EXECUTION COPY
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U.S.$525,079,198
SENIOR SECURED SHORT TERM BRIDGE CREDIT AGREEMENT
among
MERCURY CAYMAN HOLDCO, LTD.,
as the Borrower,
THE GUARANTORS NAMED HEREIN,
DEUTSCHE BANK SECURITIES INC.,
as Arranger,
BANKERS TRUST COMPANY,
as Lender and Secured Party
Dated as of December 28, 2000
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Table of Contents
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SECTION 1. Amount and Terms of Credit. .......................................1
1.1. The Commitments ...................................................1
1.2. Interest ..........................................................3
1.3. Interest Periods ..................................................4
1.4. Increased Costs, Illegality, etc ..................................5
1.5. Compensation ......................................................7
1.6. Change of Lending Office ..........................................7
SECTION 2. Fees; Termination of Commitments ..................................8
2.1. Fees ..............................................................8
2.2. Mandatory Termination of Commitments ..............................8
SECTION 3. Repayment, Prepayments and Taxes ..................................8
3.1. Scheduled Repayment ...............................................8
3.2. Voluntary Prepayments .............................................8
3.3. Mandatory Prepayments .............................................8
3.4. Method and Place of Payment .......................................9
3.5. Net Payments .....................................................10
3.6. Collection Accounts. .............................................11
SECTION 4A. Conditions Precedent to the Tranche A Borrowing ..................16
4A.1 Execution of Agreement; Tranche A Note ...........................16
4A.2 No Default; Representations and Warranties .......................16
4A.3 Notice of Borrowing ..............................................17
4A.4 Tranche A Irrevocable Instruction ................................17
4A.5 Corporate Documents; Proceedings .................................17
4A.6 Opinions of Counsel ..............................................17
4A.7 Consummation of the Transactions .................................18
4A.8 Capital Structure ................................................18
4A.9 Adverse Change ...................................................19
4A.10 Governmental and Other Approvals .................................19
4A.11 Litigation .......................................................20
4A.12 Stock Pledge Agreements ..........................................20
0X.00 Xxxxxxxxxxx XXX Facility .........................................20
4A.14 Cayman Loan Agreement ............................................20
4A.15 Collection Accounts ..............................................21
4A.16 Security Agreement ...............................................21
4A.17 Financial Statements; Projections ................................21
4A.18 Existing Indebtedness, Liens and Other Obligations ...............21
4A.19 Compliance with Applicable Law ...................................22
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4A.20 Payment of Fees ..................................................22
4A.21 Consent Letter ...................................................22
4A.22 Central Bank Approval ............................................22
4A.23 Inter-Company Notes ..............................................22
4A.24 Pledge of Inter-Company Notes ....................................22
4A.25 Fianza Solidaria .................................................22
4A.26 Other Documents ..................................................23
SECTION 4B. Conditions Precedent to the Tranche B Borrowing ..................23
4B.1 Execution of Tranche B Note ......................................23
4B.2 No Default; Representations and Warranties .......................23
4B.3 Notice of Borrowing ..............................................23
4B.4 Tranche B Irrevocable Instruction ................................23
4B.5 Consummation of the Transactions .................................23
4B.6 Gener Stock Pledge Agreements ....................................24
4B.7 Cayman Acquisition Value .........................................24
4B.8 Conditions Precedent to the Initial Borrowing ....................25
4B.9 Other Documents ..................................................25
SECTION 5. Representations, Warranties and Agreements .......................25
5.1. Corporate Status .................................................25
5.2. Corporate Power and Authority ....................................26
5.3. No Immunity ......................................................26
5.4. No Violation .....................................................26
5.5. Approvals ........................................................26
5.6. Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. ...................................27
5.7. Ranking ..........................................................29
5.8. Litigation .......................................................29
5.9. True and Complete Disclosure .....................................29
5.10. Use of Proceeds; Margin Regulations ..............................30
5.11. Tax Returns and Payments .........................................30
5.12. Employee Benefit Plans ...........................................30
5.13. Security Interests ...............................................30
5.14. Properties .......................................................31
5.15. Capitalization. ..................................................32
5.16. Compliance with Statutes, etc ....................................32
5.17. Investment Company Act ...........................................33
5.18. Public Utility Holding Company Act ...............................33
5.19. Environmental Matters ............................................33
5.20. Labor Relations ..................................................33
5.21. Patents, Licenses, Franchises and Formulas .......................34
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5.22. Transactions .....................................................34
5.23. Fees and Enforcement .............................................35
5.24. Form of Documentation ............................................35
5.25. Payment of Additional Amounts ....................................35
5.26. Fictitious Business Names ........................................35
5.27. Indebtedness .....................................................35
5.28. Hedging Transaction ..............................................36
SECTION 6. Affirmative Covenants ............................................36
6.1. Information Covenants ............................................36
6.2. Books, Records and Inspections ...................................37
6.3. Maintenance of Property ..........................................37
6.4. Corporate Existence and Franchises ...............................37
6.5. Compliance with Statutes .........................................37
6.6. Compliance with Environmental Laws ...............................38
6.7. Employee Benefit Plans ...........................................38
6.8. End of Fiscal Years and Fiscal Quarters ..........................38
6.9. Performance of Obligations .......................................38
6.10. Payment of Taxes .................................................38
6.11. Further Assurances ...............................................39
6.12. Cayman Loan ......................................................40
6.13. Pledge of ADS Shares .............................................40
6.14. Pledge of Gener Shares ...........................................40
6.15. Repayment of Inversiones OEA Inter-Company Loan ..................40
6.16. Post-Closing Equity Contribution .................................40
SECTION 7. Negative Covenants ...............................................41
7.1. Liens ............................................................41
7.2. Consolidation, Merger, Purchase or Sale of Assets, etc ...........41
7.3. Dividends ........................................................42
7.4. Indebtedness .....................................................42
7.5. Advances, Investments and Loans ..................................42
7.6. Transactions with Affiliates. ....................................43
7.7. Capital Expenditures .............................................43
7.8. Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Estatutos Sociales and
Certain Other Agreements .........................................43
7.9. Limitation on Certain Restrictions on Subsidiaries ...............44
7.10. Limitation on Issuance of Capital Stock. .........................44
7.11. Business .........................................................44
7.12. Limitation on Creation of Subsidiaries ...........................44
7.13. Maintenance of Collection Accounts ...............................45
7.14. No Additional Bank Accounts ......................................45
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SECTION 8. Events of Default ................................................46
8.1. Payments .........................................................46
8.2. Representations, etc .............................................46
8.3. Covenants ........................................................46
8.4. Default Under Other Agreements ...................................46
8.5. Bankruptcy, etc ..................................................47
8.6. Credit Documents .................................................47
8.7. Guaranties .......................................................48
8.8. Judgments ........................................................48
8.9. Change of Control ................................................48
8.10. Denial of Liability ..............................................48
8.11. Currency Restrictions ............................................48
8.12. Governmental Action ..............................................49
8.13. Terminatio n of Commitments ......................................49
8.14. Hedging Agreement ................................................49
SECTION 9. Guaranty. ........................................................49
9.1. The Guaranteed Obligations .......................................49
9.2. Continuing Obligation ............................................50
9.3. No Discharge .....................................................50
9.4. Tolling of Statute of Limitations ................................51
9.5. Bankruptcy .......................................................51
9.6. Independent Obligation ...........................................51
9.7. Authorization ....................................................51
9.8. Reliance .........................................................52
9.9. Subordination ....................................................52
9.10. Waiver. ..........................................................53
9.11. Nature of Liability ..............................................54
9.12. Contribution .....................................................54
SECTION 10. Definitions ......................................................55
SECTION 11. The Collateral and the Arranger ..................................72
11.1. Administration of the Collateral .................................72
11.2. Application of Proceeds ..........................................72
11.3. The Arranger .....................................................73
SECTION 12. Miscellaneous ....................................................73
12.1. Payment of Expenses, etc .........................................73
12.2. Right of Setoff ..................................................74
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12.3. Notices ..........................................................74
12.4. Benefit of Agreement; Assignments; Participations. ...............75
12.5. No Waiver; Remedies Cumulative ...................................77
12.6. Calculations; Computations; Accounting Terms. ....................77
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. ............................................78
12.8. Counterparts .....................................................79
12.9. Effectiveness ....................................................79
12.10. Headings Descriptive .............................................80
12.11. Amendment or Waiver ..............................................80
12.12. Survival .........................................................80
12.13. Domicile of Bridge Loans .........................................80
12.14. Judgment Currency ................................................80
12.15. Waiver of Sovereign Immunity .....................................80
12.16. English Language .................................................81
12.17. Register .........................................................81
12.18. Confidentiality ..................................................82
Schedule A Commitments
Schedule B Lender Addresses
Schedule 3.6 Collection Accounts
Schedule 4.11 Post-Closing Collateral Actions
Schedule 4.18 Existing Indebtedness
Schedule 5.6(b) Pro Forma Financial Statements
Schedule 5.15 Capitalization
Schedule 5.25 Withholding Taxes
Exhibit A Notice of Borrowing
Exhibit B-1 Tranche A Note
Exhibit B-2 Tranche B Note
Exhibit C Inversiones OEA Facility
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EXECUTION COPY
SENIOR SECURED SHORT TERM BRIDGE CREDIT AGREEMENT, dated as of December 28,
2000, among MERCURY CAYMAN HOLDCO, LTD., a company organized and existing under
the laws of the Cayman Islands (the "Borrower"), each of the Guarantors party
hereto, BANKERS TRUST COMPANY as Lender and Secured Party (in such respective
capacities, the "Lender" or the "Secured Party"), and DEUTSCHE BANK SECURITIES
INC., as Arranger (the "Arranger").
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein, the
Lender is willing to make available to the Borrower the Bridge Loans provided
herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amount and Terms of Credit.
1.1. The Commitments.
(a) The Tranche A Bridge Loan Commitments. Subject to and upon the terms
and conditions set forth herein, the Lender agrees to make a bridge loan (a
"Tranche A Bridge Loan") to the Borrower, which Tranche A Bridge Loan: (i) only
may be incurred on the Initial Borrowing Date; (ii) shall be denominated in U.S.
Dollars; (iii) shall be incurred and maintained as a Base Rate Loan or, to the
extent available and requested by the Borrower, a LIBOR Loan and (iv) shall not
exceed at the time of incurrence thereof on the Initial Borrowing Date that
aggregate principal amount which equals the Tranche A Bridge Loan Commitment as
in effect on the Initial Borrowing Date. The Tranche A Bridge Loan shall be made
in a single Borrowing on the Initial Borrowing Date, and, once repaid or
prepaid, may not be reborrowed. The amount of the Lender's Tranche A Bridge Loan
Commitment in excess of the Lender's Tranche A Bridge Loan shall expire on the
Initial Borrowing Date.
(b) The Tranche B Bridge Loan Commitments. Subject to and upon the terms
and conditions set forth herein, the Lender agrees to make a bridge loan (a
"Tranche B Bridge Loan") to the Borrower, which Tranche B Bridge Loan: (i) only
may be incurred on the Tranche B Borrowing Date; (ii) shall be denominated in
U.S. Dollars; (iii) shall be incurred and maintained as a Base Rate Loan; and
(iv) shall not exceed at the time of incurrence thereof on the Tranche B
Borrowing Date that aggregate principal amount which equals the Cayman
Acquisition Funding Requirement, determined as of the Tranche B Borrowing Date.
The Tranche B Bridge Loan shall be made in a single Borrowing on the Tranche B
Borrowing Date, and, once repaid or prepaid, may not be
reborrowed. The amount of the Lender's Tranche B Bridge Loan Commitment in
excess of the Lender's Tranche B Bridge Loan shall expire on the Tranche B
Borrowing Date.
(c) Notice of Borrowing. When the Borrower desires to incur the Bridge
Loans hereunder, the Borrower shall give the Lender at its Notice Office at
least one Business Day's prior written notice thereof (in the case of Base Rate
Loans) and at least three Business Days' prior written notice thereof (in the
case of LIBOR Loans); provided, however, that any such notice shall be deemed to
have been given on a certain day only if given before 11:00 A.M. (New York time)
on such day. Such written notice (the "Notice of Borrowing") shall, except as
provided in Section 1.5, be irrevocable and shall be given by the Borrower
substantially in the form of Exhibit A hereto, appropriately completed to
specify the aggregate principal amount of the Bridge Loan to be made pursuant to
the Borrowing, the date of Borrowing (which shall be a Business Day) and whether
the respective Borrowing shall consist of a Base Rate Loan or a LIBOR Loan.
(d) Irrevocable Instruction. (i) Simultaneously with a Notice of Borrowing
delivered in connection with the Tranche A Bridge Loan, the Borrower shall
deliver to the Lender an irrevocable instruction (the "Tranche A Irrevocable
Instruction") in a form to be agreed prior to the Initial Borrowing Date, duly
executed by each of the Credit Parties other than Mercury Cayman III,
appropriately completed to direct the flow of funds with respect to such
Borrowing together with Equity Contribution A to be deposited through a series
of Collection Accounts maintained by such Credit Parties as a payment to an
account designated by Deutsche Bank Corredores de Bolsa for the purpose of
settling the Remate.
(ii) Simultaneously with a Notice of Borrowing delivered in connection
with the Tranche B Bridge Loans, the Borrower shall deliver to the Lender an
irrevocable instruction (the "Tranche B Irrevocable Instruction"), in a form to
be agreed prior to the Tranche B Borrowing Date, duly executed by each of the
Borrower, Mercury Cayman II, Inversiones CYC, Inversiones OEA and Inversions
Cachagua, appropriately completed to direct the flow of funds with respect to
such Borrowing together with Equity Contribution B to be deposited through a
series of their respective Collection Accounts into the Inversiones Cachagua NY
Collection Account to be applied to pay the Cayman Acquisition Price.
(e) Disbursement of Funds. No later than 1:00 p.m. (New York time) on the
date specified in each Notice of Borrowing, subject to the terms and conditions
set forth herein, the Lender will make available the Borrowing requested to be
made on such date in the manner provided below. All such amounts shall be made
available in Dollars and in immediately available funds to and on behalf of the
Borrower, in accordance with the applicable Irrevocable Instruction, the amount
(net of any Fees, costs and expenses due hereunder) to be applied in accordance
with the applicable Irrevocable Instruction.
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(f) Notes.
(i) The Borrower's obligation to pay the principal of, and interest on, the
Tranche A Bridge Loan made by the Lender shall be evidenced, at the Lender's
option, by a promissory note, duly executed and delivered by the Borrower and
substantially in the form of Exhibit B-1 hereto (the "Tranche A Note"), with
blanks appropriately completed in conformity herewith. Such Note shall (A) be
payable to the order of the Lender and be dated the date of execution thereof,
(B) be in a stated principal amount equal to the principal amount of the Tranche
A Bridge Loan and be payable in the unpaid principal amount evidenced thereby,
(C) mature on the Maturity Date, (D) bear interest as provided in Section 1.2,
and (E) be entitled to the benefits of this Agreement and the other Credit
Documents. Upon repayment in full of amounts due under the Tranche A Note, the
Lender shall return it to the Borrower.
(ii) The Borrower's obligation to pay the principal of, and interest on,
the Tranche B Bridge Loan made by the Lender shall be evidenced, at the Lender's
option, by a promissory note, duly executed and delivered by the Borrower and
substantially in the form of Exhibit B-2 hereto (the "Tranche B Note"), with
blanks appropriately completed in conformity herewith. Such Note shall (A) be
payable to the order of the Lender and be dated the date of execution thereof,
(B) be in a stated principal amount equal to the principal amount of the Tranche
B Bridge Loan and be payable in the unpaid principal amount evidenced thereby,
(C) mature on the Maturity Date, (D) bear interest as provided in Section 1.2,
and (E) be entitled to the benefits of this Agreement and the other Credit
Documents. Upon repayment in full of amounts due under such Note, the Lender
shall return it to the Borrower.
(iii) The Lender will maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to the Lender as
a result of the Bridge Loans, including the amounts of principal, interest and
other amounts payable and paid to the Lender from time to time under this
Agreement and the Notes evidencing such Bridge Loans. The entries made by the
Lender in such accounts shall constitute prima facie evidence of the existence
and amounts of the Bridge Loans and other Obligations therein recorded;
provided, however, that the failure of the Lender to maintain such account or
accounts, or any error therein, shall not in any manner affect the obligations
of the Borrower to repay or pay the Bridge Loans made by the Lender, accrued
interest thereon and the other Obligations of the Borrower to the Lender
hereunder in accordance with the terms of this Agreement.
1.2. Interest.
(a) The Borrower agrees to pay interest in respect of the unpaid principal
amount of each LIBOR Loan from the Borrowing Date thereof until the earlier of
(x) the maturity (whether by acceleration or otherwise) of such LIBOR Loan and
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(y) the conversion of such LIBOR Loan to a Base Rate Loan pursuant to Section
1.4 at a rate per annum which shall, at all times applicable thereto, be equal
to the sum of LIBOR for the relevant Interest Period plus the Applicable Margin.
(b) The Borrower agrees to pay interest in respect of the unpaid principal
amount of each Base Rate Loan from the Borrowing Date thereof until the maturity
(whether by acceleration or otherwise) of such Base Rate Loan at a rate per
annum which shall, at all times applicable thereto, be equal to the sum of the
Base Rate in effect from time to time plus the Applicable Margin.
(c) Interest shall accrue from and including the date of any Borrowing to
but excluding the date of any repayment thereof (determined in accordance with
Section 3.4) and shall be payable in arrears on each Interest Payment Date and
on any repayment or prepayment (on the amount repaid or prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(d) Overdue principal and, to the extent permitted by law, overdue interest
in respect of each Bridge Loan and any other overdue amount payable hereunder
shall bear interest at a rate per annum equal to (i) in the case of principal of
any Bridge Loan, the rate per annum equal to 2.00% plus the product of (A) the
Overdue Ratio times (B) the rate otherwise then borne by such Bridge Loan and
(ii) in the case of interest or such other amounts, the rate per annum equal to
2.00% plus the product of (A) the Overdue Ratio times (B) the rate otherwise
applicable to Base Rate Loans; provided that at no time shall the interest rate
payable pursuant to this clause (d) on any amount due hereunder exceed 20% per
annum. Interest which accrues under this Section 1.2(d) shall be payable on
demand. This paragraph (d) and the Borrower's payment of any increased interest
rate provided hereunder shall not (i) relieve the Borrower of its obligation to
pay amounts hereunder when and as due, (ii) cure any Default or Event of D
efault resulting from a failure to pay such amounts nor (ii) prevent the Lender
from foreclosing on the Collateral or exercising any other available remedies as
a result of such a failure.
(e) Upon each Interest Determination Date, the Lender shall determine the
interest rate for each Interest Period applicable to the LIBOR Loans and shall
promptly notify the Borrower thereof. Each such determination shall, absent
demonstrable error, be final and conclusive and binding on all parties hereto.
1.3. Interest Periods. The LIBOR interest period (each, an "Interest
Period"), if any, applicable to the Tranche A Loans shall be the period
commencing on the Initial Borrowing Date and ending on the eleventh Business Day
thereafter. If the Maturity Date shall not have occurred by the end of the
Interest Period, the Bridge Loans will be extended from day to day as Base Rate
Loans.
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1.4. Increased Costs, Illegality, etc.
(a) In the event that the Lender shall have determined in good faith (which
determination shall, absent demonstrable error, be final and conclusive and
binding upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any changes
arising after the Effective Date affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of "LIBOR";
(ii) at any time, that the Lender shall incur increased costs or reductions
in the amounts received or receivable hereunder with respect to any Bridge
Loan (other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of taxes, which shall be governed by
Section 3.5) because of any change since the Effective Date in any applicable
law or governmental rule, regulation, order, guideline, or request (whether
or not having the force of law), or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule,
regulation, order, guideline or request (such as, for example, but not
limited to, a change in official reserve requirements, but, in all events,
excluding, in the case of LIBOR Loans, any reserves required under Regulation
D to the extent such reserves have been included in the computation of LIBOR)
or because any such change, interpretation or administration shall impose on
the Lender any other conditio n relating to the Credit Documents or the
Bridge Loans; or
(iii) at any time, that the making or continuance of any LIBOR Loan has
become unlawful by compliance by the LIBOR Loan Lender in good faith with any
law, governmental rule, regulation, guideline or order (or would conflict
with any such governmental rule, regulation, guideline or order not having
the force of law but with which the LIBOR Loan Lender customarily complies
even though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, the Lender shall promptly give notice to the
Borrower of such determination. After the occurrence of any such event, (x) in
the case of clause (i) above, Bridge Loans shall no longer be available as LIBOR
Loans, and any Notice of Borrowing given by the Borrower with respect to Bridge
Loans which have not yet been incurred shall be deemed rescinded by the Borrower
and outstanding LIBOR Loans shall be converted into Base Rate Loans until such
time as the circumstances giving rise to such notice by the Lender no longer
exist (which notice the Lender shall endeavor to give promptly after any express
determination thereof by the Lender), (y) in the case of clause
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(ii) above, the Borrower shall pay to the Lender, within 10 Business Days after
the Borrower's receipt of written demand therefor (accompanied by the written
notice referred to below), such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as the
Lender in its sole discretion shall determine) as shall be required to
compensate the Lender for such increased costs or reductions in amounts received
or receivable hereunder (a written notice as to the additional amounts owed to
the Lender, showing in reasonable detail the basis for the calculation thereof,
prepared in good faith and submitted to the Borrower by the Lender shall, absent
demonstrable error, be final and conclusive and binding upon all parties
hereto); provided that the Borrower shall not be required to compensate the
Lender pursuant to this clause (y) if the Lender fails to notify the Borrower
within six months after becoming aware of the event giving rise to such claim
for compensa tion; and provided further that, if the circumstances giving rise
to such claim have a retroactive effect, then such six-month period shall be
extended to include the period of such retroactive effect, and (z) in the case
of clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.4(b) as promptly as possible and, in any event, within the time period
required by law.
(b) At any time that any Bridge Loan is affected by the circumstances
described in Section 1.4(a)(ii) or (iii), the Borrower may (and in the case of a
Bridge Loan affected pursuant to Section 1.4(a)(iii) the Borrower shall) either
(x) if the affected Bridge Loan is then being made pursuant to a Borrowing,
cancel said Borrowing by giving the Lender telephonic notice (confirmed promptly
in writing) thereof, or (y) if the affected Bridge Loan is then outstanding,
upon at least five Business Days' notice to the Lender, (A) direct that the
Lender convert each such Bridge Loan into Base Rate Loans until such time as the
Lender notifies the Borrower that the circumstances specified in Section
1.4(a)(ii) or (iii) giving rise to such conversion no longer exist, or (B)
promptly prepay the Bridge Loans in full (but in no event later than 30 days
after the most recent Interest Determination Date), together with accrued
interest thereon to the date of repayment and any amounts payable pursuant to
Sections 1.4(c) and 1.5 below as a result of such prepayment.
(c) If the Lender determines that after the Effective Date the introduction
of or any change in any applicable law or governmental rule, regulation,
guideline, order, directive or request (whether or not having the force of law)
concerning capital adequacy, or any change in interpretation or administration
thereof by any governmental authority, will have the effect of increasing the
amount of capital required or expected to be maintained by the Lender or any
corporation controlling the Lender based on the existence of the Lender's
Commitment hereunder or its obligations hereunder, then the Borrower shall pay
to the Lender, within 10 Business Days after the Borrower's receipt of written
demand therefor, such additional amounts as shall be required to compensate the
Lender or such other corporation for the increased cost to the Lender or such
other corporation or the reduction in the rate of return to the Lender or
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such other corporation as a result of such increase of capital. In determining
such additional amounts, the Lender will act reasonably and in good faith,
provided that the Lender's determination of compensation owing under this
Section 1.4(c) shall, absent demonstrable error, be final and conclusive and
binding on all the parties hereto. The Lender, upon determining that any
additional amounts will be payable pursuant to this Section 1.4(c), will give
prompt written notice thereof to the Borrower, which notice shall be prepared in
good faith and show in reasonable detail the basis for calculation of such
additional amounts.
1.5. Compensation. The Borrower shall compensate the Lender, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting and the calculation of such compensation), for all losses,
reasonable expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by the Lender to fund the Bridge Loans, but
excluding loss of margin) which the Lender may sustain: (i) if for any reason
(other than a default by the Lender) the Borrowing of Bridge Loans does not
occur on a date specified therefor in the Notice of Borrowing (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.4(a) or
(b)); (ii) if any repayment or prepayment (including any repayment or prepayment
made pursuant to Section 1.4(b) or Section 3 or as a result of an acceleration
of the Bridge Loans pursuant to Section 8) occurs on a date which is not the
last day of an Int erest Period with respect thereto; (iii) if any prepayment of
its Bridge Loan is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Bridge Loans when required by the terms of this Agreement
or any Note held by the Lender or (y) any conversion made pursuant to Section
1.4(b). It is further understood and agreed that if any repayment of Bridge
Loans pursuant to Section 3 is made, any Bridge Loans are converted into another
Type pursuant to Section 1.4(b) or the Lender is replaced, in any such case on a
date which is not the last day of an Interest Period applicable thereto, such
repayment, conversion or replacement shall be accompanied by any amounts owing
to the Lender pursuant to this Section 1.5.
1.6. Change of Lending Office. The Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 1.4(a)(ii) or (iii),
Section 1.4(c) or Section 3.5 (other than with respect to the imposition of
Taxes in effect on the date hereof) with respect to the Lender, it will use
reasonable efforts (consistent with its internal policies) to change the
jurisdiction of its lending office if the making of such change (a) would avoid
the need to pay additional amounts or take any other actions under Section
1.4(a)(ii) or (iii) or Section 1.4(c), or (b) would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue
under Section 3.5, and such change would not, in the reasonable judgment of the
Lender, subject the Lender to any unreasonable cost or expense or be otherwise
disadvantageous to the Lender.
7
SECTION 2. Fees; Termination of Commitments.
2.1. Fees. The Borrower agrees to pay to the Lender a structuring fee of
$200,000 on the Initial Borrowing Date.
2.2. Mandatory Termination of Commitments. The Total Commitment (and the
Commitment of each Lender) shall terminate in its entirety on January 16, 2001,
unless the Initial Borrowing Date shall have occurred on or before such date.
SECTION 3. Repayment, Prepayments and Taxes.
3.1. Scheduled Repayment. The Borrower shall repay the principal
outstanding of the Bridge Loans on the Maturity Date.
3.2. Voluntary Prepayments. The Borrower shall have the right to prepay the
Bridge Loans, without premium or penalty, in whole or in part at any time and
from time to time on the following terms and conditions: (i) the Borrower shall
give the Lender prior to 12:00 noon (New York time) at its Notice Office at
least one Business Day's prior written notice of its intent to prepay LIBOR
Loans, or same Business Day notice of its intent to repay Base Rate Loans, and
the amount of such prepayment; (ii) each prepayment of Bridge Loans shall be in
an aggregate principal amount of at least $5,000,000; (iii) at the time of any
prepayment of any Bridge Loans pursuant to this Section 3.2 on any day other
than the last day of an Interest Period applicable thereto, the Borrower shall
pay the amounts required pursuant to Section 1.5; and (iv) each prepayment in
respect of any Bridge Loans pursuant to this Section 3.2 shall be applied to the
Tranche A Bridge Loans and the Tranche B Bridge Loans pro rata between the Brid
ge Loans (based on the then outstanding principal amount of Tranche A Bridge
Loans and Tranche B Bridge Loans).
3.3. Mandatory Prepayments.
(a) On each date after the Initial Borrowing Date upon which any Credit
Party shall receive any cash proceeds from any Debt Issuance, the Borrower shall
prepay outstanding principal of the Bridge Loans in an amount equal to 100% of
the Net Debt Proceeds of such Debt Issuance.
(b) In addition to any other mandatory prepayment pursuant to this Section
3.3, on each date on or after the Initial Borrowing Date upon which any Credit
Party or any of its Restricted Subsidiaries shall receive any cash proceeds from
any Disposition, the Borrower shall prepay outstanding principal of the Bridge
Loans in an amount equal to the Net Disposition Proceeds of such Disposition.
(c) In addition to any other mandatory prepayment pursuant to this Section
3.3, on each date on or after the Initial Borrowing Date upon which the Borrower
8
shall receive any cash proceeds from repayment of either Inter-Company Note, the
Borrower shall prepay the outstanding principal of the Bridge Loans in an amount
equal to the difference between the amount of such repayment proceeds and the
Post-Closing Equity Contribution.
(d) Each prepayment of Bridge Loans made pursuant to this Section 3.3 shall
be applied pro rata among the respective Bridge Loans of the Lender (based on
the then outstanding principal amount of Tranche A Bridge Loans and Tranche B
Bridge Loans).
3.4. Method and Place of Payment. Except as otherwise specifically provided
herein, all payments under this Agreement or under any Note shall be made to the
Lender not later than 12:00 Noon (New York time) on the date when due and shall
be made in Dollars in immediately available funds at the Payment Office of the
Lender. Any payments under this Agreement that are made later than 12:00 Noon
(New York time) on any day shall be deemed to have been made on the next
succeeding Business Day. Each repayment of principal shall be accompanied by
accrued but unpaid interest on the amount thereof from the date on which
interest was last paid plus any additional amount due under Section 1.5.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable
rate in effect imme diately prior to such extension. In the event of any foreign
exchange restriction or prohibition prevailing in Chile, the Borrower or the
other Credit Parties, as the case may be, shall make such payments in Dollars by
any lawful mechanism for the acquisition of Dollars.
In the event any operations to obtain Dollars must be undertaken with
respect to the payment of any amount due by the Borrower, interest shall
continue to accrue until payment is made to the Lender's account and otherwise
in the manner required hereunder. Nothing in this Agreement shall impair any of
the rights of the Lender under this Agreement, and nothing in this Agreement
shall be construed to entitle the Borrower to refuse to make payments hereunder
in Dollars for any reason whatsoever (other than full and final payment
indefeasibly in cash in Dollars of all amounts due hereunder), including,
without limitation, any of the following:
(x) the purchase of Dollars in Chile by any means becomes more onerous or
burdensome for the Borrower than as of the Effective Date; and
(y) the exchange rate in force in Chile increases significantly from that
in effect as of the Effective Date.
9
All costs, expenses and taxes payable in connection with this Section 3.4
shall be for the account of the Credit Parties.
3.5. Net Payments.
(a) All payments made by the Borrower hereunder or under any Note will be
made without setoff, counterclaim or other defense. All such payments will be
made free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding any tax imposed on or measured by the net income or net profits
of the Lender or its applicable lending office, or any branch or affiliate
thereof, and all franchise taxes, branch taxes, taxes on doing business or taxes
on the overall capital or net worth of the Lender or its applicable lending
office, or any branch or affiliate thereof, or similar taxes, in each case
imposed by the applicable taxing authority pursuant to the laws of the
jurisdiction (or any political subdivision thereof or therein) in which the
Lender, appli cable lending office, branch or affiliate is organized or located
or carries on business, or in which its principal executive office is located)
(all such taxes, levies, imposts, duties, fees, assessments or other charges and
related interest and penalties being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note; provided that the Borrower will
not be required to pay any additional amounts that are (i) attributable to the
Lender's failure to comply with subsection (b) below, (ii) described in Section
3.5(d) or (iii) attributable to the Lender's failure to be a Basel Bank. The
Borrower will furnish to the Lender within 45 days after the date the payment of
any Taxes is d ue pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless the Lender, and reimburse the Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by the Lender; provided
that, for any period with respect to which the Lender has failed to provide the
Borrower with the appropriate documentation described under Section 3.5(b), the
Lender shall not be entitled to indemnification under Section 3.5(a). A
certificate as to the amount of any such required indemnification payment
prepared in good faith by the Lender shall be final, conclusive and binding for
all purposes absent demonstrable error.
(b) Each Lender that is entitled to an exemption or reduction of any Taxes
under the laws of the applicable taxing jurisdiction, or any treaty to which
such jurisdiction is a party, with respect to payments under this Agreement or
under the Notes shall deliver to the Borrower (with a copy to the Administrative
Agent) any documentation prescribed by applicable law that is necessary to
permit such payments to
10
be made without withholding or at a reduced rate. Any fees charged by the
Chilean authorities to the Lender in obtaining or filing such documentation
shall be for the account of the Borrower.
(c) If the Lender receives a refund in respect of any amounts paid by the
Borrower pursuant to this Section 3.5, which refund is allocable to such
payment, it shall promptly notify the Borrower of such refund and shall promptly
repay such refund to the Borrower net of all out-of-pocket expenses of the
Lender; provided, however, that the Borrower, upon the request of the Lender,
agrees to repay the amount paid over to the Borrower by the Lender in the event
the Lender is required to repay such refund.
(d) If a Lender changes its residence, place of business or its applicable
lending office or takes any other similar action and the effect of such change
or action, as of the date thereof, would be to increase the additional amounts
that the Borrower is obligated to pay under Section 3.5(a), the Borrower shall
not be obligated to pay the amount of such increase.
3.6. Collection Accounts.
(a) The Borrower hereby establishes, effective on the Effective Date, and
shall until the Obligations have been paid in full and the Commitments of the
Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons (the "Borrower Collection
Account ") with the BT Securities Intermediary for the benefit of the Borrower
and the Secured Party, as their respective interests may appear, and shall
irrevocably instruct AES, its Subsidiaries and all other Persons to remit all
such capital contributions, dividends, distributions and other payments to the
Borrower Collection Account. All capital contributions, dividends,
distributions, payments and amounts received directly by the Borrower from AES
or the Lender or from any other source, shall immediately upon receipt be
deposited into the Borro wer Collection Account. The Borrower Collection Account
numbers and contact information is set forth on Schedule 3.6, as such Schedule
may be updated by the party establishing such account and the Collateral Agent.
(b) Inversiones Zapallar hereby establishes, effective on the Effective
Date, and shall until the Obligations have been paid in full and the Commitments
of the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons, which are not in the form
of Pesos (the "Inversiones Zapallar NY Collection Account") with the DB
Securities Intermediary for the benefit of Inversiones Zapallar and the Secured
Party, as their respective interests may appear, and shall
11
irrevocably instruct AES, its Subsidiaries and all other Persons to remit all
such capital contributions, dividends, distributions and other payments to the
Inversiones Zapallar NY Collection Account. All capital contributions,
dividends, distributions, payments and amounts received directly by Inversiones
Zapallar from its parent entity or its Subsidiaries or from any other source,
which are not in the form of Pesos, shall immediately upon receipt be deposited
into the Inversiones Zapallar NY Collection Account. The Inversiones Zapallar NY
Collection Account numbers and contact information is set forth on Schedule 3.6,
as such Schedule may be updated by the party establishing such account and the
Collateral Agent.
(c) Inversiones Zapallar hereby establishes, effective on the Effective
Date, and shall until the Obligations have been paid in full and the Commitments
of the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons, which are denominated in
Pesos (the "Inversiones Zapallar Chile Collection Account") with the DB
Securities Intermediary for the benefit of Inversiones Zapallar and the Secured
Party, as their respective interests may appear, and shall irrevocably instruct
AES, its Subsidiaries and all other Persons to remit all such capital
contributions, dividends, distributions and other payments to the Inversiones
Zapallar Chile Collection Account. All capital contributions, dividends,
distributions, payments and amounts received directly by Inversiones Zapallar
from its parent entity or its Subsidiaries or from any other source, which are
denominated in Pesos, shall immediately upon receipt be deposited into the
Inversiones Zapallar Chile Collection Account. The Inversiones Zapallar Chile
Collection Account numbers and contact information is set forth on Schedule 3.6,
as such Schedule may be updated by the party establishing such account and the
Collateral Agent.
(d) Mercury Cayman I hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons (the "Mercury Cayman I
Collection Account") with the BT Securities Intermediary for the benefit of
Mercury Cayman I and the Secured Party, as their respective interests may
appear, and shall irrevocably instruct AES, its Subsidiaries and all other
Persons to remit all such capital contributions, dividends, distributions and
other payments to the Mercury Cayman I Collection Account. All capital
contributions, dividends, distributions, payments and amounts received directly
by Mercury Cayman I from its parent entity or its Subsidiaries or from any other
source, shall immed iately upon receipt be deposited into the Mercury Cayman I
Collection Account. The Mercury Cayman I Collection Account numbers and contact
information is set forth on Schedule
12
3.6, as such Schedule may be updated by the party establishing such account and
the Collateral Agent.
(e) Mercury Cayman II hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons (the "Mercury Cayman II
Collection Account") with the BT Securities Intermediary for the benefit Mercury
Cayman II and the Secured Party, as their respective interests may appear, and
shall irrevocably instruct AES, its Subsidiaries and all other Persons to remit
all such capital contributions, dividends, distributions and other payments to
the Mercury Cayman II Collection Account. All capital contributions, dividends,
distributions, payments and amounts received directly by Mercury Cayman II from
its parent entity or its Subsidiaries or from any other source, shall imm
ediately upon receipt be deposited into the Mercury Cayman II Collection
Account. The Mercury Cayman II Collection Account numbers and contact
information is set forth on Schedule 3.6, as such Schedule may be updated by the
party establishing such account and the Collateral Agent.
(f) Inversiones CYC hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons which are not in the form of
Pesos (the "Inversiones CYC NY Collection Account") with the DB Securities
Intermediary for the benefit of Inversiones CYC and the Secured Party, as their
respective interests may appear, and shall irrevocably instruct AES, its
Subsidiaries and all other Persons to remit all such capital contributions,
dividends, distributions and other payments to the Inversiones CYC NY Collection
Account. All capital contributions, dividends, distributions, payments and
amounts received directly by Inversiones CYC from its parent entity or its
Subsidiaries or from any other source, which are not in the form of Pesos, shall
immediately upon receipt be deposited into the Inversiones CYC NY Collection
Account. The Inversiones CYC NY Collection Account numbers and contact
information is set forth on Schedule 3.6, as such Schedule may be updated by the
party establishing such account and the Collateral Agent.
(g) Inversiones CYC hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or
13
any other Persons, which are denominated in Pesos (the "Inversiones CYC Chile
Collection Account") with the DB Securities Intermediary for the benefit of
Inversiones CYC and the Secured Party, as their respective interests may appear,
and shall irrevocably instruct AES, its Subsidiaries and all other Persons to
remit all such capital contributions, dividends, distributions and other
payments to the Inversiones CYC Collection Chile Account. All capital
contributions, dividends, distributions, payments and amounts received directly
by Inversiones CYC from its parent entity or its Subsidiaries or from any other
source, which are denominated in Pesos, shall immediately upon receipt be
deposited into the Inversiones CYC Chile Collection Account. The Inversiones CYC
Chile Collection Account numbers and contact information is set forth on
Schedule 3.6, as such Schedule may be updated by the party establishing such
account and the Collateral Agent.
(h) Inversiones OEA hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or other Persons, including, without limitation,
the Cayman Lender, which are not in the form of Pesos (the "Inversiones OEA NY
Collection Account") with the DB Securities Intermediary for the benefit of
Inversiones OEA and the Secured Party, as their respective interests may appear,
and shall irrevocably instruct AES, its Subsidiaries and all other Persons,
including, without limitation the Cayman Lender, to remit all such capital
contributions, dividends, distributions and other payments to the Inversiones
OEA NY Collection Account. All capital contributions, dividends, distributions,
payme nts and amounts received directly by Inversiones OEA from its parent
entity or its Subsidiaries or from any other source, including, without
limitation the Cayman Lender, which are not in the form of Pesos shall
immediately upon receipt be deposited into the Inversiones OEA NY Collection
Account. The Inversiones OEA NY Collection Account numbers and contact
information is set forth on Schedule 3.6, as such Schedule may be updated by the
party establishing such account and the Collateral Agent.
(i) Inversiones OEA hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or other Persons, including, without limitation
the Hedging Counterparty, which are denominated in Pesos, (the "Inversiones OEA
Chile Collection Account") with the DB Securities Intermediary for the benefit
of Inversiones OEA and the Secured Party, as their respective interests may
appear, and shall irrevocably instruct AES, its Subsidiaries and all other
Persons, including, without limitation the Cayman Lender, to remit all such
capital contributions, dividends, distributions and other payments to the
Inversiones OEA
14
Chile Collection Account. All capital contributions, dividends, distributions,
payments and amounts received directly by Inversiones OEA from its parent entity
or its Subsidiaries or from any other source, including, without limitation, the
Hedging Counterparty, which are denominated in Pesos, shall immediately upon
receipt be deposited into the Inversiones OEA Chile Collection Account. The
Inversiones OEA Chile Collection Account numbers and contact information is set
forth on Schedule 3.6, as such Schedule may be updated by the party establishing
such account and the Collateral Agent.
(j) Inversiones Cachagua hereby establishes, effective on the Effective
Date, and shall until the Obligations have been paid in full and the Commitments
of the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons, which are not in the form
of Pesos (the "Inversiones Cachagua NY Collection Account") with the DB
Securities Intermediary for the benefit of Inversiones Cachagua and the Secured
Party, as their respective interests may appear, and shall irrevocably instruct
AES, its Subsidiaries and all other Persons to remit all such capital
contributions, dividends, distributions and other payments to the Inversiones
Cachagua NY Collection Account. All capital contributions, dividends,
distributions, payments and amounts received directly by Inversiones Cachagua
from its parent en tity or its Subsidiaries or from any other source, which are
not in the form of Pesos, shall immediately upon receipt be deposited into the
Inversiones Cachagua NY Collection Account. The Inversiones Cachagua NY
Collection Account numbers and contact information is set forth on Schedule 3.6,
as such Schedule may be updated by the party establishing such account and the
Collateral Agent.
(k) Inversiones Cachagua hereby establishes, effective on the Effective
Date, and shall until the Obligations have been paid in full and the Commitments
of the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from its Subsidiaries or any other Persons which are denominated in
Pesos (the "Inversiones Cachagua Chile Collection Account") with the DB
Securities Intermediary for the benefit of Inversiones Cachagua and the Secured
Party, as their respective interests may appear, and shall irrevocably instruct
AES, its Subsidiaries and all other Persons to remit all such capital
contributions, dividends, distributions and other payments to the Inversiones
Cachagua Chile Collection Account. All capital contributions, dividends,
distributions, payments and amounts received directly by Inversiones Cachagua
from its parent e ntity or its Subsidiaries or from any other source, which are
denominated in Pesos shall immediately upon receipt be deposited into the
Inversiones Cachagua Chile Collection Account. The Inversiones Cachagua Chile
Collection Account numbers and contact information is set
15
forth on Schedule 3.6, as such Schedule may be updated by the party establishing
such account and the Collateral Agent.
(l) Mercury Cayman III hereby establishes, effective on the Effective Date,
and shall until the Obligations have been paid in full and the Commitments of
the Lender shall have expired or been sooner terminated maintain a collection
account for the collection of payments made in respect of Proceeds of Pledged
Securities and capital contributions, dividends, distributions or other payments
received from AES, its Subsidiaries or any other Persons, including, without
limitation AES Shares received from AES and ADS Shares acquired pursuant to the
Share Exchange (the "Mercury Cayman III Collection Account ") with the BT
Securities Intermediary for the benefit of Mercury Cayman III and the Secured
Party, as their respective interests may appear, and shall irrevocably instruct
AES, its Subsidiaries and all other Persons to remit all such capital
contributions, dividends, distributions and other payments to the Mercury Cayman
III Collection Account. All capital contributions, dividends, distributions,
payments a nd amounts and all securities entitlements received directly by
Mercury Cayman III from AES or its Subsidiaries, in addition to all other cash
or securities entitlements received from any other source, shall immediately
upon receipt be deposited into the Mercury Cayman III Collection Account. The
Mercury Cayman III Collection Account numbers and contact information is set
forth on Schedule 3.6, as such Schedule may be updated by the party establishing
such account and the Collateral Agent.
(m) All assets held in any Collection Account shall be maintained in the
manner set forth in Section 7.13.
(n) Amounts outstanding in any Collection Account other than the Mercury
Cayman III Collection Account may be invested only in cash and Cash Equivalents.
The Mercury Cayman III Collection Account shall be invested only in Cash, Cash
Equivalents, AES Shares, ADS Shares acquired in connection with the Tender
Offer, and Gener Shares acquired in connection with the ADS Share Conversion.
SECTION 4A. Conditions Precedent to the Tranche A Borrowing. The obligation
of each Lender to make Tranche A Bridge Loans on the Initial Borrowing Date is
subject, at the time of the making of such Borrowing, to the satisfaction of the
following conditions:
4A.1 Execution of Agreement; Tranche A Note. The Effective Date shall have
occurred and, if requested by the Lender, there shall have been delivered to the
Lender a Tranche A Note under Section 1.1(f)(i).
4A.2 No Default; Representations and Warranties. On the Initial Borrowing
Date and also after giving effect to the transactions contemplated hereby and
the Tranche A Bridge Loans made on the Initial Borrowing Date, (i) there shall
exist no
16
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the Initial Borrowing Date.
4A.3 Notice of Borrowing. The Lender shall have received a Notice of
Borrowing, duly executed by the Borrower and meeting the requirements of Section
1.1(c).
4A.4 Tranche A Irrevocable Instruction. The Lender shall have received a
Tranche A Irrevocable Instruction, duly executed by each of the Borrower,
Inversiones Zapallar, Mercury Cayman I, Mercury Cayman II, Inversiones CYC,
Inversiones OEA and Inversiones Cachagua and meeting the requirements of Section
1.1(d).
4A.5 Corporate Documents; Proceedings.
(a) The Lender shall have received a certificate from each of the Credit
Parties dated the Initial Borrowing Date, signed by the President or any Vice
President of each such Person, in a form to be agreed prior to the Initial
Borrowing Date with appropriate insertions, together with certified copies of
the certificate of incorporation and bylaws or equivalent organizational
documents of such Person and the resolutions of such Person referred to in such
certificate.
(b) All corporate and legal proceedings and all instruments and agreements
(including without limitation the other Credit Documents) in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be reasonably satisfactory in form and substance to the Lender, and the Lender
shall have received all information and certified copies of all documents and
papers, including records of corporate proceedings, governmental approvals and
good standing certificates, if any, which the Lender reasonably may have
requested in connection therewith, such documents and papers where appropriate
to be certified by proper corporate or Governmental Authorities or a notary
public.
4A.6 Opinions of Counsel. The Lender shall have received from (i) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special New York counsel to the Credit Parties,
an opinion addressed to the Lender and dated the Initial Borrowing Date, in form
and substance reasonably satisfactory to the addressee, (ii) Claro & Cia.,
special Chilean counsel to the Credit Parties, an opinion addressed to Lender
and dated the Initial Borrowing Date, in form and substance reasonably
satisfactory to the addressee, (iii) Xxxxxx & Calder, special Cayman Islands
counsel to the Credit Parties, an opinion addressed to the Lender and dated the
Initial Borrowing Date, in form and substance reasonably satisfactory to the
addressee, (iv) Guerrero Olivos Xxxxx y Errazuriz, special Chilean counsel to
the Lender, an opinion addressed to the Lender and dated the Initial
17
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Lender may reasonably request, and (v) Walkers, special Cayman
Islands counsel to the Lender, an opinion addressed to the Lender and dated the
Initial Borrowing Date, covering such matters incident to the transactions
contemplated herein as the Lender may reasonably request.
4A.7 Consummation of the Transactions.
(a) The modifications to the estatutos sociales of Gener approved at the
meeting of the Gener shareholders on December 12, 2000 shall have been legalized
(ii) the Remate shall have occurred and (iii) the Aviso de Fecha de Remate shall
have been published in El Xxxxxxxx, establishing the date of settlement of the
Remate, which shall be no later than one Chilean Business Day after the Initial
Borrowing Date.
(b) AES shall have, directly or indirectly, contributed at least
US$448,214,583.39 in cash ("Equity Contribution A") to the Borrower in the
Borrower Collection Account and (ii) the Borrower shall have irrevocably
instructed that the full amount of such contribution be applied in accordance
with the Tranche A Irrevocable Instructions.
(c) AES shall have, directly or indirectly, contributed at least
10,069,716 shares of AES common stock, par value $0.01 per share (the "AES
Shares") as have in the aggregate a fair market value of at least US$521,309,197
into the Mercury Cayman III Collection Account.
(d) The Lender shall have received true and correct copies of all material
documents entered into in connection with the Remate and the Tender Offer and
all of the terms and conditions of such material documents as well as the
structure of the Remate and any amendment to the Tender Offer, shall be in form
and substance reasonably acceptable to the Lender.
(e) The Lender shall have received such additional evidence, in form, scope
and substance reasonably satisfactory to it, as may be reasonably requested that
the matters set forth in Section 4A.7(a) through (e) shall have been satisfied
as of the Initial Borrowing Date.
4A.8 Capital Structure. AES shall directly own 100% of the capital stock of
the Borrower. The Borrower shall own directly 100% of the capital stock of each
of Inversiones Zapallar, Mercury Cayman II and Mercury Cayman III. Inversiones
Zapallar shall own directly 100% of the capital stock of Mercury Cayman I.
Mercury Cayman II shall own directly 100% of the capital stock of Inversiones
CYC. Inversiones CYC shall own directly 100% of the capital stock of Inversiones
OEA Limitada. Inversiones OEA shall own directly 100% of the capital stock of
Inversiones Cachagua.
18
The pro forma consolidated capital structure of the Credit Parties, after giving
effect to the transactions contemplated hereby (except those contemplated by the
Stock Pledge Agreements), shall be as set forth in Schedule 5.15 and shall be
consistent with the foregoing and otherwise satisfactory to the Lender. The
legal and capital structure of the Credit Parties and Gener shall not differ in
any material respect from the description of such structure provided to the
Lender as of the Effective Date. All agreements relating to such legal and
capital structure, and all organizational documents (including the estatutos
sociales) of the Credit Parties, Gener and each of their respective Subsidiaries
shall be reasonably satisfactory to the Lender.
4A.9 Adverse Change. (i) None of the Credit Parties, Gener or any of their
respective Subsidiaries shall have sustained any loss or interference with
respect to its businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, which loss or interference, in the sole
judgment of the Lender, has had or could reasonably be expected to have a
Material Adverse Effect; both before and after giving effect to the transactions
contemplated hereby, there shall not have been since December 31, 1999, in the
sole judgment of the Lender, any change, or any development involving a
prospective change, which could reasonably be expected to have a Material
Adverse Effect; (ii) trading in securities generally on the Xxxxxxxx Stock
Exchange shall not have been suspended and minimum or maximum prices shall not
have been established on any such exchange; (iii) a banking moratorium shall not
have been de clared by New York, United States, European Union, Cayman Islands
or Chilean authorities; and (iv) there shall not have occurred (A) an outbreak
or escalation of hostilities between the United States, the Cayman Islands or
Chile and any foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, the Cayman Islands
or Chile or any other national or international calamity or emergency, or (C)
any material change in the financial markets (including, without limitation,
market conditions for securities of or loan transactions involving Latin
American or Chilean issuers or borrowers) of the United States or Chile which,
in the reasonable judgment of the Lender, makes it impracticable to proceed with
the consummation of the transactions contemplated hereby or materially adversely
affects the syndication of the Bridge Loans.
4A.10 Governmental and Other Approvals. All necessary corporate,
governmental (domestic and foreign) and third party approvals and/or consents,
if any, in connection with the Remate, the Tender Offer, the Inversiones OEA
Facility or the other transactions contemplated hereby, the Bridge Loans and the
Credit Documents or otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods with respect
thereto shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse conditions
upon the consummation of Remate, the Tender Offer, the Inversiones OEA Facility
or the other transactions contemplated hereby or the Bridge Loans or the
19
transactions contemplated by the Credit Documents. There shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the Remate, the Tender Offer, the
Inversiones OEA Facility or the other transactions contemplated by the Credit
Documents.
4A.11 Litigation. There shall be no actions, suits or proceedings
(governmental or other) pending or, to the knowledge of any Credit Party,
threatened (i) that is material with respect to the Remate, the Tender Offer,
the Inversiones OEA Facility or the other transactions contemplated hereby, the
Bridge Loans or any Credit Document or (ii) which the Lender sha ll determine,
in its reasonable judgment, could reasonably be expected to have a Material
Adverse Effect.
4A.12 Stock Pledge Agreements. (a) The Borrower shall have duly authorized,
executed and delivered a share mortgage in a form to be agreed prior to the
Initial Borrowing Date pledging the share capital of Mercury Cayman III, (b) the
Borrower shall have duly authorized, executed and delivered a share mortgage,
pledging the share capital of Mercury Cayman II, (c) Inversiones Zapallar shall
have duly authorized, executed and delivered a share mortgage, pledging the
share capital of Mercury Cayman I, (d) Mercury Cayman II shall have duly
authorized, executed and delivered a share mortgage, pledging the share capital
of Mercury Cayman I, (e), Inversiones Cachagua shall have duly authorized,
executed and delivered a stock pledge agreement (Contrato de Prenda sobre
Acciones), in a form to be agreed prior to the Initial Borrowing Date and (f)
Mercury Cayman III shall have duly authorized, executed and delivered a stock
pledge agreement (Contrato de Prenda sobre Acciones), in a form to be agreed
prior to the Ini tial Borrowing Date (each, as amended, modified or supplemented
from time to time, a "Stock Pledge Agreement"), and shall have delivered to the
Secured Party, as Secured Party thereunder, all of the Pledged Securities
referred to therein and owned by such Person, together with satisfactory
evidence of all annotations in the stock registry books or registers of
mortgages and charges, as applicable, of the issuers of the Pledged Securities
and all other annotations necessary to grant a first priority lien on the
Pledged Securities; provided, however, that to the extent that the Post-Closing
Collateral Conditions expressly permit any of the preceding actions to be taken
at a time later than that specified in this paragraph, such later time shall
apply.
4A.13 Inversiones OEA Facility. Inversiones OEA shall have duly authorized,
executed and delivered the Senior Secured Bridge Credit Agreement, substantially
in the form of Exhibit C hereto.
4A.14 Cayman Loan Agreement. Inversiones OEA and the Cayman Lender shall
have duly executed and delivered the Cayman Loan Agreement in a form to be
agreed prior to the Initial Borrowing Date and (in the case of Inversiones OEA)
the related note.
20
4A.15 Collection Accounts. (a) Each of the Borrower, Mercury Cayman I,
Mercury Cayman II, Mercury Cayman III, the Secured Party and the BT Securities
Intermediary shall have duly authorized, executed and delivered a Collection
Account Security Agreement in a form to be agreed prior to the Initial Borrowing
Date (the "BT Collection Account Security Agreement "); (b) each of Inversiones
Zapallar, Inversiones CYC, Inversiones OEA, Inversiones Cachagua, the Secured
Party and the DB Securities Intermediary shall have duly authorized, executed
and delivered a Collection Account Security Agreement in a form to be agreed
prior to the Initial Borrowing Date (the "DB Collection Account Security
Agreement " and, together with the BT Collection Account Security Agreement, the
"Collection Account Securities Agreements"); (c) each of the Borrower, Mercury
Cayman I, Mercury Cayman III, Mercury Cayman III, the Secured Party and the BT
Securities Intermediary shall have duly authorized, executed and delivered a
Control and Consent Acknowledgment Agreement in a form to be agreed prior to the
Initial Borrowing Date (the "BT Control and Consent Acknowledgment and Agreement
"); and (d) each of Inversiones Zapallar, Inversiones CYC, Inversiones OEA,
Inversiones Cachagua, the Secured Party and the DB Securities Intermediary shall
have duly authorized, executed and delivered a Control and Consent
Acknowledgment Agreement in a form to be agreed prior to the Initial Borrowing
Date (the "DB Control and Consent Acknowledgment and Agreement" and, together
with the BT Control and Consent Acknowledgment and Agreement, the "Control and
Consent Acknowledgments and Agreements").
4A.16 Security Agreement. Inversiones CYC shall have duly authorized
executed and delivered a security agreement, in a form to be agreed prior to the
Initial Borrowing Date, pledging to the Secured Party all of its rights under
the Hedging Agreement (the "Hedging Pledge Agreement"), and shall have delivered
all other documents and filings reasonably requested by the Secured Party to
grant the Secured Party a first priority lien over such rights.
4A.17 Financial Statements; Projections. The Lender shall have received
true and correct copies of the financial statements and projections referred to
in Section 5.6, which historical financial statements and projections shall be
in form and substance reasonably satisfactory to the Lender.
4A.18 Existing Indebtedness, Liens and Other Obligations. The Credit
Parties shall have no Indebtedness or preferred stock outstanding other than
pursuant to the Credit Documents and the other Indebtedness listed on Schedule
4.18. The assets of the Credit Parties shall be subject to no Lien other than
Liens created pursuant to the Security Documents. The Credit Parties shall have
no contractual or other obligations other than pursuant to the Credit Documents
and the other obligations listed on Schedule 4.18.
21
4A.19 Compliance with Applicable Law. The Lender and its counsel shall be
reasonably satisfied that the consummation of the transactions contemplated
hereby and the funding of the Bridge Loans shall be in compliance with all
applicable law. There shall not have been any statute, rule, regulation,
injunction or order applicable to any of the transactions contemplated hereby or
the Bridge Loans, promulgated, enacted, entered or enforced by any Governmental
Authority, nor shall there be pending any action or proceeding by or before any
such Governmental Authority that would prohibit, restrict, delay or otherwise
materially affect the transactions contemplated by this Agreement or any other
Credit Document.
4A.20 Payment of Fees. The Borrower shall have paid to the Lender all Fees,
costs and expenses (including, without limitation, reasonable legal fees and
expenses) payable to the Lender to the extent then due.
4A.21 Consent Letter. The Lender shall have received a letter from CT
Corporation System (the "Consent Letter"), presently located at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in a form to be agreed prior to the Initial
Borrowing Date, indicating its consent to its appointment by each of the Credit
Parties as their agent to receive service of process as specified in Section
12.7(a) of this Agreement.
4A.22 Central Bank Approval. On or prior to the Effective Date, the Lender
shall have received evidence satisfactory to it that the terms of the
Inversiones OEA Facility has been registered and approved by the Central Bank of
Chile.
4A.23 Inter-Company Notes. (a) Mercury Cayman I shall have duly authorized,
executed and delivered an inter-company note payable to the Borrower in the
amount of $224,007,291.69 in a form to be agreed prior to the Initial Borrowing
Date (the "Mercury Cayman I Note") and (b) Inversiones OEA shall have duly
authorized, executed and delivered an inter-company note payable to the Borrower
in the amount of $400,000,000 in a form to be agreed prior to the Initial
Borrowing Date (the "Inversiones OEA Note" and, together with the Mercury Cayman
I Note, the "Inter-Company Notes").
4A.24 Pledge of Inter-Company Notes. The Borrower shall have duly
authorized, executed and delivered a pledge agreement in a form to be agreed
prior to the Initial Borrowing Date pledging the Inter-Company Notes (the
"Inter-Company Note Pledge Agreement"), and shall have delivered to the Secured
Party, as Secured Party thereunder, the Inter-Company Notes, together with
allonges or other transfer certificates executed in blank by the Borrower.
4A.25 Fianza Solidaria. Inversiones Cachagua shall have duly authorized,
executed and delivered a fianza solidaria in a form to be agreed prior to the
Initial Borrowing Date (the "Fianza Solidaria").
22
4A.26 Other Documents. The Lender shall have received such other
agreements, certificates or documents as the Lender shall reasonably request.
The acceptance of the benefits of the Borrowing of the Tranche A Bridge
Loan shall constitute a representation and warranty by each of the Credit
Parties to the Lender that all the conditions specified in this Section 4A exist
as of such time (except to the extent that any of such conditions are required
to be satisfactory to or determined by the Lender and except to the extent
waived by the Lender). All of the Notes, certificates, legal opinions and other
documents and papers referred to in this Section 4A, unless otherwise specified,
shall be delivered to the Lender at its Notice Office and shall be in form and
substance reasonably satisfactory to the Lender.
SECTION 4B. Conditions Precedent to the Tranche B Borrowing. The obligation
of the Lender to make the Tranche B Bridge Loan on the Tranche B Borrowing Date
is subject, at the time of the making of such Borrowing (the "Tranche B
Borrowing Date"), to the satisfaction of the following conditions:
4B.1 Execution of Tranche B Note. If requested by the Lender, there shall
have been delivered to the Lender a Tranche B Note under Section 1.1(f)(ii).
4B.2 No Default; Representations and Warranties. On the Tranche B Borrowing
Date and also after giving effect to the transactions contemplated hereby and
the Tranche B Bridge Loans made on the Tranche B Borrowing Date, (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the Tranche B Borrowing Date.
4B.3 Notice of Borrowing. The Lender shall have received a Notice of
Borrowing, duly executed by the Borrower and meeting the requirements of Section
1.1(c).
4B.4 Tranche B Irrevocable Instruction. The Lender shall have received a
Tranche B Irrevocable Instruction, duly executed by each of the Borrower,
Mercury Cayman II, Inversiones CYC, Inversiones OEA and Inversiones Cachagua and
meeting the requirements of Section 1.1(d).
4B.5 Consummation of the Transactions.
(a) AES shall have directly or indirectly contributed at least
US$16,350,000 in cash ("Equity Contribution B") to the Borrower in the Borrower
Collection Account and (ii) the Borrower shall have irrevocably instructed that
the full amount of such contribution be applied in accordance with the Tranche B
Irrevocable Instruction.
23
(b) The Remate shall have been consummated and Inversiones Cachagua shall
own the Gener shares acquired in the Remate subject to no Lien other than Liens
created pursuant to the Security Documents.
(c) The Tender Offer shall have been consummated.
(d) The Share Exchange shall have been consummated.
(e) The ADS Share Conversion shall have been consummated.
(f) The Lender shall have received such additional evidence, in form, scope
and substance reasonably satisfactory to it, as may be requested that the
matters set forth in Section 4B.5(a) through (e) shall have been satisfied as of
the Tranche B Borrowing Date.
4B.6 Gener Stock Pledge Agreements. (a) Inversiones Cachagua shall have
duly authorized, executed and delivered a stock pledge agreement (Contrato de
Prenda sobre Acciones), in a form to be agreed prior to the Initial Borrowing
Date; and (b) Mercury Cayman III shall have duly authorized, executed and
delivered a stock pledge agreement (Contrato de Prenda sobre Acciones), in a
form to be agreed prior to the Initial Borrowing Date (each, as amended,
modified or supplemented from time to time, a "Gener Stock Pledge Agreement"),
and shall have delivered to the Secured Party, as Secured Party thereunder, all
of the Pledged Securities referred to therein and owned by such Person, together
with satisfactory evidence of all annotations in the stock registry books of the
issuers of the Pledged Securities and all other annotations necessary to grant a
first priority lien on the Pledged Securities.
4B.7 Cayman Acquisition Value. The Lender shall have received a certificate
(the "Acquisition Value Certificate") from the Borrower no less than one
Business Day prior to the Tranche B Borrowing Date, signed by the President or
any Vice President of the Borrower, certifying (i) the number of ADS Shares
acquired by Mercury Cayman III in the Stock Exchange, (ii) the number of AES
Shares, ADS Shares and/or Gener Shares expected to be held by Mercury Cayman III
on the Tranche B Borrowing Date together with the fair market value of each such
category of shares, (iii) the fair market value of Mercury Cayman III as of the
Tranche B Borrowing Date, (iv) the purchase price to be paid to the Borrower for
Mercury Cayman III in the Cayman Acquisition (the "Cayman Acquisition Price")
and (v) the number of dollars in excess of the proceeds of the Inversiones OEA
Facility reasonably required to fund the Cayman Acquisition (the "Cayman
Acquisition Funding Requirement"). The Acquisition Value Certificate shall be in
for m, scope and substance reasonably satisfactory to the Lender. The Lender
shall have received such additional evidence, in form, scope and substance
reasonably satisfactory to it, as may be requested that the information set
forth in the Acquisition Value Certificate is true, complete and correct in all
material respects.
24
4B.8 Conditions Precedent to the Initial Borrowing. All of the conditions
specified in Section 4A shall exist as of the Tranche B Borrowing Date (except
to the extent that any of such conditions are required to be satisfactory to or
determined by the Lender except to the extent waived by the Lender).
4B.9 Other Documents. The Lender shall have received such other agreements,
certificates or documents as the Lender shall reasonably request.
The acceptance of the benefits of the Borrowing of the Tranche B Bridge
Loan shall constitute a representation and warranty by each of the Credit
Parties to the Lender that all the conditions specified in this Section 4B exist
as of such time (except to the extent that any of such conditions are required
to be satisfactory to or determined by the Lender and except to the extent
waived by the Lender). All of the Notes, certificates, legal opinions and other
documents and papers referred to in this Section 4, unless otherwise specified,
shall be delivered to the Lender at its Notice Office and shall be in form and
substance reasonably satisfactory to the Lender.
SECTION 5. Representations, Warranties and Agreements. In order to induce
the Lender to enter into this Agreement and to make the Bridge Loans provided
for herein, each of the Credit Parties makes the following representations,
warranties and agreements as of the Effective Date (in each case both before and
after giving effect to the Remate, the Tender Offer and the other transactions
contemplated hereby and the making of the Bridge Loans hereunder), all of which
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Bridge Loans (with the occurrence of each Credit Event being
deemed to constitute a representation and warranty that the matters specified in
this Section 5 are true and correct in all material respects on and as of the
date of such Credit Event, unless stated to relate to a specific earlier date,
in which case such representation and warranty shall be true and correct in all
material respects as of such earlier date); provided that each such represen
tation, warranty and agreement with respect to Gener and its Subsidiaries is
made to the best knowledge of each Credit Party:
5.1. Corporate Status. Each Credit Party and each of its Subsidiaries (i)
is a duly organized and validly existing limited liability company or
corporation, as the case may be, in good standing (to the extent such concept is
relevant in such jurisdiction) under the laws of the jurisdiction of its
organization or incorporation, (ii) has the corporate power and authority to own
its property and assets, to lease the property it operates as lessee and to
transact the business in which it is engaged and presently proposes to engage
and (ii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the ownership, leasing or operation of its
property or the conduct of its business requires such qualifications, except for
failures to be so qualified which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
25
5.2. Corporate Power and Authority. Each Credit Party has the corporate
power and authority, and the legal right, to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is a party and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of each of such Credit Documents. Each Credit Party has
duly executed and delivered each Credit Document to which it is a party, and
each such Credit Document constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
5.3. No Immunity. Neither the Borrower nor any other Credit Party nor any
of their respective properties has any right of immunity on the grounds of
sovereignty or otherwise from jurisdiction of any court or from setoff or any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of any
jurisdiction. The execution and delivery of the Credit Documents by the Borrower
and the other Credit Parties and the performance by them of their obligations
thereunder constitute commercial transactions.
5.4. No Violation. Neither the execution, delivery or performance by any
Credit Party of the Credit Documents to which it is a party, nor compliance by
it with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any applicable
provision of any law, statute, rule or regulation, or any order, writ,
injunction or decree of any court or Governmental Authority, (ii) will conflict
or be inconsistent with, or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (other than pursuant to the Security Documents) upon any of the property or
assets of such Credit Party and its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement or any
other material agreement, contract or instrument to which any Credit Party or
any of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject or (ii) will violate any provision
of the certificate of incorporation or bylaws (estatutos sociales) or equivalent
organizational or other charter documents of such Credit Party or any of its
Subsidiaries.
5.5. Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except (i) those that
have otherwise been obtained or made on or prior to the Initial Borrowing Date
and which remain in full force and effect on the date of each Credit Event and
(ii) the Post-Closing Collateral Actions) or exemption by, any Governmental
Authority, or any subdivision thereof or any other Person, is required to
authorize, or is required in connection with, (A) the execution, delivery and
performance of any Credit Document, (B) the legality, validity,
26
binding effect or enforceability of any such Credit Document, (C) the ability of
the Borrower to obtain Dollars to pay its obligations under this Agreement
punctually in Dollars and to apply such Dollars to the satisfaction of its
obligations hereunder in accordance with the terms, or (D) the admissibility of
this Agreement in evidence in the courts of the Cayman Islands or Chile, except
that in order for this Agreement to be admissible in evidence in judicial
proceedings in a Chilean Court, this Agreement would first have to be translated
into the Spanish language by a licensed public translator who certifies as to
the accuracy thereof, unless executed in Spanish by all the parties thereto
(which procedure could be carried out in relation to any document at any time
prior to such document being admitted as evidence in a proceeding held in
Chilean courts).
5.6. Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc.
(a) The audited consolidated balance sheets of Gener and its Subsidiaries
for the Applicable Fiscal Years and the related statements of income, cash flows
and shareholders' capital of Gener and its Subsidiaries, copies of which have
been furnished to the Lender prior to the Initial Borrowing Date, (i) have been
audited by Xxxxxx Xxxxxxxx, (ii) have been prepared in accordance with Chilean
GAAP consistently applied throughout the periods covered thereby, and (iii) (on
the basis disclosed in the footnotes to such financial statements) present
fairly, in all material respects, the combined financial condition, results of
operations and cash flows of Gener and its Subsidiaries for financial condition,
results of operations and cash flows of Gener and its Subsidiaries for the
periods covered thereby. The unaudited interim consolidated balance sheets of
the Gener and its Subsidiaries as at the end of, and the related unaudited
interim combined statements of income and of cash flows for, the nine-month
period ended September 30, 2000 have heretofore been furnished to the Len der.
During the period from September 30, 2000 to and including the Effective Date,
there has been no sale, transfer or other disposition by Gener and its
Subsidiaries of any material part of the business or property of the Gener and
its Subsidiaries and no purchase or other acquisition by Gener or its
Subsidiaries of any business or property (including any capital stock of any
other Person) material in relation to the combined financial condition of Gener
and its Subsidiaries, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lender on or prior to the Effective Date.
(b) The pro forma financial information set forth on Schedule 5.6(b) (the
"Pro Forma Financial Statements") accurately describes the financial condition
of the Borrower and its consolidated Subsidiaries (excluding Gener and its
Subsidiaries) after giving effect to (i) the consummation of the Remate and the
Cayman Acquisition, (ii) the making of the Tranche A Bridge Loans to be made on
the Initial Borrowing Date in an aggregate principal amount of not more than
US$400,000,000, (iii) the making of the Tranche B Bridge Loans to be made on the
Tranche B Borrowing Date in an
27
aggregate principal amount of not more than US$0, (iv) the making of the loans
under the Inversiones OEA Facility, and (v) the payment of estimated fees,
expenses, financing costs and settlement of intercompany accounts related to the
transactions contemplated hereby and thereby. The Pro Forma Financial Statements
were prepared in good faith on the basis of reasonable estimates.
(c) Since September 30, 2000, nothing has occurred that has had or could
reasonably be expected to have a Material Adverse Effect.
(d) On and as of the date of each Credit Event and after giving effect to
the transactions contemplated hereby and the Bridge Loans being incurred or
assumed and Liens created by the Credit Parties, (i) the sum of the tangible and
intangible assets, at a fair valuation, of the Borrower on a stand-alone basis
and of the Borrower and its Subsidiaries taken as a whole will exceed their
debts; (ii) the Borrower on a stand-alone basis and the Borrower and its
Subsidiaries taken as a whole have not incurred and do not intend to incur, and
do not believe that they will incur, debts beyond their ability to pay such
debts as such debts mature; (iii) the Borrower on a stand-alone basis and the
Borrower and its Subsidiaries taken as a whole will have sufficient capital with
which to conduct their business; and (iv) none of the Borrower, on a stand-alone
basis, nor the Borrower and its Subsidiaries, taken as a whole, will be in
"cesacion de pagos" as such term is construed under Chilean law. The amount of
contingen t liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
(e) There were, as of the date of such Credit Event, no liabilities or
obligations with respect to any Credit Party or any of its Subsidiaries and
Gener and its Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) other than those which are in
the ordinary course of its business and consistent with past practice and which,
either individually or in aggregate, could not reasonably be expected to have a
Material Adverse Effect. As of the date of each Credit Event, none of the Credit
Parties knows of any basis for the assertion against it or any of its
Subsidiaries or Gener and its Subsidiaries of any liability or obligation of any
nature whatsoever that is not fully disclosed in the financial statements
delivered pursuant to Sections 5.6(a) and (b) other than those which are in the
ordinary course of its business and consistent with past practice and which,
either individually or in the aggregate, could not reasonably be expected to
have a Mater ial Adverse Effect.
(f) On and as of the date of each Credit Event, the projections delivered
to the Lender prior to the date of such Credit Event have been prepared in good
faith and are based on reasonable assumptions, and there are no statements or
conclusions in the projections which are based upon or include information known
to any Credit Party to be misleading in any material respect or which fail to
take into account material
28
information known to such Credit Party regarding the matters reported therein.
On the date of each Credit Event, each Credit Party believes that the
projections are reasonable and attainable, it being recognized by the Lender,
however, that projections as to future events are not to be viewed as facts and
that the actual results during the period or periods covered by the projections
may differ from the projected results and that the differences may be material.
5.7. Ranking. The obligations under the Bridge Loans and the Credit
Documents constitute unconditional and unsubordinated Indebtedness of the Credit
Parties and rank and will rank at least pari passu in priority of payment and in
all other respects with all other present and future unsubordinated Indebtedness
of the Credit Parties.
5.8. Litigation. There are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending or, to the knowledge of the
Borrower or the Principal Guarantor, threatened (i) that is material with
respect to the Remate, the Tender Offer, the Cayman Acquisition or the other
transactions contemplated hereby, the Bridge Loans or any Credit Document or
(ii) that could reasonably be expected to have a Material Adverse Effect.
5.9. True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of any Credit Party in writing to the Lender
(including, without limitation, all information contained in the Credit
Documents but excluding the projections referred to in the next sentence) for
purposes of or in connection with this Agreement, the Credit Documents, or any
transaction contemplated herein or therein is, true and accurate in all material
respects on the date as of which such information is dated or certified and as
of the date of this Agreement and each date that this representation is deemed
to be made hereunder and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such
information was provided. The projections and pro forma financial information
furnished by any Credit Party to the Lender pursuant to this Agreement have been
prepared i n good faith based on assumptions believed by such Credit Party to be
reasonable at the time made, it being recognized by the Lender that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount and no Credit Party, however, makes any representation as to the
ability of any Credit Party or any of their Subsidiaries to achieve the results
set forth in any such projections.
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5.10. Use of Proceeds; Margin Regulations.
(a) All proceeds of the Tranche A Bridge Loans will be used by the Borrower
to fund an advance to Inversiones OEA pursuant to the Inversiones OEA Note and
used by Inversiones OEA to fund the acquisition of Gener Shares tendered in
connection with the Remate.
(b) All proceeds of the Tranche B Bridge Loans will be used by the Borrower
to make an indirect capital contribution to Inversiones Cachagua for the purpose
of funding the Cayman Acquisition.
(c) Neither the making of any Bridge Loan, nor the use of the proceeds
thereof, will violate or be inconsistent with the provisions of Regulation T, U
or X of the Board of Governors of the Federal Reserve and no part of the
Borrowing (or the proceeds thereof) will be used to purchase or carry any Margin
Stock or to extend credit for the purpose of purchasing or carrying any Margin
Stock.
5.11. Tax Returns and Payments. Each Credit Party and each of its
Subsidiaries has timely filed all income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due for the last
two fiscal years, except for those contested in good faith and adequately
disclosed and fully provided for on the financial statements in accordance with
GAAP. Each Credit Party and each of its Subsidiaries has at all times paid, or
has provided adequate reserves (in the good faith judgment of the management of
such Credit Party) for the payment of, all income taxes applicable for the last
two fiscal years and for the current fiscal year to date. There is no material
action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of any Credit Party or Subsidiary, threatened, by any authority
regarding any taxes relating to such Credit Party or any of its Subsidiaries. No
Credit Par ty or any Subsidiary of a Credit Party has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of such
Credit Party or any Subsidiary, or is aware of any circumstances that would
cause the taxable years or other taxable periods of such Credit Party or any
Subsidiary not to be subject to the normally applicable statute of limitations.
5.12. Employee Benefit Plans. Each Credit Party and each of its
Subsidiaries is in compliance in all material respects with its respective
obligations relating to all employee benefit plans established, maintained or
contributed to by it, as required by law, and does not have outstanding any
material liabilities with respect to any such employee benefit plans.
5.13. Security Interests. Each Stock Pledge Agreement and each Gener Stock
Pledge Agreement (upon completion of the Post-Closing Collateral Actions) will
30
create, as security for the Obligations, a valid and enforceable perfected
security interest in all of the Collateral described therein in favor of the
Lender and its assignees, superior and prior to the rights of all third Persons
and subject to no Liens other than as provided in such Security Document. No
filings or recordings are required in order to perfect (or maintain the
perfection or priority of) the security interests created under the Stock Pledge
Agreements or the Gener Stock Pledge Agreements other than those completed on or
prior to the Initial Borrowing Date and the Post-Closing Collateral Actions. The
Inter-Company Note Pledge Agreement will create, as security for the
Obligations, a valid and enforceable and (upon delivery to and continued
possession by the Lender of the Inter-Company Notes) perfected security interest
in all of the Collateral described therein in favor of the Lender, superior and
prior to the rights of all third Persons and subject to no Liens other than as
provided in such Security Document. No filings or recordings are required in
order to perfect (or maintain the perfection or priority of) the security
interests created under the Inter-Company Note Pledge Agreement. The Fianza
Solidaria will create, as security for the Obligations, a valid and enforceable
guaranty with respect to all of the Collateral described therein in favor of the
Lender and its assignees. Upon the execution of the Collection Account Security
Agreements, the crediting to each Collection Account of any Pledged Collateral
constituting security entitlements and the execution of the Control and Consent
Acknowledgment and Agreement, the pledge of such security entitlements pursuant
to the Collection Account and Security Agreements creates in favor of the
Collateral Agent a valid and perfected interest in such Pledged Collateral. The
Hedging Pledge Agreement creates, as security for the Obligations, a valid and
enforceable security interest in all of the Collateral described therein in
favor of the Lender, sup erior and prior to the rights of all third Persons and
subject to no Liens other than as provided in such Security Document. No filings
or recordings are required in order to perfect (or maintain the perfection or
priority of) the security interests created under the Security Documents other
than those completed on or prior to the Initial Borrowing Date and the
Post-Closing Collateral Actions.
5.14. Properties. Each Credit Party and each of its Subsidiaries has good
and marketable title to all material properties owned by it, including all
property reflected in the balance sheets referred to in Section 5.6(a) and (b)
(except as sold or otherwise disposed of since the date of such balance sheet in
the ordinary course of business or as permitted by the terms of this Agreement),
free and clear of all Liens, other than Permitted Liens. Each Credit Party and
each of its Subsidiaries holds all material licenses, certificates and
clearances of municipal and other authorities necessary to own and operate its
properties in the manner and for the purposes currently operated by it. There
are no actual, or, to the knowledge of any Credit Party, threatened or alleged
defaults which, either individually or in the aggregate, could have a Material
Adverse Effect with respect to any leases of real property under which any
Credit Party or its Subsidiaries is lessor or lessee.
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5.15. Capitalization.
(a) The authorized capital stock of the Borrower is described in Schedule
5.15(a), and the number of shares indicated in Schedule 5.15(a) are owned by AES
free and clear of any Liens (other than Liens created by the Security
Documents). All outstanding shares of capital stock of the Borrower have been
duly and validly issued, and are fully paid and nonassessable. The Borrower does
not have outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
(b) The authorized and outstanding capital stock or other equity interests,
as applicable, jurisdiction of incorporation and name of each direct or indirect
Subsidiary of the Borrower which is a Credit Party is as set forth on Schedule
5.15. All outstanding shares of capital stock, or other equity interests, as
applicable, of each such company have been duly and validly issued, are fully
paid and nonassessable and are owned, directly or indirectly, by the Person or
Persons identified as the owner thereof on Schedule 5.15 free and clear of any
Liens (other than the Liens created by the Security Documents or pursuant to any
agreements entered into in connection with the transactions contemplated in this
Agreement). No such company has outstanding any securities convertible into or
exchangeable for such company's capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, such company's capital
stock.
5.16. Compliance with Statutes, etc. Each Credit Party and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all Governmental
Authorities, domestic or foreign, in respect of the conduct of its business and
the ownership of its property (including applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls),
except such noncompliances as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. None of the Credit
Parties or their Subsidiaries is in violation of its certificate of
incorporation or bylaws (or similar organizational document) or in breach of or
default under (nor has any event occurred which, with notice or passage of time
or both, would constitute a default under) or in violation of any of the terms
or provisions of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other materia l agreement, contract or instrument to which any
of them is a party or to which any of them or their respective properties or
assets is subject, except, in each case, for any such breach, default, violation
or event that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
32
5.17. Investment Company Act. No Credit Party is an "investment company" or
a company "controlled" by an "investment company" within the meaning of, or
subject to regulation under, the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. No Credit Party or any Subsidiary
thereof is a "holding company" subject to registration under the Public Utility
Holding Company Act of 1935, as amended ("PUHCA"), or is a "subsidiary company"
or an "affiliate" of such a "holding company" within the meaning of PUHCA.
5.19. Environmental Matters. Each Credit Party and each of its Subsidiaries
has complied with, and on the date of each Credit Event is in compliance in all
material respects with, all applicable environmental laws and all requirements
of any permits issued under such environmental laws. There are no pending or, to
the best knowledge of such Credit Party or Subsidiary, threatened environmental
claims against any Credit Party or any Subsidiary of a Credit Party (including
any such claim arising out of the ownership or operation by such Credit Party or
Subsidiary of any real property no longer owned or operated by such Credit Party
or Subsidiary) or any real property owned or operated by any Credit Party or any
Subsidiary of a Credit Party. There are no facts, circumstances, conditions or
occurrences with respect to the business or operations of any Credit Party or
any Subsidiary of a Credit Party, or any real property owned or operated by any
Credit Party or any Subsidiary of a Credit Party (including any real property
formerly owned or operated by such Credit Party or Su bsidiary but no longer
owned or operated by such Credit Party or Subsidiary) or any property adjoining
or adjacent to any such real property that could be expected (i) to form the
basis of an environmental claim against such Credit Party or Subsidiary or any
real property owned or operated by any Credit Party or any Subsidiary of a
Credit Party or (ii) to cause any real property owned or operated by such Credit
Party or Subsidiary to be subject to such restrictions on the ownership,
occupancy or transferability of such real property by such Credit Party or
Subsidiary under any applicable environmental law which are reasonably likely to
have a Material Adverse Effect.
5.20. Labor Relations. No Credit Party nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against any Credit Party or any of its Subsidiaries or, to the best knowledge of
any Credit Party or any Subsidiary of a Credit Party, threatened against such
Credit Party or any of its Subsidiaries, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against any Credit Party or any of its Subsidiaries or, to the best
knowledge of any Credit Party, threatened against such Credit Party or any of
its Subsidiaries, (ii) no strike, labor dispute, slowdown or stoppage pending
against any Credit Party or any of its Subsidiaries or, to the best knowledge of
any Credit Party, threatened against such Credit Party or any of its
Subsidiaries and (ii) to the best knowledge of any Credit Party, no union
representation questi on existing with
33
respect to the employees of such Credit Party or any of its Subsidiaries and, to
the best knowledge of any Credit Party, no union organizing activities are
taking place, except (with respect to any matter specified in clause (i), (ii)
or (ii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.
5.21. Patents, Licenses, Franchises and Formulas. Each Credit Party and
each of its Subsidiaries owns or has the right to use all the patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises, proprietary information (including, but not limited to, rights in
computer programs and databases) and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected to have a Material Adverse
Effect. To the best knowledge of such Credit Party or Subsidiary, no claim is
pending that any Credit Party or any Subsidiary of a Credit Party infringes upon
the asserted rights of any other Person under any intellectual property, except
for claims which could not, individually or in the aggregate, reasonably be
expected to have a Mater ial Adverse Effect. To the best knowledge of such
Credit Party or Subsidiary, no claim is pending that such intellectual property
owned or licensed by any Credit Party or any Subsidiary of a Credit Party or
which such Credit Party or Subsidiary otherwise has the right to use is invalid
and unenforceable, except for claims which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
consummation of the transactions contemplated hereby will not alter or impair
any rights of any Credit Party or any Subsidiary of a Credit Party to use any
intellectual property in a way that would, individually or in the aggregate,
have a Material Adverse Effect. All intellectual property is free and clear of
all Liens, except such Liens as would not, individually or in the aggregate,
have a Material Adverse Effect and Liens created by the Security Documents.
Neither the Borrower nor the Principal Guarantor owns or licenses any material
trademarks.
5.22. Transactions. At the time of consummation of each of the Remate, the
Tender Offer, the Share Exchange, the Share Conversion, the Cayman Acquisition
and the other transactions contemplated hereby, all consents and approvals of,
and filings and registrations with, and all other actions in respect of, all
Governmental Authorities required in order to make or consummate the Remate, the
Tender Offer, the ADS Share Exchange, the ADS Share Conversion, the Cayman
Acquisition or the other transactions contemplated hereby were obtained, given,
filed or taken and are in full force and effect (or effective judicial relief
with respect thereto has been obtained). All applicable waiting periods with
respect thereto, expired without, in all such cases, any action being taken by
any competent authority which restrains, prevents, or imposes material adverse
conditions upon the Remate, the Tender Offer, the Share Exchange, the ADS Share
Conversion, the Cayman Acquisition or the other transactions contemplated
hereby.
34
Additionally, there does not exist any judgment, order or injunction prohibiting
or imposing material adverse conditions upon the transactions contemplated
hereby or the performance by any Credit Party of its obligations under the
Credit Documents to which it is party. All actions taken by each Credit Party
pursuant to or in furtherance of the transactions contemplated hereby were taken
in all material respects in compliance with the respective Credit Documents and
all applicable laws.
5.23. Fees and Enforcement. No fees or taxes, including, without
limitation, stamp, transaction, registration or similar taxes, are required to
be paid to ensure the legality, validity, or enforceability of this Agreement or
any of the other Credit Documents (except for fees and stamp taxes in respect of
this Agreement). Under the laws of Chile and the Cayman Islands, the choice of
the laws of the State of New York as set forth in the Credit Documents that are
stated to be governed by the laws of the State of New York is a valid choice of
law, and the irrevocable submission by each Credit Party to jurisdiction and
consent to service of process and appointment by each Credit Party of an agent
for service of process, in each case as set forth in such Credit Documents, is
legal, valid, binding and effective.
5.24. Form of Documentation. Each of the Credit Documents is in proper
legal form under the laws of Chile, the Cayman Islands and the United States for
the enforcement thereof under such laws.
5.25. Payment of Additional Amounts.
(a) Each of the Credit Parties is permitted under applicable law to pay any
additional amounts payable under Section 3.5 as will result in receipt by the
Lender of such amounts as would have been received by the Lender had no such
additional amounts been required to have been paid.
(b) Other than as set forth on Schedule 5.25, as of the Effective Date, no
withholding or other taxes are required to be paid in respect of, or deducted
from, any payment required to be made by the Borrower or any other Credit Party
under this Agreement, the Notes, or any other Credit Document.
5.26. Fictitious Business Names. No Credit Party has used any corporate or
fictitious name, other than the corporate name shown on its governing documents.
5.27. Indebtedness. The Credit Parties do not have any Indebtedness or
preferred stock outstanding other than pursuant to the Credit Documents and the
other Indebtedness listed on Schedule 4.18. The assets of the Credit Parties are
not subject to any Lien other than Liens created pursuant to the Security
Documents. The Credit
35
Parties have no contractual obligations other than pursuant to the Credit
Documents and the other obligations listed on Schedule 4.18.
5.28. Hedging Transaction. (a) the Inversiones OEA has entered into the
Liquidacion Compra/Venda Transaccion Spot, dated as of December 29, 2000, with
The Chase Manhattan Bank Chile Branch (the "Hedging Counterparty") (such
agreement, the "Hedging Agreement") providing for the conversion of Dollars held
in the Inversiones OEA NY Collection Account into Pesos with an equivalent
value, (b) such conversion of Dollars into Pesos will take place on the Initial
Borrowing Date and (c) the Hedging Agreement is subject to only customary terms
and conditions, including simultaneous delivery of Pesos into the Inversiones
OEA Chile Collection Account at the time of the delivery of Dollars in exchange
for such Pesos.
SECTION 6. Affirmative Covenants. The Credit Parties hereby covenant and
agree that on the Effective Date and thereafter for so long as this Agreement is
in effect and until the Bridge Loans and the Notes, together with interest, Fees
and all other Obligations incurred hereunder and thereunder, are paid in full:
6.1. Information Covenants. The Borrower will furnish to the Lender:
(a) Notice of Default or Litigation. Promptly upon, and in any event within
five Business Days after, the principal executive officer or the principal
financial officer of any Credit Party or any Restricted Subsidiary thereof
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default and (ii) any litigation or
governmental investigation or proceeding pending (x) against any Credit Party
or any Restricted Subsidiary of a Credit Party which could reasonably be
expected to have a Material Adverse Effect, (y) with respect to any material
Indebtedness of any Credit Party or any Restricted Subsidiary of a Credit
Party or (z) with respect to any Credit Document.
(b) Notice of Material Adverse Effect. Promptly after obtaining knowledge
thereof, written notice of the occurrence of any Material Adverse Effect or
any event or condition which could reasonably be expected to result in any
Material Adverse Effect.
(c) Other Reports and Filings. Promptly after the filing or delivery
thereof (unless previously delivered pursuant to another provision hereof),
copies of all material financial information, if any, which any Credit Party,
Gener or their Subsidiaries shall publicly file with any Governmental
Authority (including, without limitation, the United States Securities and
Exchange Commission and any Chilean securities authority) or with any
international or national securities exchange (including, without limitation,
the New York or American Stock
36
Exchange and the Xxxxxxxx Stock Exchange) or deliver to holders of its
Indebtedness pursuant to the terms of the documentation governing such
Indebtedness.
(d) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to any Credit Party or any
Subsidiary of a Credit Party as the Lender may reasonably request.
6.2. Books, Records and Inspections. Each Credit Party will, and will cause
each of its Restricted Subsidiaries to, keep proper books of record and accounts
in which full, true and correct entries in conformity with applicable generally
accepted accounting principles and all requirements of law shall be made of all
dealings and transactions in relation to its business and activities. Each
Credit Party will, and will cause each of its Restricted Subsidiaries to, permit
officers and designated representatives of the Lender to visit and inspect,
under guidance of officers of such Credit Party or such Restricted Subsidiary,
any of the properties of such Credit Party or such Restricted Subsidiary, and to
examine the books of account of such Credit Party or such Restricted Subsidiary
and discuss the affairs, finances and accounts of such Credit Party or such
Restricted Subsidiary with, and be advised as to the same by, its and their
officers and independent accountants (provided that the Borrower shall be per
mitted to attend any meeting with such accountants), all upon reasonable prior
notice and at such reasonable times and intervals and to such reasonable extent
as the Lender may reasonably request.
6.3. Maintenance of Property. Each Credit Party will, and will cause each
of its Restricted Subsidiaries to, (i) keep all property necessary to its
business in reasonably good working order and condition, ordinary wear and tear
excepted, in accordance with industry practice for companies similarly situated
owning similar properties in the same general areas in which such Credit Party
or any of its Restricted Subsidiaries operates, (ii) maintain insurance on all
such property in at least such amounts and against at least such risks as is
consistent and in accordance with industry practice for companies similarly
situated owning similar properties in the same general areas in which such
Credit Party or any of its Restricted Subsidiaries operates, and (iii) furnish
to the Administrative Agent, upon written request, reasonable information as to
the insurance carried.
6.4. Corporate Existence and Franchises. Each Credit Party will, and will
cause each of its Restricted Subsidiaries to, do or cause to be done, all
reasonable things necessary to preserve and keep in full force and effect its
existence and its material rights, franchises, licenses and patents.
6.5. Compliance with Statutes. Each Credit Party will, and will cause each
of its Restricted Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
Governmental Authorities, in
37
respect of the conduct of its business and the ownership of its property, except
such noncompliances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.6. Compliance with Environmental Laws. Each Credit Party will comply, and
will cause each of its Restricted Subsidiaries to comply, in all respects with
all environmental laws applicable to the ownership or use of its real property
now or hereafter owned or operated by such Credit Party or any of its Restricted
Subsidiaries (except to the extent that any failure so to comply could not
reasonably be expected to have a Material Adverse Effect), will promptly pay or
cause to be paid all costs and expenses incurred in connection with such
compliance, and will keep or cause to be kept all such real property free and
clear of any Liens imposed pursuant to such environmental laws.
6.7. Employee Benefit Plans. Each Credit Party will, and will cause each of
its Restricted Subsidiaries to, comply fully and timely with all its obligations
relating to all employee benefit plans established, maintained or contributed to
by it, except such non-compliance as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.8. End of Fiscal Years and Fiscal Quarters. No Credit Party will, and
each will ensure that none of their respective Restricted Subsidiaries will,
change the date of the end of its fiscal year.
6.9. Performance of Obligations. Each of the Credit Parties will, and will
cause each of its Restricted Subsidiaries to, perform all of its obligations
under the terms of each mortgage, indenture, security agreement, loan agreement
and each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each Credit
Party will perform all such actions as are necessary to ensure the validity of
the Guaranty of each Guarantor.
6.10. Payment of Taxes. Each of the Credit Parties will pay and discharge,
and will cause each of its Restricted Subsidiaries to pay and discharge, all
material taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any properties belonging to it, prior to
the date on which penalties attach thereto, and all lawful claims for sums that
have become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 7.1(i); provided that none of the Credit Parties nor any
of its Restricted Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto
in accordance with GAAP.
38
6.11. Further Assurances.
(a) Each of the Credit Parties will, and (to the extent applicable) will
cause Gener to, at their expense, (i) make, execute, endorse, acknowledge, file
and/or deliver to the Secured Party from time to time such assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, real property surveys, reports and other assurances or instruments
and take such further steps relating to the Collateral covered by any of the
Security Documents as the Secured Party may reasonably require and (ii) complete
the Post-Closing Collateral Actions promptly after the Initial Borrowing Date,
but in any event no later than three Business Days after the Initial Borrowing
Date (except to the extent that Schedule 4.11 clearly indicates that such
actions are on-going requirements that cannot be completed until a later date).
Furthermore, such Person will cause to be delivered to the Secured Party such
opinions of counsel and other related documents as may be reasonably requested
by the Lender to assure itself that this Section 6.11 has been complied with.
(b) Each of the Credit Parties agrees that each action required by this
Section 6.11 shall be completed as soon as possible, but in no event later than
(i) with respect to actions required pursuant to Section 6.11(a), 5 days (or
such longer period as may be agreed by the Lender) after such action is
requested to be taken by the Lender or (ii) with respect to actions required to
be taken under clause (c) of this Section 6.11, as required pursuant to the
terms of such sections; provided that, in no event will any Credit Party be
required to take any action, other than using its commercially reasonable
efforts, to obtain consents from third parties with respect to its compliance
with this Section 6.11.
(c) On the date of each relevant Credit Event, or, to the extent any of the
following constitute Post-Closing Collateral Actions, on the applicable date
therefor, each relevant Credit Party (i) shall record, or cause to be recorded,
if necessary under applicable law, the pledge of its shares of capital stock
under the Stock Pledge Agreements and/or the Gener Stock Pledge Agreements in
the stock registry of the issuer of the Pledged Securities or in any other
registry, if necessary, in the manner provided in such Security Documents, so as
to evidence the perfection of the pledge of first priority purported to be
granted thereby and shall provide to the Lender evidence thereof satisfactory to
the Lender and (ii) shall give, or cause to be given, if necessary under
applicable law, all notices, in form and substance satisfactory to the Secured
Party and the Lender, by a notary public to all relevant Persons in the manner
provided by the law applicable to the relevant Stock Pledge Agreement to perfect
the Co llateral specified in the Stock Pledge Agreements with respect to third
parties, and give, or cause to be given, all other notices, in each case in form
and substance satisfactory to the Secured Party and the Lender, so as to
evidence the creation and perfection of the first priority security interest
purported to be created and perfected thereby and shall provide to the Lender
evidence thereof satisfactory to the Lender.
39
6.12. Cayman Loan. On the Initial Borrowing Date, Inversiones OEA will
enter into the Cayman Loan Agreement in the original principal amount of
$448,014,583.39.
6.13. Pledge of ADS Shares. Mercury Cayman III shall cause all
uncertificated ADS Shares acquired in connection with the Tender Offer and the
Share Exchange to be immediately deposited into the Mercury Cayman III
Collection Account. Mercury Cayman III shall pledge all certificated ADS Shares
acquired in connection with the Tender Offer and shall immediately deliver to
the Secured Party such certificated ADS Shares, together with stock powers
executed in blank and all other instruments necessary to grant a first priority
lien on such certificated ADS Shares.
6.14. Pledge of Gener Shares. (a) On and after the settlement of the
Remate, immediately upon the acquisition of any Gener Shares by Inversiones
Cachagua, Inversiones Cachagua shall duly authorize, execute and deliver a stock
pledge agreement (Contrato de Prenda sobre Acciones), in a form to be agreed
prior to the Initial Borrowing Date, shall pledge all of the Gener Shares so
acquired and shall immediately deliver to the Secured Party, as Secured Party
thereunder, all of the Pledged Securities referred to therein and owned by such
Person, together with satisfactory evidence of all annotations in the stock
registry books of the issuers of the Pledged Securities and all other
annotations necessary to grant a first priority lien on the Pledged Securities.
(b) Immediately upon the acquisition of any Gener Shares by Mercury Cayman
III, Mercury Cayman III shall duly authorize, execute and deliver a stock pledge
agreement (Contrato de Prenda sobre Acciones), in a form to be agreed prior to
the Initial Borrowing Date, shall pledge all of the Gener Shares so acquired and
shall immediately deliver to the Secured Party, as Secured Party thereunder, all
of the Pledged Securities referred to therein and owned by such Person, together
with satisfactory evidence of all annotations in the stock registry books of the
issuers of the Pledged Securities and all other annotations necessary to grant a
first priority lien on the Pledged Securities.
6.15. Repayment of Inversiones OEA Inter-Company Loan. Each of the Credit
Parties shall cause Inversiones OEA to apply, and Inversiones OEA shall apply,
immediately upon the receipt thereof, the proceeds of borrowings under the
Inversiones OEA Facility to repay the principal amount of the Indebtedness of
Inversiones OEA under the Inversiones OEA Inter-Company Note.
6.16. Post-Closing Equity Contribution. Upon receipt of the repayment of
the Inversiones OEA Inter-Company Note, the Borrower shall make the Post-Closing
Equity Contribution.
40
SECTION 7. Negative Covenants. The Credit Parties hereby covenant and agree
that on and after the Effective Date and until the Bridge Loans and the Notes,
together with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
7.1. Liens. The Credit Parties will not, and will not permit any of their
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien upon or with respect to any item constituting
Collateral except for the Lien of the Security Documents relating thereto and
Permitted Liens. The Credit Parties will not directly or indirectly, create,
incur, assume or suffer to exist any Lien upon or with respect to any of their
property or assets (real or personal, tangible or intangible) (other than the
Collateral), whether now owned or hereafter acquired, or sell any such property
or assets subject to an understanding or agreement, contingent or otherwise, to
repurchase such property or assets (including sales of accounts receivable with
recourse to the Credit Parties or any of their Subsidiaries), or sell or assign
any income or right in respect thereof or permit the filing of any notice of
Lien under any similar recording or notice statute; provided, however, that the
provisi ons of this Section 7.1 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens "):
(i) inchoate Liens for taxes, assessments or governmental charges or levies
not yet due or Liens for taxes, assessments or governmental charges or levies
being contested in good faith and by appropriate proceedings for which adequate
reserves have been established to the extent required by GAAP;
(ii) Liens created pursuant to the Security Documents; and
(iii) the Lien of the Cayman Lender on the Cayman Deposit.
Except with respect to specific property or assets encumbered pursuant to a
Lien permitted to be incurred pursuant to this Section 7.1, the Credit Parties
will not, and will not permit any of their Restricted Subsidiaries to, directly
or indirectly, enter into any agreement on or after the Effective Date
prohibiting or restricting in any manner (directly or indirectly and including
by way of covenant, representation or warranty or event of default) the creation
or assumption of any Lien upon its property or assets, whether now owned or
hereafter acquired, except pursuant to the Credit Documents.
7.2. Consolidation, Merger, Purchase or Sale of Assets, etc. The Credit
Parties will not, and will not permit any of their Restricted Subsidiaries to,
directly or indirectly, wind up, liquidate or dissolve their affairs or enter
into any transaction of merger or consolidation, or convey, sell, lease or
otherwise dispose of all or any part of their property or assets, or enter into
any sale-leaseback transactions, or purchase or
41
otherwise acquire (in one or a series of related transactions) any part of the
property or of any Person (or agree to do any of the foregoing at any future
time), except that:
(i) the acquisition of Gener Shares in the Remate shall be permitted;
(ii) the Tender Offer shall be permitted;
(iii) the Share Exchange shall be permitted;
(iv) the ADS Share Conversion shall be permitted;
(v) the Inversiones OEA Note Repayment shall be permitted;
(vi) the Cayman Acquisition shall be permitted so long as it occurs
substantially simultaneously with the repayment in full of the Bridge Loans.
7.3. Dividends. The Credit Parties will not, and will not permit any of
their Restricted Subsidiaries to, directly or indirectly, authorize, declare or
pay any Dividends.
7.4. Indebtedness. The Credit Parties will not, and will not permit any of
the Restricted Subsidiaries to, directly or indirectly, contract, create, incur,
assume or suffer to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other Credit
Documents;
(ii) Indebtedness of Inversiones OEA incurred pursuant to the Cayman Loan
Agreement;
(iii) Indebtedness of Mercury Cayman I pursuant to the Collateral
Agreement;
(iv) Indebtedness pursuant to the Hedging Agreement so long as it is
discharged in its entirety on the Initial Borrowing Date; and
(v) Indebtedness pursuant to the Inter-Company Notes.
7.5. Advances, Investments and Loans. The Credit Parties will not, and will
not permit any of their Restricted Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures
42
contract (each of the foregoing, an "Investment" and, collectively,
"Investments"), except that the following shall be permitted:
(i) acquiring and holding cash and Cash Equivalents;
(ii) cash capital contributions to the capital of the Borrower's
Subsidiaries that are Credit Parties;
(iii) acquiring Gener Shares pursuant to the Remate and the Stock
Conversion;
(iv) acquiring ADS Shares in connection with the Tender Offer;
(v) the Cayman Acquisition; (vi) the Cayman Deposit;
(vii) loans made pursuant to the Inter-Company Notes; and
(viii) the Post-Closing Equity Contribution.
7.6. Transactions with Affiliates.
(a) The Credit Parties will not, and will not permit any of their
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions, with any Affiliate of any such Credit Party
(each such transaction, an "Affiliate Transaction"), other than loans, advances,
dividends and distributions to the extent permitted by Section 7.5(ii), (iii),
(iv), (v), (vii) or (viii).
7.7. Capital Expenditures. The Credit Parties will not make any Capital
Expenditures.
7.8. Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Estatutos Sociales and Certain Other Agreements. The Credit
Parties will not, directly or indirectly, (a) make (or give any notice in
respect thereof) any voluntary or optional payment or prepayment on or
redemption or acquisition for value of, or any prepayment or redemption as a
result of any disposition, change of control or similar event of, any
Indebtedness (other than the Bridge Loans), (b) amend or modify, or permit the
amendment or modification of, any provision of any Indebtedness or of any
agreement (including, without limitation, any purchase agreement, indenture,
loan agreement or security agreement) relating thereto which materially and
adversely affects the interests of the Lender under any Credit Document, (c)
amend, modify or change their certificate of incorporation (including, without
limitation, by the filing or modification of any certificate of designation) or
by laws (estatutos sociales or
43
equivalent organizational documents), or any agreement entered into by any of
them, with respect to their capital stock, or enter into any new agreement with
respect to their capital stock which materially and adversely affects the
interests of the Lender under any Credit Document or (d) amend, modify, change
or waive any provision of the Remate or the Tender Offer, other than any
amendments, modifications, changes or waivers which do not in any way materially
and adversely affect the interests of the Lender or any Credit Document.
7.9. Limitation on Certain Restrictions on Subsidiaries. The Credit Parties
will not, and will not permit any of their Restricted Subsidiaries to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions (including without limitation any
reduction of capital) on its capital stock or any other interest or
participation in its profits owned by such Credit Party or any Subsidiary of
such Credit Party, or pay any Indebtedness owed to such Credit Party or a
Subsidiary of such Credit Party, (b) make loans or advances to such Credit Party
or (c) transfer any of its properties or assets to such Credit Party, except for
such encumbrances or restrictions existing under or by reason of (i) applicable
law or (ii) this Agreement and the other Credit Documents.
7.10. Limitation on Issuance of Capital Stock.
(a) The Credit Parties will not, and will not permit any of their
Restricted Subsidiaries to, directly or indirectly, issue (i) any preferred
stock or (ii) any redeemable common stock.
(b) The Credit Parties will not, and will not permit any of their
Restricted Subsidiaries to, issue any capital stock (including by way of sales
of treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock, except in connection with the Post-Closing
Equity Contribution and such as would not constitute a Change of Control.
7.11. Business. The Credit Parties will not, and will not permit any of
their Restricted Subsidiaries to, engage in any business other than the
consummation of the Remate, the Tender Offer, the Stock Exchange, the Stock
Conversion, the maintenance of the Collection Accounts, the Cayman Acquisition
and the other transactions contemplated hereby and by the other Credit
Documents.
7.12. Limitation on Creation of Subsidiaries. Notwithstanding anything to
the contrary contained in this Agreement, the Credit Parties will not, and will
not permit any of their Restricted Subsidiaries to, directly or indirectly,
establish, create or acquire after the Effective Date any Subsidiary other than
Gener and its Subsidiaries.
44
7.13. Maintenance of Collection Accounts. The Credit Parties will not, and
will not permit any of their Restricted Subsidiaries to, cause or permit the
distribution, disposition or transfer of any asset held in any Collection
Account or otherwise subject to any Lien other than Liens in favor of the
Secured Party except:
(a) any Credit Party may transfer assets to a Collection Account
established by another Credit Party pursuant to Section 3.6; provided, however,
that any such transfer shall be made pursuant to an Irrevocable Instruction in
conformance with Section 1.1(d);
(b) Mercury Cayman I may transfer assets held in the Mercury Cayman I
Collection Account to the Cayman Lender;
(c) Inversiones OEA may transfer Dollars held in the Inversiones OEA NY
Collection Account to the Hedging Counterparty pursuant to the Hedging Agreement
for the conversion of such Dollars into Pesos, provided that such Pesos are
simultaneously delivered to the Inversiones OEA Chile Collection Account;
(d) Inversiones Cachagua may transfer assets held in the Inversiones
Cachagua Collection Account to Deutsche Bank Corredores de Bolsa to acquire
Gener Shares tendered in connection with the Remate;
(e) Mercury Cayman III may transfer assets held in the Mercury Cayman III
Collection Account in connection with the Share Exchange;
(f) Mercury Cayman III may transfer assets held in the Mercury Cayman III
Collection Account in connection with the ADS Share Conversion;
(g) Inversiones Cachagua may transfer cash and Cash Equivalents held in the
Inversiones Cachagua NY Collection Account to the Borrower to consummate the
Cayman Acquisition;
(h) Inversiones OEA may transfer assets held in the Inversiones OEA Chile
Collection Account to pay Chilean stamp taxes due and payable arising out of the
Cayman Loan, in an amount not to exceed US$5,776,175 in the aggregate; and
(i) Inversiones OEA may transfer assets held in the Inversiones NY
Collection Account to the Borrower to repay Indebtedness under the Inversiones
OEA Note so long as such transfer occurs substantially simultaneously with the
repayment in full of the Bridge Loans (the "Inversiones OEA Note Repayment").
7.14. No Additional Bank Accounts. The Credit Parties will not, and will
not permit any of their Restricted Subsidiaries to, directly or indirectly,
open, maintain or otherwise have any checking, savings, deposit, brokerage or
other accounts at
45
any bank or other financial institution, or elsewhere, where cash, Cash
Equivalents or other Investments can or may be deposited or maintained, other
than the Collection Accounts.
SECTION 8. Events of Default. Upon the occurrence of any of the following
specified events (each, an "Event of Default "):
8.1. Payments. The Borrower shall (i) default in the payment when due of
any principal of any Bridge Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any interest on any Bridge Loan or any Note or any Fees or any other
amounts owing hereunder or under any other Credit Document; or
8.2. Representations, etc. Any representation, warranty or statement made
by any Credit Party herein or in any other Credit Document or in any certificate
delivered to the Lender pursuant hereto or thereto or relating to any amendment,
modification, waiver or supplement hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
8.3. Covenants. Any Credit Party shall (a) default in the due performance
or observance by it of any term, covenant or agreement contained in Section 3.3,
6.11(a), 6.11(c), 6.12, 6.13, 6.14, 6.15, 6.16 or 7 or (b) default in the due
performance or observance by it of any term, covenant or agreement contained
herein or in any other Credit Document (other than those set forth in Sections
8.1 and 8.2 or clause (a) of this Section 8.3) and such default shall continue
unremedied for a period of 5 consecutive days; or
8.4. Default Under Other Agreements. (i) Any Credit Party or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations) or (y) default in the observance or performance of any
agreement or condition relating to any Indebtedness (other than the Obligations)
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is required),
any such Indebtedness to become due prior to its stated maturity; (ii) any
Indebtedness (other than the Obligations) of any Credit Party or any of its
Subsidiaries shall be declared to be (or shall become) due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment,
prior to the st ated maturity thereof; provided, however, that it shall not be a
Default or an Event of Default under clause (i) or (ii) of this Section 8.4
unless the aggregate principal amount (or, with respect to Indebtedness under
Interest Rate Protection Agreements, the termination
46
amount) of all Indebtedness as described in the preceding clauses (i) and (ii)
is at least $1.0 million; or
8.5. Bankruptcy, etc. Any Credit Party or any of its Subsidiaries shall
commence a voluntary case concerning itself under any bankruptcy law of Chile or
the Cayman Islands or any other jurisdiction or Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
such Credit Party or any of its Subsidiaries under any such laws, and the
petition is not controverted within 10 days, or is not dismissed within 30 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of such Credit Party or any of its Subsidiaries, or such Credit Party
or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect re lating to such Credit Party or any of its Subsidiaries,
or there is commenced against any Credit Party or any of its Subsidiaries any
such proceeding which remains undismissed for a period of 30 days, or such
Credit Party or any of its Subsidiaries is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding is
entered; or such Credit Party or any of its Subsidiaries suffers any appointment
of any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 30 days; or such Credit Party
or any of its Subsidiaries makes a general assignment for the benefit of
creditors; or any such Credit Party or any of its Subsidiaries shall generally
not pay its debts as they become due or there shall otherwise occur a cesacion
de pagos (within the meaning of Chilean or other applicable law); or any
corporate action is taken by such Credit Party or any of its Subsidiaries for
the purpose of effecting any of the foregoing; or
8.6. Credit Documents. (a) Any Credit Document shall cease to be in full
force and effect, or (in the case of Security Documents) shall cease to give the
Lender the Liens and the material rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral described therein, in favor of the
Lender, superior to and prior to the rights of all third Persons, and subject to
no Liens other than Liens permitted under such Security Document), or (b) any
Credit Party or any other party to the Credit Documents shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Credit Document and (except in the
case of the Inversiones OEA Facility for which the Event of Default hereunder
shall be subject to any applicable grace period set forth therein) such default
shall continue unremedied for a period of 5 consecutive days after written no
xxxx thereof to the defaulting party by the Lender; or
47
8.7. Guaranties. (a) At any time after the execution and delivery thereof,
any Guaranty or any material provision thereof shall cease to be in full force
or effect as to any Guarantor, (b) any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under its Guaranty, or (c) any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to its Guaranty (and such default shall continue unremedied
for a period of 5 consecutive days after written notice thereof to the
defaulting party by the Lender), and in each such case the Borrower shall fail
to propose a substitute Guarantor satisfactory to the Administrative Agent, in
its sole discretion, in the case of clause (a) or (b) above, within three
Business Days following such event and, in the case of clause (c) above, within
such 5 day period; or
8.8. Judgments. One or more judgments or decrees shall be entered against
any Credit Party or any Subsidiary of such Credit Party involving a liability
(not paid or fully covered by a reputable and solvent insurance company) and
such judgments and decrees either shall be final and non-appealable or shall not
be vacated, discharged or stayed or bonded pending appeal for any period of 5
consecutive days, and the aggregate amount of all such judgments equals or
exceeds $1.0 million; or
8.9. Change of Control. A Change of Control shall occur; or
8.10. Denial of Liability. (a) Any Credit Party shall deny its obligations
under this Agreement, any Note or any other Credit Document, (b) any law, rule
or regulation shall purport to render invalid, or preclude enforcement of, any
material provision of this Agreement or any other Credit Document or impair
performance of the Borrower's or any Credit Party's material obligations
hereunder or under any other Credit Document or (c) any dominant authority
asserting or exercising de jure or de facto governmental or police powers shall,
by moratorium laws or otherwise, cancel, suspend or defer the obligation of any
Credit Party or any of its Subsidiaries to pay any amount required to be paid
hereunder or under any other Credit Document; or
8.11. Currency Restrictions. Chile or the Cayman Islands or any
Governmental Authority of either thereof shall impose restrictions on the
availability of freely transferable Dollars to Persons outside Chile or the
Cayman Islands, as the case may be, or Dollars shall, in the reasonable judgment
of the Lender, be unavailable at all or at a commercially reasonable rate of
exchange, and the Borrower shall not, within 5 Business Days after notice from
the Lender, have demonstrated to the satisfaction of the Lender that such
restrictions will not have a material adverse effect on the ability of any
Credit Party to perform its obligations under any of the Credit Documents or the
availability of Dollars for purposes of paying any amounts required to be paid
pursuant to any of the Credit Documents; or
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8.12. Governmental Action. Any Governmental Authority shall have condemned,
nationalized, seized, or otherwise expropriated all or substantially all of the
property, shares of capital stock or other assets of any Credit Party or of any
Credit Party and its Subsidiaries, taken as a whole, or shall have assumed
custody or control of such property or other assets or of the business or
operations of any Credit Party or of any Credit Party and its Subsidiaries,
taken as a whole, or shall have taken any action for the dissolution or
disestablishment of any Credit Party or any action that would prevent any Credit
Party or any of its officers from carrying on the business of such Credit Party
or a substantial part thereof; or
8.13. Termination of Commitments. The Commitments (as defined in the
Inversiones OEA Facility) under the Inversiones OEA Facility shall have been
terminated.
8.14. Hedging Agreement. The Hedging Counterparty shall not have delivered
Pesos under the Hedging Agreement on the Initial Borrowing Date.
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Lender may, by written notice to the Borrower,
take any or all of the following actions, without prejudice to the rights of the
Lender to enforce its claims against any Credit Party (provided that, if an
Event of Default specified in Sections 8.5, 8.13 or 8.14 shall occur with
respect to any Credit Party, the result which would occur upon the giving of
written notice by the Lender as specified in clauses (i) and (ii) below shall
occur automatically without the giving of any such notice): (i) declare the
Total Commitment terminated, whereupon the Commitment of the Lender shall
forthwith terminate immediately; (ii) declare the principal of and any accrued
interest in respect of all Bridge Loans, the Notes and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Credit Party; (ii) enforce any or all of
the Liens and security interests created pursuant to the Security Documents; and
(iv) exercise any other rights available under the Credit Documents or
applicable law.
SECTION 9. Guaranty.
9.1. The Guaranteed Obligations.
(a) In order to induce the Lender to enter into this Agreement and extend
credit hereunder, each of the Credit Parties (other than the Borrower) (the
"Guarantors") irrevocably and unconditionally guarantees, on a joint and several
basis, the full and prompt payment when due (whether by acceleration or
otherwise) of the principal of and interest on any Note issued under this
Agreement and of all other obligations and liabilities (including, without
limitation, indemnities, Fees and interest
49
thereon) of the Borrower now existing or hereafter incurred under, arising out
of or in connection with this Agreement or any other Credit Document and the due
performance and compliance with the terms of the Credit Documents by the
Borrower (all such principal, interest, obligations and liabilities,
collectively, the "Guaranteed Obligations"). Each of the Guarantors understands,
agrees and confirms that the Lender may enforce this Guaranty up to the full
amount of the Guaranteed Obligations against the Guarantors without proceeding
against the Borrower, against any security for the Guaranteed Obligations or
against any other Guarantor under any other Guaranty covering the Guaranteed
Obligations. Each of the Guarantors irrevocably and unconditionally promises, on
a joint and several basis, to pay such Guaranteed Obligations to the Lender, on
demand, in Dollars. This Guaranty shall constitute a guaranty of payment and not
of collection. All obligations of the Guarantors hereunder shall be joint and
several.
(b) All payments made by the Guarantors hereunder shall be made without
setoff, counterclaim or other defense. All such payments will be made free and
clear of, and without deduction or withholding for, any present or future Taxes
in the manner provided for in Section 3.5. The Guarantors will indemnify and
hold harmless the Lender, and reimburse the Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by the Lender. A
certificate as to the amount of any such required indemnification payment
prepared by the Lender shall be final, conclusive and binding for all purposes
absent demonstrable error.
9.2. Continuing Obligation. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of the Lender in exercising any right, power or privilege
hereunder and no course of dealing between any Initial Guarantor and the Lender
or the holder of any Note 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. The rights, powers and remedies herein expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the Lender
or the holder of any Note would otherwise have. No notice to or demand on any
Initial Guarantor in any case shall entitle such Person or Persons to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the r ights of the Lender or the holder of any Note to any other or
further action in any circumstances without notice or demand.
9.3. No Discharge. If a claim is ever made upon the Lender for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (b) any settlement or compromise of any such claim effected by such payee
with any such claimant (including
50
the Guarantors), then and in such event each of the Guarantors agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon it
notwithstanding any revocation hereof or the cancellation of any Note or other
instrument evidencing any liability of the Initial Guarantors, and each of the
Guarantors shall be and remain jointly and severally liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such payee. It is the
intention of the Lender and each of the Guarantors that the Guaranteed
Obligations hereunder shall not be discharged (whether pursuant to any
bankruptcy law or comparable legislation or otherwise) except by the Initial
Guarantors' indefeasible performance of such obligations and then only to the
extent of such performance.
9.4. Tolling of Statute of Limitations. Any acknowledgment or new promise,
whether by payment of principal or interest or otherwise and whether by the
Guarantors or others, with respect to any of the Guaranteed Obligations shall,
if the statute of limitations in favor of the Guarantors against the Lender or
the holder of any Note shall have commenced to run, toll the running of such
statute of limitations, and if the period of such statute of limitations shall
have expired, prevent the operation of such statute of limitations.
9.5. Bankruptcy. Each of the Guarantors, unconditionally and irrevocably,
guarantees the payment of any and all of the Guaranteed Obligations of the
Borrower to the Lender whether or not due or payable by the Borrower upon the
occurrence of any of the events specified in Section 8.5, and unconditionally
promises to pay such indebtedness to the Lender, on order or demand, in lawful
money of the United States.
9.6. Independent Obligation. The obligations of each Guarantor hereunder
are independent of the obligations of any other Credit Party, and a separate
action or actions may be brought and prosecuted against any Guarantor whether or
not an action is brought against any other Credit Party and whether or not any
other Credit Party is joined in any such action or actions. Each of the
Guarantors waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof.
9.7. Authorization. Each of the Guarantors authorizes the Lender without
notice or demand (except as shall be required by applicable statute and cannot
be waived), and without affecting or impairing its liability hereunder, from
time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly
or indirectly in
51
respect thereof, and the Guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed Obligations
and sell, exchange, release, surrender, realize upon or otherwise deal with
in any manner and in any order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or
any liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against the Borrower,
any other Credit Party or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower, any other Credit Parties or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and subordinate the
payment of all or any part thereof to the payment of any liability (whether
due or not) of the Borrower to its creditors other than the Lender;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Credit Party to the Lender regardless of what
liability or liabilities of the Guarantors or the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement, any other Credit Document or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Credit Document or any of such other
instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of the
Guarantors from their liabilities under this Guaranty.
9.8. Reliance. It is not necessary for the Lender to inquire into the
capacity or powers of the Guarantors or any of their respective Subsidiaries or
the officers, directors, partners or agents acting or purporting to act on their
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
9.9. Subordination. Any indebtedness of any Credit Party now or hereafter
owing to the Guarantors is hereby subordinated to the Guaranteed Obligations
52
of the Borrower owing to the Lender; and if the Administrative Agent so requests
at a time when an Event of Default exists, all such indebtedness of any Credit
Party to the Guarantors shall be collected, enforced and received by them for
the benefit of the Lender and be paid over to the Lender on account of the
Guaranteed Obligations of the Guarantors to the Lender, but without affecting or
impairing in any manner the liability of the Guarantors under the other
provisions of this Guaranty. Prior to the transfer by the Guarantors of any note
or negotiable instrument evidencing any such indebtedness of the Borrower to the
Guarantors, each of the Guarantors shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination. Without limiting
the generality of the foregoing, each of the Guarantors hereby agrees with the
Lender that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under t
he Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
9.10. Waiver.
(a) Each of the Guarantors waives any right (except as shall be required by
applicable law and cannot be waived) to require the Lender to (i) proceed
against any other Credit Party or any other party, (ii) proceed against or
exhaust any security held from any other Credit Party or any other party or (ii)
pursue any other remedy in the Lender's power whatsoever. Each of the Guarantors
waives any defense based on or arising out of any defense of any other Credit
Party or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of any other Credit Party
or any other party, or the validity, legality or unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of any other Credit Party or any other party other
than payment in full of the Guaranteed Obligations. The Lender may, at its
election, foreclose on any security held by the Lender by one or more judicial
or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Lender may have against any
other Credit Party or any other party, or any security, without affecting or
impairing in any way the liability of the Guarantors hereunder except to the
extent the Guaranteed Obligations have been paid. To the extent permitted by
applicable law, each of the Guarantors waives any defense arising out of any
such election by the Lender, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
the Guarantors against any other Credit Party or any other party or any
security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each of the Guarantors assumes all
responsibility for being and
53
keeping itself informed of each Credit Party's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which each
of the Guarantors assumes and incurs hereunder, and agrees that the Lender shall
have no duty to advise the Guarantors of information known to them regarding
such circumstances or risks.
(c) Each of the Guarantors warrants and agrees that each of the waivers set
forth herein is made with full knowledge of its significance and consequences
and that if any of such waivers are determined to be contrary to any applicable
law or public policy, such waivers shall be effective only to the maximum extent
permitted by law.
9.11. Nature of Liability. It is the desire and intent of each of the
Guarantors and the Lender that this Guaranty shall be enforced against the
Guarantors to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however, and to
the extent that, the obligations of the Guarantors under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason, then the amount of
the Initial Guarantors' obligations under this Guaranty shall be deemed to be
reduced and the Guarantors shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
9.12. Contribution. At any time a payment in respect of the Guaranteed
Obligations is made under any Guaranty, the right of contribution, if any, of
each Guarantor against each other Guarantor shall be determined as provided in
the immediately following sentence, with the right of contribution of each
Guarantor to be revised and restated as of each date on which a payment (a
"Relevant Payment") is made on the Guaranteed Obligations under a Guaranty. At
any time that a Relevant Payment is made by a Guarantor that results in the
aggregate payments made by such Guarantor in respect of its Guaranteed
Obligations to and including the date of the Relevant Payment exceeding such
Guarantor's Contribution Percentage (as hereinafter defined) of the aggregate
payments made by all Guarantors in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment (such excess, the "Aggregate Excess
Amount"), each such Guarantor shall have a right of contribution against each
other Guarantor who ha s made payments in respect of the Guaranteed Obligations
to and including the date of the Relevant Payment in an aggregate amount less
than such other Guarantor's Contribution Percentage of the aggregate payments
made to and including the date of the Relevant Payment by all Guarantors in
respect of the Guaranteed Obligations (the aggregate amount of such deficit, the
"Aggregate Deficit Amount") in an amount equal to (x) a fraction the numerator
of which is the Aggregate Excess Amount of such Guarantor and the denominator of
which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the
Aggregate Deficit Amount of such Guarantor. A Guarantor's right of contribution,
if any, pursuant to the preceding sentences shall arise at
54
the time of each computation, subject to adjustment to the time of any
subsequent computation; provided, however, that no Guarantor may take any action
to enforce such right until the Guaranteed Obligations have been paid in full
and the Lender's commitments have been terminated, it being expressly recognized
and agreed by all parties hereto that any Guarantor's right of contribution
arising pursuant to this Section 9.12 against any other Guarantor shall be
expressly junior and subordinate to such Guarantor's obligations and liabilities
in respect of the Guaranteed Obligations and any other obligations owing under
its Guaranty. As used in this paragraph, (i) each Guarantor's "Contribution
Percentage" shall mean the percentage obtained by dividing (x) the Adjusted Net
Worth of such Guarantor by (y) the aggregate Adjusted Net Worth of all
Guarantors giving Guaranties; (ii) the "Adjusted Net Worth" of each Guarantor
shall mean the greater of (x) the Net Worth of such Guarantor or (y) zero; and
(iii) the "Net Wo rth" of each Guarantor shall mean the amount by which the fair
salable value of such Guarantor's assets on the Initial Borrowing Date exceeds
its existing debts and other liabilities (including contingent liabilities, but
without giving effect to (1) any Guaranteed Obligations arising under a
Guaranty, (2) the obligations of such Guarantor in respect of the Credit
Documents and (3) any obligations of such Guarantor in respect of the Borrower's
other Indebtedness for borrowed money), in each case after giving effect to the
transactions occurring on the Initial Borrowing Date.
SECTION 10. Definitions. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Acquisition Value Certificate" shall have the meaning provided in Section
4B.7.
"Administrative Agent " shall mean Bankers Trust Company, as Administrative
Agent under the Inversiones OEA Facility.
"ADS Share" shall mean an American Depositary Share, each representing 68
Gener Shares.
"ADS Share Conversion" shall mean the conversion of ADS Shares into Gener
Shares in accordance with the provisions of the Depositary Agreement, dated as
of July 18, 1994, between Chilgener S.A., Citibank N.A., as Depositary, and
holders of ADS Shares.
"AES" shall mean The AES Corporation, a Delaware corporation.
"AES Shares" shall have the meaning provided in Section 4A.7(c).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common
55
control with, such Person (other than the Borrower or any Wholly-Owned
Subsidiary that is a Guarantor). A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power (i) to vote
10% or more of the securities having ordinary voting power for the election of
directors of such Person or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Affiliate Transaction" shall have the meaning provided in Section 7.6.
"Agreement " shall mean this Senior Secured Short Term Bridge Credit
Agreement, as modified, supplemented, amended, restated (including any amendment
and restatement hereof), extended, renewed, refinanced or replaced from time to
time.
"Applicable Fiscal Years" shall mean, as to Gener, the three fiscal years
of Gener ending December 31, 1999, 1998 and 1997.
"Applicable Margin" shall mean for each Interest Period (a) in the case of
LIBOR Loans 3.00% and (b) in the case of Base Rate Loans 2.00%.
"Arranger" shall have the meaning provided in the first paragraph of this
Agreement.
"Assignment and Assumption Agreement " shall mean an Assignment and
Assumption Agreement in a form to be agreed prior to the Initial Borrowing Date.
"Bankruptcy Code" shall have the meaning provided in Section 8.5.
"Base Rate" shall mean, at any time, the higher of (i) the Prime Lending
Rate and (ii) 0.5% per annum in excess of the Federal Funds Rate.
"Base Rate Loan" shall mean each Bridge Loan bearing interest at the Base
Rate as provided in Section 1.2(b).
"Basel Accords" shall mean the international banking supervision standards
set by the Basel Committee on Banking Supervision.
"Basel Bank " means a financial institution located in a country in which
the central bank or similar governmental authority has adopted the Basel
Accords.
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrower Collection Account " shall have the meaning provided in Section
3.6(a)
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"Borrowing" shall mean any borrowing of one Type of Bridge Loans from the
Lender on a given date (or resulting from a conversion or conversions on such
date) having, in the case of LIBOR Loans, the same Interest Period.
"Borrowing Date" shall mean the date on which a Borrowing of Bridge Loans
occurs.
"Bridge Loan" shall mean each Tranche A Bridge Loan and each Tranche B
Bridge Loan.
"BT Collection Account Security Agreement" shall have the meaning provided
in Section 4A.15.
"BT Control and Consent Acknowledgment and Agreement " shall have the
meaning provided in Section 4A.15.
"BT Securities Intermediary" shall mean Bankers Trust Company as Securities
Intermediary under the BT Collection Account Security Agreement.
"Business Day" shall mean any day except a Saturday, Sunday or other day on
which commercial banks are authorized or required by law or regulation to close
in New York City, Xxxxxxxx or, in the case of LIBOR Loans, with respect to
determination of LIBOR, London.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures to acquire or construct plants, fixed assets or equipment by such
Person which are or will be required to be capitalized in accordance with
Chilean GAAP.
"Cash Equivalents" shall mean (a) any evidence of Indebtedness with a
maturity of 180 days or less from the date of acquisition thereof issued or
directly and fully guaranteed or insured by the United States of America, Chile
or any agency or instrumentality or political subdivision thereof (provided that
the full faith and credit of the United States of America or Chile, as the case
may be, is pledged in support thereof); (b) demand deposits, certificates of
deposit or time deposits with a maturity of 180 days or less from the date of
acquisition thereof with any financial institution having combined capital,
surplus and undivided profits of not less than US$200,000,000 so long as such
banks shall not be under intervention of, or controlled by, any governmental
agency regulating Chilean financial institutions; (c) commercial paper with a
maturity of 180 days or less from the date of acquisition thereof issued by a
corporation (except an Affiliate of the Borrower) organized under the laws of
(i) any Sta te of the United States or the District of Columbia rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof
by Xxxxx'x or (ii) Chile rated investment grade by Duff & Xxxxxx; (d) repurchase
agreements and reverse repurchase agreements relating to marketable obligations,
directly or indirectly, issued or unconditionally guaranteed by the
00
Xxxxxx Xxxxxx xx Xxxxxxx or issued by any agency thereof and backed by the full
faith and credit of the United States, as the case may be, in each case maturing
within 180 days from the date of acquisition; provided, however, that the terms
of such agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency; (e) instruments backed by letters of
credit of institutions satisfying the requirements of clause (b) above; (f)
investments in money market funds at least 95% of whose assets are comprised of
securities of the types described in clauses (a) through (d) above; (g)
investments in money market funds complying with the risk limit conditions of
Rule 2a-7 or any successor rule of the Securities and Exchange Commission under
the U.S. Securities Exchange Act of 1934, as amended; and (h) demand deposit and
similar accounts maintained in the ordinary course of business. In addition, for
purposes of the Mercury Cayman I Collection Account only, "Cash Equivalents"
shall include the Cayman Deposit.
"Cayman Acquisition" shall mean the acquisition of 100% of the capital
stock of Cayman Mercury III by Inversiones Cachagua from the Borrower.
"Cayman Acquisition Funding Requirement " shall have the meaning provided
in Section 4B.7.
"Cayman Deposit" shall mean the deposit by Mercury Cayman I with the Cayman
Lender pursuant to the Collateral Agreement.
"Cayman Lender" shall mean Bankers Trust Company as lender under the Cayman
Loan Agreement.
"Cayman Loan Agreement " shall have the meaning provided in Section 0X.00.
"Xxxxxxx Xxxx xx Xxxxx" shall mean the Banco Central de la Republica de
Chile.
"Change of Control" shall mean the occurrence of any one or more of the
following: (i) the Permitted Holders shall cease to own, directly or indirectly,
100% of the aggregate outstanding voting securities of each Credit Party or the
Permitted Holders shall not be entitled (by ownership of voting stock, contract
or otherwise) to elect, or for any reason shall not have elected, directly or
indirectly, directors of such Credit Party, as the case may be, holding at least
a majority of the voting power of the board of directors of any Credit Party, as
the case may be; provided, that (A) the Borrower shall at all times own (subject
to the Lien of the applicable Stock Pledge Agreement) 100% of the outstanding
shares of Mercury Cayman II, (B) Mercury Cayman II shall at all times own all of
the voting interests of Inversiones CYC, (C) Inversiones CYC shall at all times
own
58
100% of the voting interests of Inversiones OEA, (D) Inversiones OEA shall at
all times own 100% of the voting interests of Inversiones Cachagua, (E) the
Borrower shall at all times own (subject to the Lien of the applicable Stock
Pledge Agreement) 100% of the outstanding shares of Mercury Cayman III, (F) the
Borrower shall at all times own 100% of the voting interests of Inversiones
Zapallar and (G) Inversiones Zapallar shall at all times own (subject to the
Lien of the applicable Stock Pledge Agreement) 100% of the outstanding shares of
Mercury Cayman I; (ii) the merger or consolidation of any Credit Party with or
into another Person or the merger of another Person with or into any Credit
Party, or the sale, lease, transfer or other disposition of all or substantially
all of the assets of any Credit Party to another Person, in a single transaction
or a series of transactions; (iii) any Person or group shall have acquired
beneficial ownership, directly or indirectly, of the voting stock of AES (or
other sec urities convertible into such voting stock) representing 35% or more
of the combined voting power of all voting stock of AES; (iv) the individuals
who were directors of AES at the Effective Date shall cease for any reason
(other than death or disability) to constitute a majority of the board of
directors of AES (except to the extent that individuals who at the Effective
Date were replaced by individuals (A) elected by the remaining board of
directors of AES or (B) nominated for election by the remaining members of the
board of directors of AES and thereafter elected as directors by shareholders of
AES); or (v) any Person or group shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon consummation,
will result in a Change of Control under clause (iv) or (v) above. For purposes
of this definition, (x) the terms "beneficially own" and "group" shall have the
respective meanings ascribed to them pursuant to Section 13(d) of the United
States Securities Exchan ge Act of 1934, and (y) any Person or group shall be
deemed to beneficially own any voting securities beneficially owned by any other
Person (the "parent entity") so long as such Person or group beneficially owns,
directly or indirectly, voting securities of the parent entity representing at
least a majority of the voting power of the then outstanding voting securities
of the parent entity and no other Person or group has the right to designate or
appoint a majority of the directors of such parent entity.
"Chile" shall mean the Republic of Chile, and any political subdivision
thereof.
"Chilean GAAP " shall mean generally accepted accounting principles in
Chile, consistently applied during a relevant period.
"Collateral" shall mean the Pledged Securities, any assets held in any
Collection Account, all of the Collateral as defined in each of the Security
Documents and Proceeds of the foregoing.
"Collateral Agreement " shall mean the Collateral Agreement between Cayman
Mercury I and Bankers Trust Company.
59
"Collection Account Security Agreement " shall have the meaning provided in
Section 4A.15.
"Collection Accounts" shall mean the Borrower Collection Account, the
Inversiones Zapallar Collection Account, the Mercury Cayman I Collection
Account, the Mercury Cayman II Collection Account, the Inversiones CYC
Collection Account, the Inversiones OEA Collection Account, the Inversiones
Cachagua Collection Account and the Mercury Cayman III Collection Account.
"Commitment" shall mean any of the commitments of any Lender, whether the
Tranche A Bridge Loan Commitment or the Tranche B Bridge Loan Commitment.
"Consent Letter" shall have the meaning provided in Section 4A.21.
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person as a result of such Person being a general partner of any other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations ") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation of
such Person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Control and Consent Acknowledgment and Agreement" shall have the meaning
provided in Section 4A.15.
"Credit Documents" shall mean this Agreement, the Notes, the Guaranties,
the Irrevocable Payment Instructions, the Security Documents, the Refinancing
Facility, the Cayman Loan Agreement, the Hedging Agreement, the Inter-Company
Notes, the
60
Fianza Solidaria, the Inversiones OEA Facility and any document entered into
pursuant to Section 4A.26.
"Credit Event " shall mean the making of any Bridge Loan.
"Credit Parties" shall mean each of the Borrower and Inversiones Zapallar,
Mercury Cayman I, Mercury Cayman II, Inversiones CYC, Inversiones OEA,
Inversiones Cachagua and Mercury Cayman III.
"DB Collection Account Security Agreement" shall have the meaning provided
in Section 4A.15.
"DB Control and Consent Acknowledgment and Agreement" shall have the
meaning provided in Section 4A.15.
"DB Securities Intermediary" shall mean Deutsche Bank (Chile) as Securities
Intermediary under the DB Collection Account Security Agreement.
"Debt Issuance" shall mean the incurrence after the Initial Borrowing Date
of any Indebtedness for borrowed money by any Credit Party or any of its
Subsidiaries.
"Default" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Disposition" shall mean any sale, transfer or other disposition by any
Credit Party or its Subsidiaries to any Person (including by way of redemption
by such Person) of any asset other than sales of assets permitted by Section
7.2(iv).
"Disqualified Stock" shall mean, with respect to any capital stock of such
Person that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than solely for
capital stock that is not Disqualified Stock), pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (other than solely for capital stock that is not Disqualified Stock) or
exchangeable or convertible into debt securities of the issuer thereof at the
sole option of the holder thereof, in whole or in part, on or prior to the date
which is 90 days after the Maturity Date.
"Dividend " shall mean, with respect to any Person, that such Person has
declared or paid a dividend or returned any capital (including by way of capital
reduction) to its stockholders or partners or authorized or made any other
distribution, payment or delivery of property (other than common stock of such
Person) or cash to its stockholders or partners as such, or redeemed, retired,
purchased or otherwise acquired,
61
directly or indirectly, for a consideration any shares of any class of its
capital stock or any partnership interests outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its
capital stock), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for a consideration any shares of any class of the capital stock or any
partnership interests of such Person outstanding on or after the Effective Date
(or any options or warrants issued by such Person with respect to its capital
stock). Without limiting the foregoing, "Dividends" with respect to any Person
shall also include all payments made or required to be made by such Person to
shareholders of such Person with respect to any stock appreciation rights,
plans, equity incentive or achievement plans or any similar plans or setting
aside of any funds for the foregoing purposes.
"Dollars" and the sign "$" shall each mean freely transferable lawful money
of the United States of America.
"Effective Date" shall have the meaning provided in Section 12.9.
"Equity Contribution A" shall have the meaning provided in Section 4A.7(b).
"Equity Contribution B" shall have the meaning provided in Section 4B.5(a).
"Equity Issuance" shall mean without duplication, any of (a) any issuance
or sale by any Credit Party or any of its Subsidiaries after the Initial
Borrowing Date of (i) any capital stock (including any capital stock issued upon
exercise of any warrant or option) or any warrants or options to purchase
capital stock or (ii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the issuing or selling
Person or (b) any capital contribution to any Credit Party or any of its
Subsidiaries made after the Initial Borrowing Date whether or not evidenced by
any equity security issued by the recipient of such contribution.
"Event of Default" shall have the meaning provided in Section 8.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
62
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 2.1 and the other Credit Documents.
"Fianza Solidaria" shall have the meaning provided in Section 4A.25.
"GAAP" shall mean generally accepted United States accounting principles in
effect from time to time.
"Gener" shall mean Gener S.A., a sociedad anonima organized under the laws
of Chile. Section 4B.6. share.
"Gener Stock Pledge Agreement " shall have the meaning provided in
"Gener Shares" shall mean the common shares of Gener, no par value per
"Governmental Authority" shall mean any ministry, administrative
department, agency, commission, bureau, board, regulatory authority, registry,
instrumentality, corporation or other governmental body, entity, judicial or
administrative body or court (including, without limitation, banking and taxing
authorities), of, or owned or controlled by, as the case may be, Chile, the
Cayman Islands, the Republic of Argentina, Colombia or the United States or any
political subdivision thereof.
"Guaranteed Obligations" shall have the meaning provided in Section 9.1(a).
"Guarantors" shall mean each of Inversiones Zapallar, Mercury Cayman I,
Mercury Cayman II, Inversiones CYC, Inversiones OEA, Inversiones Cachagua and
Mercury Cayman III.
"Guaranty" shall mean the guaranty contained in Section 9.
"Hedging Agreement " shall have meaning provided in Section 5.28.
"Hedging Counterparty" shall have the meaning specified in Section 5.28.
"Hedging Pledge Agreement" shall have the meaning provided in Section
4A.16.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services,
(ii) the maximum amount available to be drawn under all letters of credit issued
for the account of such
63
Person and all unpaid drawings in respect of such letters of credit, (iii) all
Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or
(vii) of this definition secured by any Lien on any property owned by such
Person, whether or not such Indebtedness has been assumed by such Person
(provided that if the Person has not assumed or otherwise become liable in
respect of such Indebtedness, such Indebtedness shall be deemed to be the lesser
of (A) the amount of such Indebtedness of such other Person and (B) an amount
equal to the fair market value of the property to which such Lien relates as
determined in good faith by such Person), (iv) the aggregate amount required to
be capitalized under leases under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Intere st Rate Protection Agreement or under any similar
type of agreement. Notwithstanding the foregoing, Indebtedness shall not include
trade payables and accrued expenses incurred by any Person in accordance with
customary practices and in the ordinary course of business of such Person.
"Initial Borrowing Date" shall mean the date upon which the initial
Borrowing of Tranche A Bridge Loans occurs hereunder.
"Inter-Company Note Pledge Agreement" shall have the meaning provided in
Section 4A.24.
"Inter-Company Notes" shall have the meaning provided in Section 4A.23.
"Interest Determination Date" shall mean with respect to LIBOR Loans, the
second Business Day on which dealings in deposits in Dollars are transacted in
the London interbank market preceding the commencement of any Interest Period
or, if such day is not a Business Day, the Business Day immediately preceding
the commencement of the relevant Interest Period.
"Interest Payment Date" shall mean the last day of the Interest Period and
(if different) the Maturity Date.
"Interest Period" shall have the meaning provided in Section 1.3.
"Interest Rate Protection Agreement " shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Inversiones Cachagua " shall mean Inversiones Cachagua Limitada, a limited
liability partnership organized under the laws of Chile and a direct
Wholly-Owned Subsidiary of Inversiones OEA Limitada.
00
"Xxxxxxxxxxx Xxxxxxxx Xxxxx Collection Account" shall have the meaning
provided in Section 3.6(k).
"Inversiones Cachagua NY Collection Account " shall have the meaning
provided in Section 3.6(j).
"Inversiones CYC " shall mean Inversiones CYC Limitada, a limited liability
partnership organized under the laws of Chile and a direct Wholly-Owned
Subsidiary of Mercury Cayman II.
"Inversiones CYC Chile Collection Account " shall have the meaning provided
in Section 3.6(g).
"Inversiones CYC NY Collection Account" shall have the meaning provided in
Section 3.6(f)
"Inversiones OEA" shall mean Inversiones OEA Limitada, a limited liability
partnership organized under the laws of Chile and a direct Wholly-Owned
Subsidiary of Inversiones CYC Limitada.
"Inversiones OEA Chile Collection Account " shall have the meaning provided
in Section 3.6(i).
"Inversiones OEA Facility" shall mean the Credit Facility provided to
Inversiones OEA under the Senior Secured Bridge Credit Agreement in
substantially the Form of Exhibit C hereto.
"Inversiones OEA Note" shall have the meaning provided in Section 4A.23.
"Inversiones OEA Note Repayment" shall have the meaning provided in Section
7.13.
"Inversiones OEA NY Collection Account" shall have the meaning provided in
Section 3.6(h).
"Inversiones Zapallar" shall mean Inversiones Zapallar Limitada, a limited
liability partnership organized under the laws of Chile and a direct
Wholly-Owned Subsidiary of the Borrower.
"Inversiones Zapallar Chile Collection Account" shall have the meaning
provided in Section 3.6(c).
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"Inversiones Zapallar NY Collection Account " shall have the meaning
provided in Section 3.6(b).
"Investment " shall have the meaning provided in Section 7.5.
"Lender" shall have the meaning provided in the first paragraph of this
Agreement.
"LIBOR" shall mean, with respect to each Interest Period for LIBOR Loans,
(a) the rate per annum determined by the Lender to be the arithmetic mean
(rounded to the nearest 1/16th of 1%) of the offered rates for deposits in
Dollars with a term comparable to such Interest Period that appears on the
Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined
below) at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period or (b) if there
shall at such time no longer exist a Telerate British Bankers Assoc. Interest
Settlement Rates Page, (i) the arithmetic average of the offered quotation to
first-class banks in the interbank Eurodollar market by the Lender for Dollar
deposits of amounts in same day funds comparable to the outstanding principal
amount of the LIBOR Loans for which an interest rate is then being determined
with maturities comparable to the Interest Period to be applicable to such LIBOR
Loans, determined as of 11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period divided, in each
case (and rounded to the nearest 1/16 of 1%), by (ii) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D). "Telerate British Bankers Assoc.
Interest Settlement Rates Page " shall mean the display designated as Page 3750
on the Telerate System Incorporated Service (or such other page as may replace
such page on such service for the purpose of displaying the rates at which
Dollar deposits are offered by leading banks in the London interbank deposit
market).
"LIBOR Loan" shall mean each Bridge Loan bearing interest at the LIBOR rate
as provided in Section 1.2(a).
"LIBOR Loan Lender" means the Lender holding a LIBOR Loan.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment
(fiduciary or otherwise), deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
any recording or notice statute, and any capital lease having substantially the
same effect as any of the foregoing).
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"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean, with respect to any Credit Party, (i)
any material adverse effect on the financial condition, business, operations,
assets, revenues, properties or liabilities of such Credit Party and its
Subsidiaries, taken as a whole, (ii) any material adverse effect on the ability
of such Credit Party to perform any of its material financial obligations under
any of the Credit Documents, (iii) any material adverse effect on the ability of
Gener to pay Dividends or other distributions (including reductions of capital),
or to advance funds, to any Credit Party without any third-party consent, or
(iv) any material adverse effect on the legality, binding effect or
enforceability of any material provision of any of the Credit Documents, or any
material rights or remedies of the Lender or the Secured Party thereunder.
"Maturity Date" shall mean the earlier of (i) the consummation of the
Cayman Acquisition and (ii) January 31, 2001.
"Mercury Cayman I" shall mean Mercury Cayman Co. I, Ltd., a limited
liability company organized under the laws of the Cayman Islands and a direct
Wholly-Owned Subsidiary of Inversiones Zapallar Limitada.
"Mercury Cayman I Collection Account" shall have the meaning provided in
Section 3.6(d).
"Mercury Cayman I Note" shall have the meaning provided in Section 4A.23.
"Mercury Cayman II" shall mean Mercury Cayman Co. II, Ltd., a limited
liability company organized under the laws of the Cayman Islands and a direct
Wholly-Owned Subsidiary of the Borrower.
"Mercury Cayman II Collection Account " shall have the meaning provided in
Section 3.6(e).
"Mercury Cayman III" shall mean Mercury Cayman Co. III, Ltd., a limited
liability company organized under the laws of the Cayman Islands and a direct
Wholly-Owned Subsidiary of the Borrower.
"Mercury Cayman III Collection Account " shall have the meaning provided in
Section 3.6(l).
"Net Debt Proceeds" shall mean, with respect to any Debt Issuance, the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith) received in respect thereof.
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"Net Disposition Proceeds" shall mean, for any Disposition, the cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such Disposition, net of (a) the reasonable costs and expenses of
such Disposition (including fees and commissions, payments of unassumed
liabilities relating to the assets sold and required payments of any
Indebtedness (other than Indebtedness secured pursuant to the Security
Documents) which is secured by the respective assets which were disposed of),
(b) the incremental taxes paid or payable as a result of such Disposition and
(c) reserves for indemnification obligations to the buyer in connection with
such Disposition (provided that once such reserves are released to any Credit
Party or any of its Subsidiaries, such reserves shall be Net Disposition
Proceeds).
"Noon Buying Rate" shall mean the noon buying rate in New York City for
cable transfers in foreign currencies as certified for customs purposes by the
Federal Reserve Bank of New York.
"Note" shall mean each Tranche A Note and each Tranche B Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.1(c).
"Notice Office" shall mean the office of the Lender located at Xxx Xxxxxxx
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxx Xxxxx or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"Obligations " shall mean all amounts owing to the Lender pursuant to the
terms of this Agreement or any other Credit Document.
"Overdue Ratio" shall (a) mean 1.00, at all times prior to the Maturity
Date, (b) mean 1.25, during the three-month period commencing on the Maturity
Date and (c) increase by 0.25 upon each three-month anniversary of the Maturity
Date.
"Payment Office" shall mean the office of the Lender located at Xxx Xxxxxxx
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as the Lender may
hereafter designate in writing as such to the other parties hereto.
"Permitted Holders" shall mean AES and its Wholly-Owned Subsidiaries.
"Permitted Liens " shall have the meaning provided in Section 7.1.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
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"Peso" shall mean the lawful currency of Chile.
"Pledged Collateral" shall have the meaning provided in the Collection
Account Security Agreement.
"Pledged Securities" shall mean all Acciones, Acciones Adicionales (if
any), shares, additional shares, Pledged Securities, Inter-Company Notes and any
other property (if any) as indicated and defined in the applicable Stock Pledge
Agreement, Inter-Company Note Pledge Agreement or Gener Stock Pledge Agreement.
"Post-Closing Collateral Actions " means each of the filings, registrations
or other actions indicated in Schedule 4.11.
"Post-Closing Equity Contribution" shall mean a contribution to equity by
the Borrower in the amount of the Cayman Acquisition Price (but not to exceed
$400,000,000), which equity contribution shall be downstreamed as a contribution
to equity to Inversiones Cachagua pursuant to irrevocable payment instructions.
"Prime Lending Rate" shall mean the rate which the Lender announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. The Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Proceeds" shall have the meaning provided in the Uniform Commercial Code
in effect in the State of New York from time to time.
"Pro Forma Financial Statements" shall have the meaning provided in Section
5.6(b).
"PUHCA" shall have the meaning provided in Section 5.18.
"Register" shall have the meaning provided in Section 12.17.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
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"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Relevant Payment " shall have the meaning provided in Section 9.12.
"Remate" shall mean the Chilean remate for the Gener shares by AES and its
Subsidiaries.
"Restricted Subsidiary" of any Credit Party shall mean and include any
Subsidiary other than Gener and its Subsidiaries.
"Secured Party" shall have the meaning provided in the first paragraph of
this Agreement.
"Securities Intermediary" shall mean Bankers Trust Company, as Securities
Intermediary under the Collection Account Security Agreement.
"Security Documents" shall mean each Stock Pledge Agreement, the Collection
Account Security Agreements, the Control and Consent Acknowledgments and
Agreements, the Inter-Company Note Pledge Agreement and the Hedging Pledge
Agreement.
"Senior Secured Bridge Credit Agreement " shall mean the Senior Secured
Bridge Credit Agreement, dated as of the date hereof, between Inversiones OEA,
Inversiones Cachagua, the Guarantors named therein, Deutsche Bank Securities
Inc., as Arranger, and Bankers Trust Company, as Administrative Agent and
Collateral Agent and various Lenders.
"Share Exchange " shall mean the exchange of AES Shares for ADS Shares in
settlement of the Tender Offer.
"Stock Pledge Agreement " shall have the meaning provided in Section 4A.12.
"Subsidiary" of any Person shall mean and include (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any
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contingency) is at the time owned by such Person directly or indirectly and (ii)
any partnership, association, limited liability company, joint venture or other
entity in which such Person directly or indirectly has more than a 50% equity
interest at the time. Except where the context may otherwise require, a
Subsidiary shall be understood to mean a Subsidiary of the Borrower.
"Taxes" shall have the meaning provided in Section 3.5(a).
"Tender Offer" shall mean the U.S. tender offer by AES and its Affiliates
for the ADS Shares.
"Total Commitment " shall mean, at any time, the sum of the Commitments of
the Lender, which sum shall not exceed $525,079,198.
"Tranche" shall mean the respective facility and commitments utilized in
making Bridge Loans hereunder, with there being two separate Tranches, i.e. (i)
Tranche A Bridge Loans and (ii) Tranche B Bridge Loans.
"Tranche A Bridge Loan" shall have the meaning provided in Section 1.1(a).
"Tranche A Bridge Loan Commitment " shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule A directly below the heading
"Tranche A Commitment."
"Tranche A Irrevocable Instruction" shall have the meaning provided in
Section 1.1(d).
"Tranche A Note" shall have the meaning provided in Section 1.1(f)(i).
"Tranche B Borrowing Date" shall have the meaning provided in Section 4B.
"Tranche B Bridge Loan" shall have the meaning provided in Section 1.1(b).
"Tranche B Bridge Loan Commitment " shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule A directly below the heading
"Tranche B Commitment."
"Tranche B Irrevocable Instruction" shall have the meaning specified in
Section 1.1(d).
"Tranche B Note" shall have the meaning provided in Section 1.1(f)(ii).
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"Type" shall mean any type of Bridge Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a LIBOR Loan.
"United States" and "U.S." shall each mean the United States of America.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any corporation
100% of whose capital stock (other than director's qualifying shares and/or
other nominal amounts of shares required to be held other than by such Person
under applicable law) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association,
limited liability company, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has or have a 100%
equity interest at such time.
SECTION 11. The Collateral and the Arranger.
11.1. Administration of the Collateral. The Secured Party shall administer
the Collateral and any Lien thereon for the benefit of the Lender in the manner
provided herein and in the Security Documents; provided, however, that in the
event of conflict between the provisions relating to administration of
Collateral included in this Agreement and those included in the Security
Documents, the latter shall prevail. The Secured Party shall exercise such
rights and remedies with respect to the Collateral as are granted to it
hereunder and under the Security Documents and applicable law. Upon payment in
full of all Obligations under the Credit Documents, the Secured Party and its
Affiliates shall promptly release any and all Liens, Collateral and other
security arrangements entered into in connection with this Agreement and the
transactions contemplated hereby.
11.2. Application of Proceeds. Except as otherwise specifically provided
herein and in the other Credit Documents, the proceeds of any collection, sale,
disposition, foreclosure or other realization of all or any part of the
Collateral shall be applied by the Secured Party to the payment of any and all
taxes, expenses and fees (including reasonable attorneys' fees) incurred by the
Secured Party in obtaining, taking possession and disposing of the Collateral,
any and all amounts incurred by the Secured Party in connection therewith and
any amounts payable to the Secured Party under the Security Documents and the
balance of such proceeds after such application by the Secured Party shall be
applied by the Lender as follows:
(a) to the payment of the other Obligations in the following order of
priority:
(i) accrued and unpaid interest in respect of the Bridge Loans;
(ii) outstanding principal due under the Bridge Loans;
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(iii) all other unpaid Fees, if any; and
(iv) all other unpaid Obligations, if any;
(b) any surplus remaining after payment of the foregoing amounts shall be
paid to the Credit Parties by the Lender, subject, however, to the rights of
the Cayman Lender and any other holder of any then existing Lien of which the
Secured Party has actual notice (without investigation); it being understood
that the Borrower shall remain liable to the extent of any deficiency between
the amount of the proceeds of the Collateral and the aggregate amount of the
sums referred to in clause (a) of this Section 11.2.
11.3. The Arranger. The Arranger shall have no rights or obligations under
this Agreement other than the rights set forth in Section 12.
SECTION 12. Miscellaneous.
12.1. Payment of Expenses, etc. Each Credit Party, jointly and severally,
agrees to: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the Lender
(including, without limitation, the reasonable fees and disbursements of
Debevoise & Xxxxxxxx, as special U.S. counsel to the Administrative Agent,
Guerrero Olivos Xxxxx y Errazuriz, as special Chilean counsel to the Lender, and
Walkers, as special Cayman Islands counsel to the Lender) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, and of the Lender
in connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of counsel
for the Lender); (ii) pay and hold the Lender harmless from and against any and
all prese nt and future stamp, excise and other similar taxes (including,
without limitation, value added taxes due in respect of interest payments under
the Bridge Loans) with respect to the foregoing matters and save the Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to the Lender)
to pay such taxes; and (iii) indemnify the Arranger, the Lender, the Secured
Party, the BT Securities Intermediary, the DB Securities Intermediary and the
Cayman Lender and each of their respective officers, directors, employees and
representatives from, and hold each of them harmless against, any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in an y way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not the
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Arranger, the Lender, the Secured Party, the BT Securities Intermediary, the DB
Securities Intermediary or the Cayman Lender is a party thereto) related to the
entering into and/or performance of this Agreement or any other Credit Document
or the use of proceeds of the Bridge Loans or the consummation of any of the
transactions contemplated hereby, or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, including, in each case, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in connection
with any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified or its Affiliates or employees). To the extent that the undertaking
to indemnify, pay or hold harmless the Arranger, the Lender, the Secured Party,
the BT Securi ties Intermediary, the DB Securities Intermediary or the Cayman
Lender set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Credit Parties, jointly and
severally, shall make the maximum contribution to the payment and satisfaction
of each of the indemnified liabilities which is permissible under applicable
law.
12.2. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
the Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by the Lender (including, without
limitation, by branches, agencies and Affiliates of the Lender wherever located)
to or for the credit or the account of any Credit Party against and on account
of the Obligations and liabilities of the Credit Parties to the Lender under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by the Lender pursuant to
Sectio n 12.4(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not the Lender shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
12.3. Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to any Credit Party or the
Arranger, at the address specified opposite its signature below or in the other
relevant Credit Documents; if to the Lender, at its address specified on
Schedule B; or, as to any Credit Party, the Arranger or the Lender at such other
address as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall, when mailed,
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telegraphed, telexed, telecopied or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Lender shall not be
effective until received.
12.4. Benefit of Agreement; Assignments; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, that no Credit Party may assign or transfer any of its
rights, obligations or interest hereunder or under any other Credit Document
without the prior written consent of the Lender; and provided, further, that the
Lender may not assign or transfer all or any portion of its Commitment hereunder
except as provided in Section 12.4(b); and provided, further, that although the
Lender may grant participations in its rights hereunder in accordance with this
Section 12.4, such Lender shall remain a "Lender" for all purposes hereunder and
the participant shall not constitute a "Lender" hereunder; and provided,
further, that the Lender shall not grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver wou ld (i) extend the final scheduled maturity of any Bridge Loan or Note
in which such participant is participating, or reduce the rate or extend the
time of payment of interest or Fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default shall not constitute a change in the
terms of such participation, and that an increase in any Commitment or Bridge
Loan shall be permitted without the consent of any participant if the
participant's participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by the Borrower of any of its respective rights
and obligations under this Agreement, (ii) release all or substantially all of
the Collateral (except as expressly provided in the Security Documents) or (iv)
release any Guarantor from its obligations under its Guaranty supporting the
Bridge Loans hereunder in which such participant is participating. In the case
of any such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by any Credit Party hereunder shall be determined as if
the Lender had not sold such participation, except that the participant shall be
entitled to the benefits of Sections 1.4, 1.5 and 3.5 of this Agreement to the
extent that the Lender would be entitled to such benefits if the participation
had not been transferred, granted or assigned.
(b) Notwithstanding the foregoing, the Lender may assign all or a portion
of its Commitment and related outstanding Obligations (or, if the Commitments
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have terminated, outstanding Obligations) hereunder to its parent company and/or
any affiliate of the Lender which is at least 50% owned by the Lender or its
parent company or, with prior consent of the Borrower (which consent (i) shall
not be unreasonably withheld and which shall be deemed to have been given if, by
5:00 p.m. (New York time) on the fifth Business Day following any request for
such consent, the Borrower shall not have responded to such request and (ii)
shall not be required at any time when an Event of Default shall have occurred
and be continuing), assign all, or if less than all, a portion equal to at least
$3.0 million in the aggregate for the assigning Lender, of such Commitments, and
related outstanding Obligations (or, if the Commitments have terminated,
outstanding Obligations), hereunder to one or more Eligible Transferees, each of
which assignees shall become a party to this Agreement as a Lender by execution
of an Assignment and Assumption Agreement and a Power of Attorney in a form to
be agreed prior to the Initial Borrowing Date; provided, however, that (i) at
such time Schedule A shall be deemed modified to reflect the Commitments and/or
outstanding Bridge Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning
Lender (or, upon such assigning Lender indemnifying the Borrower for any lost
Note pursuant to a customary indemnification agreement), new Notes will be
issued, at the Borrower's expense, to such new Lender and to the assigning
Lender upon the request of such new Lender or assigning Lender, such new Notes
to be in conformity with the requirements of Section 1.1(f) (with appropriate
modifications) to the extent needed to reflect the revised Commitments and/or
outstanding Bridge Loans, as the case may be, (ii) the consent of the Lender
shall be required (which shall not be unreasonably withheld or delayed) in
connection with any assignment to an Eligible Transferee pursuant to clause (y)
above, (i v) the Lender shall receive at the time of each such assignment, from
the assigning or assignee Lender, the payment of a non-refundable assignment fee
of $3,500 and (v) no such transfer or assignment will be effective until
recorded by the Lender on the Register pursuant to Section 12.17. To the extent
of any assignment pursuant to this Section 12.4(b), the assigning Lender shall
be relieved of its obligations hereunder with respect to its assigned
Commitment, provided further that upon an Event of Default or Default the Lender
may assign all or a portion of its Commitment and related outstanding
Obligations (or, if the Commitments have terminated, outstanding Obligations)
hereunder to any Person, including any fund that invests in bank loans or any
other "accredited investor" (as defined in Regulation D of the Securities Act of
1933, as amended).
(c) Nothing in this Agreement shall prevent or prohibit the Lender from
pledging its Bridge Loans and Notes hereunder to a Federal Reserve Bank or
Central Bank in support of borrowings made by the Lender from such Federal
Reserve Bank or Central Bank. No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder.
(d) The Lender as of the date of this Agreement represents and warrants as
of the date of this Agreement that it is a Basel Bank.
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12.5. No Waiver; Remedies Cumulative. No failure or delay on the part of
the Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between any Credit Party and the
Lender shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Lender to any other or further action in any circumstances without notice or
demand.
12.6. Calculations; Computations; Accounting Terms.
(a) The financial statements to be furnished to the Lender pursuant hereto
shall be made and prepared in accordance with Chilean GAAP, consistently applied
throughout the periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Borrower to the Lender); provided,
however, that such financial statements shall also be accompanied by convenience
translations pursuant to which all Peso amounts will be converted into Dollars
using the Noon Buying Rate as in effect on the last day of the respective fiscal
quarter or year of the Borrower, as the case may be.
(b) Notwithstanding anything to the contrary contained in clause (a) of
this Section 12.6, for purposes of determining compliance with any other
restriction stated in Dollars in this Agreement, the dollar equivalent amount of
any amounts in any other foreign currency shall be converted on the basis of the
Noon Buying Rate as in effect on the date of determination.
(c) Interest on LIBOR Loans and Fees shall be computed on the basis of a
year of 360 days and actual days elapsed (including the first day but excluding
the last day) occurring in the period for which payable and interest on Base
Rate Loans shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable. Notwithstanding the
foregoing, for each day that the Base Rate is calculated by reference to the
Federal Funds Rate, interest on Base Rate Loans shall be computed on the basis
of a year of 360 days and actual days elapsed (including the first day but
excluding the last day).
77
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF THE BORROWER AND THE
GUARANTORS HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF
THE BORROWER AND THE GUARANTORS HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT
ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH CREDIT PARTY, AND AGREES
NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED
COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH CREDIT PARTY. EACH
OF THE BORROWER AND THE GUARANTORS FURTHER IRREVOCABLY AGREES THAT SERVICE OF
ALL WRITS, PROCESS AND SUMMONSES IN ANY PROCEEDING OR ANY SUIT, ACTION OR
PROCEEDING TO ENFORCE OR EXECUTE ANY JUDGMENT BROUGHT AGAINST IT IN THE STATE OF
NEW YORK MAY BE MADE UPON CT CORPORATION SYSTEM, PRESENTLY LOCATED AT 000 XXXXXX
XXXXXX, XXX XXXX, XXX XXXX, 00000, XXX, WHICH IS HEREBY IRREVOCABLY APPOINTED
AGENT OF EACH OF THE BORROWER AND THE GUARANTORS FOR SERVICE OF PROCESS IN THE
STATE OF NEW YORK WITH RESPECT TO THIS AGREEMENT AND THE NOTES AND ALL MATTERS
RELATED THERETO AND/OR CONTEMPLATED THEREBY. EACH OF THE BORROWER AND THE
GUARANTORS HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS
AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMME NCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
78
(b) EACH OF THE BORROWER AND THE GUARANTORS HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
(d) EACH OF THE BORROWER AND THE GUARANTORS HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE RIGHT TO DEMAND THAT ANY OF THE
AGENTS OR THE LENDER POST A PERFORMANCE BOND OR GUARANTY (EXCEPCION DE ARRAIGO)
IN ANY ACTION OR PROCEEDING INITIATED AGAINST ANY SUCH PARTY IN CHILE AND TO
RECUSE WITHOUT CAUSE ANY MEMBERS OF THE COURTS HAVING JURISDICTION OVER ANY AND
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT.
12.8. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement. A
complete set of counterparts executed by all the parties hereto shall be lodged
with the Borrower and the Lender.
12.9. Effectiveness. This Agreement shall become effective on the date (the
"Effective Date") on which the Borrower, the Initial Guarantors, the Arranger
and the Lender shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the Lender at its
Notice Office. The Lender will give the Borrower prompt written notice of the
occurrence of the Effective Date.
79
12.10. Headings Descriptive. The headings of the several sections and
subsections 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.
12.11. Amendment or Waiver. Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the respective Credit Parties party thereto and the Lender.
12.12. Survival. All indemnities set forth herein, including, without
limitation, in Sections 1.4, 1.5, 3.5, 12.1, 12.14 and 12.17, shall survive the
execution, delivery and termination of this Agreement and Notes and the making
and repayment of the Bridge Loans.
12.13. Domicile of Bridge Loans. The Lender may transfer and carry its
Bridge Loans at, to or for the account of any office, Subsidiary or Affiliate of
the Lender.
12.14. Judgment Currency. Each of the Borrower's and the Initial
Guarantors' obligations hereunder and under the other Credit Documents to make
payments in Dollars shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than Dollars, except to the extent that such tender or recovery results in
the effective receipt by the Lender of the full amount of Dollars expressed to
be payable to the Lender under this Agreement or the other Credit Documents. The
obligation of each of the Borrower and the Guarantors to make payments in
Dollars as aforesaid shall be enforceable as an alternative or additional cause
of action for the purpose of recovery in Dollars of the amount, if any, by which
such actual receipt shall fall short of the full amount of Dollars expressed to
be payable in respect of the principal of and interest on the Bridge Loans and
any other amounts due under any other Credit Document, and shall not be affected
by jud gment being obtained for any other sums due under this Agreement or under
any other Credit Document. Each of the Borrower and the Guarantors waives the
right to invoke any defense of payment impossibility.
12.15. Waiver of Sovereign Immunity. Each of the Borrower and the
Guarantors, in respect of itself, its Subsidiaries, its process agents, and its
properties and revenues, hereby irrevocably agrees that, to the extent that such
Credit Party, its Subsidiaries or any of its properties has or may hereafter
acquire any right of immunity, whether characterized as sovereign immunity or
otherwise, from any legal proceedings, whether in the United States, Chile, or
elsewhere, to enforce or collect upon the Bridge Loans or any Credit Document or
any other liability or obligation of such Credit Party or any of its
Subsidiaries related to or arising from the transactions contemplated by any of
the Credit Documents, including, without limitation, immunity from service of
process, immunity from jurisdiction or judgment of any court or tribunal,
immunity from
80
execution of a judgment, and immunity of any of its property from attachment
prior to any entry of judgment, or from attachment in aid of execution upon a
judgment, such Credit Party, for itself and on behalf of its Subsidiaries,
hereby expressly waives any such immunity, and agrees not to assert any such
right or claim in any such proceeding, whether in the United States, Chile, the
Cayman Islands or elsewhere.
12.16. English Language. This Agreement and all other Credit Documents
(other than the Gener Stock Pledge Agreements and the Fianza Solidaria) shall be
in the English language, except as required by Chilean law (in which event
certified English translations thereof shall be provided by the Borrower to the
Lender). Except in connection with the enforcement thereof in Chile as may be
required by Chilean law, any non-English translation of this Agreement or any
other Credit Document (other than the Gener Stock Pledge Agreements) shall have
no legal validity. All documents, certificates, reports or notices to be
delivered or communications to be given or made by any party hereto pursuant to
the terms of this Agreement or any other Credit Document shall be in the English
language or, if originally written in another language, shall be accompanied by
an accurate English translation upon which the other parties hereto shall have
the right to rely for all purposes of this Agreement and the other Credit
Documents.
12.17. Register. The Borrower hereby designates the Lender to serve as the
Borrower's agent, solely for purposes of this Section 12.17, to maintain a
register (the "Register") on which it will record the Commitments from time to
time of the Lender, the Bridge Loans made by the Lender and each repayment in
respect of the principal amount of the Bridge Loans of the Lender. Failure to
make any such recordation, or any error in such recordation, shall not affect
the Borrower's obligations in respect of such Bridge Loans. With respect to the
Lender, the transfer of the Commitments of the Lender and the rights to the
principal of, and interest on, any Bridge Loan made pursuant to such Commitments
shall not be effective until such transfer is recorded on the Register
maintained by the Lender with respect to ownership of such Commitments and
Bridge Loans and prior to such recordation all amounts owing to the transferor
with respect to such Commitments and Bridge Loans shall remain owing to the
transferor. The r egistration of assignment or transfer of all or part of any
Commitments and Bridge Loans shall be recorded by the Lender on the Register
only upon the acceptance by the Lender of a properly executed and delivered
Assignment and Assumption Agreement. Coincident with the delivery of such an
Assignment and Assumption Agreement to the Lender for acceptance and
registration of assignment or transfer of all or part of a Bridge Loan, the
assigning or transferor Lender shall surrender the Note or Notes evidencing such
Bridge Loan, and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the assigning or transferor Lender and/or the new
Lender and the old Notes shall be returned to the Borrower marked "cancelled."
The Borrower agrees to indemnify the Lender from and against any and all losses,
claims, damages and liabilities of whatsoever nature which may be imposed on,
asserted against or incurred by
81
the Lender in performing its duties under this Section 12.17 other than those
resulting from its gross negligence or willful misconduct.
12.18. Confidentiality. The Lender agrees (on behalf of itself and each of
its Affiliates, directors, officers, employees and representatives) to keep
confidential, in accordance with its customary procedures of handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by any Credit
Party or any of its Subsidiaries pursuant to this Agreement; provided, however,
that nothing herein shall limit the disclosure of any such information (i) to
the extent required by statute, rule, regulation or judicial process, (ii) to
directors, officers, employees, agents, accountants, counsel and any other
advisors of the Lender so long as such Person confirms it shall keep the
non-public information confidential in accordance with these provisions, (ii) to
bank examiners, auditors or accountants or to any other regulatory agency or
body with proper authority (including nongovernmental regulatory agencies or
bodies), (iv) to the Lender, (v) in connection with any litigation to which the
Lender is a party where disclosure of such information is, in the opinion of
counsel for the Lender, necessary or advisable in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving the Lender and arising out of, based upon, relating to or involving
this Agreement or any other Credit Document, or any transactions contemplated
hereby or arising hereunder, (vi) to a Subsidiary or Affiliate of the Lender in
connection with a transfer permitted by Section 12.13, (vii) to any assignee or
participant (or prospective assignee or participant) so long as the Lender
making such assignment or selling such participation shall procure that such
assignee or participant (or prospective assignee or participant) first executes
and delivers to the Lender an acknowledgment to the effect that it is bound by
the provisions of this Section 12.18, (viii) to any credit rating agency that
rates the financial conditio n of the Lender or the claims paying ability of the
Lender or the financial condition of the Borrower; provided further, that in no
event shall the Lender be obligated or required to return any materials
furnished by any Credit Party, (ix) with the consent of the relevant Credit
Party or (x) to the extent that such information has become public other than
through a breach of this Section 12.8. The obligations of any assignee that has
executed an acknowledgment pursuant to this Section 12.18 shall be superseded by
this Section 12.18 upon the date upon which such assignee becomes a Lender
hereunder pursuant to Section 12.4(b). To the extent disclosure is required
under clauses (i), (ii) and (v) above, the Lender agrees to use its best efforts
to give the Borrower prompt prior notice thereof.
[SIGNATURE PAGES FOLLOW]
82
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address: MERCURY CAYMAN HOLDCO LTD.,
as Borrower
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000 By: /s/ Xxx Xxxxxx
Attention: Xxx Xxxxxx -----------------------------
Fax No.: (000) 000-0000 Name: Xxx Xxxxxx
Title: Vice President and Chief
Financial Officer
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Mercury Cayman Holdco Ltd., known to me to be the person that executed this
Senior Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-----------------
Notary Public
0000 Xxxxx 00xx Xxxxxx XXXXXXXXXXX XXXXXXXX,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Attorney-in-fact
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Inversiones Zapallar, known to me to be the person that executed this Senior
Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-----------------
Notary Public
0000 Xxxxx 00xx Xxxxxx MERCURY CAYMAN CO. I, LTD.,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Vice President and Chief
Financial Officer
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Mercury Cayman Co. I, Ltd., known to me to be the person that executed this
Senior Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-----------------
Notary Public
0000 Xxxxx 00xx Xxxxxx MERCURY CAYMAN CO. II, LTD.,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Vice President and Chief
Financial Officer
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Mercury Cayman Co. II, Ltd., known to me to be the person that executed this
Senior Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-------------------
Notary Public
0000 Xxxxx 00xx Xxxxxx INVERSIONES CYC LIMITADA,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Attorney-in-fact
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Inversiones CYC Limitada, known to me to be the person that executed this Senior
Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
----------------
Notary Public
0000 Xxxxx 00xx Xxxxxx INVERSIONES OEA LIMITADA,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Attorney-in-fact
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Inversiones OEA Limitada, known to me to be the person that executed this Senior
Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-----------------
Notary Public
0000 Xxxxx 00xx Xxxxxx INVERSIONES CACHAGUA LIMITADA,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Attorney-in-fact
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Inversiones Cachagua Limitada, known to me to be the person that executed this
Senior Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-----------------
Notary Public
0000 Xxxxx 00xx Xxxxxx MERCURY CAYMAN CO. III, LTD.,
Xxxxxxxxx, Xxxxxxxx 00000 as Guarantor
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Vice President and Chief
Financial Officer
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxx Xxxxxx, of
Mercury Cayman Co. III, Ltd., known to me to be the person that executed this
Senior Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-------------------
Notary Public
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
Xxx Xxxx, Xxx Xxxx 00000 as Lender and Secured Party
Attention: Xxxxxxxx Xxxxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxxxxx Xxxxxxx, of
Bankers Trust Company, known to me to be the person that executed this Senior
Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
-----------------
Notary Public
000 Xxxxxxx Xxxxxx DEUTSCHE BANK SECURITIES INC.,
Xxx Xxxx, Xxx Xxxx 00000 as Arranger
Attention: Xxxxx Xxxxxxx
Fax No.: (000) 000-0000 By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 28th day of December, before me personally appeared Xxxxx Xxxxxxx, of
Deutsche Bank Securities Inc., known to me to be the person that executed this
Senior Secured Short Term Bridge Credit Agreement and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxx
----------------
Notary Public
SCHEDULE A
COMMITMENTS
-----------
Lender Tranche A
------ Commitment
----------
Bankers Trust Company $ 400,000,000
TOTAL: $ 400,000,000
Lender Tranche B
------ Commitment
----------
Bankers Trust Company $ 125,079,198
TOTAL: $ 525,079,198
SCHEDULE B
LENDER ADDRESSES
----------------
Lender Address
------ -------
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone No: (000) 000-0000
Facsimile No.: (000) 000-0000
