
Notice Period, which selection shall be irrevocable as of and after the
applicable Minimum Notice Period. An Authorized Person shall confirm such
telephonic notice to the L/C Facility Agent by telecopy on the day such notice
is given in substantially the form of Exhibit G (such notice, an "Interest
Period Confirmation"). If the Partnership fails to notify the L/C Facility Agent
of the next Interest Period for any LIBOR LOC Loans in accordance with this
clause (h), such LOC Loans shall automatically convert to Base Rate LOC Loans on
the last day of the current Interest Period therefor. The L/C Facility Agent
shall promptly notify the Partnership and the Letter of Credit Banks of each
determination of the interest rate applicable to each LIBOR LOC Loan.
(g) The Partnership may convert LOC Loans from one Type of LOC
Loans to another Type; provided, however, that (i) any conversion of LIBOR LOC
Loans into Base Rate LOC Loans shall be made on, and only on, the first day
after the last day of an Interest Period for such LIBOR LOC Loans, and (ii) LOC
Loans shall be converted only in integral multiples of $100,000. The Partnership
shall request such a conversion by a written notice from an Authorized Person to
the L/C Facility Agent in the form of Exhibit H, appropriately completed (a
"Notice of Conversion of LOC Loan Type"), which specifies: (i) the LOC Loans, or
portion thereof, which are to be converted; (ii) the Type into which such LOC
Loans, or portion thereof, are to be converted; (iii) if such LOC Loans are to
be converted into LIBOR LOC Loans, the initial Interest Period selected by the
Partnership for such LOC Loans in accordance with Section 2.2(f)(i); and (iv)
the date of the requested conversion, which shall be a Banking Day. The
Partnership shall so deliver each Notice of Conversion of LOC Loan Type so as to
provide at least the applicable Minimum Notice Period. Any Notice of Conversion
of LOC Loan Type may
13
be modified or revoked by written notice sent by facsimile transmission with
telephonic confirmation by the Partnership up to 2:00 p.m. on the Banking Day
prior to the Minimum Notice Period, and shall thereafter be irrevocable. Each
Notice of Conversion of LOC Loan Type shall be delivered by telecopy to the L/C
Facility Agent at the telecopy number specified in Section 8.1. The L/C Facility
Agent shall promptly notify each Letter of Credit Bank that holds the LOC Loan
being converted of the contents of each Notice of Conversion of LOC Loan Type.
(h) (i) Subject to clause (iii) below, the Partnership may, at
its option and without penalty, upon three (3) Banking Days notice to the L/C
Facility Agent, prepay any LOC Loans in whole or in part in a minimum amount of
$100,000 or any integral multiple of $100,000 in excess thereof.
(ii) The Partnership shall prepay (or cause to be
prepaid) LOC Loans to the extent required by (A) Section 2.6(b) of this
Agreement, (B) Section 7.2(c)(ii), 7.2(d), 7.3(c), 7.9(c), 7.9(g), 7.10,
7.11(a), 7.11(c), 7.11(d), 7.11(e), 7.11(f) or 7.11(g) of the Common Agreement
or (C) any other provision of this Agreement or the Common Agreement which
requires prepayment of LOC Loans.
(iii) All prepayments, whether voluntary prepayments
or mandatory prepayments, will be allocated to the LOC Loans pro rata in inverse
order of maturity. The Stated Amount of the LOC Loan Letters of Credit shall not
be reinstated upon the prepayment of any LOC Loan. Upon the prepayment of any
LOC Loan (whether such prepayment is an optional prepayment or a mandatory
prepayment), the Partnership shall pay to the L/C Facility Agent, for the
account of the Letter of Credit Bank which made such LOC Loan, (A) all accrued
interest to the date of such prepayment on the amount being prepaid, (B) all
accrued fees to the date of such prepayment on the amount being prepaid, and (C)
if such prepayment is the prepayment of a LIBOR LOC Loan on a day other than the
last day of the current Interest Period for such LIBOR LOC Loan, all Liquidation
Costs incurred by such Letter of Credit Bank as a result of such prepayment.
LIBOR LOC Loans shall only be prepaid in a minimum amount of $1,000,000 or an
integral multiple of $100,000 in excess thereof.
Section 2.3 Fees. (a) On the last Banking Day in each calendar
quarter (or portion thereof) commencing on the Closing Date and ending on the
Letter of Credit Termination Date and on the Expiration Date of each Letter of
Credit, the Partnership shall pay to the L/C Facility Agent for the benefit of
the Letter of Credit Banks a letter of credit
14
fee (the "Letter of Credit Fee") for such quarter then ending and such
Expiration Date, as applicable, at the rates per annum described below and
computed in the following manner. For each of the VEPCO Letter of Credit-B and
the VEPCO Letter of Credit-C, from and including the Closing Date to but
excluding the Availability Date for such Letter of Credit, the Letter of Credit
Fee shall be equal to the Total Letter of Credit Commitment allocated to such
Letter of Credit multiplied by 0.375%. For each Letter of Credit, on and after
the Availability Date for such Letter of Credit, the Letter of Credit Fee shall
be equal to the sum of: (i) the product of (A) (1) from and including the date
of issuance of such Letter of Credit to but excluding the date of
Term-Conversion, 1.500%, (2) from and including the date of Term-Conversion to
but excluding the date which is three (3) years after the date of
Term-Conversion, 1.625%, and (3) from and including the date which is three (3)
years after the date of Term-Conversion to and including the Letter of Credit
Maturity Date, 1.750%, multiplied by (B) the daily average Stated Amount of such
Letter of Credit multiplied by (C) a fraction the numerator of which is the
number of days in such quarter (or portion thereof) or the number of days in the
period beginning on the last day of the previous quarter and ending on the
Expiration Date of such Letter of Credit, as applicable, and the denominator of
which is 360, as applicable; plus (ii) (A) the daily average for such quarter of
the excess of (1) the Total Letter of Credit Commitment allocated to such Letter
of Credit over (2) the Stated Amount of such Letter of Credit, multiplied by (B)
0.375%.
(b) The Partnership shall pay to the L/C Facility Agent for
account of the Letter of Credit Issuer all charges, costs, fees and expenses in
the amounts customarily charged by the Letter of Credit Issuer from time to time
in like circumstances with respect to the issuance of each Letter of Credit,
drawings thereunder and other transactions relating thereto.
(c) The Partnership shall pay when due to the L/C Facility
Agent such other fees as shall have been separately agreed to by the Partnership
and the L/C Facility Agent in writing.
Section 2.4 Other Payment Terms. (a) Place and Manner. The
Partnership shall make all payments due to each Letter of Credit Bank or the L/C
Facility Agent hereunder to the L/C Facility Agent, for the account of such
Letter of Credit Bank or the L/C Facility Agent by wire transfer to ABA No.
000000000 for advice to and credit of "Credit Suisse First Boston" in lawful
money of the United States and in immediately available funds not later than
12:00 noon on the date on which such payment is due. The L/C Facility Agent may
treat any payment made after such time on any day as being
15
received on the Banking Day after such payment is received. The L/C Facility
Agent shall disburse to each Letter of Credit Bank or the Letter of Credit
Issuer, as applicable, by wire transfer pursuant to the wire transfer
instructions for each such person set forth on Schedule I or pursuant to such
other wire instructions provided by such Person to the L/C Facility Agent by
notice, each such payment received by the L/C Facility Agent for such Letter of
Credit Bank or the Letter of Credit Issuer, as applicable, such disbursement to
occur on the day such payment is received if received by 12:00 noon or if
otherwise reasonably possible and otherwise on the next Banking Day.
(b) Date. Whenever any payment due hereunder shall fall due on
a day other than a Banking Day, such payment shall be made on the next
succeeding Banking Day, and such extension of time shall be included in the
computation of interest or fees, as the case may be.
(c) Late Payments. If any amounts required to be paid by the
Partnership under this Agreement, any LOC Loan Note or the other Credit
Documents (including principal and interest payable on any LOC Loans and any
Letter of Credit Fees payable to the L/C Facility Agent or any Letter of Credit
Bank) remain unpaid after such amounts are due, the Partnership shall pay
interest on the aggregate outstanding balance of such amounts from the date due
therefor until such amounts are paid in full at a rate per annum equal to the
Default Rate.
(d) Net of Taxes, Etc. (i) Any and all payments to or for the
benefit of the L/C Facility Agent or any Letter of Credit Bank by the
Partnership hereunder or under any other Credit Document shall be made without
set off, counterclaim or other defense and free and clear of and without
deduction or with holding for or on account of any present or future taxes,
levies, imposts, duties, fees, assessments, deductions, charges, withholdings or
other charges of whatever nature now or hereafter imposed by any jurisdiction or
by any political subdivision or taxing authority thereof or therein (but
excluding any tax imposed on or measured by the net income of the L/C Facility
Agent or any Letter of Credit Bank, as the case may be, or any tax on overall
gross receipts or franchise tax imposed in either case in lieu of such net
income tax pursuant to the laws of the jurisdiction or any political subdivision
or taxing authority thereof or therein in which the principal office or the
Lending Office of such Person is located, other than a tax imposed on or
measured by amounts payable under this clause (d)) and all interest, penalties
or similar liabilities with respect thereto (collectively, "Taxes"). If the
Partnership shall be required by law to withhold or deduct any Taxes imposed by
the United States or any
16
political subdivision thereof from or in respect of any sum payable hereunder,
under any LOC Loan Note or under any other Credit Document to the L/C Facility
Agent or any Letter of Credit Bank, (A) 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 clause (d)), the L/C
Facility Agent or such Letter of Credit Bank receives an amount equal to the sum
it would have received had no such deductions been made, (B) the Partnership
shall make such deductions and (C) the Partnership shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
applicable law. In addition, the Partnership agrees to pay any present or future
stamp, recording or documentary taxes and any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder, under any
LOC Loan Note or under any other Credit Document or from the execution,
delivery, recording or otherwise with respect to this Agreement, any LOC Loan
Note or any other Credit Document (hereinafter referred to as "Other Taxes").
(ii) The Partnership shall indemnify each Letter of
Credit Bank and the L/C Facility Agent for the full amount of Taxes and Other
Taxes paid by any Letter of Credit Bank or the L/C Facility Agent, or any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Each Letter of Credit Bank and the L/C Facility Agent agrees
to give written notice to the Partnership of the assertion of any claim against
such Person relating to such Taxes or Other Taxes as promptly as is practicable
after being notified of such assertion; provided that any failure to notify the
Partnership promptly of such assertion shall not relieve the Partnership of its
obligation under this clause (d). Payments by the Partnership pursuant to this
indemnification shall be made within thirty (30) days from the date such Letter
of Credit Bank or the L/C Facility Agent makes written demand therefor (in the
case of such Letter of Credit Bank, submitted through the L/C Facility Agent),
which demand shall be accompanied by a certificate describing in reasonable
detail the basis thereof. Each Letter of Credit Bank and the L/C Facility Agent
agrees to repay to the Partnership any refund (including that portion of any
interest that was included as part of such refund with respect to Taxes or Other
Taxes paid by the Partnership pursuant to this (d)) received by such Person for
Taxes or Other Taxes that were paid by the Partnership pursuant to this clause
(d).
(iii) A certificate as to the amount of the claim
prepared by the Letter of Credit Bank or the L/C Facility Agent, as the case may
be, absent manifest error, shall be final, conclusive and binding for all
purposes.
17
(iv) If the Partnership determines in good faith that
there is a reasonable basis to contest a Tax or Other Tax, on the request of the
Partnership and at the Partnership's expense, the L/C Facility Agent and/or any
Letter of Credit Bank shall cooperate with efforts of the Partnership to contest
the Govern mental Authority's imposition of, or the amount of, such Tax or Other
Tax (it being understood and agreed that neither the L/C Facility Agent or such
Letter of Credit Bank shall have any obligation to contest, or any
responsibility for contesting, any such Tax or Other Tax), provided that (x) the
Partnership delivers to the L/C Facility Agent or such Letter of Credit Bank an
opinion of independent tax counsel selected by the Partnership and reasonably
acceptable to the L/C Facility Agent or such Letter of Credit Bank to the effect
that there is a reasonable possibility of success, (y) the L/C Facility Agent or
such Letter of Credit Bank shall have received from the Partnership, in such
form as the L/C Facility Agent or such Letter of Credit Bank shall reasonably
deem satisfactory, indemnification and security for any and all actual or
anticipated liability, loss, cost or expense arising out of or relating to such
amount or the contest thereof, including, but not limited to, all legal and
accountants' fees and expenses, penalties, interest and additions to tax, and
(z) if the contest shall be conducted in a manner requiring the payment of all
or part of such amount, the Partnership shall have paid the amount required.
(v) Within thirty (30) days after the date of any
payment of Taxes by the Partnership, the Partnership shall furnish to the L/C
Facility Agent, at its address referred to in Section 8.1, the original or a
certified copy of a receipt evidencing payment thereof. The Partnership shall
compensate each Letter of Credit Bank and the L/C Facility Agent for all
reasonable losses and expenses sustained by such Letter of Credit Bank as a
result of any failure by the Partnership to so furnish such copy of such
receipt.
(vi) The obligations of the Partnership under this
clause (d) shall survive the termination of this Agreement and the repayment of
the Reimbursement Obligations and the LOC Loans but shall not survive the
expiration of the statute of limitations applicable to the collection of Taxes
and Other Taxes contemplated hereby.
(e) Application of Payments. Except as otherwise set forth
herein, payments made under this Agreement, the LOC Loan Notes or the other
Credit Documents and other amounts received by the L/C Facility Agent and the
Letter of Credit Banks under this Agreement, the LOC Loan Notes or the other
Credit Documents shall (i) first be applied to any fees, costs, charges or
expenses payable to the L/C Facility Agent
18
or the other Letter of Credit Banks hereunder, under any LOC Loan Note or under
the other Credit Documents, (ii) next be applied to any accrued but unpaid
interest then due and owing, and (iii) then be applied to outstanding principal
then due and owing or otherwise to be prepaid.
(f) Failure to Pay the L/C Facility Agent. Unless the L/C
Facility Agent shall have received notice from the Partnership at least two (2)
Banking Days prior to the date on which any payment is due to the Letter of
Credit Banks hereunder that the Partnership will not make such payment in full,
the L/C Facility Agent may assume that the Partnership has made such payment in
full to the L/C Facility Agent on such date and the L/C Facility Agent may, in
reliance upon such assumption, cause to be distributed to each Letter of Credit
Bank on such due date an amount equal to the amount then due to such Letter of
Credit Bank. If and to the extent the Partnership shall not have so made such
payment in full to the L/C Facility Agent, such Letter of Credit Bank shall
repay to the L/C Facility Agent forthwith upon demand such amount distributed to
such Letter of Credit Bank, together with interest thereon, for each day from
the date such amount is distributed to such Letter of Credit Bank until the date
such Letter of Credit Bank repays such amount to the L/C Facility Agent, at the
Federal Funds Rate for the first five (5) days after such date, and subsequent
thereto at the Base Rate. A certificate of the L/C Facility Agent submitted to
any Letter of Credit Bank with respect to any amounts owing by such Letter of
Credit Bank under this clause (f) shall be conclusive in the absence of manifest
error.
(g) Withholding Exemption Certificates. (i) The L/C Facility
Agent on the Closing Date and each Letter of Credit Bank upon becoming a Letter
of Credit Bank hereunder including any entity to which any Letter of Credit Bank
grants a participation, or otherwise transfers its interest in this Agreement,
agree that they will deliver to the Partnership and the L/C Facility Agent (and
the L/C Facility Agent agrees that it will deliver to the Partnership) either
(i) a statement that it is incorporated under the laws of the United States of
America or a state thereof or (ii) if it is not so incorporated, a letter in the
form of Exhibit I-1 or Exhibit I-2, as appropriate, and two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224 or successor
applicable form, as the case may be, certifying in each case that such Letter of
Credit Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes. Each Letter
of Credit Bank which delivers to the Partnership and the L/C Facility Agent a
Form 1001 or 4224 pursuant to the preceding sentence further undertakes to
deliver to the Partnership and the L/C Facility Agent further copies of the said
letter and Form 1001 or 4224, or successor applicable forms, or other
19
manner of certification or procedure, as the case may be, on or before the date
that any such letter or form expires or becomes obsolete or within a reasonable
time after gaining knowledge of the occurrence of any event requiring a change
in the most recent letter and forms previously delivered by it to the
Partnership, and such extensions or renewals thereof as may reasonably be
requested by the Partnership, certifying in the case of a Form 1001 or 4224 that
such Letter of Credit Bank is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent a Letter of Credit Bank from duly completing and delivering any such
letter or form with respect to it and such Letter of Credit Bank advises the
Partnership that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax, and in the case of Form W-8
or W-9, establishing an exemption from United States backup withholding tax. The
Partnership shall not be obligated, however, to pay any additional amounts in
respect of United States Federal income tax pursuant to Section 2.4(d) (or make
an indemnification payment pursuant to Section 2.4(d)) to any Letter of Credit
Bank (including any entity to which any Letter of Credit Bank sells, assigns,
grants a participation in, or otherwise transfers its rights under this
Agreement) if the obligation to pay such additional amounts (or such
indemnification) would not have arisen but for a failure of such Letter of
Credit Bank to comply with its obligations under this clause (g).
(ii) In addition, if (A) any Letter of Credit Bank has
previously delivered to the Partnership and the L/C Facility Agent a Form 4224
or successor applicable form and (B) by virtue of any action taken or not taken
voluntarily by such Letter of Credit Bank, such Letter of Credit Bank is not
lawfully entitled to deliver a subsequent Form 4224 or applicable successor form
solely as a result of the such Letter of Credit Bank's failure to be engaged in
the active conduct or a trade or business in the United States or a
determination that all amounts to be paid to the such Letter of Credit Bank
hereunder are not effectively connected to such trade or business, the
Partnership shall be under no obligation to compensate such Letter of Credit
Bank with respect to any Tax required to be paid or withheld under United States
federal income tax law that would not have been required to be paid or withheld
had such Letter of Credit Bank so delivered such Form 4224 or applicable
successor form.
20
Section 2.5 Pro Rata Treatment. (a) Borrowings, Letter of Credit
Commitment Reductions, Etc. Except as otherwise provided herein, (i) each
drawing and each reduction of any Letter of Credit Commitment shall be made or
allocated pro rata among the Letter of Credit Banks in accordance with their
respective Pro Rata Shares of such drawing or Letter of Credit Commitment, (ii)
each payment of any Reimbursement Obligation or interest thereon shall be made
or shared pro rata among the Letter of Credit Banks in accordance with their
respective Pro Rata Shares of such Reimbursement Obligation, (iii) each payment
of principal of and interest on any LOC Loan shall be made or shared pro rata
among the Letter of Credit Banks in accordance with their respective Pro Rata
Shares of such LOC Loan, and (iv) each payment of the Letter of Credit Fee shall
be shared pro rata among the Letter of Credit Banks in accordance with their
respective Pro Rata Shares of such the Letter of Credit Fee.
(b) Sharing of Payments, Etc. If any Letter of Credit Bank
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) on account of any Reimbursement Obligation
or LOC Loan owed to it in excess of its ratable share of payments on account of
such Reimbursement Obligation or LOC Loan obtained by all Letter of Credit Banks
entitled to such payments, such Letter of Credit Bank shall forthwith purchase
from the other Letter of Credit Banks such participation in such Reimbursement
Obligation or LOC Loan, as the case may be, as shall be necessary to cause such
purchasing Letter of Credit Bank to share the excess payment ratably with each
of the other Letter of Credit Banks; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Letter of Credit Bank, such purchase from such Letter of Credit Bank shall be
rescinded and each other Letter of Credit Bank shall repay to the purchasing
Letter of Credit Bank the purchase price to the extent of such recovery together
with an amount equal to such other Letter of Credit Bank's ratable share
(according to the proportion of (i) the amount of such other Letter of Credit
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Letter of Credit Bank) of any interest or other amount paid or
payable by the purchasing Letter of Credit Bank in respect of the total amount
so recovered. The Partnership agrees that any Letter of Credit Bank so
purchasing a participation from another Letter of Credit Bank pursuant to this
clause (b) 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 Letter of Credit Bank were the direct creditor of the
Partnership in the amount of such participation.
21
Section 2.6 Change of Circumstances. (a) Inability to Determine
Rates. If, on or before the first day of any Interest Period for any LIBOR LOC
Loans, (i) the L/C Facility Agent determines that the LIBOR Rate for such
Interest Period cannot be adequately and reasonably determined due to the
unavailability of funds in or other circumstances affecting the London interbank
market, or (ii) Letter of Credit Banks holding aggregate Pro Rata Shares of 33
1/3% or more shall advise the L/C Facility Agent that (A) the rates of interest
for such LIBOR LOC Loans do not adequately and fairly reflect the cost to such
Letter of Credit Banks of making or maintaining such LIBOR LOC Loans or (B)
deposits in Dollars in the London interbank market are not available to such
Letter of Credit Banks (as conclusively certified by each such Letter of Credit
Bank in good faith in writing to the L/C Facility Agent and to the Partnership)
in the ordinary course of business in sufficient amounts to make and/or maintain
such LIBOR LOC Loans, the L/C Facility Agent shall immediately give notice of
such condition to the Partnership and the Letter of Credit Banks. After the
giving of any such notice and until the L/C Facility Agent shall otherwise
notify the Partnership that the circumstances giving rise to such condition no
longer exist, the Partnership's right to request the making of or conversion to,
and the Letter of Credit Banks' obligations to make or convert to, LIBOR LOC
Loans shall be suspended. Any LIBOR LOC Loans outstanding at the commencement of
any such suspension shall be converted at the end of the then current Interest
Period for such LIBOR LOC Loans into Base Rate LOC Loans unless such suspension
has then ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule or the
application or requirements thereof (whether such change occurs in accordance
with the terms of such Governmental Rule as enacted, as a result of amendment,
or otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any Letter of
Credit Bank or the Partnership with any request or directive (whether or not
having the force of law) of any Governmental Authority (each a "Change of Law")
shall make it unlawful or impossible for any Letter of Credit Bank to make or
maintain any LIBOR LOC Loan, such Letter of Credit Bank shall immediately notify
the L/C Facility Agent, which shall notify the other Letter of Credit Banks and
the Partnership, of such Change of Law. Upon receipt of such notice, (i) the
Partnership's right to request the making of or conversion to, and the Letter of
Credit Banks' obligations to make or convert to, LIBOR LOC Loans shall be
suspended for so long as such condition shall exist, and (ii) the Partnership
shall, at the request of such Letter of Credit Bank, either (A) pursuant to
Section 2.2(g), convert any then outstanding LIBOR LOC Loans into Base Rate LOC
Loans at the end of the current Interest Periods for such
22
LIBOR LOC Loans, or (B) immediately prepay pursuant to Section 2.2(h) or convert
LIBOR LOC Loans of the affected Type into Base Rate LOC Loans if such Letter of
Credit Bank shall notify the Partnership that such Letter of Credit Bank may not
lawfully continue to fund and maintain such LIBOR LOC Loans. Any conversion or
prepayment of LIBOR LOC Loans made pursuant to the preceding sentence prior to
the last day of an Interest Period for such LIBOR LOC Loans shall be deemed a
prepayment thereof for purposes of Section 2.7.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) shall subject any Letter of Credit Bank to any tax,
duty or other charge with respect to any Reimbursement Obligation, LOC
Loan or Letter of Credit Commitment, or shall change the basis of taxation
of payments by the Partnership to any Letter of Credit Bank on such
Reimbursement Obligation or LOC Loan or with respect to any Letter of
Credit Commitment (except for Taxes, Other Taxes or changes in the rate of
taxation on the overall net income of any Letter of Credit Bank); or
(ii) shall impose, modify or hold applicable any
reserve, special deposit or similar requirement (without duplication of
any reserve requirement included within the applicable interest rate
through the definition of "Reserve Requirement") against assets held by,
deposits or other liabilities in or for the account of, advances or loans
by, or any other acquisition of funds by, any Letter of Credit Bank for
any Reimbursement Obligation or LOC Loan; or
(iii) shall impose on any Letter of Credit Bank any
other condition directly related to any Reimbursement Obligation, LOC Loan
or Letter of Credit Commitment;
and the effect of any of the foregoing is to increase the cost to such Letter of
Credit Bank of making, issuing, creating, renewing, participating in or
maintaining any such Reimbursement Obligation, LOC Loan or Letter of Credit
Commitment above the cost such Letter of Credit Bank would have incurred, or to
reduce any amount receivable by such Letter of Credit Bank hereunder below the
amount such Letter of Credit Bank would have received, but for that Letter of
Credit Bank's Reimbursement Obligations, LOC Loans or Letter of Credit
Commitment, then the Partnership shall from time to time, within thirty (30)
23
days after written demand by such Letter of Credit Bank, pay to the L/C Facility
Agent on behalf of such Letter of Credit Bank additional amounts sufficient to
reimburse such Letter of Credit Bank for such increased costs or to compensate
such Letter of Credit Bank for such reduced amounts. A certificate setting forth
in reasonable detail the amount of such increased costs or reduced amounts and
the basis for determination of such amount, submitted by such Letter of Credit
Bank to the Partnership, shall, in the absence of manifest error, be conclusive
and binding on the Partnership for all purposes.
(d) Capital Requirements. If any Letter of Credit Bank
determines that (i) any Change of Law after the date of this Agreement increases
the amount of capital required or expected to be maintained by such Letter of
Credit Bank (or the Lending Office of such Letter of Credit Bank) or any Person
controlling such Letter of Credit Bank above the cost such Letter of Credit Bank
would have incurred (each a "Capital Adequacy Requirement"), and (ii) the amount
of capital maintained by such Letter of Credit Bank or such Person which is
attributable to or based upon Reimbursement Obligations, LOC Loans, Letter of
Credit Commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Letter of Credit Bank's
or such Person's policies with respect to capital adequacy), the Partnership
shall pay to the L/C Facility Agent on behalf of such Letter of Credit Bank or
such Person, within thirty (30) days after notice by the L/C Facility Agent on
behalf of such Letter of Credit Bank or such Person, such amounts as are
necessary to compensate such Letter of Credit Bank or such Person for the
increased costs to such Letter of Credit Bank or such Person of such increased
capital. A certificate of such Letter of Credit Bank or such Person, setting
forth in reasonable detail the computation of any such increased costs,
delivered to the Partnership by the L/C Facility Agent on behalf of such Letter
of Credit Bank or such Person, shall, in the absence of manifest error, be
conclusive and binding on the Partnership for all purposes.
(e) Notice; Participating Letter of Credit Banks' Rights. Each
Letter of Credit Bank will notify the Partnership of any event occurring after
the date of this Agreement that will entitle such Letter of Credit Bank to
compensation pursuant to this Section 2.6, as promptly as practicable and in no
event later than ninety (90) days after the principal officer of such Letter of
Credit Bank responsible for administering this Agreement obtains knowledge
thereof; provided that any Letter of Credit Bank's failure to so notify the
Partnership shall not relieve the Partnership of its obligation under this
Section 2.6 with respect to claims arising prior to the end of such period, but
shall relieve the Partnership of its obligations under this Section 2.6 with
respect to the time between the end of such
24
period and such time as the Partnership receives notice from the indemnitee as
provided herein. No Person purchasing from a Letter of Credit Bank a
participation in any Letter of Credit Commitment (as opposed to an assignment)
shall be entitled to any payment from or on behalf of the Partnership pursuant
to Section 2.6(c) or Section 2.6(d) which would be in excess of the applicable
proportionate amount (based on the portion of the Letter of Credit Commitment in
which such Person is participating) which would then be payable to such Letter
of Credit Bank if such Letter of Credit Bank had not sold a participation in
that portion of such Letter of Credit Commitment.
Section 2.7 Funding Losses. If the Partnership shall (a) repay or
prepay any LIBOR LOC Loans on any day other than the last day of an Interest
Period for such LIBOR LOC Loans (whether an optional prepayment or a mandatory
prepayment), (b) fail to convert any LIBOR LOC Loans in accordance with a Notice
of Conversion of LOC Loan Type delivered to the L/C Facility Agent (whether as a
result of the failure to satisfy any applicable conditions or otherwise,
excepting an unexcused failure to fund by any Letter of Credit Bank), or (c)
fail to make any prepayment in accordance with any notice of prepayment
delivered to the L/C Facility Agent, then, in each such case, the Partnership
shall, within fifteen (15) days after written demand by any Letter of Credit
Bank, reimburse such Letter of Credit Bank for all costs and losses (excluding
lost profits) incurred by such Letter of Credit Bank as a result of such
repayment, prepayment or failure ("Liquidation Costs"). The Partnership
understands that such costs and losses may include losses incurred by a Letter
of Credit Bank as a result of funding and other contracts entered into by such
Letter of Credit Bank to fund LIBOR LOC Loans or reallocating any costs incurred
or allocated to fund such LIBOR LOC Loans. Each Letter of Credit Bank demanding
payment under this Section 2.7 shall deliver to the Partnership, with a copy to
the L/C Facility Agent, a certificate setting forth in reasonable detail the
basis for the calculation of, and the amount of, costs and losses for which
demand is made. Such a certificate so delivered to the Partnership shall, in the
absence of manifest error, be conclusive and binding as to the amount of such
loss.
Section 2.8 Alternate Office; Minimization of Costs; Replacement of
Letter of Credit Bank. (a) With respect to each Letter of Credit Bank, upon an
officer of such Letter of Credit Bank with responsibility for administering the
Letter of Credit Bank's Letter of Credit Commitment and LOC Loans obtaining
actual knowledge of the Letter of Credit Bank's right to compensation under
Section 2.4(d), 2.6(c) or 2.6(d) or the Letter of Credit Bank's inability to
make available LIBOR LOC Loans as described in Section 2.6(b), such Letter of
Credit Bank will notify the Partnership and the L/C Facility Agent as
25
promptly as practicable of such Letter of Credit Bank's right to such
compensation or such inability to make available LIBOR LOC Loans. To the extent
reasonably possible, each Letter of Credit Bank shall designate an alternative
Lending Office with respect to its LIBOR LOC Loans and otherwise take any
reasonable actions to reduce any liability of the Partnership to any Letter of
Credit Bank under Section 2.4(d), 2.6(c) or 2.6(d), or to avoid the
unavailability of LIBOR LOC Loans under Section 2.6(b) so long as such Letter of
Credit Bank, in its sole discretion, does not determine that such designation is
materially disadvantageous to such Letter of Credit Bank.
(b) If and on each occasion that a Letter of Credit Bank
either makes a demand for compensation pursuant to Section 2.4(d), 2.6(c) or
2.6(d) or is unable for a period of six consecutive months to fund LIBOR LOC
Loans pursuant to Section 2.6(b) or such Letter of Credit Bank wrongfully fails
to fund a LOC Loan (it being agreed that such Letter of Credit Bank shall not be
entitled to compensation pursuant to Section 2.4(d), 2.6(c) or 2.6(d) with
respect to any portion of a LOC Loan it has wrongfully failed to fund), the
Partnership may, upon at least five (5) Banking Days prior irrevocable written
notice to such Letter of Credit Bank and the L/C Facility Agent, in whole
permanently replace the Letter of Credit Commitment of such Letter of Credit
Bank; provided that the Partnership shall replace such Letter of Credit
Commitment with the Letter of Credit Commitment of a financial institution
reasonably satisfactory to the L/C Facility Agent. Such replacement Letter of
Credit Bank shall upon the effective date of replacement purchase the
Reimbursement Obligations and LOC Loans owed to such replaced Letter of Credit
Bank for the aggregate amount thereof and shall thereupon for all purposes
become a "Letter of Credit Bank" hereunder. Such notice from the Partnership
shall specify an effective date for the replacement of such Letter of Credit
Bank's Letter of Credit Commitment, which date shall not be later than the 30th
day after the day such notice is given. Except to the extent a Letter of Credit
Bank has wrongfully failed to fund any part of an LOC Loan, on the effective
date of any replacement of such Letter of Credit Bank's Letter of Credit
Commitment pursuant to this clause (b), the Partner ship shall pay to the L/C
Facility Agent for the account of such Letter of Credit Bank (i) any fees due to
such Letter of Credit Bank to the date of such replacement, (ii) accrued
interest on the principal amount of outstanding Reimbursement Obligations and
LOC Loans held by such Letter of Credit Bank to the date of such replacement,
and (iii) the amount or amounts requested by such Letter of Credit Bank pursuant
to each of Section 2.4(d), 2.6(c) and 2.6(d), as applicable. The Partnership
will remain liable to such replaced Letter of Credit Bank for any Liquidation
Costs that such Letter of Credit Bank may sustain or incur as a consequence of
repayment of such Letter of Credit Bank's LOC
26
Loans (unless such Letter of Credit Bank has defaulted on its obligation to fund
an LOC Loan hereunder). Upon the effective date of repayment of any Letter of
Credit Bank's LOC Loans and termination of such Letter of Credit Bank's Letter
of Credit Commitment pursuant to this clause (b), such Letter of Credit Bank
shall cease to be a Letter of Credit Bank hereunder. No such termination of any
such Letter of Credit Bank's Letter of Credit Commitment and the purchase of
such Letter of Credit Bank's Reimbursement Obligations and LOC Loans pursuant to
this clause (b) shall affect (x) any liability or obligation of the Partnership
or any other Letter of Credit Bank to such terminated Letter of Credit Bank
which accrued on or prior to the date of such termination or (y) such terminated
Letter of Credit Bank's rights hereunder in respect of any such liability or
obligation.
(c) Any Letter of Credit Bank may designate a Lending Office
other than that set forth on Schedule I and may assign all of its interests
under this Agreement, its LOC Loan Note and the other Credit Documents to such
Lending Office; provided that such designation and assignment do not at the time
of such designation and assignment increase the reasonably foreseeable liability
of the Partnership under Section 2.4(d), 2.6(c), or 2.6(d) or make an Interest
Rate option unavailable pursuant to Section 2.6(b).
ARTICLE 3
CONDITIONS PRECEDENT
In addition to the satisfaction of all other conditions precedent
set forth herein, the obligation of the Letter of Credit Issuer to issue any
Letter of Credit is subject to the satisfaction (or waiver by the L/C Facility
Agent in accordance with the terms of this Agreement) on the date such Letter of
Credit is to be issued of the conditions precedent set forth in Sections 3.2 and
3.3 of the Common Agreement, which conditions precedent are incorporated herein
by reference as if set forth in full herein, and all of which shall be
satisfactory to each Letter of Credit Bank.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Partnership hereby repeats for the benefit of the L/C Facility
Agent and the Letter of Credit Banks, as of the Closing Date and, subject to
Section 3.2(l) of the Common Agreement, as of the date on which a Letter of
Credit is issued or an LOC Loan is made, each of the representations and
warranties of the Partner ship set forth in Section
27
4.1 of the Common Agreement, which representations and warranties are
incorporated herein by reference as if set forth in full herein and which will
survive the execution and delivery of this Agreement, the issuance of each
Letter of Credit and the incurrence of each Reimbursement Obligation and each
LOC Loan.
ARTICLE 5
COVENANTS
Until all Reimbursement Obligations, LOC Loans and other amounts due
hereunder shall have been indefeasibly paid in full in cash or cash equivalents
and all of the Letter of Credit Commitments shall have been terminated, the
Partner ship shall perform and observe for the benefit of the L/C Facility Agent
and the Letter of Credit Banks each of its covenants set forth in Section 5.1
and Section 6.1 of the Common Agreement, which covenants are incorporated herein
by reference as if set forth in full herein.
ARTICLE 6
EVENTS OF DEFAULT; REMEDIES
Section 6.1 Events of Default. Each of the Events of Default
described in Section 8.1 of the Common Agreement, which Events of Default are
incorporated herein by reference as if set forth in full herein, shall
constitute an "Event of Default" hereunder.
Section 6.2 Remedies. (a) Upon the occurrence of an Event of Default
under Section 8.1(d) of the Common Agreement, the Letter of Credit Commitments
shall automatically and immediately terminate and all principal, interest and
other amounts due on or with respect to outstanding Reimbursement Obligations
and LOC Loans shall become immediately due and payable without any giving of
notice or taking of other action by any Person. Upon the occurrence and during
the continuance of any Event of Default (other than an Event of Default under
Section 8.1(d) of the Common Agreement), the L/C Facility Bank shall at the
request, or may with the consent, of the Required Letter of Credit Banks, by
written notice to the Partnership, declare the Letter of Credit Commitments
terminated and all principal, interest and other amounts due on or with respect
to outstanding Reimbursement Obligations and LOC Loans due and payable,
whereupon the Letter of Credit Commitments shall immediately terminate and all
principal, interest and other amounts due on or with respect to outstanding
Reimbursement Obligations and LOC Loans shall become immediately due and
payable.
28
(b) Subject to the Intercreditor Agreement, upon the
occurrence and during the continuance of an Event of Default, in addition to the
remedies set forth in clause (a) of this Section 6.2, the L/C Facility Agent and
the Letter of Credit Banks shall be entitled to exercise all of the remedies set
forth in Section 8.2 of the Common Agreement, which remedies are incorporated
herein by reference as if set forth in full herein.
ARTICLE 7
L/C FACILITY AGENT; SUBSTITUTION
Section 7.1 Appointment, Powers and Immunities. (a) Each Letter of
Credit Bank hereby appoints and authorizes the L/C Facility Agent to act as its
agent hereunder and under the other Credit Documents with such powers as are
expressly delegated to the L/C Facility Agent by the terms of this Agreement,
the L/C Facility Documents and the other Credit Documents, together with such
other powers as are reasonably incidental thereto. The L/C Facility Agent shall
not have any duties or responsibilities except those expressly set forth in this
Agreement, the L/C Facility Documents or any other Credit Document, or be a
trustee for any Letter of Credit Bank. Notwithstanding anything to the contrary
contained herein, the L/C Facility Agent shall not be required to take any
action which is contrary to this Agreement, the L/C Facility Documents or any
other Credit Document or any Legal Requirement or exposes the L/C Facility Agent
to any liability. Each of the L/C Facility Agent, the Letter of Credit Banks and
any of their respective Affiliates shall not be responsible to any other Letter
of Credit Bank for any recitals, statements, representations or warranties made
by the Partnership, its Affiliates or the Partners contained in this Agreement
or in any certificate or other document referred to or provided for in, or
received by the L/C Facility Agent or any Letter of Credit Bank under, this
Agreement, for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement, the LOC Loan Notes or any other document
referred to or provided for herein or for any failure by the Partnership, its
Affiliates, its Partners or the Sponsors to perform their respective obligations
hereunder or thereunder. The L/C Facility Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
(b) The L/C Facility Agent and its respective directors,
officers, employees or agents shall not be responsible for any action taken or
omitted to be taken by it or them hereunder, under any L/C Facility Document or
under any other Credit Document or in connection herewith or therewith, except
for its or their own gross
29
negligence or willful misconduct. Without limiting the generality of the
foregoing, the L/C Facility Agent (i) may treat the payee of any Note as the
holder thereof until the L/C Facility Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the L/C Facility Agent; (ii) may consult with legal counsel, 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 them in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Letter of Credit Bank for any statements, warranties or
representations made in or in connection with any Project Document or Credit
Document; (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 any
Operative Document on the part of any party thereto or to inspect the property
(including the books and records) of the Partnership or any other Person; and
(v) shall not be responsible to any Letter of Credit Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Operative Document or any other instrument or document furnished pursuant
hereto. Except as otherwise provided under this Agreement, the L/C Facility
Agent shall take such action with respect to the Credit Documents as shall be
directed by the Required Letter of Credit Banks.
Section 7.2 Reliance. The L/C Facility Agent shall be entitled to
rely upon any certificate, notice or other document (including any cable,
telegram, telecopy or telex) believed by it in good faith to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the L/C Facility Agent. As to any
other matters not expressly provided for by this Agreement, the L/C Facility
Agent shall not be required to take any action or exercise any discretion, but
shall be required to act or to refrain from acting upon instructions of the
Required Letter of Credit Banks (except that the L/C Facility Agent shall not be
required to take any action which exposes the L/C Facility Agent to personal
liability or which is contrary to this Agreement, any other L/C Facility
Document, any other Credit Document or any Legal Requirement) and shall in all
cases be fully protected in acting, or in refraining from acting, hereunder,
under any other L/C Facility Document or under any other Credit Document in
accordance with the instructions of the Required Letter of Credit Banks and such
instructions of the Required Letter of Credit Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Letter of Credit
Banks.
30
Section 7.3 Non-Reliance. Each Letter of Credit Bank represents that
it has, independently and without reliance on the L/C Facility Agent or any
other Letter of Credit Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of the financial condition and
affairs of the Partnership and its decision to enter into this Agreement and
agrees that it will, independently and without reliance upon the L/C Facility
Agent or any other Letter of Credit Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action under this Agreement.
The L/C Facility Agent and the Letter of Credit Banks shall not be required to
keep informed as to the performance or observance by the Partnership, its
Affiliates, its Partners or the Sponsors under this Agreement or any other
document referred to or provided for herein or to make inquiry of, or to inspect
the properties or books of, the Partnership, its Affiliates, its Partners or the
Sponsors.
Section 7.4 Defaults. The L/C Facility Agent shall not be deemed to
have knowledge or notice of the occurrence of any Inchoate Default or Event of
Default unless the L/C Facility Agent has received a written notice from a
Letter of Credit Bank or the Partnership referring to this Agreement, describing
such Inchoate Default or Event of Default and indicating that such notice is a
notice of default. If the L/C Facility Agent receives such a notice of the
occurrence of an Inchoate Default or Event of Default, the L/C Facility Agent
shall give notice thereof to the Letter of Credit Banks. The L/C Facility Agent
shall take such action with respect to such Inchoate Default or Event of Default
as is provided in Article 6 or if not provided for in Article 6, as the L/C
Facility Agent shall be reasonably directed by the Required Letter of Credit
Banks; provided, however, that unless and until the L/C Facility Agent shall
have received such directions, the L/C Facility Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Inchoate Default or Event of Default as it shall deem advisable in the
best interest of the Letter of Credit Banks (except that the L/C Facility Agent
shall only exercise remedies in a manner consistent with Article 6).
Section 7.5 Indemnification. Without limiting the obligations of the
Partnership hereunder, each Letter of Credit Bank agrees to indemnify the L/C
Facility Agent ratably in accordance with its respective Pro Rata Share for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
the L/C Facility Agent in any way relating to or arising out of this Agreement
or any documents contemplated by or referred to herein or therein or
31
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof or of any such other documents; provided, however, that
no Letter of Credit Bank shall be liable for any of the foregoing to the extent
they arise from the L/C Facility Agent's gross negligence, bad faith or willful
misconduct. The L/C Facility Agent shall be fully justified in refusing to take
or to continue to take any action unless it shall first be indemnified to its
satisfaction by the Letter of Credit Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Without limitation of the foregoing, each Letter of Credit Bank
agrees to reimburse the L/C Facility Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the L/C
Facility Agent in connection with the preparation, execution, administration or
enforcement of, or legal advice in respect of rights or responsibilities under,
the Operative Documents, to the extent that the L/C Facility Agent is not
reimbursed for such expenses by the Partnership.
Section 7.6 Successor L/C Facility Agent. The L/C Facility Agent
acknowledges that its current intention is to remain the L/C Facility Agent
hereunder. Nevertheless, the L/C Facility Agent may resign at any time by giving
sixty (60) days written notice thereof to the Letter of Credit Banks and the
Partnership. The L/C Facility Agent may be removed involuntarily only for a
material breach of its duties and obligations hereunder or under the other
Credit Documents or for gross negligence, bad faith or willful misconduct in
connection with the performance of its duties hereunder or under the other
Credit Documents and then only upon the affirmative vote of the Required Letter
of Credit Banks (excluding the L/C Facility Agent from such vote and the L/C
Facility Agent's Pro Rata Share from the amounts used to determine the required
Pro Rata Shares of the remaining Letter of Credit Banks). Upon any such
resignation or removal, the Required Letter of Credit Banks shall have the
right, with the consent of the Partnership (such consent not to be unreasonably
withheld or delayed) to appoint a successor the L/C Facility Agent. If no
successor the L/C Facility Agent shall have been so appointed by the Required
Letter of Credit Banks, and shall have accepted such appointment, within thirty
(30) days after the retiring the L/C Facility Agent's giving of notice of
resignation or the Letter of Credit Banks' removal of the retiring the L/C
Facility Agent, the retiring the L/C Facility Agent may, on behalf of the Letter
of Credit Banks, appoint a successor the L/C Facility Agent which shall be a
Letter of Credit Bank, if any Letter of Credit Bank shall be willing to serve,
and otherwise shall be a commercial Letter of Credit Bank having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as L/C Facility Agent under the Operative Documents by a successor
L/C Facility Agent, such successor L/C Facility Agent shall thereupon succeed to
and become
32
vested with all the rights, powers, privileges and duties of the retiring L/C
Facility Agent, and the retiring L/C Facility Agent shall be discharged from its
duties and obligations as L/C Facility Agent only under the Credit Documents.
After any retiring L/C Facility Agent's resignation or removal hereunder as L/C
Facility Agent, the provisions of this Article 7 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was the L/C Facility
Agent under the Operative Documents.
Section 7.7 Authorization. The L/C Facility Agent is hereby
authorized by the Letter of Credit Banks to execute, deliver and perform each of
the Credit Documents to which the L/C Facility Agent is or is intended to be a
party and each Letter of Credit Bank agrees to be bound by all of the agreements
of the L/C Facility Agent contained in the Credit Documents. The L/C Facility
Agent is further authorized by the Letter of Credit Banks to release liens on
property that the Partnership is permitted to sell or transfer pursuant to the
terms of this Agreement, the other Credit Documents and the Operative Documents,
and to enter into agreements supplemental hereto for the purpose of curing any
formal defect, inconsistency, omission or ambiguity in this Agreement or any
Credit Document to which it is a party.
Section 7.8 L/C Facility Agent as Lender. With respect to its Letter
of Credit Commitment, the LOC Loans made by it and any LOC Loan Note issued to
it, the L/C Facility Agent shall have the same rights and powers under the
Operative Documents as any other Letter of Credit Bank and may exercise the same
as though it were not the L/C Facility Agent (except respecting voting as
provided in Section 7.16). The term "Letter of Credit Bank" or "Letter of Credit
Banks" shall, unless otherwise expressly indicated, include the L/C Facility
Agent in its individual capacity. The L/C Facility Agent and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of and
generally engage in any kind of business with the Partnership or any other
Person without any duty to account therefor to the Letter of Credit Banks.
Section 7.9 Amendments: Waivers. Subject to the provisions of the
Intercreditor Agreement and of this Section 7.9, unless otherwise specified in
this Agreement, any L/C Facility Document or another Credit Document, the
Required Letter of Credit Banks (or the L/C Facility Agent with the consent in
writing of the Required Letter of Credit Banks) and the Partnership may enter
into agreements supplemental hereto for the purpose of adding, modifying or
waiving any provisions to or of the Credit Documents or changing in any manner
the rights of the Letter of Credit Banks or the Partnership
33
hereunder or waiving any Inchoate Default or Event of Default; provided,
however, that no such supplemental agreement shall, without the consent of all
of the Letter of Credit Banks:
(a) extend the maturity of any Reimbursement Obligation, any
LOC Loan or any LOC Loan Note or reduce the principal amount thereof, or
reduce the rate or change the time of payment of interest due on any
Reimbursement Obligation, any LOC Loan or any LOC Loan Note; or
(b) extend the LOC Loan Maturity Date; or
(c) modify Section 2.2(c), 2.5, 2.6, 2.7, 7.1, 7.13, 7.14,
7.15 or 7.16; or
(d) reduce the amount or extend the payment date for any
amount due under Article 2; or
(e) increase the amount of the Letter of Credit Commitment of
any Letter of Credit Bank hereunder; or
(f) reduce or change the time of payment or amount of any fee
due and payable hereunder; or
(g) reduce or change the percentages specified in the
definition of Required Letter of Credit Banks; or
(h) permit the Partnership to assign its rights under this
Agreement or any Senior Collateral Document; or
(i) amend this Section 7.9; or
(j) release any Senior Collateral from the Lien of any of the
Senior Collateral Documents or allow release of any funds from any Account
otherwise than in accordance with the terms of the Senior Collateral
Documents and the other Credit Documents.
34
and provided, further, however, that no amendment of any provision of this
Agreement relating to the L/C Facility Agent shall be effective without the
written consent of the L/C Facility Agent.
Section 7.10 Withholding Tax. (a) The L/C Facility Agent may
withhold from any interest payment to any Letter of Credit Bank an amount
equivalent to any applicable withholding tax. If the forms or other
documentation required by Section 2.4 are not delivered to the L/C Facility
Agent, then the L/C Facility Agent may withhold from any interest payment to any
Letter of Credit Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax.
(b) If the Internal Revenue Service or any authority of the
United States or other jurisdiction asserts a claim that the L/C Facility Agent
did not properly withhold tax from amounts paid to or for the account of any
Letter of Credit Bank (because the appropriate form was not delivered, was not
properly executed or because such Letter of Credit Bank failed to notify the L/C
Facility Agent of a change in circumstances which rendered the exemption from,
or reduction of, withholding tax ineffective, or for any other reason) such
Letter of Credit Bank shall indemnify the L/C Facility Agent fully for all
amounts paid, directly or indirectly, by the L/C Facility Agent as tax or
otherwise, including penalties and interest, together with all expenses
incurred, including legal expenses, allocated staff costs and any out of pocket
expenses.
(c) If any Letter of Credit Bank sells, assigns, grants
participations in or otherwise transfers its rights under this Agreement, the
purchaser, assignee, participant or transferee, as applicable, shall comply and
be bound by the terms of Sections 2.4(g), 7.10(a) and 7.10(b) as though it were
such Letter of Credit Bank.
Section 7.11 General Provisions as to Payments. The L/C Facility
Agent shall promptly distribute to each Letter of Credit Bank, subject to the
terms of the assignment and assumption agreement between the L/C Facility Agent
and such Letter of Credit Bank, its pro rata share of each payment of principal
and interest payable to the Letter of Credit Banks on the Reimbursement
Obligations and the LOC Loans and of fees hereunder received by the L/C Facility
Agent for the account of the Letter of Credit Banks and of any other amounts
owing on the Reimbursement Obligations or the LOC Loans. The payments made for
the account of each Letter of Credit Bank shall be made, and distributed to it,
for the account of (i) its domestic lending office in the case of payments of
principal of, and interest on, its Base Rate LOC Loans, (ii) its domestic or
foreign lending
35
office, as each Letter of Credit Bank may designate in writing to the L/C
Facility Agent, in the case of its LIBOR LOC Loans, and (iii) its domestic
lending office, or such other lending office as it may designate for the purpose
from time to time, in the case of payments of fees and other amounts payable
hereunder. The Letter of Credit Banks shall have the right to alter designated
domestic lending offices upon written notice to the L/C Facility Agent and the
Partnership.
Section 7.12 Substitution of Letter of Credit Bank. Should any
Letter of Credit Bank fail to make an LOC Loan in violation of its obligations
under this Agreement (a "Non-Advancing Letter of Credit Bank"), the L/C Facility
Agent shall (a) in its sole discretion fund the LOC Loan on behalf of the
Non-Advancing Letter of Credit Bank or (b) cooperate with the Partnership or any
other Letter of Credit Bank to find another Person that shall be acceptable to
the L/C Facility Agent and that shall be willing to assume the Non-Advancing
Letter of Credit Bank's obligations under this Agreement (including the
obligation to make the LOC Loan which the Non-Advancing Letter of Credit Bank
failed to make but without assuming any liability for damages for failing to
have made such LOC Loan or any previously required LOC Loan). Subject to the
provisions of the next following sentence and complying with Section 2.4(g),
such Person shall be substituted for the Non-Advancing Letter of Credit Bank
hereunder upon execution and delivery to the L/C Facility Agent of an agreement
acceptable to the L/C Facility Agent by such Person assuming the Non-Advancing
Letter of Credit Banks's obligations under this Agreement (which shall also
amend Schedule I to reflect such substitution), and all interest and fees which
would otherwise have been payable to the Non-Advancing Letter of Credit Bank
shall thereafter be payable to such Person. Prior to any such substitution, the
Non-Advancing Letter of Credit Bank's Pro Rata Share shall be commensurately
reduced (and the Pro Rata Share of any Letter of Credit Bank which funded such
amount shall be commensurately increased) until such failure to fund is cured,
notwithstanding that the calculation of Pro Rata Shares would otherwise be based
solely upon Letter of Credit Commitments rather than funded amounts. Nothing in
(and no action taken pursuant to) this Section 7.12 shall relieve the
Non-Advancing Letter of Credit Bank from any liability it might have to the
Partnership or to the other Letter of Credit Banks (including to reimburse the
L/C Facility Agent for any funding by the L/C Facility Agent pursuant to clause
(a)) as a result of its failure to make any LOC Loan.
Section 7.13 Participation. Nothing herein provided shall prevent
any Letter of Credit Bank from selling a participation in its Letter of Credit
Commitment (including any Reimbursement Obligations and LOC Loans funded
thereunder) in an
36
aggregate amount of at least $1,000,000 with respect to any participant;
provided that (a) no such sale of a participation shall alter such Letter of
Credit Bank's or the Partnership's obligations hereunder, (b) the Partnership
shall have no liability for any costs or expenses associated with such sale and
(c) any agreement pursuant to which any Letter of Credit Bank may grant a
participation in its rights with respect to its Letter of Credit Commitment
shall provide that, with respect to such Letter of Credit Commitment, subject to
the following proviso, such Letter of Credit Bank shall retain the sole right
and responsibility to exercise the rights of such Letter of Credit Bank and
enforce the obligations of the Partnership relating to such Letter of Credit
Commitment, including the right to approve any amendment, modification or waiver
of any provision of this Agreement or any other Credit Document and the right to
take action to have the LOC Loan Notes declared due and payable pursuant to
Article 6; provided, however, that such agreement may provide that the
participant may have rights to approve or disapprove decreases in interest rates
or fees, lengthening of maturity of any Reimbursement Obligations or LOC Loans,
or release of any material Senior Collateral. No recipient of a participation in
any Letter of Credit Commitment, Reimbursement Obligations or LOC Loans of any
Letter of Credit Bank shall have any rights under this Agreement or any other
Credit Document or shall be entitled to any reimbursement for increased costs or
reserve requirements under Section 2.6 or any other indemnity or payment rights
against the Partnership (but shall be permitted to receive from the Letter of
Credit Bank granting such participation a proportionate amount which would have
been payable to the Letter of Credit Bank from whom such Person acquired its
participation). Any Letter of Credit Bank selling a participation in its Letter
of Credit Commitment, Reimbursement Obligations and/or LOC Loans shall provide
concurrent notice to the Partnership identifying the participant and confirming
that the participation interest being sold is in compliance with this Section
7.13. Notwithstanding the foregoing, no Letter of Credit Bank shall have any
liability, to the Partnership or otherwise, for failing to provide the notice to
the Partnership required by the preceding sentence.
Section 7.14 Transfer of Letter of Credit Commitment.
Notwithstanding anything else herein to the contrary, any Letter of Credit Bank,
after receiving the L/C Facility Agent's prior written consent and paying to the
L/C Facility Agent a $5,000 transfer fee for each transfer, and after reasonable
notice to and consultation with the Partnership, may from time to time, at its
option, sell, assign, transfer, negotiate or otherwise dispose of a portion of
its Letter of Credit Commitment (including the Letter of Credit Bank's interest
in this Agreement and the other Credit Documents) to any Letter of Credit Bank
or other lending institution which in such assigning Letter of Credit Bank's
judgment
37
is reasonably capable of performing the obligations of a Letter of Credit Bank
hereunder and reasonably experienced in project financing; provided, however,
that no Letter of Credit Bank (including any assignee of any Letter of Credit
Bank) may assign any portion of its Letter of Credit Commitment (including
Reimbursement Obligations and LOC Loans) of less than $1,000,000 (unless to
another Letter of Credit Bank) or which leaves the assigning Letter of Credit
Bank with a Letter of Credit Commitment of less than $1,000,000 after giving
effect to such assignment and all previous assignments (except that a Letter of
Credit Bank may be left with no Letter of Credit Commitment, Reimbursement
Obligations and LOC Loans if it assigns its entire Letter of Credit Commitment,
Reimbursement Obligations and LOC Loans). In the event of any such assignment,
(a) the assigning Letter of Credit Bank's Pro Rata Share shall be reduced by the
amount of the Pro Rata Share assigned to the new lender, (b) the parties to such
assignment shall execute and deliver an appropriate agreement evidencing such
sale, assignment, transfer or other disposition (which shall also amend Schedule
I to reflect such assignment, transfer or other disposition), and (c) at the
assigning Letter of Credit Bank's option, the Partnership shall execute and
deliver to such new lender a new LOC Loan Note in the form attached hereto as
Exhibit E in a principal amount equal to such new lender's Letter of Credit
Commitment, and the Partnership shall execute and exchange with the assigning
Letter of Credit Bank a replacement note for any LOC Loan Note in an amount
equal to the Letter of Credit Commitment retained by the Letter of Credit Bank,
if any. Thereafter, such new lender shall be deemed to be a Letter of Credit
Bank and shall have all of the rights and duties of a Letter of Credit Bank
(except as otherwise provided in this Article 7), in accordance with its Pro
Rata Share, under each of the Credit Documents. Without derogation from the
Partnership's obligations under Section 8.12, the Partnership shall have no
liability for out of pocket costs and expenses arising from a transfer pursuant
to this Section 7.14.
Section 7.15 Assignability to Federal Reserve Lender.
Notwithstanding any other provision contained in this Agreement or any other
Credit Document to the contrary, any Letter of Credit Bank may assign all or any
portion of the Reimbursement Obligations, LOC Loans or LOC Loan Notes held by it
to any Federal Reserve Bank or the United States Treasury as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank, provided that
any payment in respect of such assigned Reimbursement Obligations, LOC Loans or
LOC Loan Notes made by the Partnership to or for the account of the assigning
and/or pledging Letter of Credit Bank in accordance with the terms of this
Agreement shall satisfy the Partnership's obligations hereunder in respect to
38
such assigned Reimbursement Obligations, LOC Loans or Notes to the extent of
such payment. No such assignment shall release the assigning Letter of Credit
Bank from its obligations hereunder.
Section 7.16 Voting. (a) In each instance that the L/C Facility
Agent is required to cast a vote with respect to any consent, waiver, approval
or direction in accordance with Article 4 of the Intercreditor Agreement or the
Letter of Credit Banks are required to vote, a vote shall be taken among the
Letter of Credit Banks in the timeframe specified by the L/C Facility Agent
(which shall be at least five (5) Banking Days prior to the expiration of the
timeframe specified in the Common Agreement or in the notice provided by the
Intercreditor Agent to the L/C Facility Agent pursuant to Article 4 of the
Intercreditor Agreement). The number of votes allocated to each Letter of Credit
Bank will be calculated based on its Pro Rata Share.
(b) Subject to the provisions of the Intercreditor Agreement,
the number of votes required for the L/C Facility Agent to approve, waive,
consent to or provide direction shall be as follows:
(i) Any amendments, consents or waivers to this
Agreement (except those specified in Section 7.9 of this Agreement) shall
require the approval of the Required Letter of Credit Banks;
(ii) All amendments, consents or waivers set forth in
Section 7.9 of this Agreement shall require the approval of all Letter of
Credit Banks; and
(iii) Any other consent, waiver of other decision of
the L/C Facility Agent put to a vote of the Letter of Credit Banks and not
provided for therein or in the Intercreditor Agreement shall require the
approval of the Required Letter of Credit Banks.
(c) In calculating the percentage of Letter of Credit Banks
consenting to, approving, waiving or providing direction, the number of votes
cast in favor of such decision shall be divided by the total number of votes
cast with respect to such decision. In the event any Letter of Credit Bank does
not cast its votes within the timeframe specified by the L/C Facility Agent
pursuant to Section 7.16(a), such Letter of Credit Bank shall be deemed to have
waived its right to consent, approve, waive or
39
provide direction with respect to the subject issue. Such Letter of Credit Bank
hereby waives any and all rights it may have to object to or seek relief against
the decision of the Letter of Credit Banks voting with respect to such issue and
agrees to be bound by such decision.
ARTICLE 8
MISCELLANEOUS PROVISIONS
Section 8.1 Notices. Unless otherwise specifically herein provided,
all notices required or permitted under the terms and provisions hereof shall be
in writing and any such notice shall become effective if given in accordance
with the provisions of Section 12.1 of the Common Agreement. The address for
notices for each Letter of Credit Bank shall be as set forth opposite such
Letter of Credit Bank's name on Schedule I hereto.
Section 8.2 Right to Set-Off. Regardless of the adequacy of any
other collateral, the L/C Facility Agent may at any time after the occurrence
and during the continuance of any Event of Default execute or realize on the
Letter of Credit Banks' security interest in any deposits or other sums at any
time credited or due from the Letter of Credit Banks and any Project Revenues,
securities or other property of the Partnership in the possession of the L/C
Facility Agent, and may apply any such sums, securities or other property to or
set them off against the Partnership's obligations to the Letter of Credit Banks
under the LOC Loan Notes and this Agreement.
Section 8.3 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Partnership, the L/C Facility Agent and the
Letter of Credit Banks and their respective successors, transferees and assigns,
except that the Partnership may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Required Letter of Credit Banks. No Letter of Credit Bank may participate,
assign or sell any of its Letter of Credit Commitment, Reimbursement Obligations
or LOC Loans, except as required by operation of law, in connection with the
merger, consolidation or dissolution of such Letter of Credit Bank or as
provided in Article 7.
Section 8.4 Survival. All agreements, statements, representations
and warranties made by the Partnership herein or in any certificate or other
instrument delivered by the Partnership or on its behalf under this Agreement
shall be considered to
40
have been relied upon by the L/C Facility Agent and the Letter of Credit Banks
and shall survive the execution and delivery of this Agreement regardless of any
investigation made by the L/C Facility Agent or any Letter of Credit Bank or
made on their behalf.
Section 8.5 No Waiver; Remedies Cumulative. No failure or delay on
the part of the L/C Facility Agent or the Letter of Credit Banks in exercising
any right, power or privilege hereunder and no course of dealing between the
Partnership and the L/C Facility Agent or any Letter of Credit Bank shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the L/C Facility Agent or the
Letter of Credit Banks would otherwise have.
Section 8.6 Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
Section 8.7 Severability. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any
jurisdiction, shall not in any way be affected or impaired thereby.
Section 8.8 Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the L/C Facility Agent or any Letter of Credit Bank hereunder or
pursuant hereto is rescinded or must otherwise be restored or returned by the
L/C Facility Agent or such Letter of Credit Bank upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Partnership or
upon the appointment of any intervenor or conservator of, or trustee or similar
official for, the Partnership or any substantial part of the Partnership's
assets, or upon the entry of an order by any court avoiding the payment of such
amount, or otherwise, all as though such payments had not been made.
Section 8.9 Counterparts. This Agreement may be executed in any
number of counterparts, each of which, taken together, shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
41
Section 8.10 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP and practices
consistent with those applied in the preparation of the financial statements
submitted by the Partnership to the L/C Facility Agent, and all financial data
submitted pursuant to this Agreement shall be prepared in accordance with such
principles and practices.
Section 8.11 Additional Financing. The parties hereto acknowledge
that the Letter of Credit Banks have made no agreement or commitment to provide
any financing except as set forth herein.
Section 8.12 No Partnership. Etc. The Letter of Credit Banks and the
Partnership intend that the relationship between them shall be solely that of
creditor and debtor. Nothing contained in this Agreement, the LOC Loan Notes or
in any of the other Credit Documents shall be deemed or construed to create a
partnership, tenancy-in-common, joint tenancy, joint venture or co-ownership by
or between the Letter of Credit Banks and the Partnership or any other Person.
The Letter of Credit Banks shall not be in any way responsible or liable for the
debts, losses, obligations or duties of the Partnership or any other Person with
respect to the Project or otherwise. As between the Letter of Credit Banks and
the Partnership, all obligations to pay real property or other taxes,
assessments, insurance premiums, and all other fees and charges arising from the
ownership, operation or occupancy of the Project and to perform all obligations
and other agreements and contracts relating to the Project shall be the sole
responsibility of the Partnership.
Section 8.13 Deed of Trust/Collateral Documents. The Reimbursement
Obligations, LOC Loans and other obligations of the Partnership hereunder are
secured in part by the Deed of Trust encumbering certain properties in the State
of Mississippi. Reference is hereby made to the Deed of Trust and the other
Senior Collateral Documents for the provisions, among others, relating to the
nature and extent of the security provided thereunder, the rights, duties and
obligations of the Partnership and the rights of the L/C Facility Agent, the
Collateral Agent and the Letter of Credit Banks with respect to such security.
Section 8.14 Limitation on Liability. No claim shall be made by the
Partnership, any Partner or any of their Affiliates against the Letter of Credit
Banks or any of their Affiliates, directors, employees, attorneys or agents for
any special, indirect, consequential or punitive damages in respect of any
breach or wrongful conduct (whether
42
or not the claim therefor is based on contract, tort or duty imposed by law), in
connection with, arising out of or in any way related to the transactions
contemplated by this Agreement or the other Operative Documents or any act or
omission or event occurring in connection therewith; and the Partnership hereby
waives, releases and agrees not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
Section 8.15 Knowledge and Attribution. References in this
Agreement, the L/C Facility Documents and the other Credit Documents to the
"knowledge" or "best knowledge" of the Partnership, and all like references,
mean "knowledge" or "best knowledge" of a Responsible Officer of the Managing
General Partner of the Partnership. References in this Agreement, the L/C
Facility Documents and the other Credit Documents to facts and circumstances
"known to" the Partnership, and all like references, mean facts or circumstances
of which a Responsible Officer of the Managing General Partner of the
Partnership has actual knowledge.
Section 8.16 No Approval of Work. The making of any LOC Loan
hereunder shall not be deemed an approval or acceptance by the L/C Facility
Agent or the Letter of Credit Banks of any work, labor, supplies, materials or
equipment furnished or supplied with respect to the Project.
Section 8.17 Governing Law. This Agreement shall be governed by the
laws of the State of New York of the United States of America and shall for all
purposes be governed by and construed in accordance with the laws of such state
without regard to the conflict of law rules thereof other than Section 5-1401 of
the New York General Obligations Law.
Section 8.18 Consent to Jurisdiction. Any legal action or proceeding
by or against the Partnership with respect to or arising out of this Agreement
may be brought in or removed to the courts of the State of New York, in and for
the County of New York, or of the United States of America for the Southern
District of New York. By execution and delivery of this Agreement, the
Partnership accepts, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts for legal proceedings
arising out of or in connection with this Agreement and irrevocably consents to
the appointment of CT Corporation System, with offices on the date hereof at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive service of
process in New York, New York. If for any reason such agent shall cease to be
available to act
43
as such, the Partnership agrees to appoint a new agent satisfactory to the L/C
Facility Agent on the terms and for the purposes of this provision. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or any right to bring legal action or proceedings in any other competent
jurisdiction. The Partnership further agrees that the aforesaid courts of the
State of New York and of the United States of America for the Southern District
of New York shall have exclusive jurisdiction with respect to any claim or
counterclaim of the Partnership based upon the assertion that the rate of
interest charged by or under this Agreement or any other Credit Document is
usurious. The Partnership hereby waives any right to stay or dismiss any action
or proceeding under or in connection with the Project, this Agreement or any
other Operative Document brought before the foregoing courts on the basis of
forum non-conveniens or improper venue.
Section 8.19 Waiver of Jury Trial. EACH OF THE PARTNERSHIP, THE L/C
FACILITY AGENT AND EACH LETTER OF CREDIT BANK HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF THE OTHER PARTIES HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE L/C FACILITY AGENT AND THE LETTER OF CREDIT BANKS TO
ENTER INTO THIS AGREEMENT.
Section 8.20 Indemnities and Expenses. The obligation of the
Partnership to pay the costs and expenses of, and to indemnify, defend and hold
harmless, the L/C Facility Agent and the Letter of Credit Banks under and in
connection with this Agreement shall be as provided in Section 5.1(j) and
Section 12.4 of the Common Agreement as in effect as of the date hereof. No
amendment to such Section 5.1(j) or Section 12.4 or termination of the Common
Agreement shall affect the provisions of this Section 8.20 unless such amendment
or termination shall have been consented to by the parties to this Agreement in
accordance with the provisions hereof and of the other Credit Documents.
Section 8.21 Entire Agreement. This Agreement, together with any
other agreement executed in connection herewith, is intended by the parties as a
final expression of their agreement as to the matters covered hereby and is
intended as a complete and exclusive statement of the terms and conditions
thereof.
44
Section 8.22 Third Party Beneficiaries. The agreement of the parties
contained herein are solely for the benefit of the Partnership, the L/C Facility
Agent and the Letter of Credit Banks, and no other Person (including any
obligor, contractor, subcontractor, supplier or materialman furnishing supplies,
goods or services to or for the benefit of the Project) shall have any rights
hereunder.
Section 8.23 Scope of Liability. The provisions of Section 9.1 of
the Common Agreement shall apply to this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
45
IN WITNESS WHEREOF, the parties hereto have caused this Letter of
Credit and Reimbursement Agreement to be duly executed and delivered by their
officers thereunto duly authorized as of the date first above written.
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON,
in its capacity as the L/C Facility Agent
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
----------------------------------
Name: Xxxxxxxxx X. Naval
Title: Associate
CREDIT SUISSE FIRST BOSTON,
in its capacity as the Letter of Credit Issuer
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
----------------------------------
Name: Xxxxxxxxx X. Naval
Title:
Signature Page to Letter of Credit Agreement
CREDIT SUISSE FIRST BOSTON,
in its capacity as a Letter of Credit Bank
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
--------------------------------
Name: Xxxxxxxxx X. Naval
Title: Associate
Signature Page to Letter of Credit Agreement
SCHEDULE I
LETTER OF CREDIT BANKS AND LETTER OF CREDIT COMMITMENTS
Letter of Credit Bank Letter of Credit
(and Lending Office) Address for Notices Commitment
-------------------- ------------------- ----------
Credit Suisse First Boston Eleven Madison Avenue $16,980,000
Eleven Madison Avenue New York, New York 10010
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE II
AMORTIZATION SCHEDULE FOR LOC LOANS
The principal amount of outstanding LOC Loans will be repaid in
twenty (20) equal quarterly installments.
EXHIBIT A
FORM OF VEPCO LETTER OF CREDIT-A
Credit Suisse First Boston Letter of Credit No. TS06001015
Eleven Madison Avenue Irrevocable Standby Credit
Xxx Xxxx, XX 00000
Attention: Global Project Finance
Date and Place of Issue: Date and Place of Expiry:
New York, New York Credit Suisse First Boston
August 28, 0000 Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Global Project Finance
The earlier of (i) June 1, 2001
and (ii) the Commercial Operation
Date (as defined in the VEPCO PPA
(as defined herein)).
Applicant:
LSP Energy Limited Partnership
c/o LS Power, LLC
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Beneficiary: Amount: Up to an aggregate of Five Million
Virginia Electric and Power Company Six Hundred Sixty Thousand Dollars
X.X. Xxx 00000 (US$5,660,000)
Xxxxxxxx, Xxxxxxxx 00000
Credit Available With:
OR Credit Suisse First Boston
By: Negotiation, Against Presentation
(For Hand Delivery)
000 Xxxx Xxxx Xxxxxx
X-0
Xxxxxxxx, Xxxxxxxx 00000 of the Documents Detailed Herein and of
Your Draft(s) at Sight Drawn on Credit
Suisse First Boston
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of the Applicant in
accordance with the terms and conditions hereinafter set forth, an amount not
exceeding in the aggregate Five Million Six Hundred Sixty Thousand Dollars
(US$5,660,000) (the "Letter of Credit Amount") available against presentation of
a dated drawing request drawn on Credit Suisse First Boston, manually signed by
an authorized officer of the Beneficiary (who is identified as such)
appropriately completed in the form of Annex 1 hereto and sent by the
Beneficiary's authorized officer. This Letter of Credit is effective
immediately.
This Letter of Credit is established pursuant to Section 3.3(a) of the Power
Purchase Agreement, dated as of May 18, 1998 (the "VEPCO PPA"), between
Applicant and Beneficiary.
The above drawing request and all communications with respect to this Letter of
Credit shall be in writing, addressed to us at Eleven Madison Avenue, New York,
New York, 10010, Attention: Global Project Finance, telephone (000) 000-0000,
telecopier (000) 000-0000, referencing this Letter of Credit No. TS06001015 and
presented to us by tested telex, delivery in person or facsimile transmission at
such address, provided that the original of the above drawing request or such
communications, as the case may be, shall be sent to us at such address by
overnight courier for receipt by us within three (3) Business Days of the date
of any such facsimile transmission.
If the drawing request is presented in compliance with the terms of this Letter
of Credit to us at such address by 12:00 noon New York time on any Business Day
(as hereinafter defined), payment will be made not later than 3:00 p.m. New York
time on such day and if such drawing request is so presented to us after 12:00
noon New York time on any Business Day, payment will be made on the following
Business Day not later than 1:00 p.m. New York time. Payment under this Letter
of Credit shall be made in immediately available funds by wire transfer to such
account as may be designated by the Beneficiary in the applicable drawing
request.
As used in this Letter of Credit, "Business Day" means any day on which
commercial banks located in New York, New York are not required or authorized to
remain closed.
A-2
This Letter of Credit shall expire on the earlier of (i) June 1, 2001 and (ii)
the Commercial Operation Date (as defined in the VEPCO PPA).
In the event that a drawing request fails to comply with the terms of this
Letter of Credit, we shall provide the Beneficiary prompt notice of the same
stating the reasons therefor and shall upon your instructions hold any
nonconforming drawing request and other documents at your disposal or return any
non-conforming drawing request and other documents to the Beneficiary at the
address set forth above by delivery in person or facsimile transmission (with
originals thereof sent by overnight courier for receipt within two (2) Business
Days). Upon being notified that the drawing was not effected in compliance with
this Letter of Credit, the Beneficiary may attempt to correct such non-complying
drawing request in accordance with the terms of this Letter of Credit.
This Letter of Credit sets forth in full the terms of our undertaking and this
undertaking shall not in any way be modified, amended, limited or amplified by
reference to any document, instrument or agreement referred to herein, except
only defined terms used herein and the drawing requests and certificates
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
defined terms, drawing requests and certificates.
This Letter of Credit is transferable. Transfer may only be effected by us upon
our receipt of an acceptable application for transfer accompanied by the
original Letter of Credit and payment of our transfer commission in effect at
the time of transfer.
Partial drawings under this Letter of Credit are allowed and each such partial
drawing shall reduce the amount thereafter available hereunder for drawings
under this Letter of Credit. Each draft honored by us under this Letter of
Credit shall immediately reduce the Letter of Credit Amount by the amount of the
payment made by us in respect of such draft. Upon the payment to you or your
account of the amount specified in a draft drawn hereunder, we shall be fully
discharged of our obligation under this Letter of Credit to the extent of the
amount specified in such draft.
Tested telex reimbursement is allowed.
All banking charges, including any advising and negotiating bank charges, are
for the account of the Applicant.
A-3
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under Credit Suisse First Boston Letter of Credit Number
TS06001015 dated August 28, 1998."
This Letter of Credit shall not be amended except with the written concurrence
of Credit Suisse First Boston, the Applicant, the Beneficiary and the Required
Letter of Credit Banks (as defined in the Letter of Credit and Reimbursement
Agreement, dated as of August 28, 1998, by and among the Applicant, Credit
Suisse First Boston as the L/C Facility Agent and the Letter of Credit Issuer
and the other financial institutions party thereto).
We hereby engage with you that a drawing request drawn strictly in compliance
with the terms of this Letter of Credit and amendments thereto shall meet with
due honor upon presentation.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision in force as from 1st of January 1994),
International Chamber of Commerce Publication Number 500 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be a contract made under the
laws of the State of New York and shall, as to matters not governed by the
Uniform Customs, be governed by and construed in accordance with the laws of
such State.
We irrevocably agree with you that any legal action or proceeding with respect
to this Letter of Credit shall be brought in the courts of the State of New York
in the County of New York or of the United States of America in the Southern
District of New York. By signing this Letter of Credit, we irrevocably submit to
the jurisdiction of such courts solely for the purposes of this Letter of
Credit. We hereby waive, to the fullest extent permitted by law any objection we
may now or hereafter have to the laying of venue in any such action or
proceeding in any such court.
A-4
CREDIT SUISSE FIRST BOSTON
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
X-0
XXXXX 0
Xxxxxx Xxxxxx First Boston
Letter of Credit Number TS06001015 dated August 28, 1998
DRAWING REQUEST
[Date]
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: Global Project Finance
Ladies and Gentlemen:
The undersigned hereby draws on Credit Suisse First Boston Letter of
Credit No. TS06001015 Irrevocable Standby Letter of Credit (the "Letter of
Credit") dated August 28, 1998, issued by you in favor of us. Any capitalized
term used herein and not defined herein shall have its respective meaning as set
forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
[Select one of paragraph A or paragraph B, as applicable]
[(A) "This drawing in the amount of $[________] is being made pursuant to
Credit Suisse First Boston Letter of Credit No. [________] Irrevocable
Standby Letter of Credit issued to the Beneficiary because:
[(i) Pursuant to Section 3.3(e) of the VEPCO PPA Applicant must pay to
Beneficiary Incremental Replacement Power Costs (as defined in the
VEPCO PPA) in accordance with Appendix G to the VEPCO PPA.]
[(ii) Applicant has failed to pay when due pursuant to Section 3.3(e)(iv)
an undisputed amount owed to Beneficiary under the VEPCO PPA.]
A-6
[(iii) Pursuant to Section 3.3(e)(iii) of the VEPCO PPA, Applicant has
failed to pay when due to Beneficiary an amount due as a result of
a payment dispute resolved in favor of Beneficiary.]"]
[(B) "Beneficiary is making a drawing in the full available amount of the
Letter of Credit because the term of the Letter of Credit will expire
within five (5) Business Days of the date of this certificate and
Applicant has failed to deliver a replacement or renewal letter of credit
acceptable to Beneficiary and security is still required under Section 3.3
of the VEPCO PPA."]
(C) You are directed to make payment of the requested drawing to account no.
_______ at ________ [insert bank name, address and account number].
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this ___ day of _______.
VIRGINIA ELECTRIC AND POWER COMPANY
By: ________________________
Name:
Title:
A-7
EXHIBIT B
FORM OF VEPCO LETTER OF CREDIT-B
Credit Suisse First Boston Letter of Credit No. [_________]
Eleven Madison Avenue Irrevocable Standby Credit
Xxx Xxxx, XX 00000
Attention: Global Project Finance
Date and Place of Issue: Date and Place of Expiry:
New York, New York Credit Suisse First Boston
______ __, ____ Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Global Project Finance
The earlier of (i) June 1, 2001
and (ii) the Commercial Operation
Date (as defined in the VEPCO PPA
(as defined herein)).
Applicant:
LSP Energy Limited Partnership
c/o LS Power, LLC
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Beneficiary: Amount: Up to an aggregate of Five Million
Virginia Electric and Power Company Six Hundred Sixty Thousand Dollars
X.X. Xxx 00000 (US$5,660,000)
Xxxxxxxx, Xxxxxxxx 00000
Credit Available With:
OR Credit Suisse First Boston
By: Negotiation, Against Presentation
(For Hand Delivery)
000 Xxxx Xxxx Xxxxxx
X-0
Xxxxxxxx, Xxxxxxxx 00000 of the Documents Detailed Herein and of
Your Draft(s) at Sight Drawn on Credit
Suisse First Boston
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of the Applicant in
accordance with the terms and conditions hereinafter set forth, an amount not
exceeding in the aggregate Five Million Six Hundred Sixty Thousand Dollars
(US$5,660,000) (the "Letter of Credit Amount") available against presentation of
a dated drawing request drawn on Credit Suisse First Boston, manually signed by
an authorized officer of the Beneficiary (who is identified as such)
appropriately completed in the form of Annex 1 hereto and sent by the
Beneficiary's authorized officer. This Letter of Credit is effective
immediately.
This Letter of Credit is established pursuant to Section 3.3(b) of the Power
Purchase Agreement, dated as of May 18, 1998 (the "VEPCO PPA"), between
Applicant and Beneficiary.
The above drawing request and all communications with respect to this Letter of
Credit shall be in writing, addressed to us at Eleven Madison Avenue, New York,
New York, 10010, Attention: Global Project Finance, telephone (000) 000-0000,
telecopier (000) 000-0000, referencing this Letter of Credit No.[ ] and
presented to us by tested telex, delivery in person or facsimile transmission at
such address, provided that the original of the above drawing request or such
communications, as the case may be, shall be sent to us at such address by
overnight courier for receipt by us within three (3) Business Days of the date
of any such facsimile transmission.
If the drawing request is presented in compliance with the terms of this Letter
of Credit to us at such address by 12:00 noon New York time on any Business Day
(as hereinafter defined), payment will be made not later than 3:00 p.m. New York
time on such day and if such drawing request is so presented to us after 12:00
noon New York time on any Business Day, payment will be made on the following
Business Day not later than 1:00 p.m. New York time. Payment under this Letter
of Credit shall be made in immediately available funds by wire transfer to such
account as may be designated by the Beneficiary in the applicable drawing
request.
As used in this Letter of Credit, "Business Day" means any day on which
commercial banks located in New York, New York are not required or authorized to
remain closed.
B-2
This Letter of Credit shall expire on the earlier of (i) June 1, 2001 and (ii)
the Commercial Operation Date (as defined in the VEPCO PPA).
In the event that a drawing request fails to comply with the terms of this
Letter of Credit, we shall provide the Beneficiary prompt notice of the same
stating the reasons therefor and shall upon your instructions hold any
nonconforming drawing request and other documents at your disposal or return any
non-conforming drawing request and other documents to the Beneficiary at the
address set forth above by delivery in person or facsimile transmission (with
originals thereof sent by overnight courier for receipt within two (2) Business
Days). Upon being notified that the drawing was not effected in compliance with
this Letter of Credit, the Beneficiary may attempt to correct such non-complying
drawing request in accordance with the terms of this Letter of Credit.
This Letter of Credit sets forth in full the terms of our undertaking and this
undertaking shall not in any way be modified, amended, limited or amplified by
reference to any document, instrument or agreement referred to herein, except
only defined terms used herein and the drawing requests and certificates
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
defined terms, drawing requests and certificates.
This Letter of Credit is transferable. Transfer may only be effected by us upon
our receipt of an acceptable application for transfer accompanied by the
original Letter of Credit and payment of our transfer commission in effect at
the time of transfer.
Partial drawings under this Letter of Credit are allowed and each such partial
drawing shall reduce the amount thereafter available hereunder for drawings
under this Letter of Credit. Each draft honored by us under this Letter of
Credit shall immediately reduce the Letter of Credit Amount by the amount of the
payment made by us in respect of such draft. Upon the payment to you or your
account of the amount specified in a draft drawn hereunder, we shall be fully
discharged of our obligation under this Letter of Credit to the extent of the
amount specified in such draft.
Tested telex reimbursement is allowed.
All banking charges, including any advising and negotiating bank charges, are
for the account of the Applicant.
B-3
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under Credit Suisse First Boston Letter of Credit Number [____]
dated [________], [____]."
This Letter of Credit shall not be amended except with the written concurrence
of Credit Suisse First Boston, the Applicant, the Beneficiary and the Required
Letter of Credit Banks (as defined in the Letter of Credit and Reimbursement
Agreement, dated as of August 28, 1998, by and among the Applicant, Credit
Suisse First Boston as the L/C Facility Agent and the Letter of Credit Issuer
and the other financial institutions party thereto).
We hereby engage with you that a drawing request drawn strictly in compliance
with the terms of this Letter of Credit and amendments thereto shall meet with
due honor upon presentation.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision in force as from 1st of January 1994),
International Chamber of Commerce Publication Number 500 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be a contract made under the
laws of the State of New York and shall, as to matters not governed by the
Uniform Customs, be governed by and construed in accordance with the laws of
such State.
We irrevocably agree with you that any legal action or proceeding with respect
to this Letter of Credit shall be brought in the courts of the State of New York
in the County of New York or of the United States of America in the Southern
District of New York. By signing this Letter of Credit, we irrevocably submit to
the jurisdiction of such courts solely for the purposes of this Letter of
Credit. We hereby waive, to the fullest extent permitted by law any objection we
may now or hereafter have to the laying of venue in any such action or
proceeding in any such court.
B-4
CREDIT SUISSE FIRST BOSTON
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
X-0
X-0
XXXXX 0
Xxxxxx Xxxxxx First Boston
Letter of Credit Number [________] dated [________]
DRAWING REQUEST
[Date]
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: Global Project Finance
Ladies and Gentlemen:
The undersigned hereby draws on Credit Suisse First Boston Letter of
Credit No. [_______] Irrevocable Standby Letter of Credit (the "Letter of
Credit") dated [________], issued by you in favor of us. Any capitalized term
used herein and not defined herein shall have its respective meaning as set
forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
[Select one of paragraph A or paragraph B, as applicable]
[(A) "This drawing in the amount of $[________] is being made pursuant to
Credit Suisse First Boston Letter of Credit No. [________] Irrevocable
Standby Letter of Credit issued to the Beneficiary because:
[(i) Pursuant to Section 3.3(e) of the VEPCO PPA Applicant must pay to
Beneficiary Incremental Replacement Power Costs (as defined in the
VEPCO PPA) in accordance with Appendix G to the VEPCO PPA.]
[(ii) Applicant has failed to pay when due pursuant to Section 3.3(e)(iv)
an undisputed amount owed to Beneficiary under the VEPCO PPA.]
B-7
[(iii) Pursuant to Section 3.3(e)(iii) of the VEPCO PPA, Applicant has
failed to pay when due to Beneficiary an amount due as a result of
a payment dispute resolved in favor of Beneficiary.]"]
[(B) "Beneficiary is making a drawing in the full available amount of the
Letter of Credit because the term of the Letter of Credit will expire
within five (5) Business Days of the date of this certificate and
Applicant has failed to deliver a replacement or renewal letter of credit
acceptable to Beneficiary and security is still required under Section 3.3
of the VEPCO PPA."]
(C) You are directed to make payment of the requested drawing to account no.
________ at _________ [insert bank name, address and account number].
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this ___ day of _________.
VIRGINIA ELECTRIC AND POWER COMPANY
By: _________________________
Name:
Title:
B-8
EXHIBIT C
FORM OF VEPCO LETTER OF CREDIT-C
Credit Suisse First Boston Letter of Credit No. [_________]
Eleven Madison Avenue Irrevocable Standby Credit
Xxx Xxxx, XX 00000
Attention: Global Project Finance
Date and Place of Issue: Date and Place of Expiry:
New York, New York Credit Suisse First Boston
______ __, ____ Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Global Project Finance
The date which is three (3) years
from the earlier of (i) June 1, 2001
and (ii) the Commercial Operation
Date (as defined in the VEPCO PPA
(as defined herein)).
Applicant:
LSP Energy Limited Partnership
c/o LS Power, LLC
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Beneficiary: Amount: Up to an aggregate of Five Million
Virginia Electric and Power Company Six Hundred Sixty Thousand Dollars
X.X. Xxx 00000 (US$5,660,000)
Xxxxxxxx, Xxxxxxxx 00000
Credit Available With:
OR Credit Suisse First Boston
By: Negotiation, Against Presentation
(For Hand Delivery) of the Documents Detailed Herein and of
000 Xxxx Xxxx Xxxxxx Your Draft(s) at Sight Drawn on Credit
Suisse First Boston
C-1
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of the Applicant in
accordance with the terms and conditions hereinafter set forth, an amount not
exceeding in the aggregate Five Million Six Hundred Sixty Thousand Dollars
(US$5,660,000) (the "Letter of Credit Amount") available against presentation of
a dated drawing request drawn on Credit Suisse First Boston, manually signed by
an authorized officer of the Beneficiary (who is identified as such)
appropriately completed in the form of Annex 1 hereto and sent by the
Beneficiary's authorized officer. This Letter of Credit is effective
immediately.
This Letter of Credit is established pursuant to Section 3.3(a) of the Power
Purchase Agreement, dated as of May 18, 1998 (the "VEPCO PPA"), between
Applicant and Beneficiary.
The above drawing request and all communications with respect to this Letter of
Credit shall be in writing, addressed to us at Eleven Madison Avenue, New York,
New York, 10010, Attention: Global Project Finance, telephone (000) 000-0000,
telecopier (000) 000-0000, referencing this Letter of Credit No.[ ] and
presented to us by tested telex, delivery in person or facsimile transmission at
such address, provided that the original of the above drawing request or such
communications, as the case may be, shall be sent to us at such address by
overnight courier for receipt by us within three (3) Business Days of the date
of any such facsimile transmission.
If the drawing request is presented in compliance with the terms of this Letter
of Credit to us at such address by 12:00 noon New York time on any Business Day
(as hereinafter defined), payment will be made not later than 3:00 p.m. New York
time on such day and if such drawing request is so presented to us after 12:00
noon New York time on any Business Day, payment will be made on the following
Business Day not later than 1:00 p.m. New York time. Payment under this Letter
of Credit shall be made in immediately available funds by wire transfer to such
account as may be designated by the Beneficiary in the applicable drawing
request.
As used in this Letter of Credit, "Business Day" means any day on which
commercial banks located in New York, New York are not required or authorized to
remain closed.
C-2
This Letter of Credit shall expire on the date which is three (3) years from the
earlier of (i) June 1, 2000 and (ii) the Commercial Operation Date (as defined
in the VEPCO PPA (as defined herein)).
In the event that a drawing request fails to comply with the terms of this
Letter of Credit, we shall provide the Beneficiary prompt notice of the same
stating the reasons therefor and shall upon your instructions hold any
nonconforming drawing request and other documents at your disposal or return any
non-conforming drawing request and other documents to the Beneficiary at the
address set forth above by delivery in person or facsimile transmission (with
originals thereof sent by overnight courier for receipt within two (2) Business
Days). Upon being notified that the drawing was not effected in compliance with
this Letter of Credit, the Beneficiary may attempt to correct such non-complying
drawing request in accordance with the terms of this Letter of Credit.
This Letter of Credit sets forth in full the terms of our undertaking and this
undertaking shall not in any way be modified, amended, limited or amplified by
reference to any document, instrument or agreement referred to herein, except
only defined terms used herein and the drawing requests and certificates
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
defined terms, drawing requests and certificates.
This Letter of Credit is transferable. Transfer may only be effected by us upon
our receipt of an acceptable application for transfer accompanied by the
original Letter of Credit and payment of our transfer commission in effect at
the time of transfer.
Partial drawings under this Letter of Credit are allowed and each such partial
drawing shall reduce the amount thereafter available hereunder for drawings
under this Letter of Credit. Each draft honored by us under this Letter of
Credit shall immediately reduce the Letter of Credit Amount by the amount of the
payment made by us in respect of such draft. Upon the payment to you or your
account of the amount specified in a draft drawn hereunder, we shall be fully
discharged of our obligation under this Letter of Credit to the extent of the
amount specified in such draft.
Tested telex reimbursement is allowed.
All banking charges, including any advising and negotiating bank charges, are
for the account of the Applicant.
C-3
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under Credit Suisse First Boston Letter of Credit Number [____]
dated [________], [____]."
This Letter of Credit shall not be amended except with the written concurrence
of Credit Suisse First Boston, the Applicant, the Beneficiary and the Required
Letter of Credit Banks (as defined in the Letter of Credit and Reimbursement
Agreement, dated as of August 28, 1998 (the "Letter of Credit Agreement"), by
and among the Applicant, Credit Suisse First Boston as the L/C Facility Agent
and the Letter of Credit Issuer and the other financial institutions party
thereto).
We hereby engage with you that a drawing request drawn strictly in compliance
with the terms of this Letter of Credit and amendments thereto shall meet with
due honor upon presentation.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision in force as from 1st of January 1994),
International Chamber of Commerce Publication Number 500 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be a contract made under the
laws of the State of New York and shall, as to matters not governed by the
Uniform Customs, be governed by and construed in accordance with the laws of
such State.
We irrevocably agree with you that any legal action or proceeding with respect
to this Letter of Credit shall be brought in the courts of the State of New York
in the County of New York or of the United States of America in the Southern
District of New York. By signing this Letter of Credit, we irrevocably submit to
the jurisdiction of such courts solely for the purposes of this Letter of
Credit. We hereby waive, to the fullest extent permitted by law any objection we
may now or hereafter have to the laying of venue in any such action or
proceeding in any such court.
C-4
CREDIT SUISSE FIRST BOSTON
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
X-0
XXXXX 0
Xxxxxx Xxxxxx First Boston
Letter of Credit Number [________] dated [________]
DRAWING REQUEST
[Date]
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: Global Project Finance
Ladies and Gentlemen:
The undersigned hereby draws on Credit Suisse First Boston Letter of
Credit No. [_______] Irrevocable Standby Letter of Credit (the "Letter of
Credit") dated [________], issued by you in favor of us. Any capitalized term
used herein and not defined herein shall have its respective meaning as set
forth in the Letter of Credit.
In connection with this drawing, we hereby certify that:
[Select one of paragraph A or paragraph B, as applicable]
[(A) "This drawing in the amount of $[________] is being made pursuant to
Credit Suisse First Boston Letter of Credit No. [________] Irrevocable
Standby Letter of Credit issued to the Beneficiary because:
[(i) Pursuant to Section 3.3(e) of the VEPCO PPA Applicant must pay to
Beneficiary Incremental Replacement Power Costs (as defined in the
VEPCO PPA) in accordance with Appendix G to the VEPCO PPA.]
[(ii) Applicant has failed to pay when due pursuant to Section 3.3(e)(iv)
an undisputed amount owed to Beneficiary under the VEPCO PPA.]
C-6
[(iii) Pursuant to Section 3.3(e)(iii) of the VEPCO PPA, Applicant has
failed to pay when due to Beneficiary an amount due as a result of
a payment dispute resolved in favor of Beneficiary.]"]
[(B) "Beneficiary is making a drawing in the full available amount of the
Letter of Credit because the term of the Letter of Credit will expire
within five (5) Business Days of the date of this certificate and
Applicant has failed to deliver a replacement or renewal letter of credit
acceptable to Beneficiary and security is still required under Section 3.3
of the VEPCO PPA."]
(C) You are directed to make payment of the requested drawing to account no.
_______ at __________ [insert bank name, address and account number].
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this ___ day of __________.
VIRGINIA ELECTRIC AND POWER COMPANY
By: __________________________
Name:
Title:
C-7
EXHIBIT D
FORM OF REQUEST FOR ISSUANCE
[DATE]
Credit Suisse First Boston,
as the L/C Facility Agent
Eleven Madison Avenue
New York, New York 10010
Attention:
Re: LSP Energy Limited Partnership
Ladies and Gentlemen:
This Request for Issuance is delivered to you pursuant to Section
2.1(b) of the Letter of Credit and Reimbursement Agreement, dated as of August
28, 1998 (the "Letter of Credit Agreement"), among LSP Energy Limited
Partnership (the "Partnership"), Credit Suisse First Boston as agent for the
Letter of Credit Banks (as defined below) (in such capacity, the "the L/C
Facility Agent"), Credit Suisse First Boston as letter of credit issuer (in such
capacity, the "Letter of Credit Issuer") and the other financial institutions
party thereto (collectively with the Letter of Credit Issuer, the "Letter of
Credit Banks"). Capitalized terms used but not otherwise defined herein shall
have the meanings given to such terms in the Letter of Credit Agreement.
1. We request that the [specify Letter of Credit] (the "Letter of
Credit") be issued.
2. The issue date of the Letter of Credit is __________ and the
expiration date of the Letter of Credit is __________, neither of
which is later than the applicable Termination Date.
3. The Stated Amount of the Letter of Credit is $__________, which,
together with the aggregate Stated Amounts of all other outstanding
Letters of Credit and all outstanding Reimbursement Obligations and
LOC Loans
D-1
thereunder and under the Letter of Credit Agreement, does not exceed
the Total Letter of Credit Commitment.
4. The L/C Facility Agent is instructed to deliver the Letter of Credit
to __________, at __________.
The undersigned further confirms and certifies to the L/C Facility
Agent and to each Letter of Credit Bank that the Letter of Credit requested
hereby shall only be used in the manner and for the purposes specified in and
permitted under the Letter of Credit Agreement, and that, as of the date of the
issuance of the Letter of Credit, each of the conditions set forth in Article 3
of the Letter of Credit Agreement has previously been satisfied or waived in
accordance with the terms thereof.
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: ________________________
Name:
Title:
X-0
X-0
EXHIBIT E
FORM OF LOC LOAN NOTE
$[________] New York, New York
[________], [____]
For value received, the undersigned LSP ENERGY LIMITED PARTNER SHIP, a
Delaware limited partnership (the "Partnership"), promises to pay to the order
of [________] (the "Letter of Credit Bank"), at the office of the Letter of
Credit Bank located at [________] in lawful money of the United States of
America and in immediately available funds, the principal amount of [________]
DOLLARS ($[________]), or if less, the aggregate unpaid and outstanding
principal amount of LOC Loans advanced by the Letter of Credit Bank to the
Partnership pursuant to that certain Letter of Credit and Reimbursement
Agreement, dated as of August 28, 1998 (the "Letter of Credit Agreement"), among
the Partnership, Credit Suisse First Boston as the L/C Facility Agent and the
Letter of Credit Issuer, and the other financial institutions party thereto, as
the same may be amended from time to time, and all other amounts owed by the
Partnership to the Letter of Credit Bank hereunder.
This is one of the LOC Loan Notes referred to in the Letter of Credit
Agreement and is entitled to the benefits thereof and is subject to all terms,
provisions and conditions thereof. Capitalized terms used and not defined herein
shall have the meanings set forth in the Letter of Credit Agreement.
This LOC Loan Note is made in connection with and is secured by, among
other instruments, the provisions of the Senior Collateral Documents. Reference
is hereby made to the Letter of Credit Agreement and the Senior Collateral
Documents for the provisions, among others, with respect to the custody and
application of the Senior Collateral, the nature and extent of the security
provided thereunder, the rights, duties and obligations of the Partnership and
the rights of the holder of this LOC Loan Note.
The principal amount hereof is payable in accordance with the Letter of
Credit Agreement, and such principal amount may be prepaid solely in accordance
with the Letter of Credit Agreement, including without limitation any prepayment
fees and premiums provided for therein.
E-1
The Partnership further agrees to pay, in lawful money of the United
States of America and in immediately available funds, interest from the date
hereof on the unpaid and outstanding principal amount hereof until such unpaid
and outstanding principal amount shall become due and payable (whether at stated
maturity, by acceleration or otherwise) at the rates of interest and at the
times set forth in the Letter of Credit Agreement and the Partnership agrees to
pay other fees and costs as stated in the Letter of Credit Agreement.
If any payment on this LOC Loan Note becomes due and payable on a date
which is not a Banking Day, such payment shall be made on the first succeeding,
or next preceding, Banking Day, in accordance with the terms of the Letter of
Credit Agreement.
All payments and prepayments made on account of the principal balance of
the LOC Loans shall be recorded by the Letter of Credit Bank on the grid
attached hereto, provided that failure to make such a notation shall not affect
or diminish the Partnership's obligation to repay all amounts due on this LOC
Loan Note, as and when due.
Upon the occurrence and during the continuation of any one or more Events
of Default, all amounts then remaining unpaid on this LOC Loan Note may become
or be declared to be immediately due and payable as provided in the Letter of
Credit Agreement and the other Credit Documents.
The Partnership agrees to pay all costs and expenses, including without
limitation attorneys' fees, incurred in connection with the interpretation or
enforcement of this LOC Loan Note.
This LOC Loan Note has been executed and delivered in and shall be
construed and interpreted in accordance with and governed by the laws of the
State of New York, without reference to conflicts of laws (other than Section
5-1401 of the New York General Obligation Law).
E-2
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: _________________________
Name:
Title:
E-3
E-4
Prepayment or Outstanding Notation
Date Advance Repayment Balance Made By
---- ------- --------- ------- -------
E-5
EXHIBIT F
NOTICE OF LOC LOANS
[DATE]
Credit Suisse First Boston,
as L/C Facility Agent
Eleven Madison Avenue
New York, New York 10010
Attn: [______________]
Re: Batesville Project
This Notice of LOC Loans is delivered to you pursuant to Section
2.2(b) of that certain Letter of Credit and Reimbursement Agreement, dated as of
August 28, 1998 (the "Letter of Credit Agreement"), among the Partnership,
Credit Suisse First Boston as the L/C Facility Agent and the Letter of Credit
Issuer, and the other financial institutions party thereto. All capitalized
terms used herein shall have the respective meanings specified in Letter of
Credit Agreement unless otherwise defined herein.
. The Partnership requests the following funding options for the LOC Loans
made on [________ __, ____] in connection with the drawing under the VEPCO
Letter of Credit-[A][B] made on [________ __, ____]:
a. Base Rate Loans: Amount $[__________].
b. LIBOR Loans:
Amount [Requested] Initial Interest Period
------ -----------------------------------
$[________] [________] months
$[________] [________] months
$[________] [________] months
F-1
LSP ENERGY LIMITED PARTNERSHIP,
By: LSP Energy, Inc.,
its general partner
By: _________________________
Name:
Title:
F-2
F-3
EXHIBIT G
FORM OF CONFIRMATION OF INTEREST PERIOD SELECTION
[Date]
Credit Suisse First Boston,
as L/C Facility Agent
Eleven Madison Avenue
New York, New York 10010
Attn: [______________]
Re: Batesville Project
This Confirmation of Interest Period Selection is delivered to you
pursuant to Section 2.2(f)(ii) of that certain Letter of Credit and
Reimbursement Agreement, dated as of August 28, 1998 (the "Letter of Credit
Agreement"), among the Partnership, Credit Suisse First Boston as the L/C
Facility Agent and the Letter of Credit Issuer, and the other financial
institutions party thereto. All capitalized terms used herein shall have the
respective meanings specified in the Letter of Credit Agreement unless otherwise
defined herein.
The Confirmation of Interest Period Selection relates to $[________]
of LIBOR LOC Loans. This Confirmation of Interest Period Selection constitutes a
confirmation that effective [________], [____] (which shall be the last day of
an Interest Period):
1. The [Requested] Interest Period for $[________] [$1,000,000 and
increments of $100,000] of such LIBOR LOC Loans shall be [______] months.
2. The [Requested] Interest Period for $[________] [$1,000,000 and
increments of $100,000] of such LIBOR LOC Loans shall be [______] months.
3. The [Requested] Interest Period for $[________] [$1,000,000 and
increments of $100,000] of such LIBOR LOC Loans shall be [______] months.
G-1
This notice shall be effective only if delivered to L/C Facility
Agent as a Confirmation of Interest Period Selection made pursuant to Section
2.2(f)(ii) of the Letter of Credit Agreement.
LSP ENERGY LIMITED PARTNERSHIP,
By: LSP Energy, Inc.,
its general partner
By: ________________________
Name:
Title:
The undersigned acknowledges receipt of a copy of this Confirmation of Interest
Period Selection:
Credit Suisse First Boston,
as L/C Facility Agent
By: ________________________
Name:
Title:
G-2
G-3
EXHIBIT H
FORM OF NOTICE OF CONVERSION OF LOAN TYPE
[Date]
Credit Suisse First Boston,
as L/C Facility Agent
Eleven Madison Avenue
New York, New York 10010
Attn: [______________]
Re: Batesville Project
1. Reference is hereby made to that certain Letter of Credit and
Reimbursement Agreement, dated as of August 28, 1998 (the "Letter of Credit
Agreement"), among the Partnership, Credit Suisse First Boston as the L/C
Facility Agent and the Letter of Credit Issuer, and the other financial
institutions party thereto. All capitalized terms used herein shall have the
respective meanings specified in the Letter of Credit Agreement unless otherwise
defined herein.
2. Pursuant to Section 2.2(g) of the Letter of Credit Agreement, the
Partnership hereby notifies the L/C Facility Agent that this Notice of
Conversion of Loan Type relates to $[________] of LOC Loans and further notifies
the L/C Facility Agent:
(a) the conversion of $[________] of such LOC Loans from a
[Base Rate/LIBOR] LOC Loan to a [Base Rate/LIBOR] LOC Loan;
(b) that the effective date of the conversion shall be
[________], [____], which is a Banking Day and which shall be the first
day after the last day of an Interest Period if converting from LIBOR LOC
Loans;
H-1
(c) if converting to LIBOR LOC Loans, the following Interest
Periods are selected:
Amount [Requested] Initial Interest Period
------ -----------------------------------
$[_________] [________] months
$[_________] [________] months
$[_________] [________] months
IN WITNESS WHEREOF, The Partnership has executed this Notice of
Conversion of Loan Type on the date set forth above.
LSP ENERGY LIMITED PARTNERSHIP,
By: LSP Energy, Inc.,
its general partner
By: ________________________
Name:
Title:
The undersigned acknowledges receipt of a copy of this Notice of Conversion of
Loan Type:
Credit Suisse First Boston,
as L/C Facility Agent
By: ________________________
Name:
Title:
X-0
X-0
XXXXXXX X-0
BANK WITHHOLDING CERTIFICATE (TREATY)
LSP Energy Limited Partnership
c/o LS Power, LLC
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Credit Suisse First Boston,
as L/C Facility Agent
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Re: Batesville Project
Ladies and Gentlemen:
In connection with the Letter of Credit and Reimbursement Agreement, dated
as of August 28, 1998 (the "Letter of Credit Agreement"), among the Partnership,
Credit Suisse First Boston as the L/C Facility Agent and the Letter of Credit
Issuer, and the other financial institutions party thereto, the undersigned
hereby certifies, represents and warrants that [Name of relevant Letter of
Credit Bank or the L/C Facility Agent] is a [name of country] corporation and is
currently exempt from any U.S. federal withholding tax on amounts paid to it
from U.S. sources under the Letter of Credit Agreement by virtue of compliance
with the provisions of the Income Tax Convention between the United States and
[name of country], signed [date], [as amended]. Our fiscal year is the twelve
months ending [_________].
The undersigned (a) is a corporation organized under the laws of [name of
country] whose registered business is managed or controlled in [name of
country], (b) [does not have a permanent establishment or fixed based in the
United States/does have a permanent establishment or fixed base in the United
States but the Letter of Credit Agreement is not effectively connected with such
permanent establishment or fixed base],
I-1-1
(c) is not exempt from tax on the income in [name of country] and (d) is the
beneficial owner of the income.
We enclose two signed copies of Form 1001 of the U.S. Internal Revenue
Service.
Yours faithfully,
[NAME OF RELEVANT LETTER OF CREDIT
BANK]
By: _________________________
Name:
Title:
I-1-2
EXHIBIT I-2
LSP Energy Limited Partnership
c/o LS Power, LLC
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Credit Suisse First Boston,
as L/C Facility Agent
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Re: Batesville Project
Ladies and Gentlemen:
In connection with that certain Letter of Credit and Reimbursement
Agreement, dated as of August 28, 1998 (the "Letter of Credit Agreement"), among
the Partnership, Credit Suisse First Boston as the L/C Facility Agent and the
Letter of Credit Issuer, and the other financial institutions party thereto, the
undersigned hereby certifies, represents and warrants that [name of
Transferee/Participant] is entitled to exemption from withholding tax on
payments to it under the Letter of Credit Agreement under the provisions of
Section 1441(c) of the Internal Revenue Code of 1986, as amended, of the United
States of America.
We enclose two signed copies of Form 4224 of the U.S. Internal Revenue
Service.
Yours faithfully,
[Name of Transferee/Participant]
By:_________________________
I-2-1
Name:
Title:
I-2-2
AMENDMENT NO. 1 TO
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT, dated as of December 15, 1998 (this "Amendment"), is by and among LSP
ENERGY LIMITED PARTNERSHIP, a Delaware limited partnership (the "Partnership"),
CREDIT SUISSE FIRST BOSTON in its capacity as the L/C Facility Agent, CREDIT
SUISSE FIRST BOSTON in its capacity as the Letter of Credit Issuer and each of
the Letter of Credit Banks party to the Letter of Credit Agreement (as defined
below).
RECITALS
WHEREAS, the Partnership, the L/C Facility Agent, the Letter of
Credit Issuer and the Letter of Credit Banks entered into the Letter of Credit
and Reimbursement Agreement, dated as of August 28, 1998 (the "Letter of Credit
Agreement");
WHEREAS, simultaneously with the execution and delivery of the
Letter of Credit Agreement, the Partnership, LSP Batesville Funding Corporation,
LSP Batesville Holding, LLC, Credit Suisse First Boston as the Tranche A
Facility Agent, the L/C Facility Agent, the Administrative Agent, the Collateral
Agent, the Securities Intermediary and IBJ Xxxxxxxx Bank & Trust Company as the
Intercreditor Agent entered into the Common Agreement, dated as of August 28,
1998 (the "Original Common Agreement");
WHEREAS, the Partnership, the Bank Facility Agent, the L/C Facility
Agent, the Administrative Agent, the Collateral Agent and the Securities
Intermediary are entering into the Amended and Restated Common Agreement, dated
as of December 15, 1998 (the "Common Agreement"), in order to amend and restate
the Original Common Agreement in its entirety;
WHEREAS, in connection with the foregoing, the Partnership, the L/C
Facility Agent, the Letter of Credit Issuer and the Letter of Credit Banks wish
to amend the Letter of Credit Agreement in the manner set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1 Definitions. Except as otherwise expressly provided,
capitalized terms used in this Amendment shall have the meanings given in the
Letter of Credit Agreement (including definitions of terms incorporated therein
from the Common Agreement).
Section 1.2 Rules of Interpretation. Except as otherwise expressly
provided, the rules of interpretation set forth in Exhibit A to the Common
Agreement shall apply to this Amendment.
ARTICLE II
AMENDMENTS; CONFIRMATION
Section 2.1 Amendments. The parties hereto agree that the Letter of Credit
Agreement is hereby amended as follows:
(a) Section 1.1(b) of the Letter of Credit Agreement is hereby
amended by:
(i) replacing the term "Closing Date" with the term "Original
Closing Date" in the second line of clause (i) of the definition of
"Applicable Margin" and in the second line of clause (ii) of the
definition of "Applicable Margin";
(ii) replacing the term "Term-Conversion" with the term
"Completion" in each of the second, third and fifth lines of clause (i) of
the definition of "Applicable Margin" and in each of the second, third and
fifth lines of clause (ii) of the definition of "Applicable Margin";
(iii) replacing the term "Closing Date" with the term
"Original Closing Date" in the second line of the definition of
"Availability Date";
2
(iv) inserting the following definition after the definition
of "Letter of Credit Commitment":
"Letter of Credit Maturity Date" shall mean, (i) in the case
of the LOC Loan Letters of Credit, the LOC Loan Maturity Date, and (ii) in
the case of the VEPCO Letter of Credit-C, the Termination Date for such
Letter of Credit.; and
(v) deleting the definition of "LIBOR Rate LOC Loan" and
inserting the following definition in lieu thereof:
"LIBOR LOC Loan" shall mean any LOC Loan made and/or being
maintained at a rate of interest equal to the LIBOR Rate.;
(b) Section 2.2(f)(i) of the Letter of Credit Agreement is hereby
amended by replacing the term "Closing Date" with the term "Original Closing
Date" in the fifth line of such Section;
(c) Section 2.2(f)(ii) of the Letter of Credit Agreement is hereby
amended by replacing the letter "(h)" with the letter "(f)" after the phrase "in
accordance with this clause" in the thirteenth line of such Section;
(d) Section 2.2(h)(ii) of the Letter of Credit Agreement is hereby
amended by deleting clause (B) of such Section and inserting the following
clause in lieu thereof:
"(B) Section 7.3(c), 7.9(c), 7.9(g), 7.10, 7.11(a), 7.11(c), 7.11(d),
7.11(e) or 7.11(f) of the Common Agreement";
(e) Section 2.3(a) of the Letter of Credit Agreement is hereby
amended by (i) replacing the term "Closing Date" with the term "Original Closing
Date" in the second and ninth lines of such Section, (ii) replacing the term
"Term- Conversion" with the term "Completion" in each of the fourteenth,
fifteenth, sixteenth and seventeenth lines of such Section and (iii) deleting
the phrase ", as applicable" after the phrase "denominator of which is 360" in
the twenty-third line of such Section;
3
(f) Section 2.4(g) of the Letter of Credit Agreement is hereby
amended by replacing the term "Closing Date" with the term "Original Closing
Date" in the second line of such Section;
(g) Article 4 of the Letter of Credit Agreement is hereby amended by
replacing the term "Closing Date" with the term "Original Closing Date" in the
second line of such Section;
(h) Section 6.2(a) of the Letter of Credit Agreement is hereby
amended by replacing the term "L/C Facility Bank" with the term "L/C Facility
Agent" in the eighth line of such Section;
(i) Section 6.2(b) of the Letter of Credit Agreement is hereby
amended by deleting the phrase "Subject to the Intercreditor Agreement, upon" in
the first line of such Section and replacing it with the word "Upon";
(j) The introductory paragraph of Section 7.9 of the Letter of
Credit Agreement is hereby amended by deleting the phrase "the Intercreditor
Agreement and of" after the phrase "Subject to the provisions of" in the first
line of such Section;
(k) Section 7.9(h) of the Letter of Credit Agreement is hereby
amended by deleting the word "Senior" before the words "Collateral Document" in
the second line of such Section;
(l) Section 7.9(j) of the Letter of Credit Agreement is hereby
amended by deleting the word "Senior" before the word "Collateral" in each of
the first, second and third lines of such Section;
(m) Section 7.13 of the Letter of Credit Agreement is hereby amended
by deleting the word "Senior" after the phrase "release of any material" in the
nineteenth line of such Section;
(n) Section 7.16(a) of the Letter of Credit Agreement is hereby
amended by (i) deleting the phrase "L/C Facility Agent is required to cast a
vote with respect to any consent, waiver, approval or direction in accordance
with Article 4 of the Intercreditor Agreement or the" after the phrase "In each
instance that the" in the first line of such Section and (ii) deleting the
phrase "or in the notice provided by the Intercreditor Agent to
4
the L/C Facility Agent pursuant to Article 4 of the Intercreditor Agreement"
after the phrase "timeframe specified in the Common Agreement" in the sixth and
seventh lines of such Section;
(o) Section 7.16(b) of the Letter of Credit Agreement is hereby
amended by (i) deleting the phrase "Subject to the provisions of the
Intercreditor Agreement, the" in the first and second lines of the introductory
portion of such Section and replacing it with the word "The", (ii) deleting the
word "of" between the words "waiver" and "other" in the first line of clause
(iii) of such Section and replacing it with the word "or", and (iii) deleting
the phrase "therein or in the Intercreditor Agreement" in the third line of
clause (iii) of such Section and replacing it with the phrase "herein or in the
Common Agreement";
(p) Section 8.13 of the Letter of Credit Agreement is hereby amended
by deleting the word "Senior" before the words "Collateral Documents" in each of
the fourth and fifth lines of such Section; and
(q) Exhibit E to the Letter of Credit Agreement is hereby amended by
deleting the word "Senior" from each of the second, third and fifth lines of the
third paragraph of such Exhibit.
Section 2.2 Confirmation. The amendments herein are limited precisely as
written and shall not be deemed to be a consent or waiver to, or modification
of, any other term or condition in the Letter of Credit Agreement or any of the
documents referred to herein or therein. Except as expressly amended hereby, the
Letter of Credit Agreement is ratified and confirmed in all respects. On and
after the date hereof, whenever the Letter of Credit Agreement is referred to in
any of the Operative Documents or in any of the other documents or papers to be
executed and delivered in connection therewith or with the Letter of Credit
Agreement, such term shall be deemed to mean the Letter of Credit Agreement as
amended hereby.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1 Governing Law. This Amendment shall be governed by the laws of
the State of New York of the United States of America and shall for all purposes
be governed by and construed in accordance with the laws of such state without
regard to the
5
conflict of law rules thereof other than Section 5-1401 of the New York General
Obligations Law.
Section 3.2 Headings Descriptive. The headings of the several sections of
this Amendment are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Amendment.
Section 3.3 Severability. In case any provision in or obligation under
this Amendment shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 3.4 Counterparts. This Amendment may be executed in any number of
counterparts, each of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their officers thereunto duly authorized as
of the date first above written.
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President
and Secretary
CREDIT SUISSE FIRST BOSTON,
in its capacity as the L/C Facility Agent
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
CREDIT SUISSE FIRST BOSTON,
in its capacity as the Letter of Credit Issuer
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Amendment No. 1 to Letter of Credit Agreement
CREDIT SUISSE FIRST BOSTON,
in its capacity as a Letter of Credit Bank
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Amendment No. 1 to Letter of Credit Agreement
AMENDMENT NO. 2 TO
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT, dated as of May 21, 1999 (this "Amendment"), is by and among LSP
ENERGY LIMITED PARTNERSHIP, a Delaware limited partner ship (the "Partnership"),
CREDIT SUISSE FIRST BOSTON in its capacity as the VEPCO L/C Agent, CREDIT SUISSE
FIRST BOSTON in its capacity as the VEPCO L/C Issuer and each of the VEPCO L/C
Banks party to the VEPCO L/C Agreement.
RECITALS
WHEREAS, the Partnership, the VEPCO L/C Agent, the VEPCO L/C Issuer
and the VEPCO L/C Banks entered into the Letter of Credit and Reimbursement
Agreement, dated as of August 28, 1998, as amended (the "VEPCO L/C Agreement");
WHEREAS, simultaneously with the execution and delivery of the VEPCO
L/C Agreement, the Partnership, LSP Batesville Funding Corporation (the "Funding
Corporation"), LSP Batesville Holding, LLC, Credit Suisse First Boston as
Tranche A Facility Agent and VEPCO L/C Agent, and IBJ Xxxxxxxx Bank & Trust
Company as Administrative Agent, Collateral Agent, Securities Intermediary and
Intercreditor Agent entered into the Common Agreement, dated as of August 28,
1998 (the "Original Common Agreement");
WHEREAS, the Partnership and Credit Suisse First Boston as Bank
Facility Agent, VEPCO L/C Agent, Administrative Agent, Collateral Agent and
Securities Intermediary entered into the Amended and Restated Common Agreement,
dated as of December 15, 1998 (the "Supplemental Common Agreement"), in order to
amend and restate the Original Common Agreement in its entirety;
WHEREAS, in connection with the execution and delivery of the
Supplemental Common Agreement, the Partnership, the VEPCO L/C Agent, the VEPCO
L/C Issuer and the VEPCO L/C Banks entered into Amendment No. 1 to VEPCO L/C
Agreement, dated as of December 15, 1998;
WHEREAS, the Partnership and the Funding Corporation have determined
to issue (i) $150,000,000 aggregate principal amount of their 7.164% Senior
Secured Bonds due January 15, 2014 (the "Series A Bonds") and (ii) $176,000,000
aggregate principal amount of their 8.160% Senior Secured Bonds due July 15,
2025 (the "Series B Bonds" and, collectively with the Series A Bonds, the
"Bonds") pursuant to the Trust Indenture, dated as of the date hereof (the
"Indenture"), among the Partnership, the Funding Corporation and The Bank of
New York, as trustee (the "Trustee");
WHEREAS, in connection with the issuance and sale of the Bonds, the
Partnership, the Funding Corporation, the Collateral Agent, the Administrative
Agent and the Intercreditor Agent are entering into the Second Amended and
Restated Common Agreement, dated as of May 21, 1999 (the "Common Agreement") in
order to amend and restate the Supplemental Common Agreement in its entirety;
and
WHEREAS, in connection with the issuance and sale of the Bonds and
the execution of the Common Agreement and the other related Financing Documents,
the Partnership, the VEPCO L/C Agent, the VEPCO L/C Issuer and the VEPCO L/C
Banks wish to amend the VEPCO L/C Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 Definitions. Except as otherwise expressly provided,
capitalized terms used in this Amendment shall have the meanings given in the
VEPCO L/C Agreement (including definitions of terms incorporated therein from
the Indenture).
Section 1.2 Principles of Construction. Except as otherwise expressly
provided, the rules of interpretation set forth in the Indenture shall apply to
this Amendment.
ARTICLE II
AMENDMENTS; CONFIRMATION
Section 2.1 Amendments. The parties hereto agree that the VEPCO L/C
Agreement is hereby amended as follows:
2
(a) The following terms as used in the VEPCO L/C Agreement shall be
deemed to refer to and be replaced by the terms set forth below, as such terms
are defined in the Indenture:
(i) the term "Governmental Rule" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Applicable Law";
(ii) The term "L/C Facility Agent" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "VEPCO L/C Agent";
(iii) The term "Letter of Credit Issuer" as used in the VEPCO
L/C Agreement shall be deemed to refer to the term "VEPCO L/C Issuer";
(iv) The term "Letter of Credit Banks" as used in the VEPCO
L/C Agreement shall be deemed to refer to the term "VEPCO L/C Banks";
(v) The term "Letter of Credit Agreement" as used in the VEPCO
L/C Agreement shall be deemed to refer to the term "VEPCO L/C Agreement";
(vi) The term "Secured Obligations" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Senior Secured
Obligations";
(vii) The term "Collateral Documents" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Senior Security
Documents";
(viii) The term "Operative Documents" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Transaction Documents";
(ix) The term "Credit Documents" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Financing Documents";
(x) The term "Collateral" as used in the VEPCO L/C Agreement
shall be deemed to refer to the term "Senior Collateral";
(xi) The term "Secured Parties" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Senior Secured Parties";
3
(xii) The term "Repayment Date" as used in the VEPCO L/C
Agreement shall be deemed to refer to the term "Scheduled Payment Date";
(xiii) The term "VEPCO PPA" as used in the VEPCO L/C Agreement
shall be deemed to refer to the term "VEPCO Power Purchase Agreement";
(b) Section 1.1(a) of the VEPCO L/C Agreement is hereby amended by
deleting the current section and replacing it with the following:
"(i) Unless otherwise defined herein, terms defined in the
Indenture shall have such defined meanings when used herein.
(ii) Unless otherwise defined herein, terms defined in the
Supplemental Common Agreement (including, without limitation, the terms
"Banking Day," "Base Rate," "Default Rate," "Interest Period," "LIBOR
Rate" and "Original Closing Date") shall have such defined meanings when
used herein; provided, however, that if a term is defined in both the
Indenture and the Supplemental Common Agreement, the Indenture shall
control."
(c) Section 1.2 of the VEPCO L/C Agreement is hereby amended by
deleting the current Section and replacing it with the following:
"Section 1.2 Principles of Construction. Except as otherwise
expressly provided herein, the principles of construction set forth in the
Indenture shall apply to this Agreement.";
(d) Section 2.2(h)(ii)(B) of the VEPCO L/C Agreement is hereby
amended by replacing the phrase "Section 7.2(c)(ii), 7.2(d), 7.3(c), 7.9(c),
7.9(g), 7.10, 7.11(a), 7.11(c), 7.11(d), 7.11(e), 7.11(f) or 7.11(g)" and
replacing it with the phrase "Section 3.9(c) or 3.10 of the Common Agreement or
Section 6.3 of the Indenture";
(e) Section 2.2(h)(ii)(C) of the VEPCO L/C Agreement is hereby
amended by replacing the phrase "the Common Agreement" with the phrase "any
other Financing Document";
4
(f) Article 3 of the VEPCO L/C Agreement is hereby amended by
inserting the word "Supplemental" before the phrase "Common Agreement" in the
fifth line of such Article;
(g) Article 4 of the VEPCO L/C Agreement is hereby amended by
inserting the word "Supplemental" before the phrase "Common Agreement" in the
third and fifth lines of such Article;
(h) Article 5 of the VEPCO L/C Agreement is hereby amended by
replacing the phrase "Section 5.1 and Section 6.1 of the Common Agreement" with
the phrase "Section 4.1 and Section 5.1 of the Indenture" in the fifth line of
such Article;
(i) Section 6.1 of the VEPCO L/C Agreement is hereby amended by
replacing the phrase "Section 8.1 of the Common Agreement" with the phrase
"Section 8.1 of the Indenture" in the second line of such Section;
(j) Section 6.2(a) of the VEPCO L/C Agreement is hereby amended by
replacing the phrase "Section 8.1(e) of the Common Agreement" with the phrase
"Section 8.1(f) or Section 8.1(g)" in the second and eighth lines of such
Section;
(k) Section 6.2(b) of the VEPCO L/C Agreement is hereby amended by
(i) replacing the word "Upon" in the first line of such Section and replacing it
with the phrase "Subject to the Intercreditor Agreement, upon" and (ii)
inserting the word "Supplemental" before the phrase "Common Agreement" in the
fifth line of such Section;
(l) The introductory paragraph of Section 7.9 of the VEPCO L/C
Agreement is hereby amended by inserting the phrase "the Intercreditor Agreement
and of" after the phrase "Subject to the provisions of" in the first line of
such Section;
(m) Section 7.16(a) of the VEPCO L/C Agreement is hereby amended by
(i) inserting the phrase "VEPCO L/C Agent is required to cast a vote with
respect to any consent, waiver, approval or direction in accordance with Article
4 of the Intercreditor Agreement or the" after the phrase "In each instance that
the" in the first line of such Section and (ii) inserting the phrase "or in the
notice provided by the Intercreditor Agent to the L/C Facility Agent pursuant to
Article 4 of the Intercreditor Agreement" after the phrase "timeframe specified
in the Common Agreement" in the sixth and seventh lines of such Section;
5
(n) Section 7.16(b) of the VEPCO L/C Agreement is hereby amended by
(i) replacing the word "The" with the phrase "Subject to the provisions of the
Intercreditor Agreement, the" in the first and second lines of the introductory
portion of such Section and (ii) replacing the phrase "herein or in the Common
Agreement" with the phrase "therein or in the Intercreditor Agreement" in the
third line of clause (iii) of such Section;
(o) Section 8.1 of the VEPCO L/C Agreement is hereby amended by
replacing the phrase "Section 12.1 of the Common Agreement" with the phrase
"Section 7.1 of the Intercreditor Agreement in the fourth line of such Section;
(p) Section 8.20 of the VEPCO L/C Agreement is hereby amended by (i)
replacing the phrase "Section 5.1(j) and Section 12.4 of the Common Agreement"
with the phrase "Section 7.16 and Section 7.17 of the Intercreditor Agreement"
in the fourth and fifth lines of such Section and (ii) replacing the phrase
"such Section 5.1(j) and Section 12.4 or termination of the Common Agreement"
with the phrase Section 7.16 and Section 7.17 or termination of the Indenture"
in the sixth line of such Section;
(q) Section 8.23 of the VEPCO L/C Agreement is hereby amended by
replacing the phrase "Section 9.1 of the Common Agreement" with the phrase
"Section 14.1 of the Indenture" in the first and second lines of such Section;
and
(r) Schedule II of the VEPCO L/C Agreement is hereby amended by
deleting the current Schedule II and replacing it with the Schedule II attached
hereto as Exhibit A.
Section 2.2 Supplemental Common Agreement. The provisions of the
Supplemental Common Agreement which are incorporated by reference into the VEPCO
L/C Agreement pursuant to this Amendment shall not be affected by any amendment,
restatement, termination or other modification of the Supplemental Common
Agreement, including without limitation, the amendment and restatement of the
Supplemental Common Agreement effected by the Common Agreement. Capitalized
terms used in provisions of the Supplemental Common Agreement which are
incorporated by reference into the VEPCO L/C Agreement pursuant to this
Amendment shall have the meanings given to such terms in the Supplemental Credit
Agreement, which meanings shall not be affected by any amendment, restatement,
termination or other modification of the Supplemental Common
6
Agreement, including without limitation, the amendment and restatement of the
Supplemental Common Agreement effected by the Common Agreement.
Section 2.3 Confirmation. The amendments herein are limited precisely as
written and shall not be deemed to be a consent or waiver to, or modification
of, any other term or condition in the VEPCO L/C Agreement or any of the
documents referred to herein or therein. Except as expressly amended hereby, the
VEPCO L/C Agreement is ratified and confirmed in all respects. On and after the
date hereof, whenever the VEPCO L/C Agreement is referred to in any of the
Transaction Documents or in any of the other documents or papers to be executed
and delivered in connection therewith or with the VEPCO L/C Agreement, such term
shall be deemed to mean the VEPCO L/C Agreement as amended hereby.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1 Governing Law. This Amendment shall be governed by the laws of
the State of New York of the United States of America and shall for all purposes
be governed by and construed in accordance with the laws of such state without
regard to the conflict of law rules thereof other than Section 5-1401 of the New
York General Obligations Law.
Section 3.2 Headings Descriptive. The headings of the several sections of
this Amendment are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Amendment.
Section 3.3 Severability. In case any provision in or obligation under
this Amendment shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 3.4 Counterparts. This Amendment may be executed in any number of
counterparts, each of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
7
Section 3.5 Further Amendment and Restatement. The parties hereto hereby
agree that, at the request of any of the other parties hereto, the VEPCO L/C
Agreement shall be amended and restated to implement the amendments made by
this Amendment.
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their officers thereunto duly authorized as
of the date first above written.
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON,
in its capacity as the VEPCO L/C Agent
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
----------------------
Name: Xxxxxxxxx X. Naval
Title: Associate
CREDIT SUISSE FIRST BOSTON,
in its capacity as the VEPCO L/C Issuer
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
----------------------
Name: Xxxxxxxxx X. Naval
Title:
CREDIT SUISSE FIRST BOSTON,
in its capacity as a VEPCO L/C Bank
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
----------------------
Name: Xxxxxxxxx X. Naval
Title: Associate
EXHIBIT A
SCHEDULE II
AMORTIZATION SCHEDULE FOR LOC LOANS
The principal of, and interest on, outstanding LOC Loans will be
repaid in twenty (20) equal quarterly installments.
