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EXHIBIT 10.1
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COMPOSITE
(through 4/96)
of
LOAN AND REIMBURSEMENT AGREEMENT
among
Birchwood Power Partners, L.P.
and
The Banks Parties Hereto
and
Xxxx Xxxxxxx Mutual Life Insurance Company
Allstate Insurance Company
New York Life Insurance Company
and the Other Institutions Parties Hereto
and
Banque Paribas, New York Branch
Barclays Bank PLC
Credit Suisse
Union Bank of California,
as Co-Agents for the Banks
and
Credit Suisse,
as Issuing Bank and as Administrative Agent for the Banks
Dated as of May 18, 1994
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS............................................................................. 1
Section 1.1 Defined Terms................................................................. 1
Section 1.2 Other Definitional Provisions................................................. 2
SECTION 2. THE CREDIT FACILITIES AND THE COMMITMENTS............................................... 2
Section 2.1 The Credit Facilities......................................................... 2
Section 2.2 Commitments................................................................... 2
Section 2.3 Mandatory Reduction of Total Loan Commitments................................. 2
Section 2.4 Mandatory Reduction of Total Bank Project Loan Commitments.................... 3
SECTION 3. BANK LOAN FACILITY...................................................................... 3
Section 3.1 Bank Loans.................................................................... 3
Section 3.2 Procedure for Bank Loan Borrowings............................................ 3
Section 3.3 Bank Notes.................................................................... 5
Section 3.4 Repayment of Bank Loans....................................................... 6
Section 3.5 Conversion and Continuation Options........................................... 7
Section 3.6 Maximum Number of Tranches.................................................... 8
Section 3.7 Interest on Bank Loans........................................................ 8
Section 3.8 Computation of Interest on Bank Loans......................................... 9
Section 3.9 Inability to Determine Interest Rate on Bank Loans............................ 10
Section 3.10 Illegality................................................................... 10
Section 3.11 Requirements of Law.......................................................... 11
Section 3.12 Substitution or Removal of an Affected Bank.................................. 13
Section 3.13 Banks' Representation........................................................ 13
SECTION 4. INSTITUTIONAL LOAN FACILITY............................................................. 13
Section 4.1 Institutional Loans........................................................... 13
Section 4.2 Procedure for Institutional Loan Borrowings................................... 13
Section 4.3 Institutional Notes........................................................... 14
Section 4.4 Repayment of Institutional Loans.............................................. 15
Section 4.5 Interest on Institutional Loans............................................... 15
Section 4.6 Computation of Interest on Institutional Loans................................ 15
Section 4.7 Registration, Transfer and Substitution of Registered Institutional
Notes.................................................................... 15
Section 4.8 Institutions' Representations; Source of Funds................................ 17
SECTION 5. BOND LETTER OF CREDIT FACILITY.......................................................... 18
Section 5.1 Issuance of and Participation in the Bond Letters of Credit................... 18
Section 5.2 Bond Letters of Credit........................................................ 18
Section 5.3 Notice of Payments under the Bond Letters of Credit........................... 19
Section 5.4 Termination of the Bond Letters of Credit..................................... 19
Section 5.5 Borrower's Obligations in Respect of Bond Letters of Credit................... 19
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Section 5.6 Extension of Bond L/C Expiration Dates........................................ 20
Section 5.7 Reduction of Bond Letters of Credit........................................... 20
SECTION 6. VP LETTER OF CREDIT FACILITY............................................................ 21
Section 6.1 Issuance of and Participation in the VP Letters of Credit..................... 21
Section 6.2 Construction VP Letter of Credit.............................................. 21
Section 6.3 Term VP Letter of Credit...................................................... 22
Section 6.4 Notice of Payments under the VP Letters of Credit............................. 22
Section 6.5 Termination of the VP Letters of Credit....................................... 23
Section 6.6 Borrower's Obligations in Respect of VP Letters of Credit..................... 23
Section 6.7 Extension of VP Expiration Dates.............................................. 24
SECTION 7. GENERAL PROVISIONS APPLICABLE TO LOANS
AND LETTERS OF CREDIT............................................ 24
Section 7.1 Fees ......................................................................... 24
Section 7.2 Pro Rata Treatment and Payments............................................... 26
Section 7.3 Mandatory Prepayments of Loans................................................ 27
Section 7.4 Optional Prepayments of Loans................................................. 32
Section 7.5 Application of Certain Prepayments Among Lenders.............................. 33
Section 7.6 Taxes......................................................................... 35
Section 7.7 Certain Indemnities........................................................... 36
Section 7.8 Funding into Accounts......................................................... 38
Section 7.9 Funding of Letter of Credit Disbursements..................................... 38
Section 7.10 Additional Letter of Credit Provisions. .................................... 39
Section 7.11. Payment with Issuing Bank Funds; Timing of Reimbursement
and Other Payments........................................................... 41
SECTION 8. REPRESENTATIONS AND WARRANTIES.......................................................... 42
Section 8.1 Organization.................................................................. 42
Section 8.2 Authorization; Enforceable Obligations........................................ 42
Section 8.3 No Proceeding or Litigation................................................... 42
Section 8.4 Financial Statements.......................................................... 43
Section 8.5 No Legal Bar; Consents........................................................ 43
Section 8.6 Full Disclosure............................................................... 43
Section 8.7 Governmental Approvals........................................................ 43
Section 8.8 No Liens...................................................................... 44
Section 8.9 Solvency...................................................................... 44
Section 8.10 No Default................................................................... 44
Section 8.11 Business..................................................................... 44
Section 8.12 ERISA........................................................................ 44
Section 8.13 Security Documents........................................................... 45
Section 8.14 Environmental Matters........................................................ 45
Section 8.15 Federal Regulations.......................................................... 46
Section 8.16 Taxes........................................................................ 46
Section 8.17 Regulatory Status............................................................ 46
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Section 8.18 Offer of Notes............................................................... 47
Section 8.19 Sufficiency and Delivery of Project Documents................................ 47
Section 8.20 Qualifying Facility.......................................................... 48
SECTION 9. CONDITIONS PRECEDENT.................................................................... 48
Section 9.1 Conditions to Effectiveness of Commitments.................................... 48
Section 9.2 Conditions to Each Bank Project Loan and Institutional Loan................... 55
Section 9.3 Additional Conditions to Bank Project Loans................................... 59
Section 9.4 Conditions to VP Letters of Credit Issuance................................... 60
Section 9.5 Conditions to Bond Letters of Credit Issuance................................. 60
Section 9.6 Conditions to Bank L/C Loans and Bank Liquidity Loans......................... 61
Section 9.7 Representations............................................................... 61
SECTION 10. AFFIRMATIVE COVENANTS.................................................................. 61
Section 10.1 Use of Proceeds.............................................................. 61
Section 10.2 Project Reports.............................................................. 63
Section 10.3 Financial Statements......................................................... 64
Section 10.4 Certificates; Other Information.............................................. 65
Section 10.5 Accounts..................................................................... 66
Section 10.6 Maintenance of Existence, Properties, Etc.; Taxes............................ 66
Section 10.7 Books and Records; Inspection of Property; Discussions....................... 67
Section 10.8 Insurance.................................................................... 67
Section 10.9 Completion of Facility; Maintenance of Properties............................ 71
Section 10.10 Maintenance of Title........................................................ 72
Section 10.11 "As Built" Surveys.......................................................... 72
Section 10.12 Maintenance of Qualifying Facility Status................................... 72
Section 10.13 Governmental Approvals...................................................... 73
Section 10.14 Compliance With Laws........................................................ 73
Section 10.15 Employee Plans.............................................................. 73
Section 10.16 Assignments of Additional Contracts; Maintenance of Liens of
the Security Documents; Future Project Mortgages............................ 73
Section 10.17 Notices..................................................................... 74
Section 10.18 Greenhouse Adverse Change................................................... 75
Section 10.19 Ownership of the Borrower................................................... 76
Section 10.20 Performance and Enforcement of Other Agreements............................. 76
Section 10.21 Interest Rate Hedging Transactions.......................................... 76
Section 10.22 Equity Funding Loans........................................................ 77
Section 10.23 Operating Budgets........................................................... 77
Section 10.24 Annual Opinion of Counsel................................................... 78
Section 10.25 Issuance of Bonds........................................................... 78
Section 10.26 Coordination of Unit Reliability Test With Virginia Power................... 79
Section 10.27 Environmental Matters....................................................... 80
Section 10.28 Termination of Facility Operator............................................ 81
Section 10.29 Real Estate Post-Closing Matters............................................ 81
Section 10.30 Submission of Application for Recertification of Facility................... 81
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Section 10.31 Bond Repurchase Covenants................................................... 81
SECTION 11. NEGATIVE COVENANTS..................................................................... 82
Section 11.1 Limitations on Indebtedness.................................................. 82
Section 11.2 Limitations on Liens......................................................... 84
Section 11.3 Limitations on Guarantee Obligations......................................... 84
Section 11.4 Limitations on Distributions................................................. 84
Section 11.5 Limitations on Investment, Loans and Advances................................ 85
Section 11.6 Limitations on Transactions with Affiliates and Others....................... 85
Section 11.7 Limitations on Disposition of Assets......................................... 85
Section 11.8 Limitations on Fundamental Changes........................................... 86
Section 11.9 Limitations on Change Orders................................................. 86
Section 11.10 Limitations on Nature of Business........................................... 87
Section 11.11 Limitations on Optional Payments and Modifications of Debt
Instruments; Limitation on Payments of Equity Funding Loans................. 87
Section 11.12 Limitations on Amendment, Termination or Extension of Project
Documents; Limitation on Exercise of Remedies under
Greenhouse Documents........................................................ 87
Section 11.13 Limitations on Sale or Issuance of Partnership Interests.................... 88
Section 11.14 Assignment of Coal Supply Agreement......................................... 89
Section 11.15 Limitations on Leases....................................................... 89
Section 11.16 Fiscal Year................................................................. 90
Section 11.17 Change of Office............................................................ 90
Section 11.18 Change of Name.............................................................. 90
Section 11.19 Tax Exempt Status of Bonds.................................................. 90
SECTION 12. EVENTS OF DEFAULT...................................................................... 90
Section 12.1 Events of Default............................................................ 90
Section 12.2 Rights and Remedies Following an Event of Default............................ 96
SECTION 13. THE ADMINISTRATIVE AGENT AND THE SECURITY AGENT....................................... 99
Section 13.1 The Administrative Agent..................................................... 99
Section 13.2 The Security Agent...........................................................102
SECTION 14. MISCELLANEOUS..........................................................................103
Section 14.1 Amendments and Waivers.......................................................103
Section 14.2 Notices......................................................................103
Section 14.3 No Waiver; Cumulative Remedies...............................................104
Section 14.4 Survival of Representations and Warranties...................................104
Section 14.5 Payment of Expenses and Taxes; Indemnification...............................104
Section 14.6 Successors and Assigns.......................................................107
Section 14.7 Permitted Bank Transfers and Participations..................................107
Section 14.8 Permitted Institution Transfers..............................................109
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Section 14.9 Set-off......................................................................110
Section 14.10 Agreements Among Lenders....................................................111
Section 14.11 Counterparts................................................................114
Section 14.12 Severability................................................................114
Section 14.13 Limitation of Recourse......................................................114
Section 14.14 Confidentiality Undertaking.................................................115
SECTION 14.15 GOVERNING LAW...............................................................116
Section 14.16 Submission To Jurisdiction; Waivers.........................................116
Section 14.17 Acknowledgements............................................................117
Section 14.18 Security Agent as Third Party Beneficiary...................................117
SECTION 14.19 WAIVERS OF JURY TRIAL.......................................................117
Section 14.20 Integration.................................................................117
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Annexes:
A Definitions
Schedules:
1 Lenders; Commitment Percentages
2 Applicable Bank Loan Margins
3 Bank Loan Amortization
4 Institutional Loan Amortization
5 The Site
6 Governmental Approvals
7 Filings and Recordings
8 Facility Construction Schedule
9 Greenhouse Construction Schedule
Exhibits:
A-1 Form of Bank Project Notes
A-2 Form of Bank L/C Notes
A-3 Form of Bank Liquidity Notes
A-4 Form of Institutional Notes
B-1 Form of Bank Loan Extension of Credit Request
B-2 Form of Institutional Loan Extension of Credit Request
B-3 Form of Letter of Credit Extension of Credit Request
C-1 Form of Construction VP Letter of Credit
C-2 Form of Term VP Letter of Credit
C-3 Form of Bond Letter of Credit
D Form of Security Deposit Agreement
E Form of Project Mortgage
F-1 Form of General Partner Interest Pledge Agreement
F-2 Form of Limited Partner Interest Pledge Agreement
G Form of Southern Equity Contribution Agreement
H Form of Borrower Stock Assignment
I-1 Form of Consent to Assignment of Virginia Power
I-2 Form of Consent to Assignment of ER&L and CSXT
I-3 Form of Consent to Assignment of Neweagle
I-4 Form of Consent to Assignment of Arch
I-5 Form of Consent to Assignment of Facility Contractor and Parent
Guarantor (SEI and Southern)
I-6 Form of Consent to Assignment of Facility Operator (SEI)
I-7 Form of Consent to Assignment of Ash Disposal Agreement
I-8 Form of Consent to Assignment of Greenhouse Contractor and Parent
Guarantor (SEI and Southern)
I-9 Form of Consent to Assignment of Greenhouse Owner (as steam
purchaser)
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I-10 Form of Consent to Assignment of Greenhouse Operator
J-1 Form of Facility Completion Certificate
J-2 Form of Greenhouse Completion Certificate
K-1 Form of Opinion of Xxxxxxxx Xxxxxxx
K-2 Form of Opinion of XxXxxxx Xxxxx Battle & Xxxxxx
K-3 Form of Opinion of counsel to Virginia Power
K-4 Form of Opinion of counsel to the Greenhouse Owner
K-5 Form of Opinion of counsel to the Greenhouse Operator
K-6 Form of Opinion of counsel to the Coal Supplier
K-7 Form of Opinion of counsel to Arch
K-8 Form of Opinion of counsel to CSXT and the Coal Transporter
L-1 Form of Bank Transfer Supplement
L-2 Form of Institutional Transfer Supplement
M Form of Interest Rate Election Notice
N Form of Subordination Provisions
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LOAN AND REIMBURSEMENT AGREEMENT, dated as of May 18, 1994,
among BIRCHWOOD POWER PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), the several banks parties to this Agreement and identified on the
signature pages hereof as a "Bank" and each other bank or other financial
institution which becomes a party to this Agreement pursuant to Section 14.7
hereof (collectively, the "Banks"), XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY,
ALLSTATE INSURANCE COMPANY, NEW YORK LIFE INSURANCE COMPANY, the other financial
institutions or institutional investors parties to this Agreement and identified
on the signature pages hereof as an "Institution" and each other institution
which becomes a party to this Agreement pursuant to Section 14.8 hereof
(collectively, the "Institutions"), BANQUE PARIBAS, NEW YORK BRANCH, BARCLAYS
BANK PLC, CREDIT SUISSE and UNION BANK OF CALIFORNIA, as co-agents for the Banks
hereunder (in such capacity, the "Co-Agents"), CREDIT SUISSE and CREDIT SUISSE,
NEW YORK BRANCH, as Issuing Bank (in such capacity, the "Issuing Bank", and
together with the Banks and the Institutions, the "Lenders"), and CREDIT SUISSE,
as administrative agent for the Banks and the Issuing Bank hereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower desires to acquire, construct, own and
operate the Project referred to herein, consisting of a nominal 220 MW
pulverized coal-fired cogeneration facility to be located in King Xxxxxx County,
Virginia, and in connection therewith has requested that the Lenders provide a
portion of the construction and term financing for the Project, in the maximum
principal amount of $350,976,000, and the Lenders are willing to provide such
financing subject to and upon the terms and conditions set forth herein;
WHEREAS, the Borrower expects to obtain additional
construction and term financing for the Project through the issuance of Bonds
(as hereinafter defined) in the maximum principal amount of $50,000,000; and
WHEREAS, concurrently with the execution and delivery of this
Agreement the Borrower is entering into an Equity Funding Loan Agreement (as
hereinafter defined) pursuant to which the banks parties thereto agree to make
revolving loans to the Borrower, in the maximum principal amount of $87,390,000,
to fund on an interim basis the equity investment in the Project to be made by
the partners of the Borrower, the proceeds of which will be applied to finance
construction of the Project.
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
Section 1.1 Defined Terms. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to them in Annex
A.
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Section 1.2 Other Definitional Provisions. (a) Any term
defined by reference to an agreement, instrument or document shall have the
meaning so assigned to it whether or not such document is in effect.
(b) As used herein, references to a "true and complete copy"
of a document shall include all amendments, supplements, modifications,
exhibits, schedules and disclosure letters referred to therein or delivered
pursuant thereto, if any.
(c) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto, accounting
terms not defined herein and accounting terms partly defined herein, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
paragraph, clause, Annex, Schedule and Exhibit references are to the same
contained in or attached to this Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. THE CREDIT FACILITIES AND THE COMMITMENTS
Section 2.1 The Credit Facilities. The credit facilities
provided by the Lenders to the Borrower under this Agreement (the "Credit
Facilities") shall consist of (a) the Bank Loan Facility, (b) the Institutional
Loan Facility, (c) the VP Letter of Credit Facility and (d) the Bond Letter of
Credit Facility.
Section 2.2 Commitments. The aggregate amount of the several
Commitments of the Lenders under the Credit Facilities shall be as follows: (a)
the amount of the Commitment of each Bank under the Bank Loan Facility shall be
equal to its Commitment Percentage of the Total Bank Loan Commitments, which
shall be comprised of the Total Bank Project Loan Commitments and the Total Bank
L/C Loan Commitments; (b) the amount of the Commitment of each Institution under
the Institutional Loan Facility shall be equal to its Commitment Percentage of
the Total Institutional Commitments; (c) the amount of the Commitment of each
Bank under the VP Letter of Credit Facility shall be equal to its Commitment
Percentage of the Total VP Letter of Credit Commitments; and (d) the amount of
the Commitment of each Bank under the Bond Letter of Credit Facility shall be
equal to its Commitment Percentage of the Total Bond Letter of Credit
Commitments.
Section 2.3 Mandatory Reduction of Total Loan Commitments. The
Total Loan Commitments shall be reduced permanently and automatically by an
amount equal to the aggregate principal amount of any prepayment of Loans made
pursuant to Section 7.3 (other than paragraph (i) thereof) during the
Construction Period. Any reduction in the Total Loan Commitments pursuant to the
foregoing sentence shall permanently and automatically reduce (a)
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the Total Bank Project Loan Commitments by an amount equal to the aggregate
principal amount of any Bank Loans which were prepaid pursuant to any such
Section and (b) the Total Institutional Commitments by an amount equal to the
aggregate principal amount of any Institutional Loans which were prepaid
pursuant to any such Section.
Section 2.4 Mandatory Reduction of Total Bank Project Loan
Commitments. The Total Bank Project Loan Commitments shall be reduced
permanently and automatically by an amount equal to the aggregate principal
amount of Bonds issued pursuant to Section 10.25. Such reduction shall be
effective concurrently with the issuance of such Bonds.
SECTION 3. BANK LOAN FACILITY
Section 3.1 Bank Loans. Subject to the terms and conditions of
this Agreement, including without limitation the satisfaction of the conditions
set forth in Sections 9.1, 9.2, 9.3 and 9.6, each Bank severally agrees to make
loans (collectively, the "Bank Loans") to the Borrower from time to time during
the Bank Loan Commitment Period in an aggregate principal amount at any time
outstanding not to exceed such Bank's Commitment Percentage of the Total Bank
Loan Commitments. Bank Loans shall be made as either (a) Bank Project Loans, if
the proceeds thereof are to be used to pay Project Costs or to repay Equity
Funding Loans on the Completion Date as permitted by Section 10.1(c), (b) Bank
L/C Loans, if the proceeds thereof are to be used (i) to finance VP
Reimbursement Obligations or Bond Reimbursement Obligations arising in respect
of Refunding Drawings or (ii) to refinance Bank Liquidity Loans outstanding on
the applicable Bond L/C Expiration Date, or (c) Bank Liquidity Loans, if the
proceeds thereof are to be used to finance Bond Reimbursement Obligations
arising in respect of Liquidity Drawings; provided that (x) the aggregate
principal amount of outstanding Bank Project Loans may not exceed the Total Bank
Project Loan Commitments then in effect and (y) the aggregate principal amount
of outstanding Bank L/C Loans and Bank Liquidity Loans may not exceed the Total
Bank L/C Loan Commitments then in effect. Subject to Section 3.5, the Bank Loans
(other than Bank Liquidity Loans) from time to time may be (A) Eurodollar Loans,
(B) C/D Rate Loans, (C) Base Rate Loans or (D) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 3.2 and 3.5. The Bank Liquidity Loans shall be Base
Rate Loans.
Section 3.2 Procedure for Bank Loan Borrowings. (a) Each
borrowing of Bank Project Loans, Bank L/C Loans and Bank Liquidity Loans shall
be on a Borrowing Date; provided that the Borrower shall deliver to the
Administrative Agent (with copies to the Institutions and the Independent
Engineer) an Extension of Credit Request substantially in the form of Exhibit
B-1 (which request, to be effective on the requested Borrowing Date, must be
received by the Administrative Agent, the Institutions and the Independent
Engineer (i) if such borrowing is of Bank Project Loans other than Debt Service
Loans, at least 10 Business Days prior to the requested Borrowing Date, (ii) if
such borrowing is of Debt Service Loans or of Bank L/C Loans, on the date that
the Interest Rate Election Notice with respect to such borrowing is required to
be delivered pursuant to the following proviso) or (iii) if such borrowing is of
Bank Liquidity Loans, prior to 12:00 Noon, New York City time, one Business Day
prior to the requested Borrowing Date; provided, further that the Borrower
shall, except in the case of Bank
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Liquidity Loans, also deliver to the Administrative Agent an Interest Rate
Election Notice substantially in the form of Exhibit M (which must be received
by the Administrative Agent (i) prior to 12:00 Noon, New York City time, three
Business Days prior to the requested Borrowing Date, if all or any part of such
Bank Loans initially are to be Eurodollar Loans, (ii) prior to 12:00 Noon, New
York City time, two Business Days prior to the requested Borrowing Date, if all
or any part of such Bank Loans initially are to be C/D Rate Loans and none of
such Bank Loans are to be Eurodollar Loans, or (iii) prior to 12:00 Noon, New
York City time, one Business Day prior to the requested Borrowing Date, if all
of such Bank Loans initially are to be Base Rate Loans). Each Extension of
Credit Request shall specify (x) the amount to be borrowed, (y) the applicable
Borrowing Date and (z) whether such Bank Loans are to be Bank Project Loans,
Bank L/C Loans or Bank Liquidity Loans, the proposed use of the proceeds thereof
and, if all or any part of such Bank Loans are to be Bank L/C Loans, the amount
thereof made to finance VP Reimbursement Obligations or Bond Reimbursement
Obligations arising in respect of Refunding Drawings and/or to refinance Bank
Liquidity Loans outstanding on the applicable Bond L/C Expiration Date, as the
case may be. In addition, each Extension of Credit Request shall, (1) in the
case of each Bank Project Loan, include a statement that the proceeds of such
Bank Loans will be used solely to pay Project Costs identified in a schedule
attached to such Extension of Credit Request or (if applicable) to repay Equity
Funding Loans in accordance with Section 10.1(c), or (2) in the case of each
Bank L/C Loan and Bank Liquidity Loan, include a statement that the proceeds of
such Bank Loans will be used solely to finance the Borrower's obligation to make
L/C Reimbursement Payments. Each Interest Rate Election Notice shall specify (A)
whether the Bank Loans to be borrowed are to be Eurodollar Loans, C/D Rate
Loans, Base Rate Loans or a combination thereof and (B) if such Bank Loans are
to be entirely or partly Eurodollar Loans or C/D Rate Loans, the respective
amounts of each such Type of Bank Loan and the respective durations of the
initial Bank Loan Interest Periods therefor. Each borrowing of Bank Project
Loans that are not Debt Service Loans shall be in an amount equal to $2,000,000
or a whole multiple of $100,000 in excess thereof (or such lesser amount as
shall equal the Total Bank Project Loan Commitments then in effect). Each
Borrowing of a Bank L/C Loan or Bank Liquidity Loan shall be in the amount of
the applicable L/C Reimbursement Obligation.
(b) Upon receipt of an Extension of Credit Request pursuant to
Section 3.2(a), the Administrative Agent shall promptly notify each Bank
thereof. If such borrowing is of Bank L/C Loans or Bank Liquidity Loans, each
Bank will, on the Borrowing Date specified in such Extension of Credit Request,
make such Loan by applying the proceeds thereof to the payment of the applicable
L/C Reimbursement Obligation owed to it. If such borrowing is of Bank Project
Loans, following receipt of the notice from the Administrative Agent referred to
in the first sentence of this paragraph (b), each Bank will make the amount of
its pro rata share of such borrowing available to the Administrative Agent for
the account of the Borrower, by wire transfer to the office of the
Administrative Agent specified on Schedule 1 prior to 12:00 Noon, New York City
time, on the applicable Borrowing Date in funds immediately available to the
Administrative Agent. The Administrative Agent then will promptly deposit the
aggregate of the amounts of such Bank Project Loans made available to the
Administrative Agent by the Banks and in like funds as received by the
Administrative Agent into the Construction Account or, if applicable, the
Accounts specified in Section 4.3 of the Security Deposit Agreement for
application to the payment of Project Costs and/or the repayment of Equity
Funding Loans to the extent permitted by Section 10.1(c), as specified in the
Extension of Credit Request.
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(c) Unless the Administrative Agent shall have been notified
in writing by any Bank prior to a Borrowing Date on which the Borrower has
requested Bank Project Loans that such Bank will not make the amount that would
constitute its Commitment Percentage of the borrowing of such Bank Project Loans
on such date available to the Administrative Agent, the Administrative Agent may
assume that such Bank has made such amount available to the Administrative Agent
on such Borrowing Date, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower, through the deposit of funds in the
Construction Account or, if applicable, the Accounts specified in Section 4.3 of
the Security Deposit Agreement, a corresponding amount. If such amount of Bank
Project Loans is made available to the Administrative Agent by such Bank on a
date after such Borrowing Date, such Bank shall pay to the Administrative Agent
on demand, such amount, with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period from and including such
Borrowing Date to the date such Bank makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Bank with respect to any amounts owing under this paragraph (c) shall be
conclusive in the absence of manifest error. If such Bank's Commitment
Percentage of such borrowing of Bank Project Loans is not in fact made available
to the Administrative Agent by such Bank within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount from the Borrower on demand, together with interest thereon from the date
such amount was made available to the Borrower at the rate per annum applicable
to Base Rate Loans hereunder.
Section 3.3 Bank Notes.
(a) Bank Project Notes. The Bank Project Loans made by each
Bank shall be evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit A-1 with appropriate insertions as to payee, date and
principal amount (a "Bank Project Note"), payable to the order of such Bank.
Each Bank Project Note shall (i) be dated the Closing Date, (ii) be in a
principal amount equal to such Bank's Commitment Percentage of the initial Total
Bank Project Loan Commitments, (iii) be payable as provided in Section 3.4, (iv)
bear interest for the period from the date thereof until paid in full on the
unpaid principal amount thereof from time to time outstanding at the applicable
interest rate per annum provided in, and payable as specified in, paragraphs
(a), (b), (c), (d) and (e) of Section 3.7 and (v) be entitled to the benefits of
this Agreement and the other Loan Documents. Each Bank is hereby authorized to
record, on the schedules annexed to and constituting part of its Bank Project
Note or on other appropriate records of such Bank, the date and amount of each
Bank Project Loan made by such Bank, the Type of such Bank Project Loan, each
continuation of such Bank Project Loan as a Bank Project Loan of the same Type,
each conversion of all or a portion of such Bank Project Loan to a Bank Project
Loan of another Type, the date and amount of each payment or prepayment of
principal of such Bank Project Loan and, in the case of a Eurodollar Loan and a
C/D Rate Loan, the duration of each Bank Loan Interest Period with respect
thereto, and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded; provided that the failure to make any
such recordation shall not affect the obligations of the Borrower hereunder or
under any Bank Project Note.
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(b) Bank L/C Notes. The Bank L/C Loans made by each Bank to
finance VP Reimbursement Obligations and Bond Reimbursement Obligations arising
in respect of Refunding Drawings and/or to refinance Bank Liquidity Loans
outstanding on the applicable Bond L/C Expiration Date shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit A-2 with
appropriate insertions as to payee, date and principal amount (a "Bank L/C
Note"), payable to the order of such Bank. Each Bank L/C Note shall (i) be dated
the Closing Date, (ii) be in a principal amount equal to such Bank's Commitment
Percentage of the sum of (x) the initial Total VP Letter of Credit Commitments
and (y) the initial Total Bond Letter of Credit Commitments, (iii) be payable as
provided in Section 3.4, (iv) bear interest for the period from the date thereof
until paid in full on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum provided in, and payable
as specified in, Section 3.7 and (v) be entitled to the benefits of this
Agreement and the other Loan Documents. Each Bank is hereby authorized to
record, on the schedules annexed to and constituting part of its Bank L/C Note
or on other appropriate records of such Bank, the date and amount of each Bank
L/C Loan made by such Bank, the Type of such Bank L/C Loan, each continuation of
such Bank L/C Loan as a Bank L/C Loan of the same Type, each conversion of all
or a portion of such Bank L/C Loan to a Bank L/C Loan of another Type, the date
and amount of each payment or prepayment of principal of such Bank L/C Loan and,
in the case of a Eurodollar Loan and a C/D Rate Loan, the duration of each Bank
Loan Interest Period with respect thereto, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided that the failure to make any such recordation shall not affect the
obligations of the Borrower hereunder or under any Bank L/C Note.
(c) Bank Liquidity Notes. The Bank Liquidity Loans made by
each Bank shall be evidenced by a promissory note of the Borrower, substantially
in the form of Exhibit A-3 with appropriate insertions as to payee, date and
principal amount (a "Bank Liquidity Note"), payable to the order of such Bank.
Each Bank Liquidity Note shall (i) be dated the Closing Date, (ii) be in a
principal amount equal to such Bank's Commitment Percentage of the initial Total
Bond Letter of Credit Commitments, (iii) be payable as provided in Section 3.4,
(iv) bear interest for the period from the date thereof until paid in full on
the unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum provided in, and payable as specified in,
paragraphs (b), (d) and (e) of Section 3.7 and (v) be entitled to the benefits
of this Agreement and the other Loan Documents. Each Bank is hereby authorized
to record, on the schedules annexed to and constituting part of its Bank
Liquidity Note or on other appropriate records of such Bank, the date and amount
of each Bank Liquidity Loan made by such Bank and the date and amount of each
payment or prepayment of principal of such Bank Liquidity Loan, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided that the failure to make any such recordation
shall not affect the obligations of the Borrower hereunder or under any Bank
Liquidity Note.
Section 3.4 Repayment of Bank Loans. (a) The Borrower shall
repay the Bank Loans (other than Bank Liquidity Loans) in consecutive quarterly
installments of principal on each Loan Installment Payment Date specified on
Schedule 3 (each, a "Bank Loan Installment Payment Date") to and including the
Bank Loan Final Maturity Date. The amount of the installment of principal of the
Bank Loans (other than Bank Liquidity Loans) due on a Loan Installment Payment
Date shall be equal to the product of (i) the aggregate outstanding principal
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amount of the Bank Loans (other than Bank Liquidity Loans) on the Construction
Period Termination Date (after giving effect to any Bank Loans (other than Bank
Liquidity Loans) made on such date) and (ii) the percentage set forth opposite
such Loan Installment Payment Date on Schedule 3 attached hereto (as adjusted
from time to time pursuant to paragraph (b) below). Notwithstanding anything to
the contrary in the first sentence of this Section 3.4(a), if one or more Bank
Loan Installment Payment Dates occur before the Initial Repayment Date, the
amounts of principal of the Bank Loans that would, absent this sentence, be
payable on such Loan Installment Payment Dates shall not be required to be
repaid by the Borrower on such dates, but shall instead be repaid on the Initial
Repayment Date, together with the installment of principal on the Bank Loans
which is scheduled to be due on the Initial Repayment Date in accordance with
the first sentence of this Section 3.4, and such amounts of principal of Bank
Loans the repayment of which is deferred to the Initial Repayment Date shall
bear interest to the Initial Repayment Date at the rates applicable thereto
pursuant to Section 3.7.
(b) Upon any making of a Bank L/C Loan following the
Construction Period Termination Date pursuant to Section 3.1, the percentages
set forth in Schedule 3 shall be adjusted on a proportionate basis to reflect
such increase in the principal amount of the Bank Loans and to provide that such
Bank L/C Loan is repaid by the Borrower, on a basis pro rata with the repayment
of Bank Project Loans then outstanding, on each of the remaining scheduled Bank
Loan Installment Payment Dates until the Bank Loan Final Maturity Date,
commencing on the Bank Loan Installment Payment Date next succeeding the date on
which such Bank L/C Loan was made. A revised Schedule 3, prepared in accordance
with the foregoing provisions of this paragraph (b), executed by the
Administrative Agent and delivered to the Borrower and the Lenders, shall
without further act supersede the existing Schedule 3 to this Agreement and,
absent manifest error, be conclusive and binding on the Borrower and the Banks.
(c) Unless earlier prepaid pursuant to Section 7.3(i) or
refinanced with a Bank L/C Loan pursuant to Section 3.1, the Borrower shall
repay in full the then aggregate outstanding principal amount of the Bank
Liquidity Loans, if any, on the Liquidity Loan Termination Date applicable
thereto.
Section 3.5 Conversion and Continuation Options. (a) The
Borrower may elect from time to time (i) to convert Eurodollar Loans to Base
Rate Loans or C/D Rate Loans by giving the Administrative Agent irrevocable
notice of such election (which notice, to be effective, must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, three Business
Days prior to the requested conversion date) and (ii) to convert C/D Rate Loans
to Base Rate Loans by giving the Administrative Agent irrevocable notice of such
election (which notice, to be effective, must be received by the Administrative
Agent prior to 12:00 Noon, New York City time, two Business Days prior to the
requested conversion date), provided that any such conversion of Eurodollar
Loans or C/D Rate Loans may only be made on the last day of a Bank Loan Interest
Period with respect thereto. The Borrower may elect from time to time to convert
Base Rate Loans (other than Base Rate Loans which are Bank Liquidity Loans) or
C/D Rate Loans to Eurodollar Loans by giving the Administrative Agent
irrevocable notice of such election (which notice, to be effective, must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
three Business Days prior to the requested conversion date), provided that any
such conversion of C/D Rate Loans may, subject to the penultimate sentence of
this Section
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3.5(a), only be made on the last day of a Bank Loan Interest Period with respect
thereto. Any such notice of conversion to Eurodollar Loans or C/D Rate Loans
shall specify the duration of the initial Bank Loan Interest Period or Bank Loan
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Bank thereof. If the last day of the then
current Bank Loan Interest Period with respect to C/D Rate Loans that are to be
converted to Eurodollar Loans is not a Business Day with respect to Eurodollar
Loans, such conversion shall be made on the next succeeding Business Day with
respect to Eurodollar Loans and during the period from such last day to such
succeeding Business Day, such Eurodollar Loans shall bear interest as if they
were Base Rate Loans. All or any part of outstanding Eurodollar Loans, Base Rate
Loans and C/D Rate Loans may be converted as provided herein, provided that (i)
no Bank Loan may be converted to a Eurodollar Loan or a C/D Rate Loan when any
Default or Event of Default has occurred and is continuing and the Majority
Banks have determined that the Bank Loan Interest Period requested is not
appropriate in light of such Default or Event of Default and (ii) no such
conversion may be made if it would contravene the provisions of Section 3.6 or
if it would not be permitted under the provisions of Section 3.9 or 3.10.
(b) Eurodollar Loans or C/D Rate Loans may be continued as
such upon the expiration of the then current Bank Loan Interest Period with
respect thereto by the Borrower giving notice to the Administrative Agent (which
shall promptly notify the Banks) in accordance with the applicable provisions of
the term "Bank Loan Interest Period", of the duration of the next Bank Loan
Interest Period to be applicable to such Loans; provided that no Eurodollar Loan
or C/D Rate Loan will be continued as such (A) when any Default or Event of
Default has occurred and is continuing and the Majority Banks have determined
that the Bank Loan Interest Period requested by the Borrower is not appropriate
in light of such Default or Event of Default or (B) if such continuation would
contravene the provisions of Section 3.6 or if it would not be permitted under
the provisions of Section 3.9 or 3.10; and provided, further, that if the
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Bank Loan Interest Period.
Section 3.6 Maximum Number of Tranches. All borrowings,
conversions and continuations of Bank Loans hereunder and all selections of Bank
Loan Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, at no time will the
aggregate number of Eurodollar Tranches and C/D Tranches collectively exceed
six. As used in this Section 3.6 and in the definition of "Bank Loan Interest
Period", the term "Eurodollar Tranche" is the collective reference to Eurodollar
Loans and the term "C/D Rate Tranche" is the collective reference to C/D Rate
Loans, the Bank Loan Interest Periods with respect to which begin on the same
date and end on the same later date (whether or not such Eurodollar Loans or C/D
Rate Loans, as the case may be, originally shall have been made on the same
day).
Section 3.7 Interest on Bank Loans. (a) Each Eurodollar Loan
shall bear interest for each day (including the first day but excluding the last
day) during each Bank Loan Interest Period with respect thereto at a rate per
annum equal to the Eurodollar Rate determined for such day plus the Applicable
Bank Loan Margin.
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(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Bank Loan Margin.
(c) Each C/D Rate Loan shall bear interest for each day
(including the first day but excluding the last day) during each Bank Loan
Interest Period with respect thereto at a rate per annum equal to the C/D Rate
determined for such day plus the Applicable Bank Loan Margin.
(d) If all or a portion of the principal amount of any Bank
Loan or any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at the Bank Default Rate from the date of such non-payment until such
amount is paid in full (after as well as before judgment). In addition (but
without duplication of any amounts payable pursuant to the preceding sentence),
if any Event of Default shall occur, the outstanding principal amount of all
Bank Loans shall bear interest at the Bank Default Rate from the date on which
such Event of Default occurred until the date on which no Event of Default shall
be continuing.
(e) Interest shall be payable in arrears on each Bank Loan
Interest Payment Date, provided that interest accruing pursuant to paragraph (d)
of this Section shall be payable on demand.
Section 3.8 Computation of Interest on Bank Loans. (a)
Interest on Base Rate Loans shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. Interest on Eurodollar
Loans and C/D Rate Loans shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Banks of each determination of a Eurodollar Rate or
of a C/D Rate. Any change in the interest rate on a Bank Loan resulting from a
change in the Base Rate, the Eurocurrency Reserve Requirements, the C/D
Assessment Rate or the C/D Reserve Percentage shall become effective as of the
opening of business on the day on which such change in the Base Rate is
announced or such change in the Eurocurrency Reserve Requirements, the C/D
Assessment Rate or the C/D Reserve Percentage becomes effective, as the case may
be. The Administrative Agent shall as soon as practicable notify the Borrower
and the Banks of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate on the Bank Loans
by the Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Banks in the absence of manifest
error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 3.7(a) or 3.7(c).
(c) If any Reference Bank shall for any reason no longer have
a Commitment or any Loans, such Reference Bank shall thereupon cease to be a
Reference Bank, and if, as a result, there shall only be one Reference Bank
remaining, the Administrative Agent (after consultation with the Borrower and
the Banks) shall, by notice to the Borrower and the Banks,
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designate another Bank as a Reference Bank so that there shall at all times be
at least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated by this
Agreement. If any of the Reference Banks shall be unable or shall otherwise fail
to supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of Section 3.9, be determined on the
basis of the quotations of the remaining Reference Banks or Reference Bank.
Section 3.9 Inability to Determine Interest Rate on Bank
Loans. In the event that, prior to the first day of any Bank Loan Interest
Period, (a) the Administrative Agent is unable to make the determination of the
Eurodollar Rate or the C/D Rate for such Bank Loan Interest Period required to
be made by it as provided herein by reason of the failure or inability of at
least two of the Reference Banks to supply quotations necessary to make such
determination or (b) the Administrative Agent shall have received notice from
the Majority Banks that the Eurodollar Rate or the C/D Rate determined or to be
determined for such Bank Loan Interest Period will not adequately and fairly
reflect the cost to such Banks of making or maintaining their affected Bank
Loans during such Bank Loan Interest Period, the Administrative Agent shall give
telex, telecopy or telephonic notice thereof (stating the reason therefor) to
the Borrower and the Banks as soon as practicable. If such notice is given (i)
any Eurodollar Loans or C/D Rate Loans, as the case may be, requested to be made
on the first day of such Bank Loan Interest Period shall be made as Bank Loans
of another Type, (ii) any Bank Loans that were to have been converted on the
first day of such Bank Loan Interest Period to Eurodollar Loans or C/D Rate
Loans, as the case may be, shall be converted to or continued as Bank Loans of
another Type and (iii) any outstanding Eurodollar Loans or C/D Rate Loans, as
the case may be, shall be converted, on the first day of such Bank Loan Interest
Period, to Bank Loans of another Type, in each case as the Borrower shall
designate; provided, however, that (A) if the Borrower shall so designate
Eurodollar Loans, its irrevocable notice thereof must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, three Business
Days prior to the first day of such Bank Loan Interest Period, (B) if the
Borrower shall so designate C/D Rate Loans, its irrevocable notice thereof must
be received by the Administrative Agent prior to 12:00 Noon, New York City time,
two Business Days prior to the first day of such Bank Loan Interest Period, and
(C) if the Borrower shall fail to give any required notice of its designation of
Bank Loans of another Type, such Bank Loans shall be made as or converted to
Base Rate Loans on the first day of such Bank Loan Interest Period. Until such
notice has been withdrawn by the Administrative Agent or, in the case of any
notice given by the Majority Banks pursuant to clause (b) of the first sentence
of this Section, by the Majority Banks, no further Eurodollar Loans or C/D Rate
Loans, as the case may be, shall be made or continued as such, nor shall the
Borrower have the right to convert Loans to Eurodollar Loans or C/D Rate Loans,
as the case may be.
Section 3.10 Illegality. Notwithstanding any other provision
of this Agreement, if any change in any Requirement of Law (other than any
change to any organizational or governing document of any Bank) or in the
interpretation or application thereof by any authority charged with the
interpretation or administration thereof or by any court of competent
jurisdiction shall make it unlawful for any Bank to make or maintain Eurodollar
Loans as contemplated by
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this Agreement, such Bank shall give telex, telecopy or telephonic notice
thereof to the Borrower and the Administrative Agent (specifying the reason for
such illegality) as soon as practicable and (a) the commitment of such Bank
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Domestic Dollar Loans to Eurodollar Loans shall forthwith be suspended
until such time as such Bank may again lawfully make and maintain Eurodollar
Loans, and (b) such Bank's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last days
of the then current Bank Loan Interest Periods with respect to such Bank Loans
or within such earlier period (determined by the Administrative Agent in its
sole judgment) as required by law (unless (i) the Borrower shall have elected to
convert such Bank Loans to C/D Rate Loans and (ii) the Administrative Agent
shall have received the Borrower's irrevocable notice thereof prior to 12:00
Noon, New York City time, two Business Days prior to the earlier of (x) the
first day of the next succeeding Bank Loan Interest Period with respect to such
Bank Loan and (y) the last day of such earlier period as required by law). If,
as a result of such change in a Requirement of Law or in the interpretation or
application thereof, any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Bank Loan Interest Period with
respect thereto, the Borrower shall pay to such Bank such amounts, if any, as
may be required pursuant to Section 7.7(a) with respect to such conversion.
Section 3.11 Requirements of Law. (a) In the event that any
Requirement of Law or any change therein or in the interpretation or application
thereof or compliance by any Bank with any request or directive (whether or not
having the force of law) from any central bank or other Government Authority:
(i) does or shall subject any Bank to any tax (except
to the extent such tax is the subject of the agreements set forth in
Section 7.6) of any kind whatsoever with respect to this Agreement, any
Bank Note or any Eurodollar payments made by it, or change the basis of
taxation of payments to such Bank of principal, fees, interest or any
other amount payable hereunder (except for changes in the rate of tax
on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Bank which are not
otherwise included in the determination of the Eurodollar Rate; or
(iii) does or shall impose on such Bank any other
condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Eurodollar Loans or C/D Rate Loans
made to the Borrower hereunder, then, in any such case, the Borrower shall
promptly pay such Bank, within 10 Business Days after demand by such Bank
(through the Administrative Agent) in accordance with paragraph (c) of this
Section, any additional amounts necessary to compensate such Bank for such
additional costs or reduced amount receivable.
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(b) In the event that any Bank shall have determined that the
adoption after the date hereof of any law, rule, guideline or regulation
regarding capital adequacy, or any change after the date hereof in any existing
or future law, rule, guideline or regulation regarding capital adequacy or in
the interpretation or application thereof, or compliance by any Bank or any
corporation controlling such Bank with any request or directive made or adopted
after the date hereof regarding capital adequacy (whether or not having the
force of law) from any central bank or Government Authority, does or shall have
the effect of reducing the rate of return on such Bank's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Bank or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 10 Business Days after
submission by such Bank to the Borrower (through the Administrative Agent) of a
written request therefor in accordance with paragraph (c) of this Section, the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction.
(c) A Bank intending to make a claim pursuant to paragraph (a)
or (b) of this Section shall deliver to the Borrower through the Administrative
Agent, as soon as practicable after becoming aware of the circumstances giving
or which shall give rise to such claim, notice of such Bank's intention to make
a claim, specifying the event by which it is or shall be entitled to make such
claim and setting out in reasonable detail the expected basis and computation of
such claim (and the Administrative Agent shall promptly upon receipt thereof
deliver such notice to the Borrower); provided that no claim shall be made by
any Bank, and the Borrower shall not be required to indemnify any Bank, with
respect to any cost, increased cost or other liability or reduction described in
paragraph (a) or (b) of this Section which is incurred by such Bank and which is
payable, or which is applicable to any period, more than 90 days prior to the
date the Borrower is first notified by the Administrative Agent pursuant to the
foregoing provisions of this paragraph (c) that such Bank is incurring such
costs, other liability or reduction, as the case may be.
(d) A certificate as to any additional amounts payable to any
Bank pursuant to this Section 3.11, submitted by such Bank to the Borrower and
showing in reasonable detail that such amounts were computed in accordance with
this Section 3.11, shall be conclusive in the absence of manifest error. The
provisions of this Section 3.11 shall survive the termination of this Agreement
and the payment of the Bank Loans and all other amounts payable to the Banks and
the Issuing Bank hereunder.
(e) Each Bank agrees that, as promptly as practicable after it
becomes aware that additional amounts are or will be due to such Bank under this
Section 3.11, it will, to the extent not inconsistent with such Bank's internal
policies, make, fund or maintain its Bank Loans through another lending office
of such Bank if as a result thereof such amounts will not be required to be paid
and if, as determined by such Bank in it its sole discretion, the making,
funding or maintaining of such Bank Loans through such other lending office (i)
would be permitted by applicable Requirements of Law and (ii) would not
adversely affect its Bank Loans or such Bank. The Borrower hereby agrees to pay
all reasonable expenses incurred by a Bank in utilizing another lending office
of such Bank as provided in this paragraph.
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Section 3.12 Substitution or Removal of an Affected Bank. In
the event any Bank notifies the Borrower pursuant to Section 3.10 that it may no
longer make or maintain Eurodollar Loans, or demands payment of additional
amounts pursuant to Section 3.11 or 7.6, the Borrower, at its expense, at any
time within 180 days after such demand, so long as no Default or Event of
Default shall have occurred and be continuing, may require such Bank to sell in
accordance with the provisions of Section 14.7, at par plus accrued interest,
without recourse or warranty and pursuant to a Bank Transfer Supplement, its
rights and obligations hereunder (including its Commitment and the Bank Loans at
the time owing to it and the Bank Notes held by it) to a Qualified Financial
Institution specified by the Borrower that is willing to purchase such rights
and obligations on the terms hereof and is reasonably acceptable to the
Administrative Agent; provided that (i) such assignment shall not conflict with
or violate any Requirement of Law applicable to or binding on such Bank, (ii)
the Borrower shall have paid to the assigning Bank all amounts (other than
interest) accrued and owing hereunder to it (including, without limitation,
amounts owing pursuant to Sections 3.11, 7.6 and 7.7(a)) and (iii) the assignee
Bank shall have executed and delivered a Bank Transfer Supplement.
Notwithstanding anything set forth above in this Section 3.12 to the contrary,
the Borrower shall not be entitled to require an assignment under this Section
3.12 with respect to any Bank demanding payment under Section 3.11 or 7.6 if (x)
prior to any such requirement by the Borrower, such Bank shall have changed its
lending office so as to eliminate the continued incurrence of the costs in
respect of which such payment was demanded or (y) the circumstances giving rise
to such Bank's demand for payment of such additional amounts are applicable to
all the Banks.
Section 3.13 Banks' Representation. Each Bank represents that
the Bank Loans to be made by it hereunder are being made in the ordinary course
of its banking business not with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended or for resale in any transaction which would be in violation of any
applicable securities laws; provided that the sale, transfer or other
disposition by each Bank of its Bank Loans and Bank Notes shall at all times be
within such Bank's control.
SECTION 4. INSTITUTIONAL LOAN FACILITY
Section 4.1 Institutional Loans. Subject to the terms and
conditions of this Agreement, including without limitation the satisfaction of
the conditions set forth in Sections 9.1 and 9.2, each Institution severally
agrees to make two loans (collectively, the "Institutional Loans") to the
Borrower during the Institutional Commitment Period in an aggregate principal
amount equal to its Commitment Percentage of the Total Institutional
Commitments; provided that the initial Institutional Loan to be made by each
Institution shall be in a principal amount equal to at least one-half of its
Commitment Percentage of the Total Institutional Commitments and shall be
available for borrowing only during the Initial Funding Period, and the other
Institutional Loan to be made by each Institution shall be available for
borrowing only during the Subsequent Funding Period.
Section 4.2 Procedure for Institutional Loan Borrowings. Each
borrowing of Institutional Loans shall be on a Borrowing Date; provided that the
Borrower shall deliver to each Institution (with copies to the Administrative
Agent and the Independent Engineer) an Extension of Credit Request substantially
in the form of Exhibit B-2 (which request, to be
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effective on the requested Borrowing Date, must be received by each Institution,
the Administrative Agent and the Independent Engineer at least 10 Business Days
prior to the requested Borrowing Date). Each Extension of Credit Request shall
specify (a) the amount to be borrowed, (b) the applicable Borrowing Date and (c)
the proposed use of proceeds of the Institutional Loans and whether a portion
thereof is to remain on deposit in the Institutional Loan Proceeds Account
pending application for the purposes described in Section 10.1(b)(iv) on a
succeeding Borrowing Date. Upon receipt of an Extension of Credit Request, each
Institution will, on the applicable Borrowing Date, deposit the amount of its
Commitment Percentage of the borrowing requested therein in funds immediately
available to the Security Agent into the Institutional Loan Proceeds Account (by
wire transfer of such funds to the Security Agent at its office specified in the
Security Deposit Agreement) for application to the payment of Project Costs
and/or the repayment of Bank Loans or Equity Funding Loans, as specified in such
Extension of Credit Request.
Section 4.3 Institutional Notes. (a) Each Institutional Loan
shall be evidenced by a promissory note of the Borrower, substantially in the
form of Exhibit A-4 with appropriate insertions as to date, interest rate and
principal amount (an "Institutional Note"), and either registered in the name of
the Institution making such Loan (or its nominee) or payable to the order of
such Institution, as such Institution shall request. Each Institutional Note
shall (a) be dated the date of the Institutional Loan evidenced thereby, (b) be
in a principal amount equal to the amount of such Institutional Loan, (c) be
payable as provided in Section 4.4, (d) bear interest for the period from the
date thereof until paid in full on the unpaid principal amount thereof from time
to time outstanding at the applicable interest rate per annum calculated in
accordance with, and payable as specified in, Section 4.5 and (e) be entitled to
the benefits of this Agreement and the other Loan Documents.
(b) The Borrower and the Institutions shall cooperate in
attempting to obtain a NAIC rating on the Institutional Credit Facility as soon
as possible after the execution and delivery of this Agreement.
(c) The Borrower shall, within five Business Days after the
Note Exchange Date, at the request of an Institution and at the Borrower's
expense, exchange with such Institution, for the Institutional Notes held by
such Institution, new Institutional Notes. Each such new Institutional Note
delivered to an Institution shall be in the form of Annex A-4, either registered
in the name of such Institution or payable to the order of such Institution, as
such Institution shall request, and shall otherwise meet the requirements of
paragraph (a) above, except that such new Institutional Note shall (i) be dated
the Note Exchange Date, (ii) be in a principal amount equal to the unpaid
aggregate principal amount of the Institutional Notes so exchanged and (iii)
bear interest for the period from the Note Exchange Date until paid in full on
the unpaid principal amount thereof from time to time outstanding at a rate
equal to the weighted average of the rates of interest borne by each
Institutional Note so exchanged by such Institution, as calculated by the
Institutions and notified to the Borrower and the Administrative Agent. The
determination by the Institutions of the applicable interest rate pursuant to
the preceding sentence shall be conclusive and binding on the Borrower in the
absence of manifest error. Each Institution shall, upon delivery to it of a new
Institutional Note executed and delivered by the Borrower and meeting the
requirements of the preceding sentence, surrender to the Borrower the
Institutional
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Notes held by it that were exchanged in accordance with this paragraph, and,
upon such delivery, such surrendered Institutional Notes shall be cancelled by
the Borrower and shall not be deemed to be outstanding Notes for any purpose of
this Agreement.
Section 4.4 Repayment of Institutional Loans. The Borrower
shall repay the Institutional Loans in quarterly installments of principal on
each Loan Installment Payment Date specified on Schedule 4 (each, an
"Institutional Loan Installment Payment Date") to and including the
Institutional Loan Final Maturity Date. The amount of the installment of
principal of an Institutional Note due on each Institutional Loan Installment
Payment Date shall be equal to the product of (i) the initial principal amount
of such Institutional Note and (ii) the percentage set forth opposite such
Institutional Loan Installment Payment Date on Schedule 4 attached hereto.
Section 4.5 Interest on Institutional Loans. Each
Institutional Loan shall bear interest at a rate equal to the sum of (A) 7.35%
per annum and (B) the Applicable Institutional Loan Margin from time to time;
provided that if all or a portion of the principal amount of any Institutional
Loan or any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at the Institution Default Rate from the date of such non-payment until
such amount is paid in full (after as well as before judgment). In addition (but
without duplication of any amounts payable pursuant to the proviso of the
preceding sentence), if any Event of Default shall occur, the principal amount
of all outstanding Institutional Loans shall bear interest at the Institution
Default Rate from the date on which such Event of Default occurred until the
date on which no Event of Default shall be continuing. Interest shall be payable
in arrears (i) on the last day of each March, June, September and December prior
to the Commercial Operations Date and (ii) on each Institutional Loan
Installment Payment Date after the Commercial Operations Date; provided that
interest accruing pursuant to the preceding sentence and the proviso of the
first sentence of this Section 4.5 shall be payable on demand.
Section 4.6 Computation of Interest on Institutional Loans.
Interest on Institutional Loans shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. The Institutions shall, on the
Borrowing Date with respect to each Institutional Loan, and on any date on which
there is a change in the Applicable Institutional Loan Margin on any
Institutional Loan, notify the Borrower of their determination of the interest
rate to be applicable to such Institutional Loan, which determination shall be
conclusive and binding on the Borrower absent manifest error. Each Institution
shall, at the request of the Borrower, deliver to the Borrower a statement
showing in reasonable detail the determination of any interest rate, or change
thereof, pursuant to Section 4.3(c) or 4.5.
Section 4.7 Registration, Transfer and Substitution of
Registered Institutional Notes.
(a) Note Register. The Borrower shall keep at its office a
register (the "Institutional Note Register") in which the Borrower will, at the
request of any Institution, provide for the registration of Institutional Notes
held by such Institution (the "Registered Institutional Notes") and the
registration of transfers of such Registered Institutional Notes. The Borrower
and the Security Agent may treat the Person in whose name any Registered
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Institutional Note is registered on the Institutional Note Register as the owner
thereof for the purpose of receiving payment of the principal of and the
Make-Whole Premium or Modified Make-Whole Premium, if any, and interest on such
Registered Institutional Note and for all other purposes, whether or not such
Registered Institutional Note shall be overdue, and all payments to the
registered holder of a Registered Institutional Note shall satisfy the
Borrower's and the Security Agent's obligations in respect of such Registered
Institutional Note and the Borrower and the Security Agent shall not be affected
by any notice to the contrary. All references in this Agreement or in a
Registered Institutional Note to a "holder" of any Registered Institutional Note
shall mean the Person in whose name such Registered Institutional Note is at the
time registered on the Institutional Note Register.
(b) Transfer and Exchange of Registered Institutional Notes.
Upon surrender of any Registered Institutional Note to the Borrower for
registration of transfer or for exchange or for re-registration in the name of a
nominee of the holder thereof, the Borrower, at its expense, will execute and
deliver in exchange therefor a new Registered Institutional Note or Registered
Institutional Notes in the form of Annex A-4 as requested by the holder or
transferee of such Registered Institutional Note, which aggregate the unpaid
principal amount of such surrendered Registered Institutional Note. Each such
new Registered Institutional Note shall be dated so that there will be no loss
of interest on such surrendered Note and shall otherwise be of like tenor, and
shall be registered in the name or names of such Person (including, without
limitation, in the name of a nominee) as such holder or transferee of such
Registered Institutional Note may request. Any Registered Institutional Note in
lieu of which any such new Registered Institutional Note has been executed and
delivered shall be cancelled and shall not be deemed to be an outstanding Note
for any purpose of this Agreement. The Project Mortgage shall be amended in
connection with any transfer of a Registered Institutional Note to the extent
necessary under Virginia law to preserve the benefits thereof.
(c) Replacement of Registered Institutional Notes. Upon
receipt of evidence reasonably satisfactory to the Borrower of the loss, theft,
destruction or mutilation of any Registered Institutional Note and, in the case
of any such loss, theft or destruction of any Registered Institutional Note,
upon delivery of an indemnity bond in such reasonable amount as the Borrower may
determine (or, in the case of any Registered Institutional Note held by an
Institution originally a party to this Agreement or by another institutional
holder or a nominee of any thereof, an indemnity agreement reasonably
satisfactory to the Borrower), or, in the case of any such mutilation, upon the
surrender of such Registered Institutional Note for cancellation to the Borrower
at its office, the Borrower, at its expense, will execute and deliver, in lieu
thereof, a new Registered Institutional Note in the unpaid principal amount of
such lost, stolen, destroyed or mutilated Registered Institutional Note, dated
so that there will be no loss of interest on such Registered Institutional Note
and otherwise of like tenor. Any Registered Institutional Note in lieu of which
any such new Registered Institutional Note has been so executed and delivered by
the Borrower shall not be deemed to be an outstanding Registered Institutional
Note for any purpose of this Agreement.
(d) The Borrower shall promptly notify the Security Agent, the
Administrative Agent and the Institutions of the initial holders of Registered
Institutional Notes, and any transfer or exchange or re-registration of a
Registered Institutional Note pursuant to Section 4.7(b).
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Section 4.8 Institutions' Representations; Source of Funds.
(a) Each Institution represents that it is making, funding and maintaining the
Institutional Loans for its own account or for one or more separate accounts
maintained by such Institution or for the account of one or more pension or
trust funds, in each case not with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended, or for resale in any transaction which would be in violation of any
applicable securities laws; provided that the sale, transfer or other
disposition by each Institution of its Loans and Notes shall at all times be
within such Institution's control. If an Institution is making, funding or
maintaining its Institutional Loans for the account of one or more pension or
trust funds, such Institution represents that (except to the extent that it has
otherwise advised its special counsel and the Borrower in writing) it has sole
investment discretion with respect to the making, funding and maintaining of its
Institutional Loans pursuant to this Agreement and the determination and
decision to make, fund and maintain the Institutional Loans for such pension or
trust funds is being made by the same individual or group of individuals who
customarily pass on such investments.
(b) Each Institution represents and warrants that, with
respect to each source of funds to be used by it to make, fund and maintain the
Institutional Loans (respectively, the "Source"), at least one of the following
statements shall be accurate as of the Closing Date:
(i) The Source is assets of an insurance company general
account and not assets of an insurance company separate account (within
the meaning of Section 3(17) of ERISA);
(ii) The Source is a "governmental plan" as defined in
Title I, Section 3(32) of ERISA;
(iii) The Source is either (x) an insurance company pooled
separate account, and the making, funding and maintaining of the
Institutional Loans is exempt in accordance with Prohibited Transaction
Exemption ("PTE") 90-1 (issued January 29, 1990), or (y) a bank
collective investment fund, in which case the making, funding and
maintaining of the Institutional Loans is exempt in accordance with PTE
91-38 (issued July 12, 1991);
(iv) The Source is an "investment fund" managed by a
"qualified professional asset manager" or "QPAM" (as defined in Part V
of PTE 84-14, issued March 13, 1984) which QPAM has been identified in
writing, and the making, funding and maintaining of the Institutional
Loans is exempt under PTE 84-14 provided that no other party to the
transactions described in this Agreement and no "affiliate" of such
other party (as defined in Section V(c) of PTE 84-14) has at this time,
and has not exercised at any time during the immediately preceding
year, the authority to appoint or terminate said QPAM as manager of the
assets of any "plan" identified in writing pursuant to this paragraph
(iv) or to negotiate the terms of said QPAM's management agreement on
behalf of any such identified "plans";
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(v) The Source is one or more "plans", or a separate
account or trust fund comprised of one or more "plans", each of which
has been identified to the Borrower in writing pursuant to this
paragraph (v).
As used in this Section 4.8(b), "plan" or "plans" shall have
the meaning set forth in Title I, Section 3(3) of ERISA.
(c) Each Institution represents and warrants that it is an
"accredited investor" as that term is defined in Rule 501 under the Securities
Act of 1933, as amended, or a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended. Each
Institution further represents and warrants that it has received (or Xxxx
Xxxxxxx Mutual Life Insurance Company has received in the case of Commonwealth
of Pennsylvania State Employees' Retirement System, Mellon Bank, N.A., as
trustee for AT&T Master Pension Trust and Mellon Bank, N.A., as trustee for
NYNEX Master Pension Trust) a copy of the Information Memorandum and has had a
full and adequate opportunity to review the Information Memorandum, to
investigate the business and financial condition of the Borrower and the Project
and to meet with and obtain such information as such Institution has required
from the Borrower or its representatives with respect to the Borrower or the
Project.
SECTION 5. BOND LETTER OF CREDIT FACILITY
Section 5.1 Issuance of and Participation in the Bond Letters
of Credit. (a) The Issuing Bank hereby agrees, subject to the terms and
conditions of this Agreement, including without limitation the satisfaction of
the conditions set forth in Sections 9.1 and 9.5, to issue during the
Construction Period not more than six Bond Letters of Credit in favor of the
relevant Bond Trustee for the account of the Borrower; provided that, at least
10 Business Days prior to the proposed date of issuance of the Relevant Bonds,
the Issuing Bank receives an Extension of Credit Request in the form of Exhibit
B-3.
(b) Effective upon the issuance of each Bond Letter of Credit,
without further action by the Issuing Bank, the Administrative Agent or any
Bank, the Issuing Bank grants to each Bank and each Bank hereby unconditionally
and irrevocably, severally and for itself only, takes an undivided participating
interest in the rights and obligations of the Issuing Bank under, and in
connection with, such Bond Letter of Credit in a fraction equal to such Bank's
Commitment Percentage, and the issuance of such Bond Letter of Credit shall be
deemed to be a confirmation by the Issuing Bank and each Bank of such
participation in such amount.
Section 5.2 Bond Letters of Credit. (a) Each Bond Letter of
Credit shall be substantially in the form of Exhibit C-3 hereto (with such
changes therein as shall be approved by the Issuing Bank and the Majority
Banks), shall be stated to expire on the seventh anniversary of the Closing Date
and shall be in the stated amount requested by the Borrower in the Extension of
Credit Request given with respect thereto (which stated amount shall be equal to
the aggregate outstanding principal amount of the Bonds to which such Bond
Letter of Credit relates plus an amount for accrued interest required by the
rating agencies rating the Bonds); provided that the aggregate stated amount of
the Bond Letters of Credit issued hereunder shall not exceed the Total Bond
Letter of Credit Commitments. At the time of any Bond Letter of Credit
Disbursement
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with respect to a Bond Letter of Credit, the amount available to be drawn under
such Bond Letter of Credit shall be reduced by the amount of such Bond Letter of
Credit Disbursement.
(b) Upon any extension of any Bond L/C Expiration Date with
respect to a Bond Letter of Credit pursuant to Section 5.6, the Issuing Bank
shall issue and deliver a new Bond Letter of Credit in exchange for such Bond
Letter of Credit to reflect the extension of such Bond L/C Expiration Date. The
terms of such new Bond Letter of Credit shall be identical to those of the Bond
Letter of Credit for which it is being exchanged, except that (i) such new Bond
Letter of Credit shall be dated as of the date of issuance and shall be in an
amount equal to the undrawn amount of the replaced Bond Letter of Credit, (ii)
the Bond L/C Expiration Date for such replacement Bond Letter of Credit shall be
such date as so extended and (iii) such new Bond Letter of Credit may contain
such other changes as each of the Issuing Bank, the Majority Banks, the Majority
Institutions, the Borrower and the Bond Trustee in whose favor such Bond letter
of Credit is to be issued shall mutually agree upon.
Section 5.3 Notice of Payments under the Bond Letters of
Credit. The Issuing Bank shall give the Borrower, the Administrative Agent, the
Security Agent and each Bank prompt cable or tested telex notice of each demand
for a Bond Letter of Credit Disbursement received by the Issuing Bank,
specifying (i) the amount of such Bond Letter of Credit Disbursement, (ii) the
date such Bond Letter of Credit Disbursement is to be made and (iii) such Bank's
pro rata share of the amount of such Bond Letter of Credit Disbursement based on
its Commitment Percentage; provided that such notice in respect of any Bond
Letter of Credit Disbursement arising under an Interest Drawing shall be given
to each Bank only in the event the Borrower has not paid in full to the Issuing
Bank on the date of such Bond Letter of Credit Disbursement the Bond
Reimbursement Payment pursuant to Section 5.5 arising in respect of such Bond
Letter of Credit Disbursement.
Section 5.4 Termination of the Bond Letters of Credit. Each
Bond Letter of Credit shall terminate upon the earliest to occur of (i) the
surrender to the Issuing Bank by the Bond Trustee of such Bond Letter of Credit
for cancellation, (ii) the Issuing Bank's honoring of drafts presented under
such Bond Letter of Credit that in the aggregate equal the stated amount of such
Bond Letter of Credit and (iii) the close of business at the office of the
Issuing Bank specified in such Bond Letter of Credit on the Bond L/C Expiration
Date with respect to such Bond Letter of Credit.
Section 5.5 Borrower's Obligations in Respect of Bond Letters
of Credit. (a) Each Bond Letter of Credit Disbursement shall be reimbursed by
the Borrower on the date of such disbursement (such reimbursement payment herein
referred to as a "Bond Reimbursement Payment"). The Borrower may request the
Banks to finance the Borrower's obligation to make a Bond Reimbursement Payment
arising in respect of a Liquidity Drawing through the making of a Bank Liquidity
Loan and may request the Banks to finance the Borrower's obligation to make a
Bond Reimbursement Payment arising in respect of a Refunding Drawing through the
making of a Bank L/C Loan, in each case pursuant to Section 3.1. If the Borrower
fails to make such request in accordance with the applicable provisions of
Section 3.2 or to satisfy the terms and conditions of this Agreement for such
Loan (including those under Section 9.6), or if the Bond Reimbursement Payment
did not arise in respect of a Liquidity Drawing or a Refunding
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Drawing, the Borrower shall, on the applicable L/C Disbursement Date, make such
Bond Reimbursement Payment to the Issuing Bank for its account and for the
account of the Banks. If a Bond Reimbursement Payment shall not be made on the
applicable L/C Disbursement Date, the amount of the unpaid Bond Reimbursement
Payment shall bear interest from the date on which such payment was due until
paid in full at the Bank Default Rate applicable to Base Rate Loans, such
interest being payable on demand of the Issuing Bank.
(b) The Borrower's obligation to make Bond Reimbursement
Payments and payments of interest in respect thereof under this Section 5.5
(such obligations being herein collectively referred to as the "Bond
Reimbursement Obligations") shall be absolute, unconditional and irrevocable,
and shall be observed strictly in accordance with the terms of this Agreement
under all circumstances whatsoever including, without limitation, the following
circumstances: (i) any lack of legality, validity, enforceability or regularity
of any Bond Letter of Credit, this Agreement, any other Loan Document or any
Bond Document; (ii) any amendment or waiver of or any consent to or departure
from all or any of the Loan Documents or any Bond Document; (iii) the existence
of any claim, set-off, defense, counterclaim or other right which the Borrower
may have at any time against the relevant Bond Trustee, the Security Agent, the
Administrative Agent, the Issuing Bank, the Banks or any other Person, whether
in connection with this Agreement, any Bond Letter of Credit, the Loan
Documents, any Bond Document or any unrelated transaction; (iv) any statement or
any other document presented under any Bond Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever; (v) payment by the Issuing Bank
under any Bond Letter of Credit against presentation of a sight draft or
certificate which does not comply strictly with the terms of such Bond Letter of
Credit; and (vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; provided that the Borrower shall not be
obligated to reimburse the Issuing Bank for any Bond Letter of Credit
Disbursement made as a result of the Issuing Bank's gross negligence or wilful
misconduct.
Section 5.6 Extension of Bond L/C Expiration Dates. If the
Borrower wishes to extend the Bond L/C Expiration Date with respect to any Bond
Letter of Credit for an additional period, it shall give the Issuing Bank and
the Administrative Agent written notice to such effect not later than 120 days
prior to such Bond L/C Expiration Date. The Bond L/C Expiration Date with
respect to any Bond Letter of Credit shall not be extended unless written notice
shall have been delivered by the Issuing Bank to the Borrower (with a copy to
the relevant Bond Trustee) and the Administrative Agent no later than 60 days
prior to the then scheduled Bond L/C Expiration Date with respect to such Bond
Letter of Credit, stating that the Issuing Bank has agreed to extend such date
for an additional period and specifying the new expiration date. Subject to
Section 8.7(b) of the Security Deposit Agreement, the Issuing Bank, in its sole
discretion, may or may not agree to extend any scheduled Bond L/C Expiration
Date.
Section 5.7 Reduction of Bond Letters of Credit. (a) The Bond
Trustee in whose favor a Bond Letter of Credit has been issued may, at the
request of the Borrower, without penalty, upon at least five Business Days'
prior written notice to the Issuing Bank, reduce the stated amount of any Bond
Letter of Credit in connection with an optional prepayment or redemption and
cancellation of the Relevant Bonds; provided that (i) each partial reduction of
the stated amount of a Bond Letter of Credit in respect of the principal amount
of the Relevant
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Bonds shall be in an amount not less than $1,000,000, (ii) the stated amount as
so reduced shall not be less than the sum of the remaining aggregate unpaid
principal amount of the Relevant Bonds that are outstanding, plus interest
thereon in the aggregate amount required by the rating agencies rating such
Bonds, if any, and (iii) such optional prepayment or redemption and cancellation
of the Relevant Bonds is permitted by Section 11.11(a).
(b) On any date on which any of the Bonds are redeemed and
cancelled, the stated amount of the applicable Bond Letter of Credit shall be
reduced as provided in such Bond Letter of Credit.
SECTION 6. VP LETTER OF CREDIT FACILITY
Section 6.1 Issuance of and Participation in the VP Letters of
Credit. (a) The Issuing Bank hereby agrees, subject to the terms and conditions
of this Agreement, to issue on the Closing Date the Construction VP Letter of
Credit in favor of Virginia Power for the account of the Borrower, which the
Borrower is required to provide to Virginia Power pursuant to Section 13.3 of
the Power Purchase Agreement. The Issuing Bank hereby also agrees, subject to
the terms and conditions of this Agreement, to issue on the Commercial
Operations Date the Term VP Letter of Credit in favor of Virginia Power for the
account of the Borrower, which the Borrower is required to provide to Virginia
Power pursuant to Section 13.5 of the Power Purchase Agreement to ensure the
continued availability of the Facility.
(b) Effective upon the issuance of the Construction VP Letter
of Credit, without further action by the Issuing Bank, the Administrative Agent
or any Bank, the Issuing Bank grants to each Bank and each Bank hereby
unconditionally and irrevocably, severally and for itself only, takes an
undivided participating interest in the rights and obligations of the Issuing
Bank under, and in connection with, the Construction VP Letter of Credit in a
fraction equal to such Bank's Commitment Percentage, and the issuance of the
Construction VP Letter of Credit shall be deemed to be a confirmation by the
Issuing Bank and each Bank of such participation in such amount.
(c) Effective upon the issuance of the Term VP Letter of
Credit, without further action by the Issuing Bank, the Administrative Agent or
any Bank, the Issuing Bank grants to each Bank and each Bank unconditionally and
irrevocably, severally and for itself only, takes an undivided participating
interest in the rights and obligations of the Issuing Bank under, and in
connection with, the Term VP Letter of Credit in a fraction equal to such Bank's
Commitment Percentage, and the issuance of the Term VP Letter of Credit shall be
deemed to be a confirmation by the Issuing Bank and each Bank of such
participation in such amount.
Section 6.2 Construction VP Letter of Credit. (a) Upon the
terms and subject to the conditions of this Agreement, including without
limitation the satisfaction of the conditions set forth in Sections 9.1 and 9.4,
the Issuing Bank shall issue and deliver the Construction VP Letter of Credit to
Virginia Power on the Closing Date. The Construction VP Letter of Credit shall
be irrevocable, shall be stated to expire on the Date Certain and shall be
issued in an amount requested by the Borrower in the Extension of Credit Request
given with respect thereto;
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provided that the stated amount of the VP Letter of Credit shall not exceed the
Total VP Letter of Credit Commitment. At the time of any Construction VP Letter
of Credit Disbursement, the amount available to be drawn under the Construction
VP Letter of Credit shall be reduced by the amount of such Construction VP
Letter of Credit Disbursement.
(b) Upon any extension of the Construction VP Expiration Date
pursuant to Section 6.7, the Issuing Bank shall issue and deliver a new
Construction VP Letter of Credit in exchange for the Construction VP Letter of
Credit to reflect the extension of the Construction VP Expiration Date. The
terms of such new Construction VP Letter of Credit shall be identical to those
of the Construction VP Letter of Credit for which it is being exchanged, except
that (i) such new Construction VP Letter of Credit shall be dated as of the date
of issuance and shall be in an amount equal to the undrawn amount of the
replaced Construction VP Letter of Credit, (ii) the Construction VP Expiration
Date for such replacement Construction VP Letter of Credit shall be such date as
so extended and (iii) such new Construction VP Letter of Credit may contain such
other changes as each of the Issuing Bank, the Majority Banks, the Majority
Institutions, the Borrower and Virginia Power shall mutually agree upon.
Section 6.3 Term VP Letter of Credit. (a) Upon the terms and
subject to the conditions of this Agreement, including without limitation the
satisfaction of the conditions set forth in Sections 9.1 and 9.4, the Issuing
Bank shall issue and deliver the Term VP Letter of Credit on the Commercial
Operations Date. The Term VP Letter of Credit shall be irrevocable, shall be
stated to expire on the seventh anniversary of the Closing Date and shall be
issued in an amount requested by the Borrower in the Extension of Credit Request
given with respect thereto; provided that the stated amount of the Term VP
Letter of Credit shall not exceed the excess of (i) the Total VP Letter of
Credit Commitment over (ii) the aggregate amount of the Construction VP Letter
of Credit Disbursements, if any. At the time of any Term VP Letter of Credit
Disbursement, the amount available to be drawn under the Term VP Letter of
Credit shall be reduced by the amount of such Term VP Letter of Credit
Disbursement.
(b) Upon any extension of the Term VP Expiration Date pursuant
to Section 6.7, the Issuing Bank shall issue and deliver a new Term VP Letter of
Credit in exchange for the Term VP Letter of Credit to reflect the extension of
the Term VP Expiration Date. The terms of such new Term VP Letter of Credit
shall be identical to those of the Term VP Letter of Credit for which it is
being exchanged, except that (i) such new Term VP Letter of Credit shall be
dated the date of issuance, (ii) the Term VP Expiration Date for such
replacement Term VP Letter of Credit shall be such date as so extended and (iii)
such new Term VP Letter of Credit may contain such changes as each of the
Issuing Bank, the Majority Banks, the Majority Institutions, the Borrower and
Virginia Power shall mutually agree upon.
Section 6.4 Notice of Payments under the VP Letters of Credit.
The Issuing Bank shall give the Borrower, the Administrative Agent, the Security
Agent and each Bank prompt cable or tested telex notice of each demand for a VP
Letter of Credit Disbursement received by the Issuing Bank, specifying (i) the
amount of such VP Letter of Credit Disbursement, (ii) the date such VP Letter of
Credit Disbursement is to be made and (iii) such Bank's pro rata share of the
amount of such VP Letter of Credit Disbursement based on its Commitment
Percentage.
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Section 6.5 Termination of the VP Letters of Credit. Each of
the VP Letters of Credit shall terminate upon the earliest to occur of (i) the
surrender to the Issuing Bank by Virginia Power of such VP Letter of Credit for
cancellation, (ii) the Issuing Bank's honoring of drafts presented under such VP
Letter of Credit that in the aggregate equal the stated amount of such VP Letter
of Credit and (iii) the close of business at the office of the Issuing Bank
specified in such VP Letter of Credit on the Construction VP Expiration Date or
Term VP Expiration Date, as applicable.
Section 6.6 Borrower's Obligations in Respect of VP Letters of
Credit. (a) Each Construction VP Letter of Credit Disbursement and each Term VP
Letter of Credit Disbursement shall be reimbursed by the Borrower on the date of
such disbursement (such reimbursement payment herein referred to as a
"Construction VP Reimbursement Payment" or "Term VP Reimbursement Payment", as
the case may be). The Borrower may request the Banks to finance the Borrower's
obligation to make a Construction VP Reimbursement Payment or a Term VP
Reimbursement Payment, and interest thereon, through the making of a Bank L/C
Loan pursuant to Section 3.1. If the Borrower fails to make such request in
accordance with the applicable provisions of Section 3.2 or to satisfy the terms
and conditions of this Agreement for such Loan (including those under Section
9.6), the Borrower shall, on the applicable L/C Disbursement Date, make such
Construction VP Reimbursement Payment or Term VP Reimbursement Payment, as the
case may be, to the Issuing Bank for its account and for the account of the
Banks. If a Construction VP Reimbursement Payment or a Term VP Reimbursement
Payment shall not be made on the applicable L/C Disbursement Date, the amount of
the unpaid Construction VP Reimbursement Payment or the unpaid Term VP
Reimbursement Payment, as the case may be, shall bear interest from the date on
which such payment was due until paid in full at the Bank Default Rate
applicable to Base Rate Loans, such interest being payable on demand of the
Issuing Bank.
(b) The Borrower's obligation to make Construction VP
Reimbursement Payments, Term VP Reimbursement Payments and payments of interest
in respect thereof under this Section 6.6 (such obligations being herein
collectively referred to as the "VP Reimbursement Obligations") shall be
absolute, unconditional and irrevocable, and shall be observed strictly in
accordance with the terms of this Agreement under all circumstances whatsoever
including, without limitation, the following circumstances: (i) any lack of
legality, validity, enforceability or regularity of any VP Letter of Credit,
this Agreement or any other Loan Document; (ii) any amendment or waiver of or
any consent to or departure from all or any of the Loan Documents; (iii) the
existence of any claim, set-off, defense, counterclaim or other right which the
Borrower may have at any time against Virginia Power, the Security Agent, the
Administrative Agent, the Issuing Bank, the Banks or any other Person, whether
in connection with this Agreement, any VP Letter of Credit, the Loan Documents
or any unrelated transaction; (iv) any statement or any other document presented
under any VP Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect
whatsoever; (v) payment by the Issuing Bank under any VP Letter of Credit
against presentation of a sight draft or certificate which does not comply
strictly with the terms of such VP Letter of Credit; and (vi) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing; provided that the Borrower shall not be obligated to reimburse the
Issuing Bank
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for any VP Letter of Credit Disbursement made as a result of the Issuing Bank's
gross negligence or wilful misconduct.
Section 6.7 Extension of VP Expiration Dates. If the Borrower
wishes to extend the Construction VP Expiration Date or the Term VP Expiration
Date for an additional period, it shall give the Issuing Bank and the
Administrative Agent written notice to such effect not later than 120 days prior
to the Construction VP Expiration Date or the Term VP Expiration Date, as the
case may be, together with evidence that Virginia Power has required such
extension. Neither the Construction VP Expiration Date or the Term VP Expiration
Date shall be extended unless written notice shall have been delivered by the
Issuing Bank to the Borrower (with a copy to Virginia Power) and the
Administrative Agent no later than 60 days prior to the then scheduled
Construction VP Expiration Date or the Term VP Expiration Date, as the case may
be, stating that the Issuing Bank has agreed to extend such date for an
additional period and specifying the new expiration date. Subject to Section
8.7(b) of the Security Deposit Agreement, the Issuing Bank, in its sole
discretion, may or may not agree to extend the then scheduled Construction VP
Expiration Date or Term VP Expiration Date, as the case may be.
SECTION 7. GENERAL PROVISIONS APPLICABLE TO LOANS
AND LETTERS OF CREDIT
Section 7.1 Fees.
(a) Commitment Fees. (i) The Borrower agrees to pay to the
Administrative Agent, for the account of each Bank, for each day of the
Construction Period, a commitment fee computed at the rate of 0.375% per annum
on the amount of such Bank's Commitment Percentage of the maximum Total Bank
Loan Commitment less the sum of (A) the utilized portion of the Total Bank
Project Loan Commitments in effect on such day, (B) the utilized portion of the
Total Bond Letter of Credit Commitments in effect on such day and (C) the
utilized portion of the Total VP Letter of Credit Commitments in effect on such
day.
(ii) The Borrower agrees to pay to each
Institution, for each day of the Institutional Commitment Period, a commitment
fee computed at the rate of 0.375% per annum on the excess, if any, of (x) the
amount of such Institution's Commitment Percentage of the Total Institutional
Commitments in effect on such day over (y) the aggregate principal amount of all
Institutional Loans made by such Institution on or prior to such day.
(iii) Commitment fees payable pursuant to this
Section 7.1(a) shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing on the first of such dates to
occur after the Closing Date, and on the Construction Period Termination Date
(in the case of commitment fees payable to the Banks) or the Institutional
Commitment Termination Date (in the case of commitment fees payable to the
Institutions), as the case may be, and shall be calculated on the basis of a
365- (or 366-, as the case may be) day year for the actual days elapsed.
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(b) Facility Fees; Closing Fees. (i) The Borrower agrees to
pay to the Administrative Agent on the Closing Date, for the account of the
Co-Agents, a facility fee computed at the rate set forth in the Bank Fee Letter
on the sum of (x) the initial Total Bank Project Loan Commitments (calculated as
if $20,000,000 of Bonds had been issued and the Total Bank Project Loan
Commitments had been reduced in accordance with Section 2.4 prior to such day),
(B) the initial Total Bond Letter of Credit Commitments and (C) the initial
Total VP Letter of Credit Commitments. The Borrower also agrees to pay to the
Administrative Agent on the Closing Date, for the account of the Co-Agents, a
closing fee computed in accordance with the Bank Fee Letter. Such facility fee
and closing fee shall be distributed by the Administrative Agent to the
Co-Agents.
(ii) The Borrower agrees to pay to the Institutions on the
Closing Date, on a pro rata basis, a facility fee computed at the rate set forth
in the Institutional Fee Letter on the amount of the initial Total Institutional
Commitments. The Borrower also agrees to pay to the Institutions on the Closing
Date a closing fee computed and payable in accordance with the Institutional Fee
Letter.
(c) True-Up Obligation Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank, for each day from and
including the Closing Date to but excluding the earlier of (i) the date on which
the Banks are obligated to purchase Participation Interests (as defined in
Section 14.10 (b)(i)) in satisfaction of their True-Up Obligations and (ii) the
Completion Date, a fee computed at the rate of 0.75% per annum on the amount of
such Bank's True-Up Amount on such day; provided that if all or any portion of
such fee shall not be paid when due, such overdue amount shall bear interest at
the Bank Default Rate from the date of such non-payment until such amount is
paid in full (after as well as before judgment). In addition (but without
duplication of any amount payable pursuant to the proviso of the preceding
sentence), if any Event of Default shall occur, such fee shall be in an amount
equal to the percentage per annum which is 2.0% above the rate set forth in the
preceding sentence from the date on which such Event of Default occurred until
the date upon which no Event of Default shall be continuing. Such fee shall be
payable quarterly in arrears on the last day of each March, June, September and
December, commencing on the first of such dates to occur after the Closing Date,
and on the Completion Date, and shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for actual days elapsed; provided that
interest accruing pursuant to the preceding sentence and the proviso of the
first sentence of this Section 7.1(c) shall be payable on demand.
(d) Letter of Credit Fees. So long as any Letter of Credit
shall be in effect, the Borrower agrees to pay (i) to the Administrative Agent,
for the account of the Banks in accordance with their respective Commitment
Percentages, a letter of credit commission with respect to the Letters of Credit
in an amount equal to the percentage per annum which is the Applicable Bank Loan
Margin from time to time for Eurodollar Loans on the average daily undrawn face
amount of the Letters of Credit outstanding during the period of calculation,
and (ii) to the Issuing Bank, for its own account, a fronting fee with respect
to such Letters of Credit in an amount equal to (x) with respect to Letters of
Credit issued prior to the Sixth Amendment Effective Date, 0.20% per annum on
the aggregate stated amount of such Letters of Credit outstanding from time to
time and (y) with respect to Letters of Credit issued on or after the
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Sixth Amendment Effective Date, 0.30% per annum on the aggregate stated amount
of such Letters of Credit outstanding from time to time; provided that if all or
any portion of the letter of credit commission payable pursuant to clause (i)
above shall not be paid when due, such overdue amount shall bear interest at a
rate per annum equal to 2.0% above the Applicable Bank Loan Margin from time to
time for Eurodollar Loans from the date of non-payment until such amount is paid
in full (after as well as before judgment). In addition (but without duplication
of any amount payable pursuant to the proviso of the preceding sentence), if any
Event of Default shall occur, the letter of credit commission payable pursuant
to clause (i) of the preceding sentence during the period from the date on which
such Event of Default occurred until the date on which no Event of Default shall
be continuing shall be in an amount equal to the percentage per annum which is
2.0% above Applicable Bank Loan Margin from time to time for Eurodollar Loans.
The fees payable pursuant to this paragraph shall be payable quarterly in
arrears on the last day of each March, June, September and December, commencing
on the first of such dates to occur after the initial issuance of a Letter of
Credit, and shall be calculated on the basis of a 360-day year for the actual
days elapsed; provided that interest accruing pursuant to the preceding sentence
and the proviso of the first sentence of this Section 7.1(d) shall be payable on
demand.
(e) Administration Fee. The Borrower agrees to pay to the
Administrative Agent on the Closing Date, and on each anniversary of the Closing
Date, for its own account, an annual administration fee in the amount set forth
in the Bank Fee Letter.
(f) Cancellation Fee. The Borrower agrees to pay to the
Institutions on the Termination Date determined in accordance with the
Institutional Fee Letter, the cancellation fee, if any, referred to therein.
Section 7.2 Pro Rata Treatment and Payments.
(a) Among the Banks. Each borrowing by the Borrower from the
Banks hereunder, each payment by the Banks to the Institutions pursuant to the
True-Up Obligation, each payment by the Borrower on account of any fees pursuant
to Section 7.1(a)(i), 7.1(c) or 7.1(d)(i), and any reduction of the Commitments
of the Banks shall be made pro rata according to the respective Commitment
Percentages of the Banks. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Bank Loans shall be made
pro rata according to the respective outstanding principal amounts of the Bank
Loans then held by the Banks. All payments (including prepayments) to be made by
the Borrower hereunder and under the Bank Notes on account of principal of and
interest on the Bank Loans and fees payable pursuant to Section 7.1(a)(i),
7.1(c) or 7.1(d)(i) shall be made without set-off or counterclaim and shall be
made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Banks, at the Administrative
Agent's office specified in Section 14.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Banks promptly upon receipt in like funds as received. All payments on account
of facility fees and closing fees pursuant to Section 7.1(b)(i) shall be made
without set off or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the Closing Date to the Administrative Agent, for the account of
the Co-Agents at the Administrative Agent's office specified in Section 14.2,
in Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Xx-
00
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Agents promptly upon receipt in like funds as received. All payments on account
of letter of credit fronting fees pursuant to Section 7.1(d)(ii) shall be made
prior to 12:00 Noon, New York City time, on the date thereof to the Issuing
Bank, for its own account, at the Administrative Agent's office specified in
Section 14.2, in Dollars and in immediately available funds. All payments on
account of annual administration fees pursuant to Section 7.1(e) shall be made
without set off or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the Administrative Agent, for its own
account, at the Administrative Agent's office specified in Section 14.2, in
Dollars and in immediately available funds. Any other amount received by the
Administrative Agent which is payable to any Bank pursuant to the provisions of
this Agreement shall be distributed by the Administrative Agent to such Bank
promptly upon receipt in like funds as received. The foregoing provisions of
this Section 7.2(a) are subject to the provisions of Section 14.10(b)(iv).
(b) Among the Institutions. Each borrowing by the Borrower
from the Institutions hereunder, except as otherwise provided in the
Institutional Fee Letter or this Agreement, each payment by the Borrower on
account of fees payable to the Institutions pursuant to Section 7.1(a)(ii),
7.1(b)(ii) or 7.1(f) and any reduction of the Commitments of the Institutions
shall be made pro rata according to the respective Commitment Percentages of the
Institutions. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Institutional Loans shall, except as
provided in Section 7.5(b), be made pro rata according to the respective
outstanding principal amounts of the Institutional Loans then held by the
Institutions. All payments (including prepayments) to be made by the Borrower
hereunder and under the Institutional Notes on account of principal of and
interest on the Institutional Loans, and fees payable to the Institutions
pursuant to Section 7.1(a)(ii), 7.1(b)(ii) or 7.1(f) shall be made without set
off or counterclaim and shall be made prior to 12:00 Noon, New York City time,
on the due date thereof to the Institutions at their respective offices
specified on Schedule I, in Dollars and in immediately available funds.
(c) Payment Date Adjustments. If any payment hereunder (other
than payments on the Eurodollar Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
Section 7.3 Mandatory Prepayments of Loans.
(a) Event of Loss. If an Event of Loss shall occur, (i) all of
the Commitments of the Lenders shall terminate forthwith and (ii) on the Event
of Loss Prepayment Date, the Borrower shall (x) prepay in full, without premium
or penalty, the aggregate principal amount of the then outstanding Loans,
together with accrued interest and fees to the date of prepayment and all other
amounts payable hereunder or under the Security Documents (including pursuant to
Sections 7.7(a) and 7.7(d), but excluding any Make-Whole Premium or Modified
Make-Whole Premium), and (y) if any Letter of Credit is then issued and
outstanding, deposit into the L/C
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Cash Collateral Subaccount of the Special Payment Account cash in an amount
equal to the Letter of Credit Exposure, for application to the payment of the
Borrower's L/C Reimbursement Obligations in respect of Letter of Credit
Disbursements as provided in the Security Deposit Agreement.
(b) Equity Contributions. If Southern shall be required to
make a Mandatory Equity Contribution or a Contingent Equity Contribution to the
Borrower pursuant to Section 2.1 of the Southern Equity Contribution Agreement,
or if the Cogentrix Obligors shall be required to make a Mandatory Equity
Contribution to the Borrower pursuant to Section 2.1 of the Cogentrix Equity
Contribution Agreement, then:
(i) in the case of a Mandatory Equity Contribution which is
being made by Southern or the Cogentrix Obligors by reason of the
delivery to Southern and the Cogentrix Obligors of a Lenders' Default
Notice, unless the Majority Lenders shall have notified the Borrower
and the Security Agent that the proceeds thereof are to be deposited
into the Construction Account for payment of Project Costs as the
Majority Lenders from time to time shall specify in writing to the
Security Agent, the Borrower shall, on the date of its receipt of the
proceeds of such Mandatory Equity Contribution, prepay on a pro rata
basis the aggregate principal amount of the then outstanding Loans,
together with accrued interest thereon and any other fees, funding
indemnities and any Make-Whole Premium payable in connection therewith,
in an aggregate amount equal to the proceeds of such Mandatory Equity
Contribution; or
(ii) in the case of a Mandatory Equity Contribution which is
being made by Southern or the Cogentrix Obligors on the Construction
Period Termination Date, and no Lenders' Default Notice shall have been
delivered to Southern and the Cogentrix Obligors, the Borrower shall
provide notice to the Administrative Agent and the Institutions at
least five Business Days prior to the date of payment of such Mandatory
Equity Contribution, and shall prepay the Bank Loans in accordance with
this clause (ii) in an amount equal to such Mandatory Equity
Contribution. Such notice shall specify (x) the amount of the Mandatory
Equity Contribution, (y) the date of payment thereof (which shall be
the Completion Date) and (z) whether the prepayment of Bank Loans is to
be of Eurodollar Loans, C/D Rate Loans, Base Rate Loans or a
combination thereof, and, if a combination thereof, the amount of the
prepayment allocable to each. Upon receipt of any such notice pursuant
to this clause (ii), the Administrative Agent shall promptly notify the
Banks thereof. On the date of payment specified in the notice delivered
pursuant to this clause (ii) the Borrower shall prepay, without premium
or penalty (except for any amounts payable pursuant to Section 7.7(a)
and 7.7(d)) and on a pro rata basis, the aggregate outstanding
principal amount of Bank Loans, together with accrued interest thereon
to the date of prepayment, in an amount equal to the proceeds of such
Mandatory Equity Contribution. Prepayments of Bank Loans made pursuant
to this clause (ii) shall be applied to the installments of principal
of the Bank Loans ratably to each of their scheduled maturities; and
(iii) in the case of a Contingent Bond Contribution which is
being made by Southern at any time during the Construction Period:
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(A) if at the time thereof no Event of Default is in
existence, the Borrower shall provide notice to the
Administrative Agent and the Institutions at least five
Business Days prior to the date of payment of such Contingent
Bond Contribution, and shall prepay the Bank Loans in
accordance with this clause (iii)(A) in an aggregate principal
amount equal to the Bond Contribution Amount. Such notice
shall specify (x) the Bond Contribution Amount, (y) the date
of payment thereof, which shall be the date on which such
Contingent Bond Contribution is payable pursuant to the
Southern Equity Contribution Agreement, and (z) whether the
prepayment of Bank Loans is to be of Eurodollar Loans, C/D
Rate Loans, Base Rate Loans or a combination thereof, and, if
a combination thereof, the amount of the prepayment allocable
to each. Upon receipt of any such notice pursuant to this
clause (iii)(A), the Administrative Agent shall promptly
notify the Banks thereof. On the date of payment specified in
the notice delivered pursuant to this clause (iii)(A) the
Borrower shall prepay, without premium or penalty (except for
any amounts payable pursuant to Sections 7.7(a) and 7.7(d))
and on a pro rata basis, the aggregate outstanding principal
amount of Bank Loans, together with accrued interest thereon
to the date of prepayment, in an amount equal to the proceeds
of the Bond Contribution Amount. Prepayments of Bank Loans
made pursuant to this clause (iii)(A) shall be applied to the
installments of principal of the Bank Loans ratably to each of
their scheduled maturities; or
(B) if at the time thereof an Event of Default is in
existence, the Borrower shall, on the date of its receipt of
the proceeds of such Contingent Bond Contribution, if directed
to do so by the Majority Lenders, prepay on a pro rata basis
the aggregate principal amount of the then outstanding Loans,
together with accrued interest thereon and any other fees,
funding indemnities and any Make-Whole Premium payable in
connection therewith, in an aggregate amount equal to the
proceeds of the Bond Contribution Amount. Prepayments of Loans
made pursuant to this clause (iii)(B) shall be applied to the
installments of principal of the Loans ratably to each of
their scheduled maturities; and
(iv) in the case of a Contingent Increased IDC Contribution
which is being made by Southern at any time during the Construction
Period:
(A) if at the time thereof no Event of Default is in
existence, the Borrower shall provide notice to the
Administrative Agent and the Institutions at least five
Business Days prior to the date of payment of such Contingent
Increased IDC Contribution, and shall prepay the Bank Loans in
accordance with this clause (iv)(A) in an aggregate principal
amount equal to the Increased IDC Prepayment Amount. Such
notice shall specify (x) the Increased IDC Prepayment Amount,
(y) the date of payment thereof, which shall be the date on
which such Contingent
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Increased IDC Contribution is payable pursuant to the Southern
Equity Contribution Agreement, and (z) whether the prepayment
of Bank Loans is to be of Eurodollar Loans, C/D Rate Loans,
Base Rate Loans or a combination thereof, and, if a
combination thereof, the amount of the prepayment allocable to
each. Upon receipt of any such notice pursuant to this clause
(iv)(A), the Administrative Agent shall promptly notify the
Banks thereof. On the date of payment specified in the notice
delivered pursuant to this clause (iv)(A) the Borrower shall
prepay, without premium or penalty (except for any amounts
payable pursuant to Sections 7.7(a) and 7.7(d)) and on a pro
rata basis, the aggregate outstanding principal amount of Bank
Loans, together with accrued interest thereon to the date of
prepayment, in an amount equal to the proceeds of the
Increased IDC Prepayment Amount. Prepayments of Bank Loans
made pursuant to this clause (iv)(A) shall be applied to the
installments of principal of the Bank Loans ratably to each of
their scheduled maturities; or
(B) if at the time thereof an Event of Default is in
existence, the Borrower shall, on the date of its receipt of
the proceeds of such Contingent Increased IDC Contribution, if
directed to do so by the Majority Lenders, prepay on a pro
rata basis the aggregate principal amount of the then
outstanding Loans, together with accrued interest thereon and
any other fees, funding indemnities and any Make-Whole Premium
payable in connection therewith, in an aggregate amount equal
to the proceeds of the Increased IDC Prepayment Amount.
Prepayments of Loans made pursuant to this clause (iv)(B)
shall be applied to the installments of principal of the Loans
ratably to each of their scheduled maturities.
(c) Buy-Down Amount Proceeds. If the Borrower shall receive
any Buy-Down Amount Proceeds, the Borrower shall, on the date it becomes aware
that such amounts will be payable to it under the Facility Construction
Contract, provide notice thereof to the Administrative Agent and the
Institutions (the "Buy-Down Prepayment Notice"), and shall prepay the Bank Loans
and/or Institutional Loans in accordance with this Section 7.3(c) and Section
7.5 in an amount equal to such Buy-Down Amount Proceeds. The Buy-Down Prepayment
Notice shall specify (i) the amount of the Buy-Down Amount Proceeds and (ii) the
expected date of the prepayment of Loans to be made pursuant to this Section
7.3(c), which shall be the later of (x) the date on which the Borrower receives
such Buy-Down Amount Proceeds and (y) 10 Business Days after the date of the
Buy-Down Prepayment Notice. Upon receipt of any such Buy-Down Prepayment Notice
the Administrative Agent shall promptly notify the Banks thereof. Thereafter,
and on the date of prepayment specified in the Buy-Down Prepayment Notice, the
Borrower shall take the actions required by, and apply the proceeds of such
prepayment to the repayment of the Loans in accordance with, the provisions of
Section 7.5. Prepayments of Loans made pursuant to this Section 7.3(c) shall be
applied ratably to the scheduled installments of principal of such Loans.
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(d) Termination of Power Purchase Agreement by Virginia Power.
If Virginia Power elects to terminate the Power Purchase Agreement pursuant to
Section 5.6 thereof, on the date of such termination, (i) all of the Commitments
of the Lenders shall terminate forthwith and (ii) the Borrower shall (x) prepay
in full the aggregate principal amount of the then outstanding Loans, together
with accrued interest and fees to the date of prepayment and all other amounts
payable hereunder or under the Security Documents (including amounts payable
pursuant to Sections 7.7(a) and 7.7(d) and any Make-Whole Premium due pursuant
to Section 7.7(b)), and (y) if any Bond Letter of Credit is then issued and
outstanding, deposit into the L/C Cash Collateral Subaccount of the Special
Payment Account cash in an amount equal to the Letter of Credit Exposure, for
application to the payment of the Borrower's L/C Reimbursement Obligations in
respect of Bond Letter of Credit Disbursements as provided in the Security
Deposit Agreement.
(e) Excess Final Completion Escrow Account Proceeds. If the
amount deposited in the Final Completion Escrow Account on the Completion Date
pursuant to Section 4.3 of the Security Deposit Agreement (together with any
interest or earnings thereon prior to the date of Final Completion of the
Facility) exceeds the aggregate amount of Project Costs required to be expended
following the Completion Date to achieve Final Completion of the Facility, to
satisfy any obligations of the Borrower arising out of disputes concerning
payment for work performed, services rendered or material or equipment furnished
with respect to the Project or the Greenhouse and to pay any unpaid Contingent
Distribution Amount, then, on the date on which Final Completion of the Facility
occurs, the Borrower shall prepay, without premium or penalty (except as
provided in Section 7.7(a) and 7.7(d)) and on a pro rata basis, the aggregate
principal amount of the then outstanding Bank Loans, in an amount equal to the
Final Completion Prepayment Amount. Prepayments of Bank Loans made pursuant to
this Section 7.3(e) shall be applied to the installments of principal of the
Bank Loans ratably to each of their scheduled maturities.
(f) Prepayments Under Greenhouse Loan Agreement. If the
Greenhouse Owner shall at any time or from time to time prepay all or a portion
of the loans outstanding under the Greenhouse Loan Agreement, other than a
mandatory prepayment of loans made pursuant to Section 4.3(b)(ii) of the
Greenhouse Loan Agreement with the proceeds of any payments of Greenhouse
Reserve Replenishment Rent under the Greenhouse Sublease, then the Borrower
shall, on the date it obtains knowledge of such prepayment, provide notice
thereof to the Administrative Agent and the Institutions (the "Greenhouse
Prepayment Notice"), and shall prepay the Bank Loans and/or Institutional Loans
in accordance with this Section 7.3(f) and Section 7.5 in an amount equal to 85%
of the amount of such prepayment of loans under the Greenhouse Loan Agreement
(the "Greenhouse Prepayment Amount"). The Greenhouse Prepayment Notice shall
specify (i) the Greenhouse Prepayment Amount and (ii) the expected date of the
prepayment of Loans to be made pursuant to this Section 7.3(f), which shall be
the later of (x) the date of prepayment of loans under the Greenhouse Loan
Agreement and (y) 10 Business Days after the date of the Greenhouse Prepayment
Notice. Upon receipt of any such Greenhouse Prepayment Notice the Administrative
Agent shall promptly notify the Banks thereof. Thereafter, and on the date of
prepayment specified in the Greenhouse Prepayment Notice, the Borrower shall
take the actions required by, and apply the proceeds of such prepayment to the
repayment of the Loans in accordance with, the provisions of Section 7.5.
Prepayments of Loans
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made pursuant to this Section 7.3(f) shall be applied to the installments of
principal of the Loans in the order that the corresponding prepayment of loans
under the Greenhouse Loan Agreement is applied to the installments of principal
of such loans thereunder.
(g) Non-Restoration Event. If the Borrower shall receive any
Requisition Proceeds in connection with a Non-Restoration Event (as defined in
the Security Deposit Agreement) which are required to be deposited into the
Prepayment Subaccount pursuant to clause (ii) of Section 5.7(b) of the Security
Deposit Agreement, then the Borrower shall, on the date it receives such
Requisition Proceeds, provide notice thereof to the Administrative Agent and the
Institutions (the "Non-Restoration Prepayment Notice"), and shall prepay the
Bank Loans and/or Institutional Loans in accordance with this Section 7.3(g) and
Section 7.5 in an amount equal to such Requisition Proceeds (the
"Non-Restoration Prepayment Amount"). The Non-Restoration Prepayment Notice
shall specify (i) the amount of the Non-Restoration Prepayment Amount and (ii)
the date of the prepayment of Loans to be made pursuant to this Section 7.3(g),
which shall be 10 Business Days after the date of the Non-Restoration Prepayment
Notice. Upon receipt of any such Non-Restoration Prepayment Notice the
Administrative Agent shall promptly notify the Banks thereof. Thereafter, and on
the date of prepayment specified in the Non-Restoration Prepayment Notice, the
Borrower shall take the actions required by, and apply the proceeds of such
prepayment to the repayment of the Loans in accordance with, the provisions of
Section 7.5. Prepayments of Loans made pursuant to this Section 7.3(g) shall be
applied to the installments of principal of the Loans ratably to each of their
scheduled maturities.
(h) Return of Institutional Loan Proceeds. If all or any
portion of the funds on deposit in the Institutional Loan Proceeds Account are
required to be withdrawn and paid to the Institutions pursuant to Section
5.15(c)(v) of the Security Deposit Agreement, the Borrower shall, on the date of
such withdrawal, prepay, on a pro rata basis, the principal amount of the then
outstanding Institutional Loans, in an aggregate amount equal to such amount
required to be withdrawn from the Institutional Loan Proceeds Account and paid
to the Institutions pursuant to Section 5.15(c)(v) of the Security Deposit
Agreement. In addition, the Borrower shall, on the date of any prepayment
pursuant to this Section 7.3(h), be required to pay to the Institutions accrued
interest on the Institutional Loans prepaid and any Make-Whole Premium payable
pursuant to Section 7.7(b) with respect thereto.
(i) Bond Letter of Credit Remarketing Proceeds. The Borrower
shall prepay each Liquidity Loan immediately upon the receipt of remarketing
proceeds in respect of the Bonds purchased with the proceeds of the related
Liquidity Drawing, in an amount equal to the amount of such remarketing
proceeds.
(j) No Reborrowing. Amounts prepaid pursuant to this Section
7.3 may not be reborrowed.
Section 7.4 Optional Prepayments of Loans. (a) The Borrower
may, on any Business Day and from time to time, prepay the Loans, in whole or in
part, upon at least five Business Days' (if during the Construction Period or if
the Loans to be prepaid are Bank Liquidity Loans) or 30 Business Days' (if
otherwise) prior irrevocable notice (each such notice, an "Optional Prepayment
Notice") to the Administrative Agent and each Institution; provided
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that, at such time and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing; provided, further that the
Borrower may not prepay the Loans prior to the Institutional Commitment
Termination Date if such prepayment would result in a prepayment of any
Institutional Loans under Section 7.5.
(b) Each prepayment of Loans pursuant to this Section 7.4
shall be applied to the prepayment of Bank Loans and/or Institutional Loans in
accordance with Section 7.5 and shall be made without premium or penalty, except
(i) in the case of any prepayment of Bank Loans, any amounts due pursuant to
Sections 7.7(a) and 7.7(d), and (ii) in the case of any prepayment of
Institutional Loans, the Make-Whole Premium due pursuant to Section 7.7(b)
unless, with respect to any Institution, either (x) it consents to receive
payment of the Modified Make-Whole Premium in accordance with Section 7.5(b), in
which case such Institution shall be entitled to receive the Modified Make-Whole
Premium due pursuant to Section 7.7(c), or (y) it has waived its right to
receive a Make-Whole Premium in accordance with Section 7.5(b). Each Optional
Prepayment Notice shall specify (A) the amount of the prepayment (the "Aggregate
Prepayment Amount"), (B) the prepayment date and (C) if such prepayment is to be
made solely to the Banks pursuant to clause (i) or (ii) of Section 7.5, whether
such prepayment is of Eurodollar Loans, C/D Rate Loans, Base Rate Loans or a
combination thereof, and, if of a combination thereof, the amount of the
prepayment allocable to each. Upon receipt of any such Optional Prepayment
Notice the Administrative Agent shall promptly notify each Bank thereof.
Thereafter, and on the prepayment date specified in the Optional Prepayment
Notice, the Borrower shall take such actions required by, and apply the
prepayment in accordance with, Section 7.5.
(c) Partial prepayments of Bank Project Loans made after the
Construction Period Termination Date, and partial prepayments of Bank L/C Loans
and Institutional Loans, pursuant to this Section 7.4 shall at the option of the
Borrower be applied to the installments of principal of the Loans either in the
inverse order of their scheduled maturities or ratably to each of their
scheduled maturities. Partial prepayments pursuant to this Section 7.4 shall be
in an aggregate principal amount of $1,000,000 or a whole multiple in excess
thereof. Amounts of Bank Project Loans prepaid prior to the Construction Period
Termination Date pursuant to this Section 7.4 may be reborrowed, but amounts of
Bank Project Loans prepaid on or after the Construction Period Termination Date
pursuant to this Section 7.4 may not be reborrowed. Amounts of Bank L/C Loans
and Institutional Loans prepaid at any time pursuant to this Section 7.4 may not
be reborrowed.
Section 7.5 Application of Certain Prepayments Among Lenders.
(a) Any prepayments of Loans pursuant to Section 7.3(c), 7.3(f), 7.3(g) or 7.4
shall be applied to the prepayment of Bank Loans, or Bank Loans and
Institutional Loans, in accordance with paragraph (b) below, except:
(i) in the case of any prepayment of Loans made pursuant
to Section 7.4 in connection with a Refinancing Transaction permitted
by Section 11.1(f), the proceeds of the Refinancing Indebtedness
incurred by the Borrower in connection therewith shall be used to
prepay Bank Loans and/or Institutional Loans, in whole or in part, as
the Borrower shall elect, together with accrued interest and fees to
the date of prepayment
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and any other amounts owing to the Banks and/or the Institutions, as
the case may be (including any amounts pursuant to Section 7.7(a),
7.7(b) or 7.7(d));
(ii) in the case of any prepayment of Loans made pursuant
to Section 7.4 (other than as provided in clause (i) above) that is
made either (x) prior to the Construction Period Termination Date or
(y) with the proceeds of Indebtedness incurred by the Borrower solely
to prepay Senior Debt bearing a higher rate of interest than the
Institutional Loans (net of any Interest Rate Hedging Transactions),
such prepayment shall be applied first, to the pro rata prepayment of
the Bank Loans in full, together with accrued interest and fees to the
date of prepayment and any other amounts owing to the Banks hereunder
(including pursuant to Sections 7.7(a) and 7.7(d)), and second, to the
pro rata prepayment of the Institutional Loans in full, together with
accrued interest and fees to the date of prepayment and any other
amount owing to the Institutions hereunder (including any Make-Whole
Premium pursuant to Section 7.7(b)); or
(iii) in the case of any prepayment of Loans made pursuant
to Section 7.4 (other than as provided in clause (i) above) that is
made after the Bank Loans and all L/C Reimbursement Obligations have
been paid in full, such prepayment shall be applied to the pro rata
prepayment of the Institutional Loans in full, together with accrued
interest and fees to the date of prepayment and any other amount owing
to the Institutions hereunder (including any Make-Whole Premium
pursuant to Section 7.7(b)).
(b) On each occasion that the Borrower is required to prepay
Loans pursuant to Sections 7.3(c), 7.3(f) or 7.3(g) or elects to do so pursuant
to Section 7.4 (other than as provided in clause (i), (ii) or (iii) of paragraph
(a) above), such prepayment shall be applied to the pro rata prepayment solely
of Bank Loans unless one or more Institutions elects to receive a pro rata
portion of such prepayment and waives its right to receive a Make-Whole Premium
(in the case of a prepayment pursuant to Section 7.3(c), 7.3(f) or 7.3(g)) or
agrees to receive a Modified Make-Whole Premium (in the case of a prepayment
pursuant to Section 7.4), as the case may be, with respect to the Institutional
Loans held by such Institution. An Institution may exercise its option to
receive a pro rata portion of any such prepayment of Loans (the "Pro Rata
Prepayment Option") by providing an irrevocable notice to the Borrower, within
five Business Days of its receipt of a Buy-Down Prepayment Notice, Greenhouse
Prepayment Notice, Non-Restoration Prepayment Notice or Optional Prepayment
Notice, as the case may be, stating that it is exercising the Pro Rata
Prepayment Option and is waiving any Make-Whole Premium or is agreeing to
receive the Modified Make-Whole Premium, as the case may be, in connection with
such prepayment. The Borrower shall, on the Business Day immediately following
the expiration of the period of five Business Days referred to in the preceding
sentence, provide a second irrevocable notice (the "Final Prepayment Notice") to
the Administrative Agent (which shall promptly forward such notice to the Banks)
and each Institution, specifying (x) the aggregate amount of the prepayment of
Bank Loans and the amount of the prepayment of Institutional Loans, if any, held
by each Institution exercising the Pro Rata Prepayment Option, which amounts
shall be equal to the applicable Pro Rata Prepayment Share, and (y) in the case
of the notice delivered to the Administrative Agent, whether the prepayment of
Bank Loans is of Eurodollar Loans, C/D Rate Loans, Base Rate Loans or a
combination thereof, and, if a combination thereof, the amount of the prepayment
allocable to each. Notwithstanding the
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foregoing provisions of this Section 7.5(b) or any other provision hereof, the
Institutions shall not be entitled to participate in prepayments, purchases or
redemptions of Bonds or Bank Loans pursuant to Section 10.31(a) hereof.
(c) On the date of prepayment specified in the relevant
Buy-Down Prepayment Notice, Greenhouse Prepayment Notice, Non-Restoration
Prepayment Notice or Optional Prepayment Notice, as the case may be, (i) if such
prepayment of Loans to be made is a prepayment referred to in clause (i), (ii)
or (iii) of paragraph (a) above, the amount specified in the Optional Prepayment
Notice given with respect thereto shall be due and payable to the Lenders, in
accordance with the payment priority set forth in such clause (i), (ii) or
(iii), as the case may be, or (ii) if such prepayment of Loans is a prepayment
referred to in paragraph (b) above, the amounts specified in the Final
Prepayment Notice given with respect thereto shall be due and payable to the
Lenders, in accordance with the pro rata sharing requirements of paragraph (b)
above, in each case, together with accrued interest and fees to such date on the
amounts prepaid and any other payments owing hereunder (including pursuant to
Section 7.7(a), 7.7(b), 7.7(c) or 7.7(d), if applicable).
Section 7.6 Taxes. (a) All payments made by the Borrower under
this Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any Government
Authority excluding, in the case of the Administrative Agent and each Lender,
net income and franchise taxes imposed on the Administrative Agent or such
Lender by the jurisdiction under the laws of which the Administrative Agent or
such Lender is organized or any political subdivision or taxing authority
thereof or therein, or by any jurisdiction in which such Lender's lending office
is located or any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder or under the Notes, the amounts so payable to the Administrative Agent
or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the Notes. Whenever any Taxes are payable by the Borrower, as
promptly as possible thereafter, the Borrower shall send to the Administrative
Agent and each Institution a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent and each Institution the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of such
failure.
(b) Upon becoming a party to this Agreement, each Lender that
is not incorporated under the laws of the United States of America or a state
thereof agrees that it will deliver to the Borrower and the Administrative Agent
(i) two duly completed copies of United States Internal Revenue Service Form
1001 or 4224 or successor applicable form, as the case may be, certifying in
each case that such Lender is entitled to receive payments under this
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Agreement and the relevant Notes payable to it without deduction or withholding
of any United States federal income taxes, and (ii) an Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding tax. Each Lender which
delivers to the Borrower and the Administrative Agent a Form 1001 or 4224 and
Form W-8 or W-9 pursuant to the preceding sentence further undertakes to deliver
to the Borrower and the Administrative Agent two further copies of Form 1001 or
4224 and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower, and
such extensions or renewals thereof as may reasonably be requested by the
Borrower, certifying in the case of a Form 1001 or 4224 that such Lender is
entitled to receive payments under this Agreement and the relevant Notes without
deduction or withholding of any United States federal income taxes, unless in
any such cases an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders any such form inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Borrower that it is not capable of
receiving payments without deduction or withholding of United States federal
income tax, or in the case of a Form W-8 or W-9, without an exemption from
United States backup withholding tax.
(c) Each Bank agrees that, as promptly as practicable after
the Borrower shall have notified it that Taxes are or have been required to be
withheld from any amounts payable hereunder or under the Bank Notes, or such
Bank otherwise becomes aware that any such Taxes will be required to be withheld
from future payments, it will, to the extent not inconsistent with such Bank's
internal policies, make, fund or maintain its Bank Loans through another lending
office of such Bank if as a result thereof Taxes would not be required to be so
withheld and if, as determined by such Bank it its sole discretion, the making,
funding or maintaining of such Bank Loans through such other lending office (i)
would be permitted by applicable Requirements of Law and (ii) would not
adversely affect its Bank Loans or such Bank. The Borrower hereby agrees to pay
all reasonable expenses incurred by a Bank in utilizing another lending office
of such Bank as provided in this paragraph.
(d) The agreements in this Section 7.6 shall survive the
termination of this Agreement and the Letters of Credit and the payment of the
Notes and the other amounts payable hereunder.
Section 7.7 Certain Indemnities.
(a) Funding Indemnities. The Borrower agrees to indemnify each
Bank and to hold each Bank harmless from any loss or expense which such Bank may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans or C/D Rate
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans or C/D Rate Loans on a day which is not the last day of a Bank Loan
Interest Period with respect
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thereto (including, without limitation, as the result of acceleration of such
Loans pursuant to Section 12.2). Any Bank demanding indemnification for any loss
or expense sustained or incurred by it pursuant to this Section 7.7(a) shall, at
the time of such demand, deliver to the Borrower a certificate documenting in
reasonable detail any such loss or expense. Each determination by a Bank of the
amounts owing to it pursuant to this Section 7.7(a) shall be conclusive and
binding on the Borrower and such Bank in the absence of manifest error.
(b) Make-Whole Protection. In the event, with respect to any
Institution, either (i) the Borrower elects to prepay the Institutional Loans
held by such Institution in accordance with Section 7.4 in whole or in part
(including without limitation in connection with any Refinancing Transaction),
or (ii) the Institutional Loans held by such Institution are prepaid in whole or
in part in accordance with Section 7.3, or (iii) the Institutional Loans held by
such Institution are accelerated in whole or in part following an Event of
Default in accordance with Section 12.2, the Borrower agrees to pay to such
Institution an amount equal to, with respect to the aggregate principal amount
of Institutional Loans held by such Institution which were so prepaid or so
accelerated, the applicable Make-Whole Premium; provided that an Institution
shall not be entitled to receive any Make-Whole Premium in connection with any
prepayment of Institutional Loans referred to in clause (i) or (ii) above if it
has waived its rights to receive a Make-Whole Premium or has agreed to receive a
Modified Make-Whole Premium in lieu thereof in connection with such prepayment,
in each case in accordance with Section 7.5(b); provided, further that no
Make-Whole Premium shall be payable to the Institution in connection with any
prepayment of Institutional Loans pursuant to Section 7.3(a). Any Institution
entitled to payment of any Make-Whole Premium pursuant to this Section shall
deliver to the Borrower a certificate showing in reasonable detail the
calculation of such Make-Whole Premium. Each determination by an Institution of
the amount of any Make-Whole Premium due to it pursuant to this Section 7.7(b)
shall be conclusive and binding on the Borrower and such Institution in the
absence of manifest error.
(c) Modified Make-Whole Protection. In the event, with respect
to any Institution, the Borrower elects to prepay the Institutional Loans held
by such Institution in accordance with Section 7.4 and, in connection with such
prepayment, such Institution has agreed to receive a Modified Make-Whole Premium
in connection with such prepayment, the Borrower agrees to pay to such
Institution an amount equal to, with respect to the aggregate principal amount
of Institutional Loans which were so prepaid, the applicable Modified Make-Whole
Premium. Any Institution entitled to payment of any Modified Make-Whole Premium
pursuant to this Section shall deliver to the Borrower a certificate showing in
reasonable detail the calculation of such Modified Make-Whole Premium. Each
determination by an Institution of the amount of any Modified Make-Whole Premium
due to it pursuant to this Section 7.7(c) shall be conclusive and binding on the
Borrower and such Institution in the absence of manifest error.
(d) Indemnity Regarding Interest Rate Hedging Transactions.
The Borrower agrees to indemnify each Bank, and to hold each Bank harmless from
any loss or out-of-pocket expense which such Person may sustain or incur as a
result of the early termination of any Interest Rate Hedging Transaction (other
than an early termination of an Interest Rate Hedging Transaction by the
Borrower at the time of the occurrence and continuance of a default thereunder
by such Bank or any modification to or amendment of any Interest Rate Hedging
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Transaction; provided that such Bank delivers to the Borrower a certificate
showing in reasonable detail the calculations of any such loss or expense. Each
determination by any Bank of the amounts owing to it pursuant to this Section
7.7(d) shall be conclusive and binding on the Borrower and such Bank in the
absence of manifest error.
(e) Survival. The provisions of this Section 7.7 shall survive
the termination of this Agreement and the Letters of Credit and the payment of
the Loans and all other amounts payable hereunder.
Section 7.8 Funding into Accounts. For all purposes of this
Agreement, a "borrowing" by the Borrower of a Bank Project Loan or Institutional
Loan under Section 3.1 or 4.1, respectively, shall be deemed to occur upon the
making of a deposit of the proceeds of such Bank Project Loan by the
Administrative Agent into the Construction Account or, if applicable, the
Accounts specified in Section 4.3 of the Security Deposit Agreement, as provided
in Section 3.2 hereof, or the making of a deposit of such Institutional Loan by
the Institutions into the Institutional Loan Proceeds Account, as provided in
Section 4.2 hereof, even if the Security Agent shall not be required to disburse
such funds on such date from the Construction Account, such other Accounts or
the Institutional Loan Proceeds Account, as the case may be, to or for the
account of the Borrower pursuant to the terms of this Agreement or the Security
Deposit Agreement.
Section 7.9 Funding of Letter of Credit Disbursements. (a)
Effective upon the issuance of each Letter of Credit and without further action
on the part of the Security Agent, the Administrative Agent, the Issuing Bank or
any Bank, each Bank shall automatically acquire a participation in the Issuing
Bank's liability under such Letter of Credit in an amount equal to such Bank's
Commitment Percentage. Each Bank shall be liable to the Issuing Bank for its pro
rata share, based upon its Commitment Percentage, of any and all amounts drawn
under any Letter of Credit and honored by the Issuing Bank. Such liability shall
be unconditional and without regard to the occurrence of any Default or Event of
Default; provided that no Bank shall be liable for the payment of any portion of
such liability directly resulting from the Issuing Bank's gross negligence or
wilful misconduct.
(b) On each L/C Disbursement Date for any Letter of Credit
Disbursement, the Issuing Bank shall notify the Administrative Agent, which
shall notify each Bank by telex, telecopy or telephone (promptly confirmed by
telex or telecopy) of its pro rata share of such Letter of Credit Disbursement,
based upon such Bank's Commitment Percentage, and forthwith upon receipt of such
notice each Bank shall make available its pro rata share of such Letter of
Credit Disbursement, based on its Commitment Percentage, to the Issuing Bank by
wire transfer to its office indicated on Schedule 1 in immediately available
funds. If a Bank does not make available to the Issuing Bank its Commitment
Percentage of such Letter of Credit Disbursement on the first Business Day after
such L/C Disbursement Date, such Bank shall pay to the Issuing Bank on demand
such amount, with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate for the period from and including such L/C Disbursement
Date to the date such Bank makes such amount immediately available to the
Issuing Bank. A certificate of the Issuing Bank submitted to any Bank with
respect to any amounts owing under this paragraph (b) shall be conclusive in the
absence of manifest error. If such Bank's Commitment Percentage of
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such Letter of Credit Disbursement is not in fact made available to the Issuing
Bank by such Bank within three Business Days after such L/C Disbursement Date,
the Administrative Agent shall also be entitled to recover such amount from the
Borrower on demand, together with interest thereon from the date such amount was
made available to the Borrower at the rate per annum applicable to Base Rate
Loans hereunder.
(c) Whenever the Issuing Bank receives any L/C Reimbursement
Payment or any payment of interest in respect thereof under Section 5.5 or 6.6,
the Issuing Bank will pay to each Bank in immediately available funds such
Bank's pro rata share, computed in accordance with its Commitment Percentage, of
such payment (i) before the close of business on the day such payment is
received, if such payment is received at or prior to 12:00 noon, New York City
time, on such day or (ii) before 2:00 P.M., New York City time, on the next
succeeding Business Day if such payment is received after 12:00 noon, New York
City time, on such day. Any amounts received by the Issuing Bank that are due
and owing to the Banks and remain unpaid to the Banks after the times for
payment set forth in the preceding sentence shall bear interest, payable by the
Issuing Bank, at the Federal Funds Effective Rate.
(d) Each Bank hereby irrevocably authorizes the Issuing Bank
to issue the Letters of Credit under and in accordance with this Agreement, to
pay the amount set forth in any draft or certificate presented under any Letter
of Credit upon presentation of documents which, upon their face, conform to the
terms of such Letter of Credit, to receive from the Borrower reimbursement for
Letter of Credit Disbursements, to receive from the Borrower payment of all
fees, charges and interest in respect of the Letters of Credit and Letter of
Credit Disbursements, and to take such action on such Bank's behalf under the
provisions of this Agreement and to exercise such powers and to perform such
duties hereunder as are specifically delegated to or required of the Issuing
Bank by the terms hereof, together with such powers as are reasonably incidental
thereto.
(e) Subject to the proviso of the last sentence of paragraph
(a) of this Section 7.9, each Bank agrees that its obligation to participate in
connection with the Letters of Credit on the terms and subject to the conditions
of this Agreement shall be irrevocable and unconditional, and each Bank shall
indemnify and hold harmless the Issuing Bank from and against any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) resulting from any failure on the part
of such Bank to provide, or from any delay in providing, the Issuing Bank with
such Bank's pro rata share, computed in accordance with such Bank's Commitment
Percentage, of the amount of any Letter of Credit Disbursement in accordance
with the provisions of paragraph (b) of this Section 7.9, but no Bank shall be
so liable for any such failure on the part of or caused by any other Bank.
Section 7.10 Additional Letter of Credit Provisions. (a) The
Borrower agrees that neither the Administrative Agent, the Security Agent, the
Issuing Bank, nor any other Lender (nor any of their respective officers or
directors) shall be liable or responsible for: (i) the validity, sufficiency or
genuineness of documents presented to the Issuing Bank under any Letter of
Credit, or of any endorsement(s) thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or forged
or any statement therein prove to
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be untrue or inaccurate in any respect whatsoever; (ii) payment by the Issuing
Bank against presentation of documents which do not comply strictly with the
terms of the applicable Letter of Credit, including failure of any documents to
bear any reference or adequate reference to the applicable Letter of Credit; or
(iii) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a claim against
the Issuing Bank, and the Issuing Bank shall be liable to the Borrower, to the
extent, but only to the extent, of any direct (as opposed to consequential)
damages suffered by the Borrower which the Borrower proves were caused by the
Issuing Bank's willful failure to pay under a Letter of Credit after the
presentation to it of a certificate for payment strictly complying with the
terms and conditions of such Letter of Credit (unless the Issuing Bank in good
faith believed itself to be prohibited by law or legal authority from making
such payment). In furtherance and not in limitation of the foregoing, the
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
(b) Without limiting the effect of Section 5.5(b), 6.6(b) or
7.10(a), the Borrower and each Bank agrees with the Issuing Bank that:
(i) the Issuing Bank is authorized to make payments
under each Letter of Credit upon the presentation of the documents
provided for therein and without regard to whether the Borrower has
failed to fulfill any of its obligations with respect to any Loan
Document or any other default has occurred thereunder or hereunder;
(ii) the Issuing Bank is authorized to take such action
on its behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are specifically delegated to or
required of the Issuing Bank by the terms hereof, together with such
powers as are reasonably incidental thereto;
(iii) the Issuing Bank shall be entitled to rely upon any
certificate, notice, demand or other communication (whether by cable,
telegram, telex or other written communication) believed by it to be
genuine and to have been signed or sent by the proper Person or Persons
(and no such reliance or failure shall place the Issuing Bank under any
liability to the Borrower or any Bank or limit or otherwise affect the
Borrower or any Bank's obligations under this Agreement);
(iv) any action, inaction or omission on the part of the
Issuing Bank under or in connection with any Letter of Credit or the
related instruments or documents, if in good faith and in conformity
with such laws, regulations and customs as the Issuing Bank may
reasonably deem to be applicable (including without limitation the laws
of the State of New York and the Uniform Customs), shall be binding
upon the Borrower and each Bank (and shall not place the Issuing Bank
under any liability to the Borrower or any Bank or limit or otherwise
affect the Borrower's or any Bank's obligations under this Agreement);
and
(v) notwithstanding any change or modification, with
or without the consent of the Borrower, in any instruments or
documents called for in any Letter of Credit,
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including waiver of noncompliance of any such instruments or documents
with the terms of any Letter of Credit, this Agreement shall be binding
on the Borrower with regard to each Letter of Credit and to any action
taken by the Issuing Bank relative thereto.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(d) Notwithstanding anything to the contrary in Section 5 or
6, the Issuing Bank shall not at any time be obligated to issue any Letter of
Credit hereunder if such issuance would conflict with, or cause the Issuing Bank
or any Bank to exceed any limits imposed by, any applicable Requirement of Law.
Section 7.11. Payment with Issuing Bank Funds; Timing of
Reimbursement and Other Payments. (a) The Issuing Bank shall make all payments
under any Letter of Credit with its own funds or funds received from the Lenders
in respect of such Lenders' participation in such Letter of Credit (and not with
funds derived from the Borrower, the Bond Issuer and/or any Subsidiary or
Affiliate thereof).
(b) On any day on which payment in respect of a drawing under
any Letter of Credit is made or to be made by the Issuing Bank, (i) neither the
Borrower nor the Bond Issuer shall, prior to 3:00 P.M., New York City time, on
such day (and in any event, prior to the transfer of immediately available funds
to the Letter of Credit Proceeds Account pertaining to such Letter of Credit
(such account being defined in the Trust Indenture applicable to the Relevant
Bonds) in the amount so drawn under such Letter of Credit), transfer any funds
or other property to the Issuing Bank, the Administrative Agent or any Lender
for the reimbursement of, or as collateral security for, any payments made under
such Letter of Credit and (ii) neither the Issuing Bank, the Administrative
Agent nor any Lender shall, prior to 3:30 P.M., New York City time, on such day
(and in any event, prior to the transfer of immediately available funds to the
Letter of Credit Proceeds Account pertaining to such Letter of Credit (such
account being defined in the Trust Indenture applicable to the Relevant Bonds)
in the amount so drawn under such Letter of Credit), (x) apply any funds or
other property transferred to it from the Borrower, the Bond Issuer, the Bond
Trustee or the Remarketing Agent (such parties being defined in the Trust
Indenture applicable to the series of Bonds with respect to which such parties
act in such capacities), or apply or block any funds held in any demand deposit
or other account of the Borrower or the Bond Issuer maintained with the
Administrative Agent, the Issuing Bank or any Lender (the "Borrower Account"),
to the reimbursement of, or as collateral security for, any payments made under
such Letter of Credit or (y) apply any collateral held by the Security Agent
pursuant to the Security Deposit Agreement to the reimbursement of any payments
made under such Letter of Credit.
(c) Neither the Administrative Agent, the Issuing Bank nor any
Lender shall apply any funds or other property transferred to it from the
Borrower, the Bond Issuer, the Bond Trustee or the Remarketing Agent (such
parties being defined in the Trust Indenture applicable to the series of Bonds
with respect to which such parties act in such capacities), or apply or block
any funds held in any Borrower Account to the reimbursement of, or (except for
collateral held by the Security Agent pursuant to the Security Deposit
Agreement) as collateral security for, any
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payment to be made in the future under any Letter of Credit. Furthermore,
neither the Administrative Agent, the Issuing Bank nor any Lender shall apply
any collateral held by the Security Agent pursuant to the Security Deposit
Agreement to the reimbursement of any payment to be made in the future under any
Letter of Credit.
SECTION 8. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender,
the Issuing Bank and the Administrative Agent as follows:
Section 8.1 Organization. (a) The Borrower is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, and is duly qualified to do business and is in good
standing in the Commonwealth of Virginia and in the State of Georgia, the only
jurisdictions in which the conduct of its business or the ownership or lease of
its assets requires such qualification. The Borrower has full partnership power
and authority to construct, own and operate the Project, to conduct its business
as now conducted and as proposed to be conducted by it, to execute, deliver and
perform this Agreement and the other Financing Documents and the Project
Documents to which it is or is to become a party, to borrow hereunder and to
grant the liens and security interests purported to be granted by the Security
Documents.
(b) As of the date hereof and the Closing Date, Southern owns
and will own 100% of the stock of SEWG, SEWG owns and will own 100% the stock of
Birchwood Development and SEI Birchwood, and Birchwood Development and SEI
Birchwood are and will be the sole Partners of the Borrower. As of the date
hereof and the Closing Date, the Borrower does not have, nor will the Borrower
in the future have, any Subsidiaries.
Section 8.2 Authorization; Enforceable Obligations. The
Borrower has taken all necessary partnership and legal action to authorize the
borrowings hereunder on the terms and conditions of this Agreement, to grant the
liens and security interests provided for in the Security Documents to which it
is or is to become a party and to authorize the execution, delivery and
performance of this Agreement and the other Financing Documents and the Project
Documents to which it is or is to become a party. Each of this Agreement and the
other Financing Documents and the Project Documents to which the Borrower is a
party has been duly executed and delivered by the Borrower and constitutes, and
each of the Notes and the Project Documents to which the Borrower is to become a
party will upon execution and delivery thereof by the Borrower constitute, a
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles of equity
(regardless of whether enforcement thereof is sought in a proceeding at law or
in equity).
Section 8.3 No Proceeding or Litigation. No litigation,
investigation or proceeding of or before any arbitrator or Government Authority
is pending or, to the best knowledge of the Borrower, threatened against or
affecting the Borrower or any General Partner,
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or against or affecting any of their respective properties, rights, revenues or
assets, or the Project, which is reasonably expected to have a Material Adverse
Effect.
Section 8.4 Financial Statements. The balance sheet of the
Borrower as at March 31, 1994 heretofore furnished to the Administrative Agent
and the Lenders and certified by a Responsible Officer of the Borrower, is the
most recent balance sheet prepared by the Borrower prior to the execution and
delivery of this Agreement, and is complete and correct in all material respects
and fairly presents the financial condition of the Borrower on such date, in
conformity with GAAP applied on a consistent basis. All material liabilities,
direct and contingent, of the Borrower on such date are either disclosed in such
balance sheet or have been disclosed in writing by the Borrower to the Co-Agents
and the Institutions prior to the execution and delivery of this Agreement.
Section 8.5 No Legal Bar; Consents. Neither the execution and
delivery of this Agreement or the other Financing Documents or the Project
Documents to which the Borrower is or is to be a party, the consummation of the
transactions herein or therein contemplated, nor compliance with the terms and
provisions hereof or thereof (including without limitation, the matters referred
to in clauses (b) through (e) of Section 8.7), will conflict with, constitute a
default under or result in a breach of, or require any consent by any other
Person (except consents that have been duly obtained or made and are in full
force and effect and the Governmental Approvals listed in Part B of Schedule 6)
under, any Requirement of Law applicable to the Borrower or the Project or the
Partnership Agreement or any other Contractual Obligation to which the Borrower
is a party or by which it is bound.
Section 8.6 Full Disclosure. The Borrower is not aware of any
factual information included in the Information Memorandum which is untrue or
inaccurate in any material respect. There is no fact known to the Borrower which
the Borrower has not disclosed to the Co-Agents and the Institutions in writing
prior to the date hereof which, in the good faith judgment of the Borrower,
could reasonably be expected to have a Material Adverse Effect.
Section 8.7 Governmental Approvals. No Government Approvals
are required in connection with (a) the participation by the Borrower or any
Partner in the transactions contemplated by this Agreement and the other
Financing Documents and the Project Documents to which the Borrower or any
Partner is or is to become a party, (b) the construction, use, ownership or
operation of the Project in accordance with the applicable provisions of the
Financing Documents and the Project Documents and in compliance with all
Requirements of Law (including, without limitation, all applicable Environmental
Laws) or (c) the validity and enforceability of the Power Purchase Agreement,
the Coal Supply Agreement and the other Project Documents as to the Borrower,
except for those Governmental Approvals which are set forth in Schedule 6. In
addition, the Borrower is not aware that, except with respect to the coal
transportation filing referred to in Section 9.2(n), any Governmental Approvals
are required in connection with (i) the transportation of Coal to the Facility
and the use of the Coal for operation of the Facility or (ii) the transportation
and disposal of ash generated by the Facility, except for those Governmental
Approvals which are set forth in Schedule 6. Each of the Governmental Approvals
listed in Part A of Schedule 6 has been duly obtained or made, is in full force
and effect and is not the subject of any pending or, to the best knowledge of
the Borrower, threatened
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judicial or administrative proceedings, and, except as noted on Schedule 6, if
the applicable statute, rule or regulation provides for a fixed period for
judicial or administrative appeal or review thereof, such period has expired.
None of the Governmental Approvals listed in Part B of Schedule 6 is required to
be obtained prior to the date hereof, and each thereof is customarily obtained
at a later stage of construction of the Facility or after the Commercial
Operations Date. The Borrower reasonably expects that each of the Governmental
Approvals listed in Part B of Schedule 6 can be obtained or made in the normal
course of business as and when required without significant delay.
Section 8.8 No Liens. The execution, delivery and performance
of this Agreement and the other Financing Documents and the Project Documents to
which the Borrower is or is to become a party, the borrowings by the Borrower
hereunder and the use of the proceeds thereof, will not result in, or require,
the creation or imposition of any Lien on any of the properties or revenues of
the Borrower pursuant to any Requirement of Law or Contractual Obligation,
except for the Liens under the Security Documents.
Section 8.9 Solvency. The assets of the Borrower are not less
than the amount of its liabilities, and the Borrower is not in default as to
principal of or interest on any of its obligations.
Section 8.10 No Default. No Default or Event of Default has
occurred and is continuing.
Section 8.11 Business. Prior to the date hereof, the Borrower
has engaged in no business other than the development of the Project and the
negotiation, execution, delivery and performance of the Financing Documents and
the Project Documents to which it is a party, and the Borrower has no
obligations or liabilities other than those directly related to the conduct of
such business. The Borrower is engaged solely in the business of constructing,
owning and operating the Project and activities incidental thereto.
Section 8.12 ERISA. (a) No Reportable Event has occurred
within the five-year period prior to the Closing Date with respect to any Plan
the occurrence of which could reasonably be expected to have a Material Adverse
Effect; no notice of intent to terminate a Plan has been filed nor has any Plan
been terminated where the effect of such termination could reasonably be
expected to have a Material Adverse Effect; no circumstances exist which
constitute grounds under Section 4042 of ERISA on which the PBGC could institute
proceedings to terminate, or appoint a trustee to administrate, a Plan, nor has
the PBGC instituted any such proceedings, where the effect of such proceedings
could reasonably be expected to have a Material Adverse Effect; neither the
Borrower nor any Commonly Controlled Entity has withdrawn under Section 4201 or
4204 of ERISA from a Multiemployer Plan where the effect of such withdrawal
could reasonably be expected to have a Material Adverse Effect; and the Borrower
and each Commonly Controlled Entity has met its minimum funding requirements
under ERISA with respect to each of their Plans and all benefit liabilities
under each Plan are being funded in accordance with all applicable legal
requirements and reasonable actuarial assumptions and methods as set forth in
the Code and ERISA, where the effect of any failure to
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meet such minimum funding requirements or to so fund such benefit liabilities
could reasonably be expected to have a Material Adverse Effect.
(b) The consummation of the transactions contemplated by this
Agreement and the other Loan Documents will neither result in a "prohibited
transaction" as described in Section 406(a) of ERISA nor a tax under Section
4975 of the Internal Revenue Code of 1986, as amended. The foregoing
representation is made in reliance upon the Institutions' representations in
Section 4.8(b) as to the source of funds to be used to make, fund and maintain
the Institutional Loans.
Section 8.13 Security Documents. Upon the execution and
delivery thereof, the Security Documents to which the Borrower is a party will
be effective to create, in favor of the Security Agent, for the benefit of the
Secured Parties, legal, valid and enforceable liens on and security interests in
all right, title, estate and interest of the Borrower in and to the Collateral
and, on or prior to the Closing Date, all necessary recordings and filings will
have been duly effected in all appropriate public offices so that the liens and
security interests created by each of the Security Documents to which the
Borrower is a party will constitute perfected liens on and security interests in
all right, title, estate and interest of the Borrower in and to the Collateral
described therein (other than any item of Collateral as to which a lien or
security interest cannot be perfected by filing or recording), prior and
superior to all other Liens except Permitted Liens. The recordings and filings
shown on Schedule 7 hereto are all the recordings and filings necessary in order
to establish, protect and perfect in favor of the Security Agent, for the
benefit of the Secured Parties, the liens on and security interests in the
right, title, estate and interest of the Borrower in and to the Collateral
described in the Security Documents (other than any item of Collateral as to
which a security interest cannot be perfected by filing or recording).
Section 8.14 Environmental Matters. (a) Except to the extent
set forth in the Environmental Report, to the best knowledge of the Borrower,
the Site and the Easements do not contain any Hazardous Materials (other than
indigenous naturally occurring substances) or underground storage tanks and
there has occurred no Release of Hazardous Materials in a quantity reportable
under any applicable Environmental Law with respect to the Site, the Easements
or the Facility for which remediation measures are being conducted in compliance
with all Requirements of Law.
(b) To the best knowledge of the Borrower, the Site and the
Easements and the Facility are in compliance with all applicable Environmental
Laws, and there is no Hazardous Material contamination or violation of any
Environmental Law which could materially interfere with the construction or
operation of the Facility.
(c) Neither the Borrower nor, to the best knowledge of the
Borrower, any General Partner or any Affiliate thereof has received from any
Governmental Authority any written complaint, notice of violation, alleged
violation, investigation or advisory action or potential responsibility
regarding the clean up, removal or remediation of any Hazardous Materials or
permit compliance with regard to the Site, the Easements or the Facility, nor is
the Borrower aware that any Government Authority is contemplating delivering to
the Borrower, any General Partner or any Affiliate any such notice.
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(d) There are no governmental or administrative actions or
judicial proceedings pending or, to the Borrower's best knowledge, threatened
under any Environmental Law to which the Borrower is or will be named as a party
with respect to the Site, the Easements or the Facility, nor are there any
consent decrees or other decrees, consent orders, administrative orders, or
other administrative or judicial requirements (other than administrative
requirements, if any, set forth in the Governmental Approvals listed on Schedule
6) outstanding under any Environmental Law with respect to the Site, the
Easements or the Facility.
(e) To the best knowledge of the Borrower, Hazardous Materials
have not been transferred from the Site or the Easements to any other location
except in compliance with Requirements of Law.
Section 8.15 Federal Regulations. The Borrower is not engaged
nor will engage in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. No part of the proceeds of any Loan will be used for "purchasing" or
"carrying" any "margin stock" as so defined or for any purpose which violates,
or which would be inconsistent with, the provisions of the Regulations of such
Board of Governors.
Section 8.16 Taxes. The Borrower has filed or caused to be
filed all tax returns which are required to be filed by it and has paid all
taxes shown to be due and payable on such returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Government Authority (other than any
taxes, fees or other charges which are not past due or the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower); and no tax Lien has been filed that remains unsatisfied.
Section 8.17 Regulatory Status. (a) Neither the Borrower nor
any Partner is (i) considered an "electric utility company" under Section
2(a)(3) of PUHCA or (ii) subject to regulation under the Federal Power Act, as
amended, except as contemplated by 18 C.F.R. ss. 292.601(c), or (iii) subject to
state law or regulation respecting the rates of electric utilities or the
financial or organizational regulation of electric utilities, or (iv) subject to
regulation under the applicable laws of any state relating to public utilities
or public service corporations. Each of the Borrower and each Partner, if a
"subsidiary company", an "affiliate" or an "associate company" of a "holding
company", as those terms are defined under PUHCA, is exempt from all provisions
of PUHCA.
(b) Neither of the Agents nor any Lender will, solely by
reason of (i) the ownership of the Facility or the operation thereof by the
Borrower, (ii) the making of the Loans and the issuance of the Letters of Credit
hereunder, (iii) the securing of the Secured Obligations by Liens on the Project
and the Project Documents or (iv) any other transaction contemplated by this
Agreement or any of the other Loan Documents or the Project Documents, be deemed
by any Federal or Virginia Government Authority having jurisdiction to be, or to
be subject to regulation as, an "electric utility", "electric corporation",
"electrical company", "public utility
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holding company", "public service company", "public service corporation" or a
corporation carrying on the services of or exercising any of the powers or
functions of, a "public service enterprise" or organized to conduct the business
of a "public service business".
(c) The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 8.18 Offer of Notes. Neither the Borrower, any Partner
nor any of their respective Affiliates nor anyone acting on its or their behalf
has directly or indirectly offered the Notes or any part thereof or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, anyone other than
the Lenders and not more than 50 other institutional investors, commercial banks
and other financial institutions. Neither the Borrower, any Partner nor anyone
acting on behalf of the Borrower or any Partner has taken or will take any
action which would subject the issuance and sale of the Notes to the
registration and prospectus delivery provisions of the Securities Act of 1933,
as amended, or to the provisions of any state securities law requiring
registration of securities, notification of the issuance or sale thereof or
confirmation of the availability of any exemption from such registration. The
representations made by the Borrower in the preceding sentence are made in
reliance upon and subject to the accuracy of the Banks' representation in
Section 3.13 and the Institutions' representation in Section 4.8(a).
Section 8.19 Sufficiency and Delivery of Project Documents.
(a) The services to be performed, the materials to be supplied and the property
interests, easements and other rights granted pursuant to the Project Documents:
(i) comprise substantially all of the services,
materials and property interests required for the acquisition,
development, construction, installation, completion, operation and
maintenance of the Project in accordance with all material Requirements
of Law and the Project Documents; and
(ii) provide adequate ingress and egress from the Site
and the Easements for any reasonable purpose in connection with the
construction, operation and maintenance of the Facility (including,
without limitation, access for transportation of Coal to, and
electricity and steam from, the Site).
There are no services, materials or rights required for the construction,
operation or maintenance of the Facility in accordance with the Project
Documents, other than (x) those granted to or to be provided to the Borrower
pursuant to the Project Documents or (y) those that can reasonably be expected
to be commercially available at the Site when required.
(b) The representations and warranties of the Borrower
contained in the Project Documents were true and correct on and as of the dates
when made.
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Section 8.20 Qualifying Facility. The Borrower has no
knowledge of any facts that would prevent the Facility from being a Qualifying
Facility at the time of the initial delivery of energy from the Facility.
SECTION 9. CONDITIONS PRECEDENT
Section 9.1 Conditions to Effectiveness of Commitments. The
Commitments of the Lenders shall not become effective, and the Credit Facilities
shall not be available for utilization, until the date on which all of the
following conditions precedent shall have been satisfied:
(a) Agreement; Bank Notes. (i) The Administrative Agent and
each Institution shall have received this Agreement, duly executed and
delivered by the parties hereto, with a counterpart for each Bank and
the Issuing Bank; and (ii) the Administrative Agent shall have received
a Bank Project Note, a Bank L/C Note and a Bank Liquidity Note for the
account of each Bank, each conforming to the requirements of this
Agreement and duly executed and delivered by the Borrower.
(b) Security Documents. The Administrative Agent and each
Institution shall have received, with a counterpart for each Bank and
the Issuing Bank, each of the Security Documents, duly executed and
delivered by each party thereto.
(c) Interest Rate Hedging Transactions. The Administrative
Agent and each Institution shall have received evidence that the
Borrower has entered into one or more Interest Rate Hedging
Transactions in compliance with the provisions of Section 10.21.
(d) Certain Project Documents. The Administrative Agent and
each Institution shall have received, with a copy for each Bank and the
Issuing Bank, a true and complete copy of each of the following Project
Documents, certified by the Borrower as such on the Closing Date, each
of which shall be in form and substance satisfactory to the Co-Agents
and the Institutions and in full force and effect:
(i) the Power Purchase Agreement;
(ii) the Steam Sales Agreement;
(iii) the Facility Construction Contract;
(iv) the Construction Contract Guarantees;
(v) the Greenhouse Construction Contract;
(vi) the Operating and Maintenance Agreement;
(vii) the Coal Supply Agreement;
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(viii) the Coal Adjustment Agreement;
(ix) the Arch Back-Up Coal Supply Agreement;
(x) the SEI Coal Procurement Letter;
(xi) the Coal Transportation Agreement;
(xii) the CSXT Agreement; and
(xiii) the Ash Disposal Agreement.
In addition, the Administrative Agent and each Institution
shall have received evidence satisfactory to it that each of the
conditions precedent set forth in the Project Documents which are
required to be satisfied on or prior to the Closing Date, if any, have
been satisfied, or waived by the parties thereto with the consent of
the Majority Lenders.
(e) Real Estate Documents. The Administrative Agent and each
Institution shall have received, with a copy for each Bank and the
Issuing Bank, a true and complete copy of each of the Real Estate
Documents (other than the Project Mortgage), certified by the Borrower
as such on the Closing Date, each of which shall be in form and
substance satisfactory to the Co-Agents and the Institutions and in
full force and effect.
(f) Partnership Agreement. The Administrative Agent and each
Institution shall have received, with a copy for each Bank and the
Issuing Bank, a true and complete copy of the Partnership Agreement,
certified by the Borrower as such on the Closing Date, which shall be
in form and substance satisfactory to the Co-Agents and the
Institutions and in full force and effect.
(g) Equity Funding Transactions. The Administrative Agent and
each Institution shall have received evidence satisfactory to it that
(i) the Equity Funding Documents have been duly authorized, executed
and delivered by the parties thereto and are in full force and effect
and (ii) all conditions precedent to the initial Equity Funding Loans
thereunder have been satisfied. In addition, the Administrative Agent
and each Institution shall have received, with a copy for each Bank and
the Issuing Bank, true and complete copies of each of the Equity
Funding Documents, certified by the Borrower as such on the Closing
Date, each of which shall be in form and substance satisfactory to the
Co-Agents and the Institutions.
(h) Greenhouse Transactions. The Administrative Agent and each
Institution shall have received, with a copy for each Bank and the
Issuing Bank, a true and complete copy of each of the following
Greenhouse Documents, certified by the Borrower as such on the Closing
Date, each of which shall be in form and substance satisfactory to the
Co-Agents and the Institutions and in full force and effect:
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(i) the Greenhouse Master Lease;
(ii) the Greenhouse Mortgage;
(iii) the Greenhouse Loan Agreement;
(iv) the Greenhouse Sublease;
(v) the Greenhouse Pledge Agreements;
(vi) the Greenhouse Mortgage Assignment;
(vii) the Greenhouse Stock Assignment;
(viii) the Greenhouse Xxxx of Sale;
(ix) the Greenhouse Nondisturbance Agreement; and
(x) the Greenhouse Deed.
In addition, (x) the Security Agent shall have received the
executed Greenhouse Note and the title insurance policy insuring the
Borrower and the Security Agent that the Greenhouse Mortgage
constitutes a valid first lien of record on the Greenhouse Owner's
leasehold interest in the Leased Land, and (y) each of the
Administrative Agent and the Institutions shall have received evidence
satisfactory to it that (A) the Greenhouse Owner is duly organized,
validly existing and in good standing under the laws of the State of
Delaware, is qualified to do business and is in good standing in the
Commonwealth of Virginia, and has the corporate power and authority to
own the Greenhouse and execute, deliver and perform its obligations
under the Greenhouse Documents to which it is a party, (B) the
conditions precedent set forth in Section 3.3 of the Greenhouse Loan
Agreement have been satisfied, or waived by the parties thereto with
the consent of the Majority Lenders, (C) no event of default under any
of the Greenhouse Documents shall have occurred and be continuing and
(D) the Borrower shall have a first lien on and prior perfected
security interest in the Greenhouse Collateral, prior and superior to
all other Liens, other than Liens permitted under the Greenhouse
Documents.
(i) Insurance Coverage. The Administrative Agent and each
Institution shall have received and found satisfactory, certificates of
or binders for each policy of insurance required under Section 10.8(a),
accompanied by a certification of the Insurance Consultant addressed to
the Agents and the Lenders stating that insurance complying with the
provisions of Section 10.8(a), covering the risks and in the amounts
referred to therein, has been obtained and is in full force and effect,
and that all currently due premiums therefor have been paid in full.
(j) Title Insurance; Survey. The Security Agent shall have
received (i) a policy of title insurance issued by the Title Company,
in form and substance satisfactory
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to the Co-Agents and the Institutions, with such endorsements and
affirmative coverage as they may reasonably request, and with such
reinsurance (with direct access provisions) as they may reasonably
request, (A) insuring the Security Agent and the Lenders in the amount
of $445,000,000 (subject to a pending disbursement clause) that the
Project Mortgage constitutes a valid first mortgage lien of record on
the Site and the Easements, subject only to such exceptions to title as
shall have been approved by the Co-Agents and the Institutions, and (B)
providing coverage against all mechanics' and materialmen's liens
existing on the date of each Extension of Credit; and (ii) a survey of
the Site and the Easements by a licensed surveyor satisfactory to the
Co-Agents and the Institutions and the Title Company, certified to the
Security Agent and the Title Company pursuant to a certification
satisfactory to the Co-Agents and the Institutions, showing no state of
facts unsatisfactory to the Co-Agents, the Institutions or the Title
Company. The Co-Agents and the Institutions shall also have received
evidence that the premium in respect of such policy has been paid.
(k) Legal Opinions. The Co-Agents and each Institution shall
have received, with a counterpart for each Bank and the Issuing Bank,
the following legal opinions, each dated the Closing Date:
(i) the opinion of Xxxxxxxx Xxxxxxx, counsel
to the Borrower, SEI Birchwood, Birchwood Development,
Southern and SEI, substantially in the form of Exhibit K-1;
(ii) the opinion of XxXxxxx Xxxxx Battle &
Xxxxxx, special Virginia and New York counsel to the Borrower,
SEI Birchwood, Birchwood Development, Southern and SEI,
substantially in the form of Exhibit K-2;
(iii) the opinion of counsel to Virginia
Power, substantially in the form of Exhibit K-3;
(iv) the opinion of XxXxxxx Xxxxx Battle &
Xxxxxx, special counsel to the Greenhouse Owner,
substantially in the form of Exhibit K-4;
(v) the opinion of counsel to the Greenhouse
Operator, substantially in the form of Exhibit K-5;
(vi) the opinion of counsel to the Coal
Supplier, substantially in the form of Exhibit K-6;
(vii) the opinion of counsel to Arch,
substantially in the form of Exhibit K-7;
(viii) the opinion of counsel to CSXT and the
Coal Transporter, substantially in the form of Exhibit K-8;
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(ix) the favorable opinion of Williams, Mullen,
Christian & Xxxxxxx, special Virginia counsel to the Co-Agents
and the Institutions, as to such matters relating to the
transactions contemplated by this Agreement as the Co-Agents
or the Institutions may reasonably request; and
(x) the favorable opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx, special New York counsel to the Co-Agents and the
Institutions, as to such matters relating to the transactions
contemplated by this Agreement as the Co-Agents or the
Institutions may reasonably request.
Such opinions also shall cover such other matters incident to the
transactions contemplated by this Agreement and the other Financing
Documents and the Project Documents as the Co-Agents or the
Institutions may reasonably request.
(l) Coal Report. The Co-Agents and each Institution shall have
received, with a copy for each Bank and the Issuing Bank, a report of
the Coal Consultant with respect to the quality, permitting, operating
expenses, amounts and the ability to mine and dedication to the
Facility of the coal reserves subject to the Coal Supply Agreement and
the Arch Back-Up Coal Supply Agreement, and such other matters relating
to the Coal Supply Agreement, the Arch Back-Up Coal Supply Agreement,
the Coal Supplier and Arch as the Co-Agents or the Institutions shall
reasonably request, which report shall be addressed to the Lenders and
shall be satisfactory in scope, form and substance to the Co-Agents
and the Institutions.
(m) Independent Engineer's Report. The Co-Agents and each
Institution shall have received, with a copy for each Bank and the
Issuing Bank, a report of the Independent Engineer with respect to the
technical and economic feasibility of the Project and the Greenhouse,
the reasonableness of the terms of the Construction Contracts
(including design and specifications, the construction schedule and the
contract price), the capital budget, the status of governmental
approvals and permits, the ability of the Facility to meet regulatory
requirements and the requirements contained in the Power Purchase
Agreement, ash disposal, and such other matters relating to the
Project, the Greenhouse, the Project Documents and the transactions
contemplated hereby and thereby as the Co-Agents or the Institutions
shall reasonably request, which report shall be addressed to the
Lenders and shall be satisfactory in scope, form and substance to the
Co-Agents and the Institutions.
(n) Ornamental Flower Market Report. The Co-Agents and each
Institution shall have received, with a copy for each Bank and the
Issuing Bank, a report of the Ornamental Flower Market Consultant with
respect to the economic viability of the Greenhouse, the capital
budget, the business plan of the Greenhouse Operator, the experience
and ability of the Greenhouse Operator, the ornamental flower market in
which the Greenhouse Operator proposes to compete, the ability of the
Greenhouse to meet the requirements of the Steam Sales Agreement, and
such other matters relating to the Greenhouse Operator and the
production and sale of ornamental flowers as the Co-Agents or the
Institutions shall reasonably request, which report shall be addressed
to the Lenders
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and shall be satisfactory in scope, form and substance to the Co-Agents
and the Institutions.
(o) Environmental Report. The Co-Agents and each Institution
shall have received, with a copy for each Bank and the Issuing Bank,
the Environmental Report, which shall be accompanied by a letter
addressed to the Lenders and the Agents and shall state that they are
entitled to rely on the Environmental Report, and the Environmental
Report shall be satisfactory in scope, form and substance to the
Co-Agents and Institutions.
(p) Perfection of Liens and Security Interests. The financing
statements, instruments and other documents with respect to the filings
and recordings described in Schedule 7 shall be in form and substance
satisfactory to the Security Agent and all such filings and recordings
and all other filings and recordings and other actions that are
necessary in order to establish, protect, preserve and perfect the
Secured Parties' lien on and perfected security interest in all right,
title, estate and interest of the Borrower in and to the Collateral,
prior and superior to all other Liens, existing or future, except
Permitted Liens, shall have been duly made or taken, and all fees,
taxes and other charges relating to such filings and recordings and
other actions shall have been paid by the Borrower; and the Security
Agent, for the benefit of the Secured Parties, shall have a first lien
on and prior perfected security interest in all right, title, estate
and interest of the Borrower in and to the Collateral prior and
superior to all other Liens, except Permitted Liens (other than
mechanics' and materialmen's liens, which shall be insured against
under the Title Policy). In addition, the Security Agent shall have
received (i) authenticated copies or other evidence of all filings,
recordings and other actions obtained or made in order to create and
perfect such first lien on and perfected security interest in the
right, title, estate and interest of the Borrower in and to the
Collateral and (ii) copies of Uniform Commercial Code search reports
with respect to each "Debtor" specified in Schedule 7 in each
jurisdiction in which financing statements are to be filed confirming
that no security interest under the Uniform Commercial Code exists with
respect to the properties or assets of such Person.
(q) Notices to Proceed. The Borrower shall have issued the
Notice to Proceed under the Facility Construction Contract and the
Greenhouse Owner shall have issued the Notice to Proceed under the
Greenhouse Construction Contract.
(r) Governmental Approvals. All Governmental Approvals listed
on Part A of Schedule 6, or otherwise required to commence construction
of the Project, shall have been duly obtained or made, shall be in full
force and effect and shall not be the subject of any pending judicial
or administrative proceedings, and, if the applicable statute, rule or
regulation provides for a fixed period or periods for judicial or
administrative appeal or review thereof, such periods shall have
expired. The Administrative Agent and each Institution shall have
received, with a copy for each Bank and the Issuing Bank, true and
complete copies of all such Governmental Approvals, certified by the
Borrower as such.
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(s) Qualifying Facility. (i) The Facility shall be a
qualifying cogeneration facility within the meaning of PURPA and the
rules and regulations of the FERC set forth at 18 C.F.R. Subpart 292,
as amended; and (ii) the Order Granting Application for Certification
as a qualifying cogeneration facility issued on October 15, 1993 by
FERC (x) shall not have been withdrawn or revoked by subsequent order
and the fixed period for judicial or administrative appeal or review
thereof shall have expired and (y) shall not be the subject of any
pending administrative or judicial proceedings. The Administrative
Agent and each Institution shall have received, with a copy for each
Bank and the Issuing Bank, a true and complete copy of the FERC order
referred to above and of the application therefor, certified by the
Borrower as such.
(t) Evidence of Authorization. The Co-Agents and each
Institution shall have received, with a copy for each Bank and the
Issuing Bank: (i) copies, certified on the Closing Date, of (A) all
partnership action of the Borrower authorizing the execution, delivery
and performance by the Borrower of this Agreement and each other
Financing Document and each Project Document to which the Borrower is
or is to be a party, (B) all corporate action of each Partner and SEI
authorizing the execution, delivery and performance by it of the
Financing Documents and Project Documents to which it is a party, (C)
all corporate action of Southern authorizing the execution, delivery
and performance by Southern of the Equity Funding Documents to which it
is a party; (ii) certificates, dated the Closing Date, as to the
incumbency and signature of each individual signing any Loan Document
or Project Document on behalf of the Borrower, each Partner, SEI or
Southern; (iii) certified copies of the articles of incorporation and
by-laws of each Partner, SEI and Southern; (iv) evidence of the
existence and good standing of the Borrower and each Partner in the
State of Delaware and of the Borrower's and each Partner's
authorization to do business and good standing in the Commonwealth of
Virginia and the State of Georgia, and evidence of the existence and
good standing of Southern and SEI in the State of Delaware and, in the
case of SEI, Virginia; and (v) all certificates and other documents
required to be delivered by the Greenhouse Owner as a condition to the
initial borrowing under the Greenhouse Loan Agreement.
(u) Financial Statements. The Co-Agents and each Institution
shall have received, with a copy for each Bank and the Issuing Bank, a
copy of the most recent audited financial statements of each of
Southern, the Contractors, Arch and CSX (which shall be prepared on a
consolidating basis), the most recent publicly available financial
statements of Virginia Power and the most recent unaudited financial
statements of the Coal Transporter, the Greenhouse Operator and the
Coal Supplier. Each of such financial statements shall be satisfactory
to the Co-Agents and the Institutions, and no material adverse change
shall have occurred in the business, operations or financial condition
of any of the Persons referred to in the preceding sentence since the
date of such financial statements.
(v) Fees. All fees payable by the Borrower on or prior to the
Closing Date pursuant to Section 7.1, the Bank Fee Letter or the
Institutional Fee Letter shall have been paid.
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(w) Financial Projections. The Co-Agents and each Institution
shall have received, with a copy for each Bank and the Issuing Bank,
reasonably detailed financial projections for the Project covering the
period through the twentieth anniversary of the Commercial Operations
Date (the "Base Case Projections"), including therein projections of
revenues, operating expenses, cash flow, debt service and other related
items for the Project, in form and substance satisfactory to the
Co-Agents and each Institution and showing an average Debt Service
Coverage Ratio for the period from the Commercial Operations Date to
the Bank Loan Final Maturity Date of at least 1.45 to 1.00 and a Debt
Service Coverage Ratio in each year of at least 1.35 to 1.00 (in each
case after giving effect to any Interest Rate Hedging Transactions),
certified as of the Closing Date by the chief financial officer of the
Borrower or of SEI Birchwood, as a General Partner, as being based on
reasonable assumptions and prepared in good faith in full consideration
of all information known to such officer, after due inquiry.
(x) Construction Budget. The Administrative Agent and each
Institution shall have received from the Borrower, with a copy for each
Bank, a budget, in form and substance satisfactory to the
Administrative Agent and each Institution, for all anticipated costs to
be incurred in connection with the construction and start-up of the
Project, including in such budget all construction and non-construction
costs, the financing to be provided to the Greenhouse Owner pursuant to
the Greenhouse Loan Agreement and all interest, taxes and other
carrying costs relating to the Project, and such other information as
the Administrative Agent or any Institution may reasonably request. The
budget will contain an appropriate number of budget categories (each, a
"Budget Category"), which will detail the timing and value of drawdowns
in each such Budget Category, and the total of all amounts to be drawn
down in respect of such Budget Category (with respect to each Budget
Category, the "Budget Category Amount"). The Budget Category Amount for
(i) the Completion Date funding of the Debt Service Reserve Account
shall be at least the Required Initial Debt Service Reserve Deposit
Amount, (ii) the Completion Date funding of the Repair and Maintenance
Account shall be at least the Initial Repair and Maintenance Reserve
Amount and (iii) the Heat Rate Bonus shall be $6,000,000.
(y) Additional Matters. The Administrative Agent and each
Institution shall have received each additional document, instrument or
item of information reasonably requested by it; and all corporate and
other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by this
Agreement, shall be satisfactory in form and substance to the
Administrative Agent and each Institution.
Section 9.2 Conditions to Each Bank Project Loan and
Institutional Loan. The obligation of the Banks to make any Bank Project Loan or
the Institutions to make any Institutional Loan requested to be made by it
(including its initial Loan) on the Closing Date or any other Borrowing Date is
subject to the satisfaction, immediately prior to or concurrently with the
making of such Loan, of the following conditions precedent:
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(a) No Default. No Default or Event of Default shall have
occurred and be continuing on such Borrowing Date, or shall occur
after giving effect to the Loans to be made on such date.
(b) Representations and Warranties. Each of the
representations and warranties of the Borrower in this Agreement and
the other Loan Documents shall be true and correct in all material
respects on and as of such Borrowing Date as if made on and as of such
date, except for the representations and warranties set forth in the
first sentence of Section 8.1(b) and the representations and warranties
set forth in Sections 8.4 and 8.6, which shall be true and correct on
and as of the Closing Date.
(c) Project Documents. (i) Each of the Principal Project
Documents shall be in full force and effect; (ii) each of the
Significant Project Participants shall have complied in all material
respects with its covenants and obligations under the Principal Project
Documents; and (iii) no event or condition shall then exist (including
without limitation an event of Force Majeure) which permits or requires
any Significant Project Participant to cancel or terminate (with the
giving of notice if required) its performance under a Principal Project
Document in accordance with the terms thereof.
(d) Independent Engineer's Certificate. With respect to each
borrowing of Bank Project Loans (other than Debt Service Loans) and
Institutional Loans on any Borrowing Date other than the Closing Date,
the Administrative Agent and the Institutions shall have received, with
a copy for each Bank and the Issuing Bank, a certificate of the
Independent Engineer (the "Independent Engineer's Certificate") dated
not more than five days prior to such Borrowing Date, (i) identifying
the Project Costs that have been properly incurred and are due and
payable on such Borrowing Date (relying on the Contractors' monthly
application for payment provided for under each of the Construction
Contracts) and (ii) stating that (A) construction of the Facility is
proceeding in the manner provided for in the Facility Construction
Contract and the Facility Contractor has not failed to achieve any of
the milestones set forth in the Project Milestone Schedule (as defined
in the Facility Construction Contract) scheduled to be completed prior
to such date (or if it has failed to meet a milestone, the percentage
of the Contract Price (as defined in the Facility Construction
Contract) paid to the Facility Contractor, after giving effect to the
Loans and Equity Funding Loans requested to be made on or prior to such
Borrowing Date, does not exceed the percentage of completion of the
Project, as determined in accordance with Section 4.2.1 of the Facility
Construction Contract), (B) construction of the Greenhouse is
proceeding in the manner provided for in the Greenhouse Construction
Contract and the Greenhouse Contractor has not failed to achieve any of
the milestones set forth in the Project Schedule (as defined in the
Greenhouse Construction Contract) scheduled to be completed prior to
such date, (or if it has failed to meet a milestone, the percentage of
the Contract Price (as defined in the Greenhouse Construction Contract)
paid to the Greenhouse Contractor, after giving effect to the Loans and
Equity Funding Loans requested to be made on or prior to such Borrowing
Date, the proceeds of which are to be used to make Greenhouse loans,
does not exceed the percentage of completion of the Greenhouse, as
determined in accordance with Section 4.2.1 of the Greenhouse
Construction Contract), (C) as of the date of such
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Independent Engineer's Certificate, and without giving effect to any
Loans made on such date, the estimated cost of completing the Project
does not exceed the sum of (1) the Total Available Project Credit and
(2) the amount on deposit in the Construction Account and the
Institutional Loan Proceeds Account, (D) in its judgment, subject to
the occurrence of a Force Majeure event, Substantial Completion of the
Facility should occur prior to Date Certain and Final Completion of the
Greenhouse should occur prior to June 1, 1996, and (E) to the best of
its knowledge, no events or changes have occurred since the date of the
last Independent Engineer's Certificate that would have a material
adverse effect on the Project or the Greenhouse.
(e) Continuation of Title and Priority. On such Borrowing
Date, the Security Agent shall have received from the Title Company a
continuation endorsement of the mortgagee's title insurance policy
referred to in Section 9.1(j) covering the Loans to be made on such
date and indicating that since the date of the previous such
endorsement (or, if none, since the effective date of said title
insurance policy), there has been no change in the state of title to
the Project and that there are no Liens affecting the Project which may
take priority over the Lien of the Project Mortgage with respect to the
Loans then being made. If there is any charge for such endorsement,
such endorsement shall have been issued at regular rates, without
hazard or extra premium and without any indemnification of the Title
Company by the Borrower or any other Person for any risk the Title
Company is otherwise assuming. Such endorsement shall reflect that no
Liens arising from labor and services performed and materials furnished
through the date of the Loans have been filed in King Xxxxxx County,
Virginia prior to the date of such endorsement, except for Permitted
Liens (as defined in the Facility Construction Contract). The Title
Company and the Security Agent shall have received any and all
affidavits, lien waivers, certificates and other documents, in form and
substance satisfactory to the Administrative Agent and the Majority
Institutions, that may be required by the Title Company as a condition
to issuing the endorsement referred to above.
(f) No Material Adverse Change. On or prior to such
Borrowing Date, there shall not have occurred (x) a material adverse
change in the financial condition of the Borrower or (y) a material
adverse change in the financial condition of any other Significant
Project Participant which could reasonably be expected to have a
Material Adverse Effect.
(g) Governmental Approvals. Each of the Governmental Approvals
listed in Part B of Schedule 6, except for such Governmental Approvals
which are not required to be obtained prior to such Borrowing Date and
are customarily obtained at a later stage of construction of the
Facility or after the Commercial Operations Date, shall have been duly
obtained or made, shall be in full force and effect and shall not be
the subject of any pending or, to the best knowledge of the Borrower,
threatened judicial or administrative proceedings.
(h) Financial Projections. Either (i) the Base Case
Projections delivered on the Closing Date pursuant to Section 9.1(w)
shall remain true and accurate in all material
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respects on such Borrowing Date, or (ii) the Borrower shall have
furnished to the Administrative Agent and each Institution, with a copy
for each Bank and the Issuing Bank, revised Base Case Projections
prepared in the form of the Base Case Projections delivered pursuant to
Section 9.1(w) and certified by the chief financial officer of the
Borrower or of SEI Birchwood, as a General Partner, as being based on
reasonable assumptions and prepared in good faith in full consideration
of all information known to such officer, after due inquiry, and such
revised Base Case Projections shall indicate that there has occurred no
change from the Base Case Projections delivered pursuant to Section
9.1(w) which could reasonably be expected to have a Material Adverse
Effect.
(i) Extension of Credit Request. The Administrative Agent,
the Institutions and the Independent Engineer shall have received, at
least 10 Business Days prior to the requested Borrowing Date, an
Extension of Credit Request with respect to the Loan requested to be
made on such Borrowing Date, in substantially the form of Exhibit B-1
or B-2, as the case may be.
(j) Reserved Amounts. After giving effect to such borrowing of
Bank Project Loans and/or Institutional Loans on such Borrowing Date
and the use of the proceeds thereof as specified in the Extension of
Credit Request delivered pursuant to paragraph (i) above (including to
fund the Debt Service Reserve Account or the Repair and Maintenance
Account, to pay all or a portion of the Heat Rate Bonus, if any, to the
Facility Contractor or deposit the maximum unpaid Heat Rate Bonus in
the Final Completion Escrow Account, the Available Loan Commitments
shall be equal to or greater than the Reserved Amounts.
(k) Institutional Notes. If the Institutions are making
Institutional Loans on such date, (i) each Institution shall have
received an Institutional Note conforming to the requirements of
Section 4.3(a), either registered in the name of the Institution making
such Loan (or its nominee) or payable to the order of such Institution,
as such Institution shall request, in the principal amount of such
Institution's Institutional Loan and duly executed and delivered by the
Borrower and (ii) each Institution shall have received (with a copy to
the Administrative Agent) an opinion of counsel to the Borrower, dated
the date of such Institutional Loan, to the effect that the
Institutional Notes issued on such date have been duly and validly
authorized and issued by the Borrower and constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity (regardless of whether enforcement
thereof is sought in a proceeding at law or in equity).
(l) Other Lenders' Notice. The Institutions shall not have
received from the Administrative Agent (if such proposed Loan is an
Institutional Loan) or the Administrative Agent shall not have received
from the Majority Institutions (if such proposed Loan is a Bank Project
Loan), on or before the date which is five Business Days prior to the
requested Borrowing Date, a notice stating that, in the good faith
judgment of the Administrative Agent or such Institutions, as the case
may be, one or more of the
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conditions precedent set forth in this Section 9.2 have not been
satisfied as of such date and are not likely to be satisfied on the
Borrowing Date (specifying such conditions precedent and the reason or
reasons that they are not satisfied).
(m) Greenhouse Loan Agreement. If all or a portion of the
proceeds of such Loan are to be used by the Borrower to make a loan
under the Greenhouse Loan Agreement, the Administrative Agent and the
Institutions shall have received a certificate of a Responsible Officer
of the Borrower stating that (i) to the best of his knowledge (after
due inquiry), no event of default under the Greenhouse Loan Agreement
or Greenhouse Sublease has occurred and is continuing on such Borrowing
Date, unless such event of default has been waived by the Borrower with
the consent of the Administrative Agent and the Majority Institutions,
and (ii) all conditions to such loan set forth in the Greenhouse Loan
Agreement (other than the condition that the Borrower obtain a Loan
under this Agreement) have been satisfied, or waived with the consent
of the Administrative Agent and the Majority Institutions, and such
certificate shall be accompanied by all documents, opinions and
certificates received by the Borrower pursuant to Section 3.4 of the
Greenhouse Loan Agreement in connection with such borrowing.
(n) Coal Transportation Agreement Filing. The contract summary
of the railroad transportation contract referred to in Section 2.6 of
the Coal Transportation Agreement shall have been filed with the
Interstate Commerce Commission and no protest or other action with
respect thereto shall have occurred within the 30-day period following
such filing.
Section 9.3 Additional Conditions to Bank Project Loans. The
obligation of the Banks to make any Bank Project Loan shall be subject to the
satisfaction on the Borrowing Date, in addition to the conditions set forth in
Section 9.2, of the following conditions precedent:
(a) Institutional Loans. (i) With respect to the initial Bank
Project Loans to be made by the Banks, each of the Institutions shall
have made its initial Institutional Loan pursuant to Section 4.1 on or
prior to the Borrowing Date on which such initial Bank Project Loans
are made; and (ii) with respect to each Bank Project Loan to be made
after the Institutional Commitment Termination Date, the aggregate
principal amount of the Institutional Loans theretofore made by the
Institutions (whether or not then outstanding) shall be equal to
$135,000,000.
(b) Maintenance of True-Up Ratio. After giving effect to such
proposed Bank Project Loan and all other Extensions of Credit on such
Borrowing Date, the Relative Bank Exposure will not exceed the Relative
Institutional Exposure.
(c) Interest Rate Election Notice. The Administrative Agent
shall have received, on or before the time required for its receipt
pursuant to Section 3.2, an Interest Rate Election Notice with respect
to the Bank Project Loan requested to be made on such Borrowing Date,
substantially in the form of Exhibit M.
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Section 9.4 Conditions to VP Letters of Credit Issuance. The
obligation of the Issuing Bank to issue the Construction VP Letter of Credit on
the Closing Date or to issue the Term VP Letter of Credit shall be subject to
the satisfaction of the following conditions precedent on such date of issuance:
(a) Satisfaction of Conditions in Section 9.2. The conditions
precedent set forth in paragraphs (a), (b), (c) and (e) through (h) of
Section 9.2 shall have been satisfied on such date (regardless of
whether a Loan was made on such date).
(b) Extension of Credit Request. The Administrative Agent
shall have received an Extension of Credit Request with respect to the
Construction VP Letter of Credit or the Term VP Letter of Credit, as
the case may be, in substantially the form of Exhibit B-3.
(c) Commercial Operations Date. In the case of the issuance of
the Term VP Letter of Credit, the Commercial Operations Date shall have
occurred on or prior to such date.
(d) Expiration of Construction VP Letter of Credit. In the
case of the issuance of the Term VP Letter of Credit, the Construction
VP Letter of Credit shall have expired or been terminated on or prior
to such date.
Section 9.5 Conditions to Bond Letters of Credit Issuance. The
obligation of the Issuing Bank to issue any Bond Letter of Credit shall be
subject to the satisfaction of the following conditions precedent on such date
of issuance:
(a) Satisfaction of Conditions in Section 9.2. The conditions
precedent set forth in paragraphs (a) through (h) of Section 9.2 shall
have been satisfied on such date (regardless of whether a Loan was made
on such date).
(b) Compliance With Section 10.25 Regarding Issuance of the
Relevant Bonds. The provisions of Section 10.25 shall have been
complied with and the Issuing Bank shall have received true and correct
copies, certified as such by the Borrower, of the Bond Documents
entered into in connection with the issuance and sale of the Relevant
Bonds and the legal opinions referred to in Section 10.25.
(c) Rating. The Relevant Bonds shall have received from
Standard & Poor's Ratings Services a rating that is at least equal to
the then current rating by such rating agency of the long-term
unsecured debt of the Issuing Bank.
(d) Initial Institutional Loans. Each of the Institutions
shall have made its initial Institutional Loan pursuant to Section 4.1
on or prior to such date.
(e) Extension of Credit Request. The Administrative Agent
shall have received an Extension of Credit Request with respect to such
Bond Letter of Credit, in substantially the form of Exhibit B-3.
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(f) Additional Matters. All other documents and legal matters
in connection with the issuance of such Bond Letter of Credit and the
Relevant Bonds shall be satisfactory in form and substance to the
Administrative Agent and the Majority Institutions.
Section 9.6 Conditions to Bank L/C Loans and Bank Liquidity
Loans. The obligation of the Banks to make any Bank L/C Loan or Bank Liquidity
Loan requested to be made by it on a Borrowing Date is subject to the
satisfaction of the following conditions on such date:
(a) Satisfaction of Conditions in Section 9.2. The conditions
precedent set forth in paragraphs (a), (b), (c), (f), (g) and (h) of
Section 9.2 shall have been satisfied on such date (regardless of
whether a Loan was made on such date).
(b) Extension of Credit Request. The Administrative Agent
shall have received, on or before the time required for its receipt
pursuant to Section 3.2, an Extension of Credit Request with respect to
such Bank L/C Loan or Bank Liquidity Loan, in substantially the form of
Exhibit B-1.
(c) Interest Rate Election Notice. In the case of a Bank L/C
Loan, the Administrative Agent shall have received, on or before the
time required for its receipt pursuant to Section 3.2, an Interest Rate
Election Notice with respect to such Bank L/C Loan, substantially in
the form of Exhibit M.
Section 9.7 Representations. Upon the making of each Extension
of Credit hereunder on a Credit Extension Date (including the initial Extension
of Credit on the Closing Date), the Borrower shall be deemed to make a
representation and warranty to the Agents and the Lenders as of such Credit
Extension Date that (a) there has been no material adverse change in the
financial condition of the Borrower, (b) to the Borrower's best knowledge, there
has been no material adverse change in the financial condition of any other
Significant Project Participant which could reasonably be expected to have a
Material Adverse Effect and (c) to the Borrower's best knowledge, the conditions
set forth in paragraphs (c) and (g) of Section 9.2 have been satisfied on such
Credit Extension Date.
SECTION 10. AFFIRMATIVE COVENANTS
So long as any Commitments remain in effect, any Letter of
Credit remains outstanding and until payment in full of the Loans and all other
Secured Obligations hereunder or under any of the Security Documents, the
Borrower hereby agrees that:
Section 10.1 Use of Proceeds.
(a) The proceeds of the Loans (other than any Bank L/C Loans
or Bank Liquidity Loans) shall be deposited into the Construction Account or the
Institutional Loan Proceeds Account, as the case may be, or, in the case of
certain Bank Project Loans made by the Borrower on the Completion Date, the
Accounts specified in Section 4.3 of the Security Deposit
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Agreement, in each case, for application as provided in paragraph (b) of this
Section and in the Security Deposit Agreement.
(b) The proceeds of the Loans shall be used as follows:
(i) the proceeds of the Bank Project Loans shall be
used solely for (A) the payment of Project Costs and (B) the repayment
of Equity Funding Loans on the Completion Date to the extent permitted
by Section 10.1(c);
(ii) the proceeds of the Bank L/C Loans shall be used
solely for (x) the financing of VP Reimbursement Obligations under the
Construction VP Letter of Credit or the Term VP Letter of Credit, (y)
the financing of Bond Reimbursement Obligations arising in respect of
Refunding Drawings under any Bond Letter of Credit and (z) the
refinancing of any Bank Liquidity Loans outstanding on the applicable
Bond L/C Expiration Date; and
(iii) the proceeds of Bank Liquidity Loans shall be
used solely for the financing of Bond Reimbursement Obligations arising
in respect of Liquidity Drawings; and
(iv) the proceeds of the Institutional Loans shall be
used solely for (A) the payment of Project Costs and (B) the repayment
of Bank Loans and, if at such time no Default or Event of Default shall
have occurred and be continuing, the Equity Funding Loans.
(c) The proceeds of Bank Project Loans made on the Completion
Date may, at the option of the Borrower, be used to repay Equity Funding Loans
in the event there are any Project Cost Savings, in an amount not to exceed 15%
of the Project Cost Savings; provided that, after giving effect to any borrowing
and any prepayment of Loans on the Completion Date, the Senior Debt to Capital
Ratio on the Completion Date shall be 0.85 to 0.15; provided, further that the
following conditions shall have been satisfied on the Completion Date:
(i) the Administrative Agent and the Institutions shall
have received a written request from the Borrower setting forth the
amount of Project Cost Savings and the principal amount of Bank Project
Loans that the Borrower requests be applied to the repayment of Equity
Funding Loans pursuant to this paragraph (c);
(ii) no Default or Event of Default shall have occurred
and be continuing;
(iii) the Administrative Agent and the Institutions shall
have received a certificate from the Independent Engineer confirming
the amount of Project Cost Savings set forth in the written request of
the Borrower delivered pursuant to clause (i) above;
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(iv) (x) the Required Completion Date Reserve Deposits
referred to in clauses (ii) through (iv) of the definition thereof
shall have been deposited into the Repair and Maintenance Account, the
Final Completion Escrow Account and the Project Control Account, as the
case may be; (y) the Contingent Distribution, in an amount equal to
$13,700,000, shall have been distributed; and (z) the Required Debt
Service Reserve Amount as of the Completion Date shall have been
deposited into the Debt Service Reserve Account; and
(v) the Administrative Agent and the Institutions shall
have received revised Base Case Projections, in form and substance
satisfactory to them, which shall give effect to any such repayment of
Equity Funding Loans with the proceeds of Bank Project Loans on the
Completion Date and shall otherwise be in the same form as the Base
Case Projections delivered pursuant to Section 9.1(w), certified by the
chief financial officer of the Borrower or of SEI Birchwood, for so
long as it is a General Partner, as being based on reasonable
assumptions and prepared in good faith in full consideration of all
information known to such officer, after due inquiry, and such revised
Base Case Projections shall show, for each calendar year through the
Institutional Loan Maturity Date, a projected Debt Service Coverage
Ratio of at least 1.35 to 1.00.
Section 10.2 Project Reports. The Borrower shall furnish to
the Administrative Agent, each Lender and, in the case of paragraphs (a) and (b)
below, the Independent Engineer the following:
(a) Monthly Construction Progress Report. Concurrently with
the delivery of each Extension of Credit Request during the
Construction Period with respect to Loans to be made on a Monthly
Construction Disbursement Date (or on or before the last Business Day
of any calendar month during the Construction Period in which no
Extension of Credit Request is delivered), a report executed by a
Responsible Officer of the Borrower (i) specifying, separately with
respect to each of the Facility and the Greenhouse, the amount of
Project Costs expended since the Closing Date as well as during the
preceding calendar month and the amount of Project Costs estimated to
be required to complete the Facility and the Greenhouse, (ii) providing
an assessment of the overall construction progress of the Facility and
the Greenhouse since the date of the last report and since the Closing
Date, together with an assessment of how such progress compares to the
respective construction schedules, (iii) specifying the estimated
Commercial Operations Date and, with respect to each of the Facility
and the Greenhouse, the estimated dates of Substantial Completion and
Final Completion, (iv) providing a detailed description of any and all
material problems (including but not limited to actual and anticipated
cost overruns, if any) encountered or anticipated in connection with
the construction of the Facility or the Greenhouse since the date of
the last report, together with an assessment of how such problems may
impact the construction schedule and a detailed description of the
proposed solutions to any such problems and (v) a discussion or
analysis of such other matters related to the Project as the
Administrative Agent or any Institution may reasonably request.
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(b) Contractor Reports. During the Construction Period,
promptly after receipt thereof, a copy of each report delivered by the
Facility Contractor or Greenhouse Contractor to the Borrower pursuant
to the Facility Construction Contract or Greenhouse Construction
Contract, respectively.
(c) Operating Reports. Following the Commercial Operations
Date, promptly after receipt thereof, a copy of (i) each annual
operating report furnished to the Borrower by the Facility Operator
pursuant to Section 6.2 of the Operating and Maintenance Agreement and
(ii) each annual operating report furnished to the Greenhouse Owner by
the Greenhouse Operator pursuant to Section 5.4 of the Greenhouse Loan
Agreement.
(d) Coal Report. No later than 30 days after the end of each
fiscal year of the Borrower, an updated Coal Report prepared by the
Coal Consultant, which shall cover the matters referred to in Section
9.1(l) and otherwise be in a form reasonably satisfactory to the
Administrative Agent and the Majority Institutions.
(e) Environmental Compliance Report. No later than 30 days
after the end of each fiscal year of the Borrower, a certificate of a
Responsible Officer of the Borrower, with such supporting information
as may be reasonably requested by the Administrative Agent or Majority
Institutions, certifying as to whether the Borrower is in compliance
with Section 10.27 (and, if the Borrower is not in compliance with
Section 10.27 at such time, such certificate shall include a statement
as to the nature of such non-compliance and the steps being taken by
the Borrower to remedy the same).
Section 10.3 Financial Statements. The Borrower shall
furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of each Reporting Party, a copy of
the balance sheet of such Reporting Party as of the end of such fiscal
year and the related statements of income, retained earnings (or, in
the case of the Borrower, changes in partner capital) and of cash flow
of such Reporting Party for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year,
reported on without a "going concern" or like qualification or
exception, or qualification as to the scope of the audit, by
independent public accountants of national standing which, in the case
of the Borrower and the Greenhouse Operator, are reasonably acceptable
to the Administrative Agent and the Majority Institutions; and
(b) as soon as available, but in any event within 45 days
after the end of each of the first three quarterly periods of each
fiscal year of each Reporting Party, the unaudited balance sheet of
such Reporting Party as of the end of such quarterly period and the
related unaudited statements of income and retained earnings (or, in
the case of the Borrower, changes in partner capital) and of cash flow
of such Reporting Party for such quarterly period and for the portion
of the fiscal year through the end of such fiscal quarter, setting
forth in each case in comparative form the figures for the previous
period, certified by the chief executive officer or chief financial
officer of such Reporting Party
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as fairly stating in all material respects the financial condition of
such Reporting Party as at the end of such quarterly period and the
results of its operations and its cash flows for such period (subject
to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except for
changes approved or required by the independent public accountants certifying
such statements and disclosed therein).
Section 10.4 Certificates; Other Information. The Borrower
shall furnish or cause to be furnished to the Administrative Agent and each
Lender:
(a) concurrently with the delivery of the financial statements
of the Borrower referred to in paragraphs (a) and (b) of Section 10.3,
a certificate of a Responsible Officer of the Borrower stating that, to
the best of his knowledge after due inquiry, the Borrower during the
period covered by such financial statements has observed and performed
in all material respects all of its covenants and other agreements
contained in this Agreement and the other Loan Documents, and that such
Responsible Officer is not aware of any Default or Event of Default
hereunder at any time during such period or on the date of such
certificate (or, if any such Default or Event of Default shall have
occurred, a statement setting forth the nature thereof and the steps
being taken by the Borrower to remedy the same);
(b) no later than 5 Business Days prior to each Quarterly
Distribution Date, reasonably detailed financial projections in respect
of the Project's operations during the twelve-month period that
commenced on the most recent Quarterly Calculation Date, certified by
the chief financial officer of the Borrower or of SEI Birchwood, for so
long as it is a General Partner, as being prepared in good faith in
full consideration of all information known to such officer, after due
inquiry, at such time, and as being based on reasonable assumptions;
(c) no later than 5 Business Days prior to each Quarterly
Distribution Date, a certificate of the chief financial officer of the
Borrower or of SEI Birchwood, for so long as it is a General Partner,
setting forth a calculation, which shall be reasonably satisfactory to
the Administrative Agent and the Majority Institutions, of each of the
Historical Debt Coverage Ratio and the Projected Debt Coverage Ratio as
at the most recent Quarterly Calculation Date, and providing or
attaching such information as is necessary to make such calculations;
(d) promptly after delivery or receipt thereof, a copy of each
material notice, demand or other communication delivered by or received
by the Borrower pursuant to any Project Document, any Equity Funding
Document or any Bond Document;
(e) promptly after the obtaining or filing thereof, as the
case may be, a copy of (i) each Governmental Approval or other consent
or approval obtained by the Borrower, or obtained by the Facility
Contractor or the Greenhouse Contractor and delivered to the
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Borrower pursuant to the relevant Construction Contract, in each case
after the Closing Date, (ii) each filing made by the Borrower with any
Government Authority other than FERC, except such as are routine or
ministerial in nature and in respect of which a failure to file could
not reasonably be expected to have a Material Adverse Effect, and (iii)
each filing made by or on behalf of the Borrower or any General Partner
with FERC;
(f) no later than 30 days after the end of each calendar year,
a certificate executed by a Responsible Officer of the Borrower
specifying in reasonable detail all sales, transfers and other
dispositions of assets and property of the Borrower during the
preceding calendar year which were made without the consent of the
Majority Lenders in accordance with Section 11.7(c);
(g) concurrently with the delivery thereof to the Security
Agent, a copy of each certificate, request, direction or notice
delivered by the Borrower pursuant to the Security Deposit Agreement;
and
(h) promptly, such additional financial and other information
with respect to the Borrower or the Project and, to the extent such
information can reasonably be obtained by the Borrower, any other
Project Participant, as the Administrative Agent or any Institution may
reasonably request.
Section 10.5 Accounts. The Borrower shall deposit and maintain
in each of the Account the amounts required by the Security Deposit Agreement at
the times required thereby; provided that, in the case of the Debt Service
Reserve Account, the Borrower may deliver one or more Debt Service Letters of
Credit in accordance with the Security Deposit Agreement in lieu of the amounts
required to be deposited therein. The amounts on deposit in each of the Accounts
shall be subject to the terms of, and disbursed in accordance with, this
Agreement and the Security Deposit Agreement.
Section 10.6 Maintenance of Existence, Properties, Etc.;
Taxes. (a) The Borrower shall at all times preserve and maintain its legal
existence as a Delaware limited partnership and all Governmental Approvals and
other rights, franchises, privileges and consents necessary for the maintenance
of its existence and the construction, ownership and operation of the Project.
(b) The Borrower shall pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its property prior to the date on which penalties, fines or
interest attach thereto and all lawful claims which, if unpaid, might become a
Lien on the property of the Borrower; provided that the Borrower shall have the
right to contest in good faith the validity or amount of any such tax,
assessment, charge, levy or claim by proper proceedings timely instituted and
may permit such contested item to remain unpaid during the period of such
contest if (a) the Borrower diligently pursues such contest, (b) the Borrower
sets aside on its books adequate reserves in accordance with GAAP with respect
to the contested items, (c) during the period of such contest the enforcement of
any contested item is effectively stayed and any Lien with respect thereto is
effectively removed of record and (d) such contest (i) will not interfere with
the construction or operation of the Project and (ii)
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does not involve any substantial danger of a sale, forfeiture or loss of any
part of the Project, title thereto or any interest therein; provided, further
that the Borrower shall promptly pay or cause to be paid any final judgment
enforcing any such tax, assessment, charge, levy or claim and cause the same to
be satisfied of record.
Section 10.7 Books and Records; Inspection of Property;
Discussions. The Borrower shall keep proper books of record and account in which
full, true and correct entries in accordance with GAAP consistently applied
shall be made of all of its dealings and transactions, and the Borrower shall
permit representatives of the Administrative Agent, the Security Agent, the
Lenders and the Independent Engineer to visit and inspect its properties, to
examine and make abstracts from any of its books of record and account and to
discuss its affairs, finances and accounts with its principal officers,
engineers and independent accountants, all at such times during business hours
and at such intervals as the Administrative Agent, the Security Agent, any
Lender or the Independent Engineer may reasonably request. The Independent
Engineer and representatives of the Administrative Agent, the Security Agent and
the Lenders shall have the right to inspect the Project from time to time upon
notice to a representative of the Borrower and to witness and verify all tests,
investigations and inspections referred to in the Construction Contracts and the
Power Purchase Agreement. Without limiting the generality of the foregoing
provisions of this Section 10.7, the Borrower shall permit the Independent
Engineer to make such inspections of the Project and the Greenhouse, and shall
provide to the Independent Engineer such information with respect to the Project
and the Greenhouse, as the Independent Engineer may from time to time reasonably
request in order for it to prepare for submission to the Lenders, if and when
requested by the Administrative Agent or any Institution, an annual updated
Independent Engineer's Report covering the relevant matters referred to in
Section 9.1(m) and such other matters with respect to the Borrower, the Project
and the Greenhouse as the Administrative Agent or any Institution may reasonably
request.
Section 10.8 Insurance.
(a) Required Insurance. The Borrower shall at all times carry
and maintain, or cause to be carried and maintained, at least the following
insurance coverages with respect to the Project, the Site and the Easements, in
each case with insurers authorized to do business in the Commonwealth of
Virginia rated "A-" or better, with a minimum size rating of "X", by Best's
Rating Service (or otherwise acceptable to the Majority Lenders after
consultation with the Insurance Consultant):
(A) (i) from and after the Closing Date until the date on
which all testing of the Facility has been completed and Substantial
Completion of the Facility has occurred, blanket builder's risk
insurance, and (ii) from and after the Closing Date until the date on
which all Secured Obligations have been paid in full, "all risk"
property insurance (to the extent not duplicative of blanket builder's
risk insurance obtained pursuant to clause (i) above), such builder's
risk insurance and "all risk" property insurance to be subject to
customary "all risk" forms including, in each case, flood, earth
movement, transit, comprehensive boiler, turbine and machinery and
operational testing insurance covering physical loss or damage with
respect to the Project, including (1) coverage for the buildings,
structures, turbines, boiler and machinery, equipment facilities,
fixtures and
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other properties constituting a part of the Project (including
equipment in which the Borrower has an insurable interest), (2)
coverage for removal of debris, (3) transit coverage, including ocean
marine coverage, if applicable (unless insured by the supplier), with a
per occurrence limit sufficient to cover the full insurable value of
any items in transit but in no event less than $10,000,000, and (4)
off-site coverage with a per occurrence limit of the greater of
replacement cost and $2,000,000. Such policies shall at all times
insure an amount not less than the higher of (i) the full replacement
cost of the Project or (ii) 100% of the aggregate principal amount of
all outstanding Loans and Bonds (less the amount then on deposit in the
Debt Service Reserve Account), and shall be in such form as shall be
reasonably satisfactory to the Majority Lenders; provided, however,
that flood and earthquake coverage each may be subject to an annual
aggregate limit of $50,00,000, and transit and off-site coverage may be
subject to the limits specified in clauses (3) and (4) of the preceding
sentence. The policies shall be written on a no coinsurance basis and
shall contain a stipulated value/gap coverage endorsement. The policies
shall also be endorsed to provide that (1) losses shall be adjusted as
provided in Section 10.8(b), (2) the Security Agent and the Secured
Parties are included as "Additional Insureds", as their interests may
appear, but shall not be liable for the payment of any premiums, and
(3) any payment thereunder for loss or damage shall be made to the
Security Agent, as sole loss payee for deposit under the Security
Deposit Agreement. The policies may provide for deductible amounts of
up to $250,000 per occurrence, unless otherwise agreed by the Majority
Lenders;
(B) from and after the Closing Date until the Commercial
Operations Date, delayed opening coverage for a period of 12 months for
any delay in the commencement of operations of the Facility caused by
damage or loss to any property covered under clause (A) above
(including damage or loss to key equipment in transit). Such policy
shall be in a minimum amount equal to 12 months of debt service and
continuing expenses and may provide that insurance proceeds will not be
payable with respect to up to the first 30 days of such delay in the
operation of the Facility, and shall be in such form as shall be
reasonably satisfactory to the Majority Lenders;
(C) from and after the Commercial Operations Date, business
interruption insurance insuring perils and property covered under
clause (A) above with respect to the Project, in such form as shall be
reasonably satisfactory to the Majority Lenders and with limits in
amounts sufficient to cover the payment of all debt service and
continuing expenses during a period of at least twelve months; provided
that the applicable policy may provide that the insurance proceeds will
not be payable with respect to up to the first 45 days of each business
interruption;
(D) comprehensive or commercial general liability insurance on
an "occurrence" basis or, subject to the proviso to paragraph (G)
below, on a "claims made" basis, against claims for "bodily injury" and
"property damage" occurring on, in or about the Project, the Site and
the Easements and the adjoining streets, sidewalks and passageways, in
a minimum amount of $1,000,000 coverage per occurrence with respect to
personal injury or death to any one or more persons or damage to
property and not less than $2,000,000 in the aggregate for such
coverage, which insurance shall (i) be in such form as shall be
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reasonably satisfactory to the Majority Lenders, (ii) contain "broad
form" and other endorsements covering, among other things, products and
completed operations, contractual liability, broad form property
damage, explosion, collapse and underground hazards, and (iii) be
endorsed to include as "Additional Insureds" the Security Agent and the
Secured Parties and their respective successors, assigns, agents,
officers, shareholders, directors and employees, as their interests may
appear;
(E) business automobile liability insurance against claims for
bodily injury, death or property damage arising out of the use of all
owned, non-owned and hired vehicles by the Borrower, its agents and
employees, including loading and unloading, such insurance to be in the
amount of at least $1,000,000 coverage per occurrence with respect to
bodily injury or death to one or more persons or damage to property and
to be in such form as shall be reasonably satisfactory to the Majority
Lenders;
(F) workers' compensation insurance as required by Virginia
law and employers liability insurance with a minimum limit of
$1,000,000 per occurrence or in such other amounts as from time to time
shall be required by Requirements of Law;
(G) excess "umbrella" liability insurance with respect to the
Project on an "occurrence" basis or, subject to the proviso to this
paragraph (G), a "claims made" basis against risks of the types
described in clauses (D) and (E) above and in excess of the employers
liability insurance described in clause (F) above, in an amount which
results in a combined amount of primary and excess insurance required
hereby of not less than $25,000,000 for any occurrence and not less
than $25,000,000 in the aggregate on an annual basis and in such form
as shall be satisfactory to the Majority Lenders; provided that if such
insurance is written on a "claims made" basis and the policy is not
renewed, the Borrower shall obtain for such policy an extended
reporting period coverage or "tail" of at least three years past the
final day of coverage of such policy and shall provide the
Administrative Agent and the Institutions with evidence that such
extended reporting period coverage or "tail" has been obtained;
(H) aircraft liability insurance, if exposure exists, in an
amount not less than $25,000,000 for owned, hired and non-owned
aircraft;
(I) unless covered by the insurance referred to in paragraphs
(D) and (G) above, railroad protective liability insurance, if exposure
exists, in an amount not less than $25,000,000;
(J) insurance against loss resulting from employee dishonesty
and theft of negotiable instruments, with a minimum limit of $1,000,000
per occurrence; and
(K) such additional insurance as shall be required pursuant to
the provisions of the Power Purchase Agreement, the Facility
Construction Contract, the Operating and Maintenance Agreement and any
other Project Document;
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provided that in the event any insurance (including the limits or deductible
thereof) required to be maintained pursuant to clause (G) above shall not be
available and commercially feasible in the commercial insurance markets (taking
into account in determining "commercial feasibility" the Borrower's obligations
under the Loan Documents and the Project Documents and its ability to
self-insure without impairing the Accounts), the Majority Lenders agree to waive
such requirement to the extent the maintenance thereof is not so available,
provided, however, that (i) the Borrower shall first request any such waiver in
writing, which request shall be accompanied by written reports prepared by two
independent insurance advisors of recognized national standing (one of which may
be the Borrower's insurance advisor and one of which may be the Lenders'
insurance consultant) certifying that such insurance is not reasonably available
and commercially feasible in the commercial insurance market for similar
electric generation projects (and, in any case where the required amount is not
so available, certifying as to the maximum amount which is so available) and
explaining in detail the basis for such conclusions, the form and substance of
such reports to be reasonably satisfactory to the Majority Lenders; (ii) at any
time after the granting of any such waiver (but not more than twice in each
calendar year), the Administrative Agent or any Institution may request, and the
Borrower shall furnish to the Administrative Agent and the Institutions within
30 days after such request, supplemental reports reasonably acceptable to the
Majority Lenders from such insurance advisors updating their prior reports and
reaffirming such conclusion; and (iii) any such waiver shall be effective only
so long as such insurance shall not be available and commercially feasible in
the commercial insurance market, it being understood that the failure of the
Borrower to timely furnish any such supplemental report shall be conclusive
evidence that such waiver is no longer effective because such condition no
longer exists, but that such failure is not the only way to establish such
non-existence.
(b) Policy Provisions. All insurance policies maintained in
accordance with clause (A), (B), or (C) of this Section 10.8 (x) shall contain
either the New York standard mortgagee clause or 438 BFU, and (y) shall provide
that so long as no Event of Default shall have occurred and be continuing,
property losses, if any, shall be adjusted with the Borrower and shall be made
payable to the Borrower or its order, except that as to any insured loss in
excess of $1,000,000, such loss shall be adjusted with the Borrower but final
settlement will be made with the concurrence of the Security Agent, which
concurrence shall not be unreasonably withheld, and shall be payable solely to
the Security Agent for deposit in the Special Payment Account pursuant to the
Security Deposit Agreement. All insurance policies maintained in accordance with
this Section 10.8: (i) shall provide that no cancellation, termination or
material change in such insurance shall be effective until at least 45 days (10
days in the case of non-payment of premium) after the insurer shall have given
written notice thereof to the Security Agent, (ii) except for the insurance
referred to in paragraph (F) above, shall contain a waiver of any rights of
subrogation of the insurer against the Additional Insureds and a waiver of any
rights of the insurer to any setoff or counterclaim or any other deduction,
whether by attachment or otherwise, in respect of any liability of any of the
Additional Insureds, (iii) in the case of the insurance referred to in
paragraphs (D) and (G) above, shall provide that all the provisions thereof,
except the limits of liability (which shall be applicable to all insureds as a
group) and liability for premiums (which shall be solely a liability of the
Borrower) shall operate in the same manner as if there were a separate policy
covering each such insured, without right of contribution from any other
insurance which may be carried by any insured covering a loss which
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is also covered under the insurance policies maintained by the Borrower pursuant
to this Section 10.8, and (iv) shall provide that the Additional Insureds and
the loss payees shall have no obligation or liability for premiums, commissions,
assessments or calls in connection with such insurance.
(c) Reports, Etc. The Borrower will advise the Administrative
Agent and the Lenders in writing promptly of any default in the payment of any
premium and of any other act or omission on the part of the Borrower which may
invalidate or render unenforceable, in whole or in part, any insurance being
maintained by the Borrower pursuant to this Section 10.8. The Borrower will also
deliver to the Administrative Agent and the Institutions, promptly upon request
and in any event within 30 days after the end of each fiscal year of the
Borrower, a certificate signed by an authorized officer of an independent
insurance broker of recognized national standing (x) attaching certificates of
all insurance policies relating to the Facility, the Greenhouse, the Site and
the Easements, and stating that all premiums then due thereon have been paid and
that the same are in full force and effect and (y) stating that such insurance
policies comply with the requirements of this Section 10.8. If requested by the
Administrative Agent or any Institution, the Borrower will either (i) deliver
copies of such insurance policies to the Administrative Agent and the
Institutions or (ii) make such policies available for examination by the
Administrative Agent or any Institution at the offices of the Borrower.
(d) Other Insurance. Nothing in this Section 10.8 shall
prohibit the Borrower from maintaining, at its expense, insurance on or with
respect to the Facility, the Greenhouse, the Site or the Easements, naming the
Borrower as insured and/or loss payee, unless such insurance would conflict with
or otherwise limit the availability of insurance required to be maintained under
Section 10.8(a); provided that such insurance shall not reduce the amount of
insurance proceeds that would be payable to the beneficiaries pursuant to
policies of insurance maintained under Section 10.8(a) and the Borrower shall
have obtained and delivered to the Administrative Agent and the Lenders evidence
satisfactory to the Majority Lenders to such effect.
(e) Application of Payments. Except as provided in Section
10.8(b), all payments received by any Lender or the Borrower under any insurance
policy obtained by the Borrower pursuant to Section 10.8(a) shall promptly be
deposited in the Special Payment Account pursuant to the Security Deposit
Agreement for application in accordance with the provisions thereof.
Section 10.9 Completion of Facility; Maintenance of
Properties. (a) The Borrower shall use its best efforts to cause the Facility
and the Greenhouse to be duly constructed and completed in accordance with the
terms of the Facility Construction Contract and the Greenhouse Construction
Contract, respectively.
(b) The Borrower, at its expense, shall keep the Facility in
good working order and condition and cause the Facility to be maintained and
operated, and all repairs, replacements and renewals with respect thereto and
all additions and betterments thereto to be made, in each case (i) in compliance
with the terms of the Power Purchase Agreement (including, without limitation,
Article 6 thereof), the Steam Sales Agreement, the Coal Supply Agreement and the
other Project Documents and the Financing Documents, (ii) in compliance with the
maintenance
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procedures prescribed or recommended by, and sufficient to keep in effect the
warranties of, manufacturers and/or vendors of the various components of the
Facility, to the extent consistent with prudent operating practices in the
cogeneration industry with respect to coal-fired cogeneration facilities, and
(iii) in accordance with the practices, standards and procedures customary in
the cogeneration industry with respect to coal-fired cogeneration facilities.
Section 10.10 Maintenance of Title. The Borrower shall at all
times after the Closing Date maintain title in fee simple to, or a valid
leasehold interest in, or a valid right of way or easement or license over, all
real property at the time necessary for the construction, operation and
maintenance of the Project.
Section 10.11 "As Built" Surveys. The Borrower shall deliver
to the Administrative Agent, the Institutions, the Independent Engineer and the
Title Company, no later than 180 days after the date on which Final Completion
with respect to the Facility shall have occurred, a copy of an "as built" survey
of the Site (other than the Leased Land) and the Easements, showing the location
of the Facility within the boundaries of the Site (other than the Leased Land),
prepared by a licensed surveyor reasonably acceptable to the Administrative
Agent and Majority Institutions, certified to the Administrative Agent, the
Institutions and the Title Company pursuant to a surveyor's certification
reasonably satisfactory to them and showing no state of facts unsatisfactory to
the Title Company. The Borrower shall also deliver to the Administrative Agent
and the Institutions, promptly following its receipt thereof, a copy of the "as
built" survey of the Leased Land delivered to the Borrower pursuant to the
Greenhouse Loan Agreement, certified by a licensed surveyor reasonably
acceptable to the Administrative Agent and the Majority Institutions and showing
the location of the Greenhouse to be within the boundaries of the Leased Land,
which shall be reasonably satisfactory in form and substance to the
Administrative Agent and the Majority Institutions.
Section 10.12 Maintenance of Qualifying Facility Status. The
Borrower shall either (a) maintain the Facility as a Qualifying Facility, or (b)
obtain and maintain in full force and effect all Governmental Approvals and
other approvals necessary to operate the Facility as an IPP and to sell power to
Virginia Power under the Power Purchase Agreement; provided that, in the case of
clause (b) above:
(i) all Governmental Approvals, if any, required for
Subsidiaries of Southern to own at least the Requisite Partnership
Interest shall have been obtained and shall be in full force and
effect;
(ii) all of the terms of the Power Purchase Agreement
(including, without limitation, the rates set forth in Article 10
thereof) shall have been approved without modification by (x) FERC, if
approval by FERC is then required under applicable Requirements of Law,
and (y) any other Government Authority, if approval by such other
Government Authority is required under applicable Requirements of Law,
and all of such approvals shall remain in full force and effect without
modification;
(iii) all Governmental Approvals (in addition to those
referred to in clause (ii) of this proviso), including (if required) a
certificate of public convenience and necessity
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issued by the Virginia State Corporation Commission, and other
approvals necessary to own and operate the Facility as an IPP and to
sell power to Virginia Power under the Power Purchase Agreement shall
have been obtained and shall be in full force and effect;
(iv) no regulation by any Government Authority is imposed
on the Administrative Agent, the Security Agent or any Lender as a
result of the Governmental Approvals referred to in clauses (ii) and
(iii) of this proviso or as a result of the Facility operating as an
IPP; and
(v) the terms of the Governmental Approvals and other
approvals referred to in clauses (ii) and (iii) of this proviso and the
ownership or operation of the Facility as an IPP could not reasonably
be expected to have a Material Adverse Effect.
Section 10.13 Governmental Approvals. The Borrower shall
obtain and maintain in full force and effect all Governmental Approvals and
consents and approvals of any other Person necessary for the construction,
ownership and operation of the Project, including without limitation the
Governmental Approvals listed on Schedule 6.
Section 10.14 Compliance With Laws. The Borrower shall comply
with all Requirements of Law applicable to the Borrower or the Project, and with
the terms of all Governmental Approvals obtained by the Borrower, except to the
extent a failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
Section 10.15 Employee Plans. For each Plan adopted by the
Borrower, if any, the Borrower shall (a) within the remedial amendment period
applicable under Section 401(b) of the Code, seek and receive determination
letters from the Internal Revenue Service to the effect that such Plan is
qualified within the meaning of Section 401(a) of the Code, (b) from and after
the date of adoption of any Plan, cause such Plan to be qualified within the
meaning of Section 401(a) of the Code and to be operated and administered in all
material respects in accordance with the requirements of ERISA and Section
401(a) of the Code, (c) not take any steps to terminate any such Plan if any
such steps, either individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, (d) not violate any applicable
provision of ERISA relating to such Plan or the regulations and published
interpretations under ERISA if such violation could reasonably be expected to
result in a Material Adverse Effect, and (e) not incur any material liabilities
under ERISA.
Section 10.16 Assignments of Additional Contracts;
Maintenance of Liens of the Security Documents; Future Project Mortgages. The
Borrower shall:
(a) promptly upon the request of the Security Agent, the
Administrative Agent or the Majority Institutions, assign as security
to the Security Agent, by an instrument satisfactory in form and
substance to the Security Agent, the Borrower's right, title and
interest in, to and under any Additional Contract entered into by the
Borrower, and cause the other party or parties to such Additional
Contract to execute and deliver to the Security Agent a Consent to
Assignment with respect thereto;
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(b) promptly upon the request of the Security Agent, the
Administrative Agent or the Majority Institutions and at the Borrower's
expense, execute and deliver, or cause the execution and delivery of,
and thereafter register, file or record in each appropriate
governmental office, any document or instrument supplemental to or
confirmatory of the Security Documents or otherwise deemed by the
Security Agent, the Administrative Agent or the Majority Institutions
to be necessary or desirable for the creation or perfection of the
liens and security interests purported to be created by the Security
Documents; and
(c) if the Borrower shall at any time acquire any real
property or leasehold or other interest in real property not covered by
the Project Mortgage, promptly upon such acquisition (or on the Closing
Date, if such acquisition occurred prior thereto) execute, deliver and
record a supplement to the Project Mortgage, satisfactory in form and
substance to the Security Agent, subjecting such real property or
leasehold or other interest to the lien and security interest created
by the Project Mortgage.
Section 10.17 Notices. The Borrower shall, as soon as
practicable and in any event within five Business Days after any Borrower
Representative obtains actual knowledge of any of the following, give notice to
the Administrative Agent and each Institution of:
(a) the occurrence of any Default or Event of Default, an
Event of Loss (and the Event of Loss Prepayment Date in connection
therewith) or a Damage Event;
(b) the occurrence of any material default under any Project
Document, any event of Force Majeure under any Principal Project
Document, and the occurrence of a default or event of default under
Article 7 of the Greenhouse Loan Agreement or Section 15.01 of the
Greenhouse Sublease;
(c) any litigation or proceeding affecting the Project or the
Borrower in which the amount involved is $250,000 or more or in which
injunctive or similar relief is sought;
(d) any material dispute, litigation, investigation or
proceeding which may exist at any time between the Borrower and any
Government Authority;
(e) the execution and delivery of each Additional Contract and
each amendment or supplement to any Project Document (together with a
copy thereof);
(f) any request for a redetermination of the Base Coal
Compensation Price in accordance with Article 10 of the Power Purchase
Agreement and, following such a request, a copy of all notices, reports
and other written communications delivered or received by the Borrower
in connection therewith;
(g) any loss or damage to the Collateral in excess of
$250,000;
(h) at least 30 days prior thereto, the expected
occurrence of the Commercial Operations Date and the Completion Date;
and
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(i) the occurrence of any Reportable Event with respect to any
Plan; the incurrence of any lien in favor of PBGC or any Plan; the
institution of proceedings or the taking of any other action by PBGC or
the Borrower or any Commonly Controlled Entity to terminate, withdraw
or partially withdraw from any Plan; or the Reorganization or
Insolvency of any Multiemployer Plan, which in any such case could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
Section 10.18 Greenhouse Adverse Change. If the Majority Banks
or the Majority Institutions reasonably determine that a material adverse change
has occurred in the financial condition, business, operations or prospects of
the Greenhouse or the Greenhouse Operator that could reasonably be expected to
materially impair the Greenhouse Operator's ability to perform its obligations
under Section 5.03(b) and (c) of the Greenhouse Sublease [relating to the
requirement that it take a minimum amount of steam], then:
(a) the Borrower shall, within 60 days after a written request
therefor by either the Majority Banks or the Majority Institutions,
submit a plan (the "QF Plan"), reasonably acceptable to the Majority
Lenders, to the Administrative Agent and the Lenders, describing the
actions to be taken by the Borrower in order to maintain the Facility
as a Qualifying Facility;
(b) the Borrower shall promptly cause funds on deposit in the
Greenhouse Reserve Account to be applied as provided in Section 5.9 of
the Security Deposit Agreement, to the extent necessary;
(c) the Borrower shall use its best efforts (including, if the
QF Plan provides for the expenditure of moneys, the expenditure by the
Borrower of Excess Cash Flow to the extent that it is a prudent and
economic business decision to do so taking into account all other
options, except as such expenditure may be limited from time to time by
legal or regulatory requirements) to implement the QF Plan; and
(d) if the QF Plan concludes (which conclusion is reasonably
acceptable to the Majority Lenders) that the most prudent and economic
business option is to submit the Power Purchase Agreement to FERC for
approval of the rates and the other jurisdictional terms therein, with
a view to operating the Facility as an IPP, and contains the
information required by clause (y) of the second proviso to this
paragraph (d), the Borrower shall submit the Power Purchase Agreement
to FERC for such approval; provided that such submission to FERC shall
not be permitted unless (i) under applicable Requirements of Law the
Borrower may make such submission to FERC and continue to operate the
Facility as a Qualifying Facility until it shall have received FERC
approval and notified FERC that it desires to operate the Facility as
an IPP (it being understood that the Borrower shall not so notify FERC
except in accordance with the following proviso) and (ii) any
application or other written materials included in such submission
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of the Power Purchase Agreement to FERC shall be reasonably acceptable
to the Administrative Agent and the Majority Institutions and shall
indicate that the Borrower intends, and is required under this
Agreement, to continue to operate the Facility as a Qualifying Facility
until certain conditions shall have been satisfied; provided, further
that (x) the Borrower shall maintain the Facility as a Qualifying
Facility unless and until the requirements of clause (ii) of Section
12.1(q) shall have been satisfied, and (y) such QF Plan shall describe
the actions to be taken by the Borrower to maintain the Facility as a
Qualifying Facility until the requirements referred to in clause (x) of
this proviso have been complied with.
If any QF Plan delivered pursuant to clause (a) above is not reasonably
acceptable to the Majority Lenders, the Administrative Agent or the Majority
Institutions shall notify the Borrower of such determination and the reasons
therefor, and the Borrower shall have an additional period of 30 days following
receipt of such notification to submit an alternative QF Plan reasonably
acceptable to the Majority Lenders. For purposes of this Section 10.18, it is
agreed that the Majority Banks and Majority Institutions would be reasonable in
determining that a "material adverse change in the financial condition,
business, operations or prospects" of the Greenhouse Operator shall have
occurred if the Greenhouse Operator shall not, prior to August 30, 1996, have
entered into a commitment for an adequate working capital facility with an
Acceptable Issuer (as defined in the Greenhouse Loan Agreement) or another bank
which is reasonably acceptable to the Majority Lenders, in the amount of
$10,000,000 (exclusive of the Greenhouse Letter of Credit referred to in the
Security Deposit Agreement), or such lesser amount as may be reasonably
demonstrated to the Administrative Agent and Majority Institutions as being
adequate to finance the operations of the Greenhouse Operator.
Section 10.19 Ownership of the Borrower. The Borrower shall
cause Southern's ownership interest (direct or indirect) in the Borrower to be
reduced to (and thereafter not to exceed) the Maximum Partnership Interest prior
to the Initial Synchronization Date for the Facility, unless either (a) the
Borrower has ceased to maintain the Facility as a Qualifying Facility in
compliance with the provisions of Section 10.12 or (b) as a result of any change
in one or more Requirements of Law occurring after the date hereof, the Facility
will not cease to be a Qualifying Facility as a result of the direct or indirect
ownership by Southern of more than the Maximum Partnership Interest.
Section 10.20 Performance and Enforcement of Other Agreements.
The Borrower shall duly perform and observe all of the covenants, agreements and
conditions on its part to be performed and observed under the Security Deposit
Agreement and each other Financing Document to which the Borrower is a party,
and shall duly perform and observe in all material respects all of the
covenants, agreements and conditions on its part to be performed and observed
under the Project Documents.
Section 10.21 Interest Rate Hedging Transactions. The Borrower
shall, on or immediately prior to the Closing Date, enter into and at all times
thereafter maintain in effect one or more Interest Rate Hedging Transactions
with one or more Interest Rate Hedging Counterparties, so as to fix the maximum
interest rate payable by the Borrower on at least 80% of the Total Loan
Commitments for a period of at least 15 years following the Completion Date,
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pursuant to documentation which is satisfactory in form and substance to the
Administrative Agent and Majority Institutions. The Borrower shall offer the
Banks and their Affiliates that qualify as Interest Rate Hedging Counterparties
described in clause (i) of the definition thereof an opportunity to bid on the
Interest Rate Hedging Transactions, and may enter into an Interest Rate Hedging
Transaction with an Interest Rate Hedging Counterparty described in clause (ii)
of the definition thereof only if none of the Interest Rate Hedging
Counterparties described in clause (i) of the definition thereof is willing or
able to provide an Interest Rate Hedging Transaction that satisfies the
requirements of this Section 10.21 for a fee to be determined between such Bank
or such Affiliate and the Borrower at such time. The obligations of the Borrower
to each Interest Rate Hedging Counterparty described in clause (i) of the
definition thereof shall be equally and ratably secured with the Secured
Obligations pursuant to the Security Documents, but the obligations of the
Borrower to each Interest Rate Hedging Counterparty described in clause (ii) of
the definition thereof shall be unsecured.
Section 10.22 Equity Funding Loans. (a) The Borrower shall
deliver to the Administrative Agent, the Institutions and the Independent
Engineer, at least 10 Business Days prior to the proposed Equity Funding Loan
Borrowing Date with respect to each Equity Funding Loan, a copy of the Equity
Funding Loan Borrowing Certificate to be given to the Equity Funding Loan Agent
with respect to such Equity Funding Loan. The Borrower agrees that if it shall
have received a notice from the Administrative Agent or the Majority
Institutions on or prior to the fourth Business Day before such proposed Equity
Funding Loan Borrowing Date stating that, in the good faith judgment of the
Administrative Agent or such Institutions, as the case may be (in the case of
clause (i) below, after consultation with the Independent Engineer), (i) one or
more items identified in such Equity Funding Loan Borrowing Certificate as
constituting "Project Costs" do not constitute "Project Costs" or (ii) the
conditions precedent set forth in paragraph (a), (b), (c), (f), (g), (h) or (m)
of Section 9.2 have not been satisfied on such date and are not likely to be
satisfied on the proposed Equity Funding Loan Borrowing Date (specifying such
conditions precedent and the reasons they are not or will not be satisfied)
(regardless of whether a Loan is to be made on such proposed Equity Funding Loan
Borrowing Date), then the Borrower shall (x) in the case of clause (i) above,
reduce the amount of the Equity Funding Loan proposed to be borrowed on such
Equity Funding Loan Borrowing Date by the aggregate dollar amount of such items,
or (y) in the case of clause (ii) above, not submit such Equity Funding Loan
Borrowing Certificate to the Equity Funding Loan Agent or borrow any Equity
Funding Loans requested to be borrowed in such Equity Funding Loan Borrowing
Certificate.
(b) The Borrower shall use the proceeds of Equity Funding
Loans solely for the payment of Project Costs and for the prepayment of Bank
Loans.
Section 10.23 Operating Budgets. (a) The Borrower shall, not
later than 15 days before the Commercial Operations Date is estimated to occur,
adopt an operating budget (the "Operating Budget") of Debt Service, proposed
Distributions and Cash Operating Costs, including allowances for reserves and
contingencies, for the first Operating Year; and no later than 15 days prior to
the beginning of each Operating Year thereafter, the Borrower shall similarly
adopt an Operating Budget for such Operating Year. Copies of the Operating
Budget for each Operating Year shall be furnished at least 60 days before final
adoption thereof to the Administrative Agent,
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each Lender and the Independent Engineer. In the event that the aggregate amount
of Cash Operating Costs included in the Operating Budget for any Operating Year
exceeds by more than 10% the aggregate amount of Cash Operating Costs for such
Operating Year specified in the Base Case Projections delivered pursuant to
Section 9.1(w) on the Closing Date, then the Operating Budget for such Operating
Year shall not be adopted without the approval by the Administrative Agent (if
such excess is less than 15%) or the Administrative Agent and the Majority
Institutions (if such excess is 15% or more), in each case in consultation with
the Independent Engineer, which approval shall not be unreasonably withheld;
provided that, with respect to the initial Operating Budget, if the
Administrative Agent or the Administrative Agent and the Majority Institutions
have a right to approve such Operating Budget pursuant to this Section 10.23(a)
and fail to do so within 30 days after their receipt thereof, the Borrower and
the Administrative Agent or the Borrower and the Administrative Agent and the
Majority Institutions, as the case may be, shall work in good faith with the
Independent Engineer to resolve any disagreements with a view to resolving any
such disagreements at least 15 days prior to the Commercial Operations Date.
Each Operating Budget shall be prepared on the basis of requirements for each
month within the relevant Operating Year, showing the Debt Service, proposed
Distributions and Cash Operating Costs (broken down into major categories) for
such month.
(b) The Borrower shall furnish to the Administrative Agent and
each Lender, promptly upon receipt thereof, each annual operating budget
delivered by the Greenhouse Operator pursuant to Section 5.4 of the Greenhouse
Loan Agreement.
Section 10.24 Annual Opinion of Counsel. The Borrower shall
furnish to the Administrative Agent and the Lenders within 90 days after the end
of each calendar year, beginning with 1994, an opinion of counsel addressed to
the Agents and each Lender (a) stating that such action has been taken with
respect to the filing, recording, re-filing and re-recording of the Security
Documents and/or financing statements and continuation statements with respect
thereto as is necessary to protect and preserve the liens on and security
interests in and to the Collateral purported to be created by the Security
Documents, and reciting the details of such action or referring to prior
opinions of counsel in which such details are given and (b) stating what, if
any, action of the foregoing nature may reasonably be expected to become
necessary during the next succeeding twelve months in order to protect and
preserve the liens on and security interests in the Collateral purported to be
created by the Security Documents.
Section 10.25 Issuance of Bonds. During the Construction
Period the Borrower may, on not more than six occasions, enter into Bond
Documents for the issuance of, and issue pursuant to such Bond Documents, Bonds
in an aggregate principal amount not exceeding $50,000,000 less the amount, if
any, by which the sum of the aggregate amount of Bank Project Loans made to the
Borrower to and including the date of such issuance plus the Total Bank L/C Loan
Commitments in effect after giving effect to such issuance, exceeds
$215,976,000; ; provided that the Borrower shall notify the Administrative
Agent, the Security Agent and the Lenders of such proposed issuance of Bonds at
least 60 days prior to such issuance and, on the date of issuance of such Bonds,
each of the following conditions shall have been satisfied:
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(a) Bond Terms. (i) The terms of such Bonds shall be
substantially the same as set forth in the Base Case Projections
delivered pursuant to Section 9.1(w) and shall otherwise be
satisfactory to the Majority Lenders and the Issuing Bank; (ii) if such
Bonds are to be supported by a Bond Letter of Credit, they will not be
secured by the Collateral; and (iii) if such Bonds are not to be
supported by a Bond Letter of Credit, they will be equally and ratably
secured by the Collateral with the Secured Obligations pursuant to the
Security Documents; provided that the Borrower shall not enter into
Bond Documents for the issuance of, or issue pursuant to such Bond
Documents, Unsupported Bonds without the prior written consent of the
Majority Lenders.
(b) Other Conditions. The conditions set forth in paragraphs
(a) through (h) of Section 9.2 shall have been satisfied and, if such
Bonds are to be supported by a Bond Letter of Credit, the conditions
set forth in Section 9.5 shall have been satisfied.
(c) Bond Documents. The Administrative Agent and each
Institution shall have received, with a copy for each Bank, true and
complete copies of each of the Bond Documents executed in connection
with such issuance and sale of such Bonds, certified by the Borrower as
such on the date of issuance of such Bonds, each of which shall be
satisfactory in form and substance to the Majority Lenders.
(d) Legal Opinions. The Administrative Agent (with a copy for
each Bank) and each Institution shall have received the respective
opinions of counsel to the Bond Issuer, to the placement agent for the
Bonds and to the relevant Bond Trustee, addressed to them but otherwise
in the form delivered by such counsel in connection with the issuance
and sale of such Bonds, which opinions of counsel shall be reasonably
satisfactory in form and substance to the Administrative Agent and the
Majority Institutions.
(e) Modifications of Loan Documents. The Borrower shall have
entered into such amendments, supplements and modifications of the Loan
Documents as the Majority Lenders shall deem necessary or desirable in
connection with the issuance of such Bonds; provided that no such
amendment, supplement or modification of any Loan Document may be
entered into unless it complies with the provisions of Section 8.7 of
the Security Deposit Agreement.
(f) Additional Matters. All proceedings to be taken in
connection with the issuance of such Bonds, and all documents incident
thereto, shall be reasonably satisfactory in form and substance to the
Administrative Agent, the Majority Institutions and their respective
counsel; and the Lenders shall have received copies of all documents
and opinions of counsel which the Administrative Agent or any
Institution may reasonably request in connection with the issuance of
such Bonds and of all corporate and partnership proceedings in
connection therewith, in form and substance reasonably satisfactory to
the Administrative Agent and the Majority Institutions.
Section 10.26 Coordination of Unit Reliability Test With
Virginia Power. The Borrower shall coordinate any Unit Reliability Test (as
defined in the Facility Construction
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Contract) to be conducted by the Facility Contractor with Virginia Power, with a
view to having the Facility dispatched at full load during such testing, and, in
furtherance thereof and to the extent necessary, the Borrower shall offer to
reduce the Energy Purchase Price (as defined in the Power Purchase Agreement)
payable by Virginia Power during such Unit Reliability Tests to such amounts as
shall be acceptable to Virginia Power or, if required by Virginia Power, to
waive completely the payment of such Energy Purchase Price during such testing.
Section 10.27 Environmental Matters. The Borrower shall
comply, and shall use reasonable efforts to ensure that the other Significant
Project Participants shall comply, in all material respects with any and all
Requirements of Law and requirements of insurance policies, if any, with respect
to the management, use, storage, transmission, presence, containment,
remediation, clean-up or removal of Hazardous Materials on, from or affecting
the Site, shall pay, or cause to be paid, immediately when due the costs of
containment, remediation, clean-up or removal of any Hazardous Materials or the
threat of release of any Hazardous Materials on the Site required to be
contained, remediated, cleaned-up or removed pursuant to any Requirements of Law
or requirements of insurance policies and shall keep the Site, and cause the
Site to be kept, free of any Lien pursuant to such Requirements of Law. The
Borrower will not, and will use reasonable efforts to ensure that none of the
Significant Project Participants will, voluntarily release, discharge, transport
or dispose of any Hazardous Materials on or from the Site except in compliance
in all material respects with all Requirements of Law and requirements of
insurance policies, if any, and, if any Hazardous Materials shall be released,
discharged or disposed of, whether voluntarily or involuntarily, in violation of
any Requirement of Law or requirement of insurance policies, the Borrower will
immediately contain, remediate, clean-up or remove or cause to be contained,
remediated, cleaned-up or removed from the Site such Hazardous Materials to the
extent required to be contained, remediated, cleaned-up or removed by any
Requirement of Law or requirement of insurance policies. The Borrower will not
install nor permit to be installed in the Facility or the Greenhouse asbestos or
any substance containing asbestos (other than a substance which is not a
Hazardous Material). If the Borrower fails to comply with any of the foregoing
provisions, the Security Agent, the Administrative Agent and each Institution
will have the right (but not the obligation) to do whatever it deems reasonably
necessary to cure any such default or to comply with such Requirements of Law or
requirements of insurance policies. The Borrower will promptly investigate any
release, suspected release or discovery of Hazardous Materials on or from the
Site, and any other environmental condition that might reasonably be expected to
have a Material Adverse Effect. The Borrower will promptly notify the Security
Agent and the Lenders of the discovery of any condition (including the presence
of Hazardous Materials, endangered or threatened species, or historic resources)
that might reasonably be expected to have a Material Adverse Effect. The
Borrower will give, and to the extent that it has a right to do so under the
Greenhouse Documents, cause the Greenhouse Owner and the Greenhouse Operator to
give, the Security Agent and the Lenders and their agents, employees and
contractors access to the Site following reasonable notice to the Borrower, the
Greenhouse Owner or the Greenhouse Operator, as the case may be, to enable the
Security Agent and the Lenders to take such action as they deem reasonably
necessary to cure any such default or to comply with such Requirements of Law or
requirements of insurance policies. The Security Agent, the Administrative Agent
and each Institution will have the right (but will not be obligated), at the
expense of the Borrower at any time that the Majority Lenders have reason to
believe that a material liability under Environmental Laws to the Borrower or
the Project could
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result from any activity or event occurring at or near the Site, to conduct an
environmental audit of the Site, at such times as shall be deemed reasonable by
the Majority Lenders (after consultation with the Environmental Consultant and
the Borrower), and the Borrower will cooperate, and will use reasonable efforts
to cause the Greenhouse Owner and Greenhouse Operator to cooperate, in the
conduct of such environmental audit. The conduct of such an audit shall not be
construed as participating in the management of the Project or the Greenhouse
but rather as protecting a security interest. At the request of the Borrower,
the Security Agent will provide the Borrower with a copy of the report prepared
with such environmental audit.
Section 10.28 Termination of Facility Operator. Following the
occurrence of any of the matters or events specified in Section 8.2 or 8.3 of
the Operations and Maintenance Agreement, the Borrower shall, upon the written
request of the Majority Lenders, terminate the Operations and Maintenance
Agreement pursuant to Section 8.2 thereof or remove the Facility Operator
pursuant to Section 8.3 thereof, as shall be specified in such request.
Section 10.29 Real Estate Post-Closing Matters. (a) The
Administrative Agent and the Institutions shall have received (i) within thirty
(30) days after the Closing Date, (x) an update of the survey of the Site and
Easements delivered pursuant to Section 9.1(j), showing no state of facts which
the Administrative Agent or the Majority Institutions (after consultation with
the Title Company) reasonably determined to be unsatisfactory; (y) an
endorsement to the policy of title insurance delivered pursuant to Section
9.1(j) and an endorsement to the policy of title insurance delivered to the
Borrower with respect to the Greenhouse Mortgage, which shall revise the survey
exceptions thereof to incorporate the updated survey delivered pursuant to
clause (x) above; and (z) a copy of an amendment to the Access and Utility
Easement in form reasonably satisfactory to the Security Agent which has been
recorded in the recorder's office of King Xxxxxx County, Virginia.
(b) The Borrower shall have submitted an application for the
Virginia Department of Transportation permit required for the installation of
the water intake and outfall pipes across State Route 3 on or before June 30,
1994, and shall provide the Administrative Agent and the Institutions with a
copy of such application.
Section 10.30 Submission of Application for Recertification of
Facility. The Borrower shall submit to FERC, within 90 days of the effective
date of the Fifth Amendment to this Agreement, an application for the
recertification of the Facility as a Qualifying Facility based on the revised
ownership of the partnership interests in the Borrower.
Section 10.31 Bond Repurchase Covenants. (a) So long as any of
the Bonds are outstanding, on each Bank Loan Installment Payment Date, the
Borrower shall, in addition to its other obligations hereunder, at its election,
either (i)(A) retire, (B) purchase and immediately cancel or (C) redeem an
aggregate principal amount of Bonds or (ii) prepay Bank Loans (other than Bank
Liquidity Loans) pursuant to Section 7.4 hereof, in an amount equal to the
product of (x) the aggregate principal amount of Bonds outstanding on the
Construction Period Termination Date and (y) 50% of the percentage set forth in
Schedule 3 attached hereto (as adjusted from time to time pursuant to Section
3.4(b) hereof); provided, however, that in any event the Borrower shall on or
before the sixtieth Bank Loan Installment Payment Date retire, purchase and
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cancel or redeem Bonds in an aggregate amount equal to 50% of the aggregate
principal amount of Bonds outstanding on the Construction Period Termination
Date; provided, further, that no Bond Reimbursement Obligation arising in
respect of this Section 10.31 may be financed under this Project Loan Agreement.
(b) Retirements, purchase and cancellations or redemptions of
Bonds pursuant to this Section 10.31 shall be in an aggregate principal amount
of $100,000 or a whole multiple in excess thereof.
(c) Bond Reimbursement Obligations (and interest thereon and
all other amounts owing with respect thereto) arising in respect of drawings on
any Bond Letter of Credit made pursuant to this Section 10.31 shall be treated,
for all purposes of the Security Deposit Agreement, in the same manner as Bank
Loans and shall be given the same priority pro rata as Bank Loans and in all
other respects shall be treated in the same manner as Bank Loans due on a
Scheduled Senior Debt Service Payment Date.
(d) For each of years 16 through 22 following the Construction
Period Termination Date, the Borrower agrees that it shall not retire, purchase
and cancel or redeem Bonds in an aggregate principal amount in excess of
$3,000,000 annually.
SECTION 11. NEGATIVE COVENANTS
So long as any Commitments remain in effect, any Letter of
Credit shall remain outstanding and until payment in full of the Loans and all
other Secured Obligations hereunder or under any of the Security Documents, the
Borrower hereby agrees that:
Section 11.1 Limitations on Indebtedness. The Borrower shall
not create, incur, assume or permit to exist any Indebtedness, except for:
(a) Indebtedness of the Borrower in respect of the Loans, the
Equity Funding Loans, the L/C Reimbursement Obligations and the
Interest Rate Hedging Transactions described in Section 10.21;
(b) accounts payable arising, and accrued expenses incurred,
in the ordinary course of the Borrower's business (and not in
connection with indebtedness for borrowed money or under Capital
Leases) which are payable in accordance with customary practices and
are unsecured and are paid within the specified time, if any, but in
any event not more than 90 days from the date such Indebtedness arises
or is incurred (or 180 days from the date such Indebtedness arises or
is incurred if the Borrower is in good faith contesting the validity or
amount thereof and such non-payment could not reasonably be expected to
have a Material Adverse Effect);
(c) Junior Subordinated Debt;
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(d) Indebtedness secured by Liens permitted by Section 11.2(c)
or constituting rent payable under leases permitted by Section 11.15;
(e) Bonds issued in accordance with the provisions of
Section 10.25; and
(f) Indebtedness of the Borrower incurred solely for the
purpose of prepaying (or, in the case of Bonds, defeasing), and the
proceeds of which are applied solely to the prepayment (or, in the case
of Bonds, defeasing) of, a portion of the Senior Debt (a "Refinancing
Transaction"); provided that:
(i) immediately prior to such Refinancing Transaction
and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing;
(ii) the aggregate principal amount of Senior Debt
outstanding after giving effect to such Refinancing
Transaction will not exceed the aggregate principal amount of
Senior Debt outstanding immediately prior thereto;
(iii) the Borrower shall have delivered to the
Administrative Agent and the Lenders reasonably detailed
financial projections for the Project covering the period
through the twentieth anniversary of the Commercial Operations
Date and which give effect to such Refinancing Transaction,
which projections shall be reasonably satisfactory to the
Majority Lenders and certified by the chief financial officer
of the Borrower or of SEI Birchwood, for so long as it is a
General Partner, as being based on reasonable assumptions and
as being prepared in good faith in full consideration of all
information known to such officer, after due inquiry, at such
time;
(iv) the projected Debt Service Coverage Ratio in the
projections delivered pursuant to clause (iii) above shall in
each fiscal year of the Borrower be equal to or greater than
the Debt Service Coverage Ratio included in the Base Case
Projections delivered on or prior to the Closing Date pursuant
to Section 9.1(w);
(v) such Indebtedness is (x) unsecured, or (y)
secured equally and ratably with the existing Senior Debt
secured pursuant to the Security Documents and the holders of
such Indebtedness shall have agreed in writing to be bound by
the terms thereof;
(vi) the terms of such Indebtedness, and the
documentation evidencing such Indebtedness, are reasonably
satisfactory to the Majority Lenders; and
(vii) the proposed holders of such Indebtedness are
banks, financial institutions or investors reasonably
acceptable to the Majority Lenders.
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In determining the "Majority Lenders" for the purposes of this
paragraph (f), the Senior Debt to be prepaid when the Refinancing
Transaction occurs shall not be deemed to be outstanding.
Section 11.2 Limitations on Liens. The Borrower shall not
create, incur, assume or permit to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, except for:
(a) Liens created pursuant to the Security Documents
(including without limitation as the Security Documents may be amended
or supplemented to permit Unsupported Bonds to be secured equally and
ratably with the other Senior Debt secured pursuant to the Security
Documents);
(b) Liens arising under the Project Documents;
(c) Liens securing purchase money obligations incurred to
finance discrete items of equipment not comprising an integral part of
the Project that extend only to the equipment being financed, provided
that the principal and interest payments with respect to obligations
secured thereby and the rent payable with respect to leases permitted
by Section 11.15 do not exceed $250,000 in any fiscal year of the
Borrower;
(d) Permitted Liens;
(e) Liens securing Refinancing Indebtedness permitted by
clause (f) of Section 11.1; and
(f) in addition to the Liens permitted by clauses (a) through
(e) of this Section, Liens securing obligations (which do not
constitute Indebtedness) in an aggregate amount not exceeding $250,000
at any time outstanding.
Section 11.3 Limitations on Guarantee Obligations. The
Borrower shall not create, incur or assume any Guarantee Obligations.
Section 11.4 Limitations on Distributions. The Borrower shall
not (i) declare or make any distributions on or in respect of the Partnership
Interests nor make any other payment on account of, or purchase, redeem, retire
or otherwise acquire, any Partnership Interests, whether in cash or other
property, or (ii) make any payment of principal or interest on any Junior
Subordinated Debt or redeem, purchase or otherwise acquire any Junior
Subordinated Debt, except that (A) on the Completion Date, from the proceeds of
Bank Project Loans or Equity Funding Loans permitted to be borrowed for such
purpose, and/or on the date of Final Completion of the Facility, from funds on
deposit in the Final Completion Escrow Account and available for such purpose
pursuant to Section 5.9 of the Security Deposit Agreement, the Borrower may make
the Contingent Distribution, in an aggregate amount equal to the Contingent
Distribution Amount, and (B) on any Quarterly Distribution Date (or within three
Business Days thereafter) occurring on or after the Initial Repayment Date, the
Borrower may make cash
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distributions to the Partners and/or payments of principal or interest on any
Junior Subordinated Debt; provided that at the time thereof, and immediately
after giving effect thereto:
(1) no Specified Default or Event of Default shall have
occurred and be continuing;
(2) in the case of cash distributions or payments made
pursuant to clause (B) above, such distributions or payments are made
solely from and to the extent of funds on deposit in the Distributions
Account; and
(3) in the case of cash distributions or payments made
pursuant to clause (B) above, such Quarterly Distribution Date is not a
Cash Trap Date;
and provided, further that, in the case of cash distributions or payments made
pursuant to clause (B) above, prior to making any such distribution or payment,
the Borrower shall have furnished to the Administrative Agent, the Security
Agent and the Lenders the certificate required by Section 10.4(c). Any cash
distribution or payment made pursuant to the provisions of this Section 11.4
shall be free and clear of all Liens created by the Security Documents.
Section 11.5 Limitations on Investment, Loans and Advances.
The Borrower shall not make any advance, loan, extension of credit or capital
contribution to, or purchase stocks, bonds, notes or other securities of, or
make any other investment in, any other Person, other than (a) Permitted
Investments and (b) the secured loans made to the Greenhouse Owner pursuant to
Article 3 of the Greenhouse Loan Agreement with the proceeds of Loans and Equity
Funding Loans.
Section 11.6 Limitations on Transactions with Affiliates and
Others. The Borrower shall not, directly or indirectly, purchase, acquire,
exchange or lease any property from, or sell, transfer or lease any property to,
or borrow any money from, or enter into any agreement (other than the Financing
Documents and Project Documents in existence on the Closing Date) with, any
Partner or any Affiliate of the Borrower or any Partner or any officer, director
or employee of the Borrower or any Partner or any of their respective
Affiliates, except for (a) sales of Partnership Interests to Southern or any of
its Subsidiaries, (b) transactions in the ordinary course of business and
(except to the extent otherwise required by law or approved in writing by the
Majority Lenders) upon commercially reasonable terms substantially no less
favorable to the Borrower than the Borrower could obtain, or could become
entitled to, in an arm's-length transaction with a Person which is not an
Affiliate and (c) Junior Subordinated Debt otherwise permitted under this
Agreement.
Section 11.7 Limitations on Disposition of Assets. The
Borrower shall not convey, sell, lease, assign, transfer or otherwise dispose of
any property or assets, whether now owned or hereafter acquired, except for:
(a) sales of electric power pursuant to the Power Purchase
Agreement, sales of steam pursuant to the Steam Sales Agreement and
sales of any other by-products of the fuel combustion process of the
Facility;
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(b) sales or other dispositions of obsolete, worn out or
defective equipment, provided that such equipment is reasonably
promptly replaced by the Borrower with suitable substitute equipment of
substantially the same character and quality and at least equivalent
useful life and utility;
(c) sales or other dispositions in the ordinary course of
business of assets or property not required in connection with the
proper and efficient operation and maintenance of the Facility,
provided that (i) at the time of such disposition and after giving
effect thereto, no Default or Event or Default is in existence and (ii)
the Borrower shall not in any calendar year dispose of property
pursuant to this paragraph (c) having a fair market value as of the
respective time or times of the disposition exceeding $1,000,000 in the
aggregate; and
(d) sales of Permitted Investments for cash or other Permitted
Investments.
Section 11.8 Limitations on Fundamental Changes. The Borrower
shall not (a) enter any merger or consolidation, change its form of organization
or its business, or liquidate, wind up or dissolve itself, of suffer any
liquidation or dissolution, (b) convey, sell, lease, assign, transfer or
otherwise dispose of all or substantially all of its property or assets, whether
now owned or hereafter acquired, (d) acquire all or substantially all of the
assets or the business of any Person or (e) organize or create any Subsidiary;
provided that nothing in clause (a) of this Section 11.8 shall restrict (i) any
transfer of a Partnership Interest made in accordance with Section 11.13 or (ii)
any withdrawal of a Partner from the Borrower so long as after giving effect to
such withdrawal no Default or Event of Default shall occur.
Section 11.9 Limitations on Change Orders. (a) The Borrower
shall not enter into any Change Order under the Facility Construction Contract
(i) that will increase the Contract Price (as defined therein) by more than (x)
$200,000 per Change Order or (y) $ 500,000 in the aggregate with respect to all
Change Orders under the Facility Construction Contract or (ii) which would
change the design or specifications of the Facility in any material respect or
change the Guaranteed Completion Date, the Payment Schedule, the Project
Milestone Schedule, the Performance Guarantees or the requirements for
Substantial Completion or Final Completion (as such terms are defined in the
Facility Construction Contract), unless the Borrower shall have received the
prior written consent of (A) in the case of any Change Order referred to in
clause (i) above which will not result in an increase in the Contract Price of
more than $3,000,000 in the aggregate with respect to all Change Orders under
the Facility Construction Contract, the Administrative Agent, or (B) in the case
of any Change Order referred to in clause (ii) above or if such Change Order
will result in an increase in the Contract Price by more than $3,000,000 in the
aggregate with respect to all Change Orders under the Facility Construction
Contract, the Majority Lenders.
(b) The Borrower shall not provide its consent under the
Greenhouse Loan Agreement which would permit the Greenhouse Owner or Greenhouse
Operator to enter into any Change Order under the Greenhouse Construction
Contract (i) that has a cost exceeding $100,000 in the aggregate with respect to
all Change Orders under the Greenhouse Construction Contract or (ii) which would
change the design or specifications of the Greenhouse in any material respect
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or diminish the liability or obligation of the Greenhouse Contractor with
respect to Final Completion of the Greenhouse or the Greenhouse's performance or
the ability of the Greenhouse Contractor to meet the Greenhouse Construction
Schedule, unless the Borrower shall have received the prior written consent of
(A) in the case of any Change Orders referred to in clause (i) above which,
together with all other Change Orders under the Greenhouse Construction
Contract, have an aggregate cost not exceeding $600,000, the Administrative
Agent, or (B) in the case of any Change Order referred to in clause (ii) above
or if such Change Order, together with all other Change Orders under the
Greenhouse Construction Contract, have an aggregate cost exceeding $600,000, the
Majority Lenders.
Section 11.10 Limitations on Nature of Business. The Borrower
shall not engage at any time in any business other than the construction,
operation and ownership of the Project.
Section 11.11 Limitations on Optional Payments and
Modifications of Debt Instruments; Limitation on Payments of Equity Funding
Loans. (a) The Borrower shall not (i) make any optional payment or prepayment or
redemption of any Senior Debt (other than the Loans in accordance with Section
7.4 or the Senior Debt prepaid in connection with a Refinancing Transaction
permitted by Section 11.1(f)) unless such payment, prepayment or redemption is
being made pro rata with a concurrent prepayment of the Loans pursuant to
Section 7.4; (ii) defease any Senior Debt (other than the Bonds from amounts
constituting Excess Cash Flow or from the proceeds of Junior Subordinated Debt);
or (iii) amend, modify or change, or consent or agree to any amendment,
modification or change with respect to, (x) any of the terms of the Equity
Funding Documents, the Bond Documents, any Interest Rate Hedging Agreement or
the documents evidencing or relating to any Refinancing Indebtedness or (y) any
of the subordination provisions contained in any documents evidencing or
relating to any Junior Subordinated Debt, in each case without the prior written
consent of the Majority Lenders.
(b) Except to the extent permitted by Section 10.1(b)(iv) or
10.1(c) with respect to the proceeds of Institutional Loans and Bank Project
Loans, respectively, the Borrower shall not prepay or repay any principal amount
of the Equity Funding Loans, or make any payments in respect of interest on
overdue amounts of principal thereof or interest thereon, and, in any event, the
Borrower shall under no circumstances make any payment in respect of the
principal of or interest on any Equity Funding Loan with any Proceeds received
by the Borrower from time to time, including without limitation, in connection
with an Event of Loss.
Section 11.12 Limitations on Amendment, Termination or
Extension of Project Documents; Limitation on Exercise of Remedies under
Greenhouse Documents. (a) The Borrower shall not, without the prior written
consent of the Majority Lenders, agree to or acquiesce in (i) the cancellation,
suspension or termination of any Project Document (except upon the expiration of
the stated term thereof), (ii) the assignment, release or relinquishment of the
rights or obligations of any other Project Participant except (x) as
contemplated by the Security Documents or (y) as permitted without the consent
of the Borrower by the terms of such Project Document, or (iii) any amendment,
supplement or modification of, or consent or waiver with respect to any of the
provisions of, any Project Document to which the Borrower is a party or with
respect to which the consent of the Borrower is required; provided that, except
as set forth in the following proviso, the Borrower may, upon prior written
notice to the Administrative
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Agent and the Institutions, (A) amend, supplement or otherwise modify, or waive
in writing any provision of, any Project Document (other than the Power Purchase
Agreement, the Greenhouse Sublease, the Construction Contract Guarantees and,
except to the extent provided in Section 11.9, the Construction Contracts) in
any manner (x) which does not alter in any material respect the rights or
obligations of the respective parties thereto and (y) which could not reasonably
be expected to have a Material Adverse Effect, and (B) enter into Change Orders
under the Facility Construction Contract and the Greenhouse Construction
Contract that do not require the Majority Lenders' consent under the provisions
of Section 11.9; provided, further, that the Borrower shall not consent to the
addition of additional coal reserves to the Arch Mines (as defined in the Arch
Back-Up Coal Supply Agreement) pursuant to paragraph 8 of the Arch Back-Up Coal
Supply Agreement without the prior written consent of the Administrative Agent
and the Majority Institutions, which shall not be unreasonably withheld or
delayed.
(b) The Borrower shall not, without the prior written consent
of the Majority Lenders, (i) terminate the Greenhouse Sublease or exercise any
purchase option thereunder, or (ii) exercise, or cause the Greenhouse Owner to
exercise, any rights or remedies under any Greenhouse Document following any
default thereunder, including without limitation any right to terminate the
lending commitments of the Borrower under the Greenhouse Loan Agreement, to
declare loans, advances, rent and/or other amounts owing under the Greenhouse
Loan Agreement, the Greenhouse Mortgage or the Greenhouse Sublease to be
immediately due and payable, or to foreclose on or exercise other remedies with
respect to all or any portion of the Greenhouse Collateral.
Section 11.13 Limitations on Sale or Issuance of Partnership
Interests. The Borrower shall not (a) permit or consent to the transfer (by
assignment, sale or otherwise) of any general partnership interest in the
Borrower, or issue any additional general partnership interest in the Borrower,
to any Person without the prior written consent of the Majority Lenders (which
consent shall not be unreasonably withheld), or (b) permit or consent to the
transfer (by assignment, sale or otherwise) of any limited partnership interest
in the Borrower, or issue any additional limited partnership interest in the
Borrower, (x) to any Person which, together with its Affiliates, would own in
the aggregate, after giving effect to such transfer or issuance, Partnership
Interests entitling such Person and its Affiliates to receive 50% or more of the
profits and losses of the Borrower, without the prior written consent of the
Majority Lenders (which consent shall not be unreasonably withheld), or (y) to
any Person not specified in clause (x) above, unless such Person is a Qualified
Limited Partner Transferee; provided that, in addition to the requirements
contained in clauses (a) and (b) above, the Borrower further agrees that it
shall not permit or consent to any such transfer of any Partnership Interest, or
issue any additional Partnership Interest, to any Person unless:
(A) after giving effect to such transfer or issuance, no
Default or Event of Default under Section 12.1(g)(i) (relating to the
agreements of the Borrower in Section 10.19) or 12.1(p) shall occur and
be continuing;
(B) after giving effect to such transfer or issuance, the
Facility shall remain a Qualifying Facility (unless the IPP Conversion
Date shall have occurred);
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(C) such Person is a partnership, corporation, business trust
or unincorporated association;
(D) such Person shall have pledged such Partnership Interest
to the Security Agent on behalf of the Secured Parties pursuant to, and
shall have executed and delivered to the Security Agent, a General
Partner Interest Pledge Agreement or Limited Partner Interest Pledge
Agreement, as the case may be, substantially in the form of Exhibit F-1
or F-2, respectively, which shall be in full force and effect; and
(E) the Borrower shall have obtained and delivered to the
Administrative Agent and the Institutions at least 10 Business Days
prior to such transfer or issuance, the following financial statements:
(1) a balance sheet of such Person (or, if such
Person is a member of a consolidated group, such Person's
consolidated group) as of its most recent fiscal quarter and
statements of income, retained earnings and changes in cash
flows for such fiscal quarter, prepared in accordance with
GAAP and certified by a Responsible Officer of such Person as
fairly presenting the financial condition of such Person (or,
if such Person is a member of a consolidated group such
Person's consolidated group); and
(2) a balance sheet of such Person (or, if such
Person is a member of a consolidated group, such Person's
consolidated group) as of its most recent fiscal year and
statements of income, retained earnings and changes in cash
flows for such fiscal year, prepared in accordance with GAAP
and audited by, and carrying the unqualified report of,
independent certified public accountants of nationally
recognized standing.
For purposes of this Section 11.13, the Borrower acknowledges and agrees that it
shall be reasonable for the Majority Lenders to withhold consent to any transfer
or issuance of a general partnership interest in the Borrower, or to any
transfer or issuance of a limited partnership interest in the Borrower referred
to in clause (b)(x) above, to any Person which (i) does not, at the time of such
transfer or issuance, meet the requirements of clauses (a), (b) and (c) in the
definition of "Qualified Limited Partner Transferee" or (ii) does not have
knowledge and experience in the management of or investment in power generating
facilities.
Section 11.14 Assignment of Coal Supply Agreement. The
Borrower shall not provide any consent required to be given by it under any
provision of the Coal Supply Agreement to any assignment by the Coal Supplier of
its rights, interests or obligations under the Coal Supply Agreement or to any
transfer of the properties or assets owned by, or the capital stock of, the Coal
Supplier, without the prior written consent of the Majority Lenders (which
consent shall not be unreasonably withheld).
Section 11.15 Limitations on Leases. The Borrower shall not
enter into, or be or become liable under, any agreement for the lease, hire or
use of any real property or of any personal property, except for leases (whether
or not Capital Leases) the aggregate annual rental
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under which, together with the aggregate annual principal and interest payments
under purchase money obligations permitted by Section 11.2(c), shall not exceed
$100,000 in any fiscal year of the Borrower.
Section 11.16 Fiscal Year. The Borrower shall not change its
fiscal year except on 60 days' prior written notice to the Security Agent, the
Administrative Agent and each Institution.
Section 11.17 Change of Office. The Borrower shall not change
the location of its chief executive office or principal place of business from
000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, unless the Borrower
shall have given the Security Agent, the Administrative Agent and each
Institution at least 60 days' prior written notice thereof and all action
necessary or advisable in the Security Agent's opinion to protect and perfect
the liens and security interests with respect to the right, title, estate and
interest of the Borrower in and to the Collateral created by the Security
Documents to which the Borrower is a party shall have been taken.
Section 11.18 Change of Name. The Borrower shall not change
its name except on 60 days' prior written notice to the Security Agent, the
Administrative Agent and each Institution.
Section 11.19 Tax Exempt Status of Bonds. In the event Bonds
are issued in accordance with Section 10.25, the Borrower shall not (a) take any
action that would cause interest on such Bonds to cease to be excluded from
gross income for federal income tax purposes, or (b) omit to take any action
necessary to cause interest on such Bonds to remain excluded from gross income
for federal income tax purposes.
SECTION 12. EVENTS OF DEFAULT
Section 12.1 Events of Default. The Lenders shall have the
rights and remedies specified in Section 12.2 if any of the following events
shall occur and be continuing (whatever the reason for such event and whether it
shall be voluntary or involuntary, or come about or be effected by operation of
law, or otherwise):
(a) The Borrower shall fail to pay (i) any principal of or any
interest or Make-Whole Premium or Modified Make-Whole Premium on any
Loan, (ii) any commitment fee or letter of credit fee referred to in
Section 7.1(a), 7.1(c) or 7.1(d), respectively, or the cancellation fee
referred to in Section 7.1(f), or (iii) any L/C Reimbursement
Obligation, or any interest thereon, in each case when due in
accordance with the terms hereof, and any such amount shall remain
unpaid for five Business Days; or
(b) The Borrower shall fail to pay any administrative fee
referred to in Section 7.1(e) or any other amount payable hereunder or
under the other Loan Documents when due in accordance with the terms
hereof or thereof and such fee or other amounts shall
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remain unpaid for a period of 10 Business Days after the Borrower shall
have received written notice thereof from the Administrative Agent or
any Institution; or
(c) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or in any certificate or
document furnished at any time by the Borrower under or in connection
with this Agreement or any other Loan Document, or, prior to the Equity
Funding Termination Date, any representation or warranty made or deemed
made by Southern in any Southern Document or in any certificate or
document furnished at any time by Southern under or in connection with
any Southern Document, shall prove to have been incorrect in any
material respect on the date made or deemed made and either (i) such
incorrectness has resulted in a Material Adverse Effect or (ii) such
incorrectness could reasonably be expected to result in a Material
Adverse Effect and the facts or circumstances which caused such
representation or warranty to be materially incorrect are not corrected
within 30 days after the Borrower shall have received written notice
thereof from the Administrative Agent or any Institution; or
(d) (i) Prior to the Equity Funding Termination Date, any
Southern Document or Cogentrix Document shall for any reason cease to
be valid and in full force and effect or shall cease to constitute the
legal, valid and binding obligation of Southern, Cogentrix, Cogentrix
Holdings or First Union National Bank of North Carolina, as the case
may be, or Southern, Cogentrix, Cogentrix Holdings or First Union
National Bank of North Carolina, as the case may be, shall so assert in
writing; (ii) the full amount of the Mandatory Equity Contribution to
be made by Southern or the Cogentrix Obligors or any Contingent Equity
Contribution to be made by Southern shall not have been received by the
Security Agent on behalf of the Borrower on the applicable Equity
Contribution Date or Southern shall fail to make any payment under the
Equity Funding Guarantee or any Construction Contract Guarantee as and
when due thereunder or First Union National Bank of North Carolina
shall fail to honor any request for drawing under the Cogentrix Letter
of Credit; or (iii) Southern or the Cogentrix Obligors shall fail to
perform or observe in any material respect any other covenant or
obligation contained in any Southern Document or Cogentrix Document, as
the case may be, and such default or failure shall continue beyond the
applicable grace period, if any, provided under such Southern Document
or Cogentrix Document (or, in the case of Southern's obligations under
Section 5.3(a) of the Southern Equity Contribution Agreement and
Section 9(a) of the Equity Funding Guarantee or Cogentrix's obligations
under Section 5.3(a) of the Cogentrix Equity Funding Agreement, such
failure to perform shall continue for more than 30 days after the
Borrower shall have received written notice thereof from the
Administrative Agent or any Institution); or
(e) (i) The Borrower, any other Significant Project
Participant or, prior to the Equity Funding Termination Date, Southern
or Cogentrix shall commence any case or other proceeding (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
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dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
assets, or the Borrower, any other Significant Project Participant or,
prior to the Equity Funding Termination Date, Southern or Cogentrix
shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against the Borrower, any other
Significant Project Participant or, prior to the Equity Funding
Termination Date, Southern or Cogentrix any case or other proceeding of
a nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower, any other
Significant Project Participant or, prior to the Equity Funding
Termination Date, Southern or Cogentrix any case or other proceeding
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower, any other
Significant Project Participant or, prior to the Equity Funding
Termination Date, Southern or Cogentrix shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or (v) the Borrower, any other Significant Project Participant
or, prior to the Equity Funding Termination Date, Southern or Cogentrix
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; provided that the
occurrence of any of the acts or events referred to in clauses (i)
through (v) above with respect to a Significant Project Participant
(other than the Borrower) shall be an Event of Default under this
Section 12.1(e) only if, and at such time as, such acts or events could
reasonably be expected to have a Material Adverse Effect; or
(f) (i) The Borrower shall fail to maintain the insurance
required by clause (A), (B) or (C) of Section 10.8(a); or (ii) the
Borrower shall fail to maintain the insurance required by any other
clause of Section 10.8(a), or shall otherwise default in the observance
or performance of any other agreement contained in Section 10.8, and
such failure or default shall continue unremedied for a period of five
Business Days; or
(g) (i) The Borrower shall default in the observance or
performance of any agreement contained in Section 10.19; or (ii) the
Borrower shall default in the observance or performance of any
agreement contained in Section 11 hereof or in Section 4.4 or 4.5 of
the Security Deposit Agreement and such default shall remain unremedied
for a period of 30 days after a Borrower Representative obtains actual
knowledge thereof; or
(h) (i) The Borrower shall default in the observance or
performance of any agreement contained in Section 10.7, 10.24 or 10.25
of this Agreement and such default shall continue unremedied for a
period of 60 days after the Borrower shall have received written notice
thereof from the Administrative Agent or any Institution; or (ii) the
Borrower shall default in the observance or performance of any other
agreement contained in this Agreement or the other Loan Documents
(other than the agreements specified in paragraphs (a), (b), (f), (g)
and clause (i) of this paragraph (h) of this Section 12.1), and
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such default shall continue unremedied for a period of 30 days after
the Borrower shall have received written notice thereof from the
Administrative Agent or any Institution, provided that, except with
respect to a default in the agreements set forth in Sections 10.12,
10.18 and 10.22, such 30-day period shall be extended (x) to such
longer period, not exceeding 180 days (inclusive of such initial 30-day
period), as shall be required in order to cure such default or (y) at
the option of the Majority Lenders, to such period longer than 180 days
as the Majority Lenders shall determine, and notify the Borrower
thereof in writing, will not have a Material Adverse Effect, in either
case if, and only so long as (A) such default is capable of being
remedied but cannot be remedied within such initial 30-day period, (B)
the Borrower has commenced, within such initial 30-day period, and
continues to diligently pursue, a remedy to such default and (C) no
other Default or Event of Default shall have occurred and be
continuing; or
(i) (i) Any Security Document shall cease, for any reason, to
be in full force and effect (except for (x) the Southern Equity
Contribution Agreement if the Completion Date shall have occurred and
the Mandatory Equity Contribution and any Contingent Equity
Contribution to be made by Southern shall have been made and (y) the
Cogentrix Equity Contribution Agreement if the Completion Date shall
have occurred and the Mandatory Equity Contribution to be made by
Cogentrix shall have been made) or the Borrower, Southern, Cogentrix,
Cogentrix Holdings or any Partner which is a Subsidiary of Southern,
Cogentrix or Cogentrix Holdings shall so assert in writing; or (ii) any
Security Document shall cease to be effective to grant a perfected Lien
to the Security Agent for the benefit of the Secured Parties on the
Collateral described therein (other than on an immaterial portion
thereof) with the priority purported to be created thereby, unless
either (x) such cessation shall have been rescinded within five
Business Days after a Borrower Representative obtains actual knowledge
thereof, or (y) such cessation is as a result of action by the Security
Agent or any Secured Party; or
(j) An event of default under any Bond Indenture or Section 7
of the Equity Funding Loan Agreement shall have occurred and be
continuing; or
(k) Any Governmental Approval which shall at the time be
necessary (i) for the execution and delivery by Southern, the Borrower
or any of the other Significant Project Participants of any of the
Financing Documents or Project Documents to which it is a party, or for
the performance by Southern, the Borrower or any of the other
Significant Project Participants of its rights and obligations under
any of the Financing Documents or Project Documents to which it is a
party (other than any Governmental Approval necessary for any Person
other than the Borrower which is party to any Real Estate Document, any
Greenhouse Document or the Partnership Agreement), (ii) for the
construction, ownership or operation of the Project as contemplated by
the Project Documents or (iii) for the grant by the Borrower of the
Liens created under the Security Documents, the validity and
enforceability of the Security Documents, the perfection of the Liens
purported to be created thereunder or the exercise by the Security
Agent of its rights and remedies thereunder, shall not be obtained,
renewed, maintained or complied with in all material respects, or shall
be revoked, terminated, withdrawn, suspended, modified or withheld or
shall cease to be in full force and effect, and (except in the case
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of the matters referred to in the foregoing clause (iii)) such failure
to obtain, renew, maintain or comply or such revocation, termination or
other event shall continue unremedied for 30 days after notice to the
Borrower from the Administrative Agent or any Institution; or any
proceeding shall be commenced by or before any Governmental Authority
for the purpose of so revoking, terminating, withdrawing, suspending,
modifying or withholding any such Governmental Approval and such
proceeding is not dismissed within 60 days; provided that such failure
to obtain, renew, maintain or comply with, or such revocation,
termination, withdrawal, suspension, modification, withholding or
cessation, or such proceeding, shall constitute an Event of Default
only if, and at such time as, it could reasonably be expected to have a
Material Adverse Effect; or
(l) (i) Any Project Document shall at any time cease to be
valid and binding and in full force and effect for any reason (or, in
the case of the Arch Back-Up Coal Supply Agreement, Arch shall so
assert in writing); or (ii) any Project Document shall be terminated
prior to the scheduled expiration date thereof for any reason
whatsoever; or (iii) any material provision of any Project Document
(other than any provision in the Greenhouse Sublease providing for the
payment of rent or any provision in the Greenhouse Loan Agreement with
respect to the repayment of loans thereunder) shall be declared null
and void or the validity or enforceability thereof shall be contested
in writing by, in the case of the Arch Back-Up Coal Supply Agreement,
Arch or any Government Authority, or, in the case of any other Project
Document, any Government Authority; or (iv) any Project Participant
shall fail to perform or observe in any material respect any covenant
or obligation contained in any Project Document (other than, in the
case of the Greenhouse Sublease and the Greenhouse Loan Agreement, any
failure by the Greenhouse Operator or the Greenhouse Owner to pay rent
or to repay loans thereunder, respectively) and such failure shall
continue beyond the applicable grace period, if any, provided for in
such Project Document; provided that for purposes of this Section
12.1(l) only, (x) on or after the IPP Conversion Date, "Project
Documents" shall not include the Steam Sales Agreement or any
Greenhouse Document and (y) "Project Documents" shall not include the
Coal Supply Agreement to the extent that, at the time of the occurrence
of any of the events described in clause (i), (ii) or (iii) above with
respect to the Coal Supply Agreement or the Coal Supplier, (A) the Arch
Back-Up Coal Supply Agreement is valid and binding on Arch and in full
force and effect, and Arch shall not have asserted otherwise in
writing, and (B) none of the events described in clause (ii) or (iii)
above shall have occurred with respect to the Arch Back-Up Coal Supply
Agreement or Arch; and provided, further that the events referred to in
clauses (i) through (iv) above with respect to a Project Document
(other than the Power Purchase Agreement, the Facility Construction
Contract or the Greenhouse Construction Contract or, in the case of
clauses (i) and (ii), the Partnership Agreement) shall not be an Event
of Default under this Section 12.1(l) if (A) such events are cured
within 60 days of the date of occurrence of such event, or (B)(1) such
Project Document is replaced within 60 days of the date of such event
with a substitute Project Document in form and substance satisfactory
to the Majority Lenders, the party or parties to which (other than the
Borrower) are acceptable to the Majority Lenders (or within such longer
period, not exceeding 120 days (inclusive of such initial 60-day
period), as shall be required to obtain an acceptable substitution
Project Document so long as the Borrower is diligently seeking the
same), and (2) such
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substitute Project Document shall have been assigned to the Security
Agent to the same extent as the Project Document being replaced; or
(m) One or more final judgments or decrees (which are not
appealable or which have not been stayed pending appeal or as to which
all rights to appeal have expired or been exhausted) shall be entered
against the Borrower involving in the aggregate a liability in excess
of $500,000 and such judgments or decrees shall remain in effect and
unstayed for a period of at least 30 days; or
(n) Southern shall, prior to the Equity Funding Termination
Date, (i) default in the payment of any principal of or interest on any
indebtedness of Southern for borrowed money under agreements or
instruments involving in the aggregate in excess of $10,000,000 beyond
the period of grace, if any, provided for therein, or (ii) default in
the observance or performance of any other agreement or condition
relating to any such indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
of default shall occur, the effect of which default or other event of
default is to cause, or permit the holder or holders of such
indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, such
indebtedness to become due prior to its stated maturity; or
(o) The Completion Date shall not have occurred on or prior to
the Date Certain; or
(p) Wholly-owned Subsidiaries of Southern shall cease to own
at any time at least the Requisite Partnership Interest; or
(q) The Facility shall lose its certification as a Qualifying
Facility, unless either (i) prior to the date of such loss of
certification, the requirements of clause (b) of Section 10.12 shall
have been satisfied, or (ii) (x) on the date of such loss of
certification and at all times thereafter until the Facility shall
reacquire its certification as a Qualifying Facility, (A) all
Governmental Approvals, if any, required for Subsidiaries of Southern
to own at least the Requisite Partnership Interest shall have been
obtained and are in full force and effect, (B) all Governmental
Approvals and other approvals necessary for the Borrower to own and
operate the Facility as an IPP and to sell power to Virginia Power
under the Power Purchase Agreement shall have been obtained and shall
be in full force and effect and (C) no regulation by any Government
Authority is imposed on the Administrative Agent, the Security Agent or
any Lender as a result of the Governmental Approvals referred to in
subclause (B) above or as a result of the loss of such certification
and the operation of the Facility as an IPP and (y) in the good faith
judgment of the Majority Lenders, the terms of such Governmental
Approvals and other approvals referred to in clause (x)(B) above and
the ownership and operation of the Facility as an IPP could not
reasonably be expected to have a Material Adverse Effect; or
(r) (i) At any time prior to the date on which the Commitments
no longer remain in effect, no Bond Letter of Credit remains
outstanding and the Loans and all other Secured Obligations have been
paid in full, there shall not be in full force and effect a
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VP Letter of Credit, a Substitute VP Letter of Credit or Substitute VP
Security; or (ii) the Administrative Agent and the Institutions shall
fail to receive, at least 60 days prior to the scheduled expiration of
any VP Letter of Credit (or, in the case of a VP Letter of Credit
scheduled to expire on or after the Bank Loan Final Maturity Date, 120
days) or at least 120 days prior to the scheduled expiration of any
Substitute VP Letter of Credit or Substitute VP Security, evidence
satisfactory to them that the expiration of such Letter of Credit or
Substitute VP Security has been extended to a later date or that a new
VP Letter of Credit or Substitute VP Letter of Credit will be issued,
or that new Substitute VP Security will be delivered, upon the
scheduled expiration of the then existing VP Letter of Credit,
Substitute VP Letter of Credit or Substitute VP Security, as the case
may be.
Section 12.2 Rights and Remedies Following an Event of
Default. If any Event of Default shall occur and be continuing, then:
(1) If such Event of Default is an Event of Default specified
in clause (i) or (ii) of Section 12.1(e) with respect to the Borrower,
automatically (A) the obligation of the Issuing Bank to issue any or all of the
Letters of Credit immediately shall terminate, (B) the Commitments immediately
shall terminate and (C) the Loans, the Notes and all unpaid L/C Reimbursement
Obligations, all interest accrued and unpaid thereon, any Make-Whole Premium
payable with respect to the Institutional Notes (to the extent permitted by
applicable law) and all other amounts owing by the Borrower hereunder and under
the Notes immediately shall become due and payable, without presentment, demand,
protest, or notice of any kind, all of which are hereby expressly waived by the
Borrower; and
(2) If such Event of Default is an Event of Default specified
in Section 12.1(a) or 12.1(b) with respect to any amounts payable to the Banks
or the Issuing Bank hereunder or under the other Loan Documents, or if the
Institutional Loans and the Institutional Notes shall be declared due and
payable pursuant to paragraph (3) below (whether or not such declaration is
subsequently rescinded and annulled as provided in the last paragraph of this
Section 12.2), then the Administrative Agent may, and if requested by the
Majority Banks, the Administrative Agent shall, by notice to the Borrower and
the Security Agent, (A) declare the obligation of the Issuing Bank to issue any
or all of the Letters of Credit terminated, whereupon the same shall forthwith
terminate; and/or (B) declare the Commitments of the Banks terminated and
declare the entire unpaid principal amount of the Bank Loans and the Bank Notes,
all unpaid L/C Reimbursement Obligations, all interest accrued and unpaid
thereon, and all other amounts owing by the Borrower hereunder to the Banks and
the Agents and under the Bank Notes to be forthwith due and payable, whereupon
the Commitments of the Banks shall terminate and such unpaid principal amount of
the Bank Loans and Bank Notes, all unpaid L/C Reimbursement Obligations, all
interest accrued and unpaid thereon, and all such other amounts shall become and
be forthwith due and payable, without presentment, demand, protest, or notice of
any kind, all of which are hereby expressly waived by the Borrower; and/or (C)
demand that the Borrower immediately pay to the Security Agent an amount equal
to the full amount that can then be drawn under the Letters of Credit, whereupon
the Borrower shall immediately make such payment to the Security Agent, which
shall hold such payment as collateral security for the Secured Obligations in
accordance with Section 4.5 of the Security Deposit Agreement; provided
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that (x) no such action taken by the Administrative Agent shall have the effect
of terminating, reducing or altering in any respect the terms of the Letters of
Credit outstanding at the time and (y) no such action by the Administrative
Agent or the Majority Banks under this paragraph (2) shall have the effect of
terminating, reducing or altering in any respect the terms of the True-Up
Obligation of the Banks in favor of the Institutions set forth in Section
14.10(b); and
(3) If such Event of Default is an Event of Default specified
in Section 12.1(a) or 12.1(b) with respect to any amounts payable to the
Institutions hereunder or under the other Loan Documents, or if the Bank Loans
and the Bank Notes shall be declared due and payable pursuant to paragraph (2)
above (whether or not such declaration is subsequently rescinded and annulled as
provided in the last paragraph of this Section 12.2), then the Majority
Institutions may, by notice to the Borrower, declare the Total Institutional
Commitments terminated and declare the entire unpaid principal amount of the
Institutional Loans and Institutional Notes, all interest accrued and unpaid
thereon, any Make-Whole Premium payable with respect to the Institutional Notes
(to the extent permitted by applicable law), and all other amounts owing by the
Borrower hereunder to the Institutions and under the Institutional Notes, to be
forthwith due and payable, whereupon the Total Institutional Commitments shall
terminate and such unpaid principal amount of the Institutional Loans and
Institutional Notes, all interest accrued and unpaid thereon, any Make-Whole
Premium and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest, or notice of any kind, all of
which are hereby expressly waived by the Borrower; and
(4) If such Event of Default is an Event of Default other than
one specified in paragraph (1), (2) or (3) above, the Required Secured Parties
may, by notice to the Borrower and the Security Agent, (A) declare the
obligation of the Issuing Bank to issue any or all of the Letters of Credit
terminated, whereupon the same shall forthwith terminate; and/or (B) declare all
of the Commitments terminated and declare the entire unpaid principal amount of
the Loans and the Notes, all unpaid L/C Reimbursement Obligations, all interest
accrued and unpaid thereon, any Make-Whole Premium payable with respect to the
Institutional Notes (to the extent permitted by applicable law) and all other
amounts owing by the Borrower hereunder to the Lenders and the Agents and under
the Notes to be forthwith due and payable, whereupon all of the Commitments of
the Lenders shall terminate and such unpaid principal amount of the Loans and
Notes, all unpaid L/C Reimbursement Obligations, all interest accrued and unpaid
thereon, any Make-Whole Premium and all such other amounts shall become and be
forthwith due and payable, without presentment, demand, protest, or notice of
any kind, all of which are hereby expressly waived by the Borrower; and/or (C)
demand that the Borrower immediately pay to the Security Agent an amount equal
to the full amount that can then be drawn under the Letters of Credit, whereupon
the Borrower shall immediately make such payment to the Security Agent, which
shall hold such payment as collateral security for the Secured Obligations in
accordance with Section 4.5 of the Security Deposit Agreement; provided that no
such action taken by the Required Secured Parties under this paragraph (4) shall
have the effect of terminating, reducing or altering in any respect the terms of
(x) the Letters of Credit outstanding at the time or (y) the True-Up Obligation
of the Banks in favor of the Institutions set forth in Section 14.10(b); and
provided, further that if the Required Secured Parties take the action referred
to in clause (B) of this paragraph (4), then the Administrative Agent or the
Issuing Bank may take the action referred to in clauses (A) and (C) of this
paragraph (4); and
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(5) If any Event of Default shall occur and be continuing, the
Issuing Bank may, in its sole discretion, by notice to the Borrower, declare the
obligation of the Issuing Bank to issue any or all of the Letters of Credit
terminated, whereupon the same shall forthwith terminate; and
(6) During any period that an Event of Default shall be in
existence and any event of default under Article 7 of the Greenhouse Loan
Agreement or Section 15.01 of the Greenhouse Sublease shall also be in
existence, the Borrower shall, or shall direct the Greenhouse Owner to, as the
case may be, at the request of the Security Agent and to the extent permitted to
do so under the relevant Greenhouse Document (or the Security Agent may do so on
behalf of the Borrower or the Greenhouse Owner, as the case may be), (i) declare
the lending commitments of the Borrower under the Greenhouse Loan Agreement to
be immediately terminated, and/or (ii) declare loans, advances, rent and/or
other amounts owing under the Greenhouse Loan Agreement or Greenhouse Sublease
to be immediately due and payable, and/or (iii) foreclose on the Greenhouse
Collateral or exercise any other rights or remedies provided to the Borrower or
the Greenhouse Owner under the Greenhouse Documents; and
(7) If any Event of Default shall occur and be continuing, the
Security Agent and the Lenders may exercise any and all rights or remedies in
their respective capacities under the Security Documents in accordance with the
provisions thereof, as well as their rights and remedies under applicable law.
In case of a default in the payment or performance of any provision hereof or of
the Notes or of the Security Documents, the Borrower will pay to each Secured
Party such further amount as shall be sufficient to cover the cost and expenses
of collection, including, without limitation, reasonable attorneys' fees,
expenses and disbursements. No course of dealing and no delay on the part of any
Secured Party in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such rights, powers or remedies. The foregoing
provisions of this paragraph (7) are subject to the terms of the Security
Deposit Agreement.
At any time after the principal of and accrued interest on the
Bank Notes and/or the Institutional Notes are declared due and payable, the
Majority Banks (if the Bank Notes have been declared due and payable pursuant to
paragraph (2) above) or the Majority Institutions (if the Institutional Notes
have been declared due and payable pursuant to paragraph (3) above) or the
Required Secured Parties (if the Notes have been declared due and payable
pursuant to paragraph (4) above), by written notice to the Borrower, the
Administrative Agent and the other Lenders, may rescind and annul any such
declaration and its consequences with respect to the Bank Notes (in the case of
a rescission and annulment by the Majority Banks) or the Institutional Notes (in
the case of a rescission and annulment by the Majority Institutions) or all of
the Notes (in the case of a rescission and annulment by the Required Secured
Parties) if (x) the Borrower has paid all overdue interest on such Notes, the
principal of and any Make-Whole Premium on any such Notes which have become due
otherwise than by reason of such declaration, and interest on such overdue
principal and (to the extent permitted by applicable law) overdue interest, at
the Bank Default Rate or the Institution Default Rate, as the case may be, (y)
all Events of Default, other than nonpayment of amounts which have become due
solely by reason of such declaration, and all conditions and events which
constitute Defaults or Events of Default have been cured or waived, and (z) no
judgment or decree has been entered for the payment of
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any monies due pursuant to such Notes or this Agreement. No such rescission and
annulment referred to in the proviso in the preceding sentence shall extend to
or affect any subsequent Default or Event of Default or impair any right
consequent thereon.
SECTION 13. THE ADMINISTRATIVE AGENT AND THE SECURITY AGENT
Section 13.1 The Administrative Agent.
(a) Appointment of Administrative Agent. Each Bank and the
Issuing Bank hereby designates and appoints Credit Suisse as its agent under
this Agreement and the other Loan Documents, and each Bank and the Issuing Bank
authorizes Credit Suisse, as the agent for such Bank, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or be a trustee of or
have any fiduciary relationship with any Bank or the Issuing Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
shall otherwise exist against the Administrative Agent. None of the Co-Agents,
in their capacity as Co-Agents, shall have any duties or responsibilities under
this Agreement or any fiduciary relationship with the Administrative Agent or
the Issuing Bank or any Bank, and no implied covenants, functions,
responsibilities, duties or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against any Co-Agent in its capacity as a
Co-Agent hereunder.
(b) Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible to any Bank or the Issuing Bank for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
(c) Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable to any of the Banks or the Issuing Bank for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Banks or the Issuing Bank for any recitals, statements,
representations or warranties made by the Borrower, Southern or any other
Project Participant or any officer thereof contained in this Agreement or any
other Loan Document or any Project Document or in the Information Memorandum or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent or any Bank or the Issuing Bank
under or in connection with, this Agreement or any other Loan Document or any
Project Document or the Information Memorandum or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the Bank Notes or any other Loan Document or any Project
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Document or for any failure of the Borrower, Southern or any other Project
Participant to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Bank or the
Issuing Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document or any Project Document, or to inspect the properties, books
or records of the Borrower, Southern or any other Project Participant.
(d) Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Bank Note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Bank Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks and the Issuing Bank against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the Bank Notes
and the other Loan Documents in accordance with a request of the Majority Banks,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Banks and the Issuing Bank and all future holders of the
Bank Notes.
(e) Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from any
Lender or the Borrower or Southern, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Banks and the Security Agent.
(f) Non-Reliance on Administrative Agent and Other Banks. Each
Bank and the Issuing Bank expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereafter taken, including any review of the affairs
of the Borrower or Southern, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Bank or the Issuing Bank. Each Bank
and the Issuing Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Bank or the Issuing Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower, Southern and the other Project Participants
and made its own decision to extend credit under the Bank Loan Facility, the VP
Letter of Credit Facility and the
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Bond Letter of Credit Facility and to enter into this Agreement. Each Bank and
the Issuing Bank also represents that it will, independently and without
reliance upon the Administrative Agent or any other Bank or the Issuing Bank,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower, Southern, the other Project Participants and
any other Person. Except for notices, reports and other documents expressly
required to be furnished to the Banks or the Issuing Bank by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Bank or the Issuing Bank with any credit or other
information concerning the business, operations, property, condition (financial
or other), prospects or creditworthiness of the Borrower, Southern, the other
Project Participants or any other Person which may come into the possession of
the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
(g) Indemnification. The Banks and the Issuing Bank agree to
indemnify the Administrative Agent in its capacity as such and its directors,
officers, employees and agents (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), severally according
to their Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Bank
Loans and all other Secured Obligations payable to the Banks or the Issuing Bank
hereunder) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or the Project Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Bank or the Issuing Bank
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's gross negligence
or willful misconduct. The agreements in this Section shall survive the payment
of the Bank Loans and all other Secured Obligations payable to the Banks or the
Issuing Bank hereunder.
(h) Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, issue letters of
credit in favor of, accept deposits from and generally engage in any kind of
business with the Borrower, Southern and their respective Affiliates as though
the Administrative Agent were not the Administrative Agent hereunder and under
the other Loan Documents. With respect to its Bank Loans made or renewed by it,
any Bank Note issued to it and its rights as the Issuing Bank under the VP
Letter of Credit Facility and the Bond Letter of Credit Facility, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Bank and may exercise the same as though it
were not the Administrative Agent, and the terms "Bank", "Banks" and "Issuing
Bank" shall include the Administrative Agent in its individual capacity.
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(i) Successor Administrative Agent. Subject to the appointment
of a successor Administrative Agent as provided below, Credit Suisse (and any
successor thereto as Administrative Agent), (i) may resign as Administrative
Agent under this Agreement and the other Loan Documents by giving at least 30
days notice thereof to the Banks, the Issuing Bank, the Security Agent, the
Institutions and the Borrower or (ii) may be removed for cause as Administrative
Agent under this Agreement and the other Loan Documents by the Majority Banks by
at least 30 days notice thereof to the Administrative Agent, the other Banks,
the Issuing Bank, the Security Agent, the Institutions and the Borrower. Upon
any such resignation or removal, the Majority Banks shall appoint from among the
Banks a successor Administrative Agent for the Banks and the Issuing Bank, which
successor Administrative Agent shall be reasonably acceptable to the Borrower
(unless an Event of Default has occurred and is continuing). If no successor
Administrative Agent shall have been appointed by the Majority Banks and shall
have accepted such appointment within 30 days after the giving of such notice of
resignation or removal, as the case may be, then the resigning or removed
Administrative Agent may, on behalf of the Banks and the Issuing Bank, appoint a
successor Administrative Agent, which shall be a Bank or any other bank with an
office in New York, New York having a combined capital and surplus of not less
than $500,000,000 and which shall be reasonably acceptable to the Borrower
(unless an Event of Default has occurred and is continuing). Upon the acceptance
of its appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder, without any other
or further act or deed on the part of the retiring Administrative Agent or any
of the parties to this Agreement or any holders of the Bank Notes. After any
retiring Administrative Agent shall cease to be the Administrative Agent
hereunder, the provisions of this paragraph (i) shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent under this Agreement and the other Loan
Documents.
(j) Relationship With Institutions. Notwithstanding any
provision to the contrary elsewhere in this Agreement or the other Loan
Documents, the Administrative Agent shall not have any duties or
responsibilities (except to the extent expressly provided in Section 14.10(b)),
to or on behalf of, be a trustee of, or have any fiduciary relationship with,
any Institution, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities of the Administrative Agent to or on behalf of any
Institution shall be read into this Agreement or any other Loan Document or
shall otherwise exist; and the provisions of Section 13.1 shall be binding upon
and inure to the benefit of solely the Banks, the Administrative Agent and the
Borrower.
Section 13.2 The Security Agent. As provided in the Security
Deposit Agreement, each of the Lenders irrevocably designates and appoints
Credit Suisse as the security agent for such Lender, to take such action on its
behalf under the provisions of the Security Deposit Agreement, this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Security Agent by the terms of the Security
Deposit Agreement, this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Each of the Lenders
agrees that the provisions of Article II of the Security Deposit Agreement,
which sets forth the agency provisions
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concerning the Security Agent, are hereby incorporated by reference in this
Agreement in full and shall be binding on the parties hereto.
SECTION 14. MISCELLANEOUS
Section 14.1 Amendments and Waivers. (a) Neither this
Agreement, any Note, any other Loan Document, nor any term hereof or thereof may
be amended, supplemented or otherwise modified except in accordance with the
provisions of Section 8.7 of the Security Deposit Agreement. Any such waiver and
any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent, the Security Agent, the Co-Agents and all future holders
of the Notes. In the case of any waiver of a Default or Event of Default, the
Borrower, the Lenders, the Co-Agents, the Security Agent and the Administrative
Agent shall be restored to their former position and rights hereunder and under
the outstanding Notes and any other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement or the Loans or the Notes unless each Lender shall be informed
thereof by the Borrower and shall be afforded the opportunity of considering the
same and shall be supplied by the Borrower with sufficient information to enable
it to make an informed decision with respect thereto. The Borrower will not,
directly or indirectly, pay or cause to be paid any remuneration, whether by way
of supplemental or additional interest, fees or otherwise, to any Lender as
consideration for or as an inducement to entering into any waiver or amendment
of any of the terms and provisions of this Agreement or the Loans or the Notes
unless such remuneration is concurrently offered, on the same terms, ratably to
all of the Lenders. Nothing in this Section 14.1(b) shall prohibit the Lenders
from determining as among themselves the manner in which any fee payable
generally to the Lenders with respect to any waiver or amendment shall be
allocated among the Lenders.
Section 14.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by telex, telecopy or telegraph), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand or, in the case of notice given by mail, private courier, overnight
delivery service or telecopy, when received, or, in the case of telegraphic
notice, when delivered to the telegraph company, or, in the case of telex
notice, when sent, answerback received, addressed as follows in the case of the
Borrower and the Administrative Agent, as set forth in Schedule 1 in the case of
the Lenders, as set forth in the Security Deposit Agreement in the case of the
Security Agent, and as notified to the parties from time to time in the case of
the Independent Engineer, or to such other address as may be hereafter notified
in accordance with this Section 14.2 by the respective parties hereto and any
future holders of the Notes:
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The Borrower: Birchwood Power Partners, L.P.
c/o SEI Birchwood, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopy: 000-000-0000
The Administrative Agent: Credit Suisse
Tower 49
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Project Finance
Telecopy: 000-000-0000
Telex: 420149
provided that any notice, request or demand to or upon the Administrative Agent
or any Lender pursuant to Section 3.2, 3.5, 4.2, 5.2, 5.4, 5.6, 6.2, 6.3, 6.5,
6.7, 7.4, 7.9(b) or 14.10(b) shall not be effective until received.
Section 14.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent,
the Security Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 14.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
Section 14.5 Payment of Expenses and Taxes; Indemnification.
(a) The Borrower agrees (i) to pay or reimburse the Administrative Agent, the
Co-Agents and the Institutions, in accordance with paragraph (b) below, for all
their respective out-of-pocket costs and expenses incurred in connection with
the preparation and execution of, and any amendment, supplement or modification
to, this Agreement, the Notes and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby and by Sections 9.5 and 10.25
in connection with the issuance of Bonds and the Bond Letters of Credit,
including, without limitation, the reasonable fees and expenses of Xxxxxxx
Xxxxxxx & Xxxxxxxx as special counsel to the Administrative Agent, the Co-Agents
and the Institutions, the reasonable fees and expenses of Williams, Mullen,
Christian & Xxxxxxx as special Virginia counsel to the Administrative Agent, the
Co-Agents of the Institutions, the reasonable fees and expenses of Debevoise &
Xxxxxxxx, special counsel to the Institutions with respect to intercreditor
matters, the reasonable fees and
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expenses of the Independent Engineer, the Independent Insurance Consultant, the
Environmental Consultant, the Coal Consultant and the Ornamental Flower Market
Consultant incurred in connection with the performance of their respective
duties under this Agreement (including, without limitation, the preparation by
the Independent Engineer and the Coal Consultant of the annual updated Coal
Report and Independent Engineer's Report, respectively, to be provided to the
Lenders as contemplated in this Agreement), the out-of-pocket expenses and
counsel fees and disbursements incurred by the Administrative Agent and the
Co-Agents in connection with the syndication of the Commitments to the Banks,
the reasonable fees and expenses (including reasonable counsel fees) of the
Security Agent, the reasonable out-of-pocket expenses of the Administrative
Agent in connection with the administration of this Agreement and the other Loan
Documents, and all fees, taxes, other charges and costs and expenses relating to
the recordings, filings and other actions referred to in Section 8.13 (the
foregoing costs and expenses in this clause (i) being herein called
"Reimbursable Expenses"); (ii) to pay or reimburse each Lender, the
Administrative Agent and the Security Agent for all of their respective
out-of-pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes, the other Loan
Documents and any other documents prepared in connection herewith or therewith,
including, without limitation, the reasonable fees and disbursements of counsel
for the Administrative Agent, the Security Agent, the Issuing Bank and the other
Lenders; (iii) to pay or reimburse each Lender, the Administrative Agent and the
Security Agent for any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay (not resulting from the
gross negligence or wilful misconduct of such Lender, the Administrative Agent
or the Security Agent, as the case may be) in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes or the other Loan
Documents; and (iv) to pay, indemnify, and hold each Lender (including the
Issuing Bank), each Co-Agent, the Administrative Agent and the Security Agent,
and the directors, officers, employees, agents and stockholders of each Lender
(including the Issuing Bank), each Co-Agent, the Administrative Agent and the
Security Agent (each such Person, an "Indemnified Person"), harmless from and
against any and all other direct (as opposed to consequential) liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel in
connection therewith) arising under, relating to or resulting from any demand,
claim, suit, proceeding or action of any kind or nature whatsoever of any third
party (including, without limitation, any holder of any Bond, the Bond Issuer,
any Bond Trustee or any underwriter, placement agent or remarketing agent for
the Bonds) against or affecting an Indemnified Person (1) with respect to the
execution, delivery, enforcement and performance of this Agreement, the Notes,
the other Loan Documents and the Project Documents or the transactions
contemplated hereby or thereby, (2) with respect to the offering and sale of the
Bonds, (3) with respect to a default by the Borrower in the performance of its
respective agreements, rights or obligations contained in this Agreement, the
other Loan Documents or the Project Documents, or any other instrument or
agreement entered into by the Borrower in connection herewith or therewith, (4)
resulting from injury to or death of any person whomsoever, and damage to or
loss or destruction of any property whatsoever, which in any way arises in
connection with, is incidental to or is caused by the construction or operation
of the Facility or any activity on or near the Site or the
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Project, (5) in any way relating to or arising out of the Project, or the
manufacture, financing, construction, purchase, acceptance, rejection,
ownership, acquisition, delivery, nondelivery, preparation, installation,
storage, maintenance, repair, transfer of title, abandonment, possession,
rental, use, operation, environmental clean-up, condition, sale, return,
importation, exportation or other application or disposition of all or any part
of any interest in the Project, or (6) resulting from the violation of any
Environmental Law or the existence or Release of any Hazardous Materials at the
Project or any other property of the Borrower (including, without limitation,
clean-up costs, response costs, costs of corrective action and natural resources
damages) (all the matters indemnifiable under clauses (i) through (iv) above,
collectively, the "indemnified liabilities"); provided, that the Borrower shall
have no obligation to any Indemnified Person under clause (iv) above with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person. Each Indemnified Person claiming any
right to indemnity under clause (iv) of the preceding sentence by reason of the
institution of any action against such Indemnified Person shall notify the
Borrower thereof and shall consult with the Borrower from time to time in
connection with the defense of such action. In case any such action shall be
brought against such Indemnified Person, the Borrower shall be entitled to
assume the defense thereof or to participate in such action with counsel of its
choice and at its expense (and if the Borrower assumes the defense of such
action the Borrower shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by such Indemnified Person); provided
that any counsel retained by the Borrower shall be reasonably satisfactory to
such Indemnified Person. Notwithstanding the Borrower's election to assume the
defense of such action, such Indemnified Person shall have the right to employ
separate counsel and to participate in the defense of such action, and the
Borrower shall bear the reasonable fees and expenses of such separate counsel,
if (i) the counsel chosen by the Borrower to represent such Indemnified Person
determines that such representation would present such counsel with a conflict
of interest, (ii) the defendants in, or targets of, any such action include both
such Indemnified Person and the Borrower, and such Indemnified Person shall have
concluded, on advice of counsel, that there may be legal defenses available to
it which are different from or additional to those available to the Borrower,
(iii) the Borrower shall not have employed counsel satisfactory to such
Indemnified Person to represent such Indemnified Person within a reasonable time
after notice of the institution of any such action, or (iv) the Borrower shall
authorize such Indemnified Person to employ separate counsel at the Borrower's
expense; provided that the Borrower shall not be required to pay the fees and
expenses of more than one such separate counsel for all of the Banks or more
than one such separate counsel for all of the Institutions.
(b) Reimbursable Expenses incurred on or prior to the Closing
Date shall be reimbursed by the Borrower on the Closing Date, and Reimbursable
Expenses incurred after the Closing Date shall be reimbursed by the Borrower
from time to time within 30 days after demand; provided in each case that such
Reimbursable Expenses are approved by the Borrower (which approval shall not be
unreasonably withheld) and shall be evidenced by reasonably satisfactory
documentation therefor, and provided, further, that nothing herein shall relieve
the Borrower of its obligation to reimburse such Reimbursable Expenses if the
Closing Date does not occur for any reason. The agreements in this Section shall
survive repayment of the Loans and all of the other Secured Obligations.
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Section 14.6 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Banks, the Issuing
Bank, the Institutions, the Administrative Agent, the Co-Agents, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender and the Issuing
Bank, and none of the Banks or Institutions may assign or transfer, or grant any
participations in, its rights or obligations hereunder except in accordance with
Sections 14.7 and 14.8, respectively.
Section 14.7 Permitted Bank Transfers and Participations. (a)
Any Bank may, in the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to one or more banks or other
financial institutions or institutional investors ("Loan Participants")
participating interests in any Bank Loan made by such Bank, the Bank Notes held
by such Bank, the Commitment of such Bank or any other interest of such Bank
hereunder and under the other Loan Documents. In the event of any such sale by a
Bank of a participating interest to a Loan Participant, such Bank's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of such Bank Notes for all purposes
of this Agreement and the other Loan Documents, and the Borrower, the
Administrative Agent and the Security Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement and the other Loan Documents. The Borrower agrees that each
Loan Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Bank Note
to the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement or any Bank Note, provided that,
in purchasing such participating interest, such Loan Participant shall be deemed
to have agreed to share with the Banks the proceeds thereof as provided in
Section 14.9(a) as fully as if it were a Bank hereunder. The Borrower also
agrees that each Loan Participant shall be entitled to the benefits of Sections
3.11, 7.6 and 7.7(a) with respect to its participation in the Commitments and
the Bank Loans outstanding from time to time; provided that (i) no Loan
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Bank would have been entitled to receive in respect
of the amount of the participation transferred by such transferor Bank to such
Loan Participant had no such transfer occurred, (ii) no Loan Participant shall
be entitled to any indemnification by the Borrower pursuant to Section 7.6 to
the extent that, at the time of its purchase of a participating interest in the
Bank Loans, it cannot make the representation specified in the first sentence of
Section 7.6(b) and (iii) each Loan Participant shall be bound by the
confidentiality provisions contained in Section 14.14. In no event shall a Bank
that sells a participating interest be obligated to the Loan Participant to take
or refrain from taking any action hereunder or under any of the other Loan
Documents except that such Bank may agree that it will not, without the consent
of such Loan Participant, agree to (A) increase or extend the term of the
Commitment of such Bank, (B) reduce the principal of, or interest payable on,
the Bank Loans of such Bank or any fees or other amounts payable to such Bank
hereunder, (C) postpone the date fixed for any payment of the principal of, or
interest on, the Bank Loans of such Bank or other amounts payable to such Bank
hereunder, (D) change the percentage of the Commitments of the Banks or of the
aggregate unpaid principal amount of the Bank Loans which shall be required for
the Banks or any of them to take any action hereunder,
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or (E) provide its consent to a release of Collateral pursuant to Section 8.7(f)
of the Security Deposit Agreement.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to any
Qualified Financial Institution (all such purchasers, collectively, "Purchasing
Banks") all of its Commitments, Loans, rights and obligations under this
Agreement and the Bank Notes held by it (or any part of such Commitments, Loans,
rights and obligations provided that, after giving effect to such sale, the
transferor Bank and such Purchasing Bank each have Commitments and/or Bank Loans
aggregating not less than $5,000,000) pursuant to a Transfer Supplement,
substantially in the form of Exhibit L-1 (a "Bank Transfer Supplement"),
executed by such Purchasing Bank, such transferor Bank (and, in the case of a
Purchasing Bank that is not then a Bank, the Administrative Agent) and delivered
to the Administrative Agent for its acceptance and recording in the Register (as
hereinafter defined); provided that no Bank shall sell or transfer an interest
pursuant to this Section 14.7(b) to any Person which, at the time of such
transfer, would be unable to make or maintain Bank Loans of any Type hereunder
(unless the transferor Bank is then unable to make or maintain Loans of such
Type hereunder) or which, at the time of such transfer, would be entitled to
payments from the Borrower under Section 3.11 or 7.6 in excess of the payments
(if any) to which the transferor Bank is then entitled. Upon such execution,
delivery, acceptance and recording, from and after the Transfer Effective Date
determined pursuant to such Bank Transfer Supplement, (x) the Purchasing Bank
thereunder shall be a party hereto and shall be bound by the provisions hereof
and of the Security Deposit Agreement and, to the extent provided in such Bank
Transfer Supplement, shall have the rights and obligations of a Bank hereunder
and of a Secured Party under the Security Deposit Agreement, with its Commitment
as set forth in such Bank Transfer Supplement, and (y) the transferor Bank
thereunder shall, to the extent provided in such Bank Transfer Supplement, be
released from its obligations under this Agreement arising after the Transfer
Effective Date (and, in the case of a Bank Transfer Supplement covering all or
the remaining portion of a transferor Bank's Commitments, Loans, rights and
obligations under this Agreement, such transferor Bank shall cease to be a party
hereto and to the Security Deposit Agreement); provided that such transferor
Bank shall continue to be bound by the confidentiality provisions set forth in
Section 14.14(b). Such Bank Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Bank as a Bank party hereto and the resulting
adjustment of Commitment Percentages and Commitments arising from the purchase
by such Purchasing Bank of all or a portion of the Commitments, Loans, rights
and obligations of such transferor Bank under this Agreement and the Bank Notes
held by it. On the Transfer Effective Date determined pursuant to such Bank
Transfer Supplement, or as soon as possible thereafter, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the Bank Project Note, Bank L/C Note and Bank Liquidity Note held by the
transferor Bank (which Bank Notes shall be surrendered to the Administrative
Agent for delivery to the Borrower), a new Bank Project Note, Bank L/C Note and
Bank Liquidity Note to the order of such Purchasing Bank reflecting the
Commitment of such Purchasing Bank and outstanding Bank Loans obtained by it
pursuant to such Bank Transfer Supplement and, if the transferor Bank has
retained a Commitment and Bank Loans hereunder, a new Bank Project Note, Bank
L/C Note and Bank Liquidity Note to the order of the transferor Bank reflecting
the Commitment of such transferor Bank and outstanding Bank Loans retained
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by it hereunder. Such new Bank Notes shall be in the form of the Bank Notes
replaced thereby. The Bank Notes surrendered by the transferor Bank shall be
returned by the Administrative Agent to the Borrower marked "canceled".
(c) The Administrative Agent shall maintain at its address
referred to in Section 14.2 a copy of each Bank Transfer Supplement delivered to
it and a register (the "Register") for the recordation of the names and
addresses of the Banks and the Commitments of, and principal amount of the Bank
Loans owing to, each Bank from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent, the Security Agent and the Banks may treat each Person
whose name is recorded in the Register as the owner of the Bank Loans recorded
therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Bank, the Issuing Bank, any Institution or the
Security Agent at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a Bank Transfer Supplement executed by
a transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank, by the Borrower and the Administrative Agent), together
with payment to the Administrative Agent by the transferor Bank (unless such
transfer is part of the initial general syndication of the Bank Loans and the
Commitments) of a registration and processing fee of $2,000, the Administrative
Agent shall (i) promptly accept such Bank Transfer Supplement and (ii) on the
Transfer Effective Date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Banks, the Issuing Bank, the Institutions, the Security Agent
and the Borrower.
(e) Nothing herein shall prohibit any Bank from pledging or
assigning any Bank Note to any Federal Reserve Bank in accordance with
applicable law.
(f) A sale by a Bank of its rights and obligations under this
Agreement and the Bank Notes held by it pursuant to the foregoing provisions of
this Section 14.7 shall not release the Borrower from its obligations to said
Bank under Section 14.5(a)(iv) relating to events that occurred prior to the
date of such sale.
Section 14.8 Permitted Institution Transfers. (a) Any
Institution may, in accordance with applicable law, at any time sell to any
financial institution, insurance company or other institutional investor (all
such purchasers, collectively, "Purchasing Institutions") all of its
Commitments, Loans, rights and obligations under this Agreement and the
Institutional Notes held by it (or any part of such Commitments, Loans, rights
and obligations provided that, after giving effect to such sale, each of the
transferor Institution and its Affiliates collectively have, and the Purchasing
Institution and its Affiliates collectively have, Commitments and/or
Institutional Loans aggregating not less than $1,000,000) pursuant to a Transfer
Supplement, substantially in the form of Exhibit L-2 (an "Institutional Transfer
Supplement"), executed by such Purchasing Institution and such transferor
Institution; provided that, prior to the Transfer Effective Date referred to
below, such Purchasing Institution shall have also executed and delivered a
representation letter addressed to the Borrower to the effect that the
representations set forth in Section 4.8 will be true and correct as to it on
such Transfer Effective Date; provided,
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further that no Institution shall sell or transfer an interest pursuant to this
Section 14.8(a) to any Person which, at the time of such transfer, would be
entitled to payments from the Borrower under Section 7.6 in excess of the
payments (if any) to which the transferor Institution is then entitled. Upon
such execution and delivery, from and after the Transfer Effective Date
determined pursuant to such Institutional Transfer Supplement, (x) the
Purchasing Institution thereunder shall be a party hereto and shall be bound by
the provisions hereof and of the Security Deposit Agreement and, to the extent
provided in such Institutional Transfer Supplement, shall have the rights and
obligations of a Institution hereunder and of a Secured Party under the Security
Deposit Agreement, with its Commitment as set forth in such Institutional
Transfer Supplement, and (y) the transferor Institution thereunder shall, to the
extent provided in such Institutional Transfer Supplement, be released from its
obligations under this Agreement arising after the Transfer Effective Date (and,
in the case of a Institutional Transfer Supplement covering all or the remaining
portion of a transferor Institution's rights and obligations under this
Agreement, such transferor Institution shall cease to be a party hereto and to
the Security Deposit Agreement); provided that such transferor Institution shall
continue to be bound by the confidentiality provisions set forth in Section
14.14(b). Such Institutional Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Institution as a Institution party hereto and the
resulting adjustment of Commitment Percentages and Commitments arising from the
purchase by such Purchasing Institution of all or a portion of the rights and
obligations of such transferor Institution under this Agreement and the
Institutional Note or Notes held by it. On the Transfer Effective Date
determined pursuant to such Institutional Transfer Supplement, or as soon as
possible thereafter, the Borrower, at its own expense, shall execute and deliver
to the transferor Institution in exchange for the Institutional Note or Notes
held by the transferor Institution, a new Institutional Note or Notes payable to
the order of, or registered in the name of, such Purchasing Institution (as such
Purchasing Institution shall request) reflecting the outstanding Institutional
Loans obtained by it pursuant to such Institutional Transfer Supplement and, if
the transferor Institution has retained any Institutional Loans hereunder, a new
Institutional Note or Notes payable to the order of, or registered in the name
of, the transferor Institution (as such transferor Institution shall request)
reflecting the outstanding Institutional Loans retained by it hereunder. Such
new Institutional Notes shall be in the form of the Institutional Note replaced
thereby. Any Institutional Note surrendered by the transferor Institution shall
be returned to the Borrower marked "cancelled".
(b) A sale by an Institution of its rights and obligations
under this Agreement and the Institutional Notes held by it pursuant to the
foregoing provisions of this Section 14.8 shall not release the Borrower from
its obligations to said Institution under Section 14.5(a)(iv) relating to events
that occurred prior to the date of such sale.
Section 14.9 Set-off. In addition to any rights and remedies
of the Lenders provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by
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such Lender to or for the credit or the account of the Borrower, against any and
all of the respective obligations of the Borrower now or hereafter existing
under the Loan Documents, irrespective of whether or not such Lender or any
other Lender shall have made any demand hereunder and although such obligations
may be contingent or unmatured; provided that following any such set-off by a
Lender, such Lender shall be liable to the other Lenders to the extent provided
in Section 8.2 of the Security Deposit Agreement. Each Lender agrees promptly to
notify the Borrower, the Administrative Agent, each Institution and the Security
Agent after any such set-off and application made by such Lender; provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
Section 14.10 Agreements Among Lenders.
(a) Limitation on Relationship. Paragraph (b) of this Section
14.10 and Article VIII of the Security Deposit Agreement set forth certain
agreements and obligations between the Banks and the Issuing Bank on the one
hand and the Institutions on the other hand. Except as provided in paragraph (b)
of this Section 14.10 and Article VIII of the Security Deposit Agreement,
neither the Banks nor the Issuing Bank shall have any duties or responsibilities
to or on behalf of, or any fiduciary relationship with, the Institutions, and
the Institutions shall not have any duties or responsibilities to or on behalf
of, or any fiduciary relationship with, the Banks or the Issuing Bank, in each
case under or in connection with this Agreement or any other Loan Document.
Without limiting the generality of the foregoing, no implied covenants,
functions, responsibilities, duties, obligations or liabilities between the
Banks and the Issuing Bank on the one hand, and the Institutions on the other
hand, shall be read into this Agreement or any other Loan Document or shall
otherwise exist. In addition, none of the Lenders, nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable to any of the other Lenders for any action lawfully taken or omitted to
be taken by such Person under or in connection with this Agreement or any other
Loan Document (except for action taken or omitted to be taken in violation of
any provisions of this Agreement or the other Loan Documents) or (ii)
responsible in any manner to any of the other Lenders for any of the matters
referred to in clause (ii) of Section 13.1(c); provided that nothing in this
paragraph (a) shall in any way limit or be deemed to limit or release any Lender
from its obligations under paragraph (b) of this Section 14.10 and Article VIII
of the Security Deposit Agreement or the Security Agent from any of its
obligations to the Institutions under the Security Documents.
(b) Bank True-Up Obligation. The Banks hereby acknowledge that
it would be desirable if, at all times during the Construction Period, the
Relative Bank Exposure were equal to the Relative Institution Exposure.
Accordingly, because the Borrower may at any time during the Construction Period
obtain Institutional Loans from the Institutions in a relatively greater
proportion than the Bank Project Loans from the Banks, the Banks hereby
irrevocably and unconditionally agree with the Institutions as follows:
(i) True-Up Obligation. Each Bank severally agrees
that, effective upon an acceleration of the Institutional Loans prior
to the Completion Date in accordance with Section 12.2 following an
Event of Default (whether or not the Bank Loans are accelerated), such
Bank shall automatically purchase at par, without any further act of
the Lenders except as provided elsewhere in this Section 14.10(b), an
undivided participation
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interest in the outstanding Institutional Notes (a "Participation
Interest") in an amount equal to the True-Up Amount applicable to such
Bank. The Participation Interest purchased by each Bank in the
Institutional Notes shall entitle such Bank to receive, on a pro rata
basis with the holders of such Institutional Notes based on the
percentage of the undivided participation interest in the Institutional
Notes purchased by such Bank, an amount equal to the purchase price of
the Participation Interest paid to the Institutions pursuant to the
preceding sentence, together with interest accrued thereon at the
True-Up Default Rate as provided in clause (x) below, but shall not
entitle such Bank to receive any Make-Whole Premium payable on the
Institutional Notes, which shall continue to be payable to the holders
thereof.
(ii) Calculation of True-Up Amount. Following an
acceleration of the Institutional Loans pursuant to Section 12.2, if
the Institutions shall determine that amounts are payable to them under
the Banks' True-Up Obligation hereunder, they shall as soon as
practicable thereafter provide a written payment request to the
Administrative Agent. Promptly following the receipt of such a request,
the Institutions and the Administrative Agent shall jointly calculate
the True-Up Amount applicable to each Bank and the Administrative Agent
shall notify the Banks and the Security Agent thereof, which
notification to the Banks shall contain the calculations by which the
True-Up Amount applicable to each Bank was determined.
(iii) Purchase Mechanics. No later than five Business
Days after the notification to the Banks referred to in clause (ii)
above, each Bank shall purchase from the Institutions on a pro rata
basis, without recourse or representation or warranty by the
Institutions (other than that such Interests are being assigned free
and clear of any Liens), Participation Interests in the outstanding
Institutional Notes (pro rata among said Notes) in an amount equal to
the True-Up Amount applicable to such Bank, by wire transfer of such
amount to the Administrative Agent at its office specified on Schedule
1. The Administrative Agent will, prior to the close of business on
each Business Day during such five Business Day period, wire transfer
to each Institution at its address on Schedule 1 (or such other address
notified in writing to the Administrative Agent) such Institution's pro
rata share (as notified to the Administrative Agent in writing at the
time the True-Up Amount was calculated pursuant to clause (ii) above)
of the aggregate amount of available funds received from the Banks on
such date in respect of the True-Up Obligation. Although the
Administrative Agent agrees to perform ministerial activities with
respect to the Institutions' collection of amounts due from the Banks
in respect of the True-Up Obligation, in no event shall the
Administrative Agent be obligated for collecting any unpaid True-Up
Amounts from the Banks or be liable to any Institution for the failure
by any Bank to pay any such amount.
(iv) Non-Payment of True-Up Amount. If a Bank fails to
pay all or any portion of the True-Up Amount applicable to such Bank
prior to the expiration of the period of five Business Days referred to
in clause (ii) above, such unpaid True-Up Amount of such Bank shall
bear interest at the Institution Default Rate from and excluding the
last day of such five Business Day period to and including the date
paid by the Bank. In addition, following the expiration of such five
Business Day period with
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respect to any such Bank and until all of the True-Up Amount payable by
such Bank, together with accrued interest thereon, has been paid in
full, all payments of or collections with respect to the Bank Loans
made by such Bank or interest thereon or any other amount due to such
Bank hereunder that is received by the Administrative Agent shall be
paid by the Administrative Agent first, to the Institutions in payment
of the unpaid True-Up Amount of such Bank, together with interest
thereon, until such amounts shall be paid in full, and second, to such
Bank.
(v) Voting Rights. The Lenders agree that the
provisions set forth in Section 8.8 of the Security Deposit Agreement
(relating to certain intercreditor matters) shall in all respects
govern the voting rights of the Lenders with respect to the
Participation Interests purchased by the Banks pursuant to this Section
14.10(b).
(vi) Obligations Several and Unconditional.
Notwithstanding anything herein to the contrary, each Bank's obligation
under this Section 14.10(b) to purchase Participation Interests if any
True-Up Amount is owing by such Bank shall be several and not joint
with the other Banks, but shall be irrevocable and unconditional and
without regard to any then existing Events of Default (including a
bankruptcy of the Borrower), any failure by the Borrower to pay any
fees pursuant to Section 7.1(c), a failure of the other Banks to
perform their respective obligations hereunder or any other
circumstance. In addition, this Section 14.10(b) is not intended to,
nor shall it, confer any rights on the Borrower.
(vii) True-Up Unwind. If, at any time following the
purchase by any Bank of a Participation Interest under this Section
14.10(b) following the acceleration of the Institutional Loans in
accordance with Section 12.2, the Majority Institutions or the Required
Secured Parties shall rescind and annul such acceleration as provided
in the last paragraph of Section 12.2, concurrently therewith such
purchase of the Participation Interest by such Bank shall automatically
be rescinded, and the purchase price paid by such Bank therefor, in an
amount equal to the True-Up Amount applicable to such Bank, shall be
promptly returned by the Institutions, on a pro rata basis, to such
Bank, without interest thereon.
(viii) Specific Performance. The Banks agree that the
Institutions shall be entitled to injunctive or other equitable relief
for the failure by any Bank to perform its obligations under this
Section 14.10(b), and such Bank shall not plead in defense thereto that
there is an adequate remedy at law.
(ix) Payment Rights. The Borrower agrees that each Bank
purchasing a Participating Interest may exercise all rights of payment
(including, without limitation, rights of set-off with respect to such
Participating Interest) as fully as if such Bank were the direct holder
of the Institutional Loans represented by such Participating Interest;
provided that each Institution agrees that in the event it shall
receive any payment with respect to the Participation Interests
purchased by the Banks, it shall promptly deliver such amounts to the
Banks.
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(x) Interest Payable. The Borrower agrees that the
portion of the Institutional Loans purchased by any Bank pursuant to
this Section 14.10(b) shall, from and after the effective date of such
purchase, bear interest at the True-Up Default Rate.
(xi) Certain Defined Terms. For purposes of this
Section 14.10(b), the following terms shall have the meanings
specified below:
"Total Lender Commitments": at any time, the sum of
(i) the Total Bank Loan Commitments then in effect and (ii)
the Total Institutional Commitments then in effect.
"Total Lender Exposure": at any time, the sum of (i)
the Total Bank Exposure on such date and (ii) the aggregate
outstanding principal amount of Institutional Loans on such
date (after giving effect to any prepayment of Institutional
Loans with the proceeds of funds transferred from the
Institutional Loan Proceeds Account on or prior to such date
pursuant to Section 7.3(h)).
"True-Up Amount": as of any date of determination,
with respect to each Bank, the amount by which (i) the product
of (x) such Bank's True-Up Percentage and (y) the Total Lender
Exposure on such date, exceeds (ii) such Bank's Commitment
Percentage of the Total Bank Exposure on such date.
"True-Up Default Rate": for any day, the higher of
the Bank Default Rate and the Institution Default Rate.
"True-Up Percentage": with respect to any Bank on any
date of determination, a fraction, the numerator of which is
equal to such Bank's Commitment Percentage of the Total Bank
Loan Commitments then in effect, and the denominator of which
is the Total Lender Commitments then in effect.
Section 14.11 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower, the Administrative
Agent and the Institutions.
Section 14.12 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 14.13 Limitation of Recourse. There shall be full
recourse to the Borrower and all of its assets and properties for the
liabilities of the Borrower under this Agreement, the Notes and the other Loan
Documents and the Obligations, but, subject to the provisions of the following
sentence, in no event shall Southern or any of its Affiliates (other
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than the Borrower) or any Partner (collectively, the "Non-Recourse Parties"), or
any officer, director or holder of any equity interest in the Borrower or any
Non-Recourse Party, be personally liable or obligated for such liabilities and
obligations of the Borrower, except as may be specifically provided in any other
Loan Document or Project Document to which such Non-Recourse Party is a party.
Nothing herein contained shall limit or be construed to (i) release any
Non-Recourse Party from liability for its fraudulent actions, misappropriation
of funds or willful misconduct, or from any of its obligations or liabilities
under any agreement executed by such Non-Recourse Party in its individual
capacity in connection with any Loan Document or Project Document or (ii) limit
in any respect the enforceability in accordance with their respective terms on a
full recourse basis of any Southern Document against Southern, or against SEI,
of the Operating and Maintenance Agreement, the Construction Contracts or the
SEI Coal Procurement Letter. The provisions of this Section 14.13 shall survive
the termination of this Agreement.
Section 14.14 Confidentiality Undertaking. (a) The
Administrative Agent and each Lender agrees, and each successor or assignee
thereof, by becoming a party to this Agreement (either directly or indirectly
through a participation agreement), shall be deemed to have agreed, to keep
confidential (and to cause its officers, directors and employees to keep
confidential) the provisions of the Project Documents and the Information
Memorandum and any written information that is obtained pursuant to the terms of
this Agreement or any other Loan Document (collectively, the "Confidential
Material"), except that the Administrative Agent and each Lender may disclose
the Confidential Material (i) to its officers, directors, employees and
Affiliates (provided such persons are informed of the confidential nature of the
Confidential Material and the restrictions imposed by this Section 14.14), (ii)
to its attorneys and accountants who have a need for such information (provided
such persons are informed of the confidential nature of the Confidential
Material and the restrictions imposed by this Section 14.14), (iii) to its
agents, representatives and other professional consultants or advisors who have
agreed in writing to be bound by the restrictions with respect to the
Confidential Material contained in this Section 14.14, (iv) upon the order of
any Government Authority, (v) upon the request or demand of, or in connection
with any investigation or audit by (1) any Government Authority, if such request
or demand shall have the force of law, or (2) any Government Authority
regulating the business of banking or insurance (including the National
Association of Insurance Commissioners), (vi) any nationally recognized rating
agency (provided such persons are informed of the confidential nature of the
Confidential Material and the restrictions imposed by this Section 14.14), (vii)
to the extent such information was or becomes available to any Lender by a
Person who is not bound by a confidentiality agreement so far as such Lender is
aware, (viii) to the extent such information is now or hereafter enters the
public domain through no action on the part of such Lender in violation of this
Section 14.14, (ix) to a prospective Loan Participant, Purchasing Bank or
Purchasing Institution who agrees in writing to be bound by the restrictions
with respect to the Confidential Material contained in this Section 14.14 and
(x) in connection with the exercise of any remedy following an Event of Default
under this Agreement, the Security Documents or the other Loan Documents. In the
case of disclosure by a Lender under clause (iv) or (v) of the preceding
sentence (other than routine disclosures to regulatory authorities), such Lender
shall use its best efforts to notify the Borrower before making any such
disclosure so that the Borrower may seek an appropriate protective order.
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(b) In addition, the Administrative Agent and each Lender
agrees, and each successor or assignee thereof, by becoming a party to this
Agreement (either directly or indirectly through a participation agreement),
shall be deemed to have agreed, not to use or disclose any Confidential Material
relating to the Power Purchase Agreement in any way that is detrimental to
Virginia Power in connection with any other project involving Virginia Power as
a purchaser of electric energy and/or capacity. The provisions of this paragraph
(b) shall survive the termination of the Commitments and the repayment of the
Loans and shall be binding on the Administrative Agent and the Lenders, and each
successor or assignee thereof that becomes a party to this Agreement, until the
termination of the Power Purchase Agreement, or such earlier date on which
disclosure of the relevant Confidential Material would be permitted pursuant to
clause (vii) or (viii) of paragraph (a) above.
(c) In the event of any breach or threatened breach by the
Administrative Agent or a Lender of the terms of this Section 14.14, the
Borrower shall be entitled to injunctive or other equitable relief, and the
Administrative Agent or such Lender, as the case may be, shall not plead in
defense thereto that there would be an adequate remedy at law.
SECTION 14.15 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW
YORK.
Section 14.16 Submission To Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents, or
for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that nothing herein shall affect the right to
effect service of process in any manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(d) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages, other than, in the case of punitive damages,
with respect to any Lender or the Administrative Agent which engages in
willful misconduct.
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Section 14.17 Acknowledgements. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes and the other Loan
Documents;
(b) neither the Administrative Agent, any Co-Agent nor any
Lender has any fiduciary relationship to the Borrower, and the
relationship between the Administrative Agent, the Co-Agents, the
Security Agent, and the Lenders, on one hand, and the Borrower, on the
other hand, is solely that of creditor and debtor; and
(c) no joint venture exists between the Borrower and the
Lenders.
Section 14.18 Security Agent as Third Party Beneficiary. The
provisions of and rights created by this Agreement shall inure to, and are
intended for, the benefit of the Security Agent, to the extent provided herein,
and the Security Agent shall be deemed a third party beneficiary with respect
thereto, entitled to enforce directly and in its own name any rights or claims
it may have under this Agreement, including without limitation under Sections 12
and 13.2.
SECTION 14.19 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT, THE CO-AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Section 14.20 Integration. The parties hereto agree that upon
the execution and delivery of this Agreement, the Amended and Restated Lenders'
Combined Term Sheet (the "Term Sheet") sent under a cover letter dated April 28,
1994 from certain of the Lenders to the Borrower (including any amendments
thereto) shall expire and be of no further force and effect, and the "Financial
Closing Date" under the Term Sheet shall be the Closing Date hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Loan
and Reimbursement Agreement to be duly executed and delivered in New York, New
York, by their proper and duly authorized officers as of the day and year first
above written.
BIRCHWOOD POWER PARTNERS, L.P.
By: SEI Birchwood, Inc., a General Partner
By:
----------------------------------
Name:
Title:
By: Birchwood Development Corp., a General
Partner
By:
----------------------------------
Name:
Title:
CREDIT SUISSE, as Administrative Agent,
Issuing Bank and as a Bank
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
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BANQUE PARIBAS, NEW YORK BRANCH as
a Co-Agent and as a Bank
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BARCLAYS BANK PLC, as a Co-Agent and as a
Bank
By:
---------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, as a Co-Agent
and as a Bank
By:
---------------------------------
Name:
Title:
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, as an Institution
By:
---------------------------------
Name:
Title:
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY, as an Institution
By:
---------------------------------
Name:
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120
MELLON BANK, N.A., AS TRUSTEE FOR
AT&T MASTER PENSION TRUST, as an
Institution
By:
---------------------------------
Name:
Title:
MELLON BANK, N.A., AS TRUSTEE FOR
NYNEX MASTER PENSION TRUST, as an
Institution
By:
---------------------------------
Name:
Title:
COMMONWEALTH OF PENNSYLVANIA
STATE EMPLOYES' RETIREMENT SYSTEM,
as an Institution
By: Xxxx Xxxxxxx Mutual Life Insurance
Company, as Investment Adviser
By:
----------------------------
Name:
Title:
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121
ALLSTATE INSURANCE COMPANY, as an
Institution
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY, as
an Institution
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK, as an Institution
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
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122
NEW YORK LIFE INSURANCE COMPANY, as
an Institution
By:
----------------------------------
Name:
Title:
131
COMPOSITE
(through 4/96)
of
Annex A:
DEFINITIONS
The terms defined herein relate to the Project Loan Agreement
(as defined below) and certain other Loan Documents executed, or to be executed,
in connection with the transactions contemplated by the Project Loan Agreement.
If, and to the extent that, the Project Loan Agreement shall be amended,
modified or supplemented from time to time pursuant to the terms thereof, this
Annex and the Annex to each Loan Document that incorporates this Annex shall be,
or be deemed to have been, amended, modified or supplemented concurrently with
the execution and delivery of each such amendment, modification or supplement of
the Project Loan Agreement, in order to conform the definitions herein to the
new or amended definitions set forth in or required by each such amendment,
modification or supplement of the Project Loan Agreement. The meanings given to
terms defined herein shall be equally applicable to both the singular and plural
forms of such terms.
"Access and Utility Easement Agreement": the Access and
Utility Easement, dated as of April 21, 1994, among Xxxxx X. Xxxxxx and Xxxxx
Xxxxxx Xxxxxx, the Greenhouse Operator and the Borrower, amended, supplemented
or otherwise modified from time to time in accordance with Section 11.12(a) of
the Project Loan Agreement.
"Accounts": the Institutional Loan Proceeds Account, the
Construction Account, the Accrued Interest Account, the Repair and Maintenance
Account, the Debt Service Reserve Account, the Project Control Account, the
Additional Collateral Account, the Special Payment Account, the Final Completion
Escrow Account, the Insurance and Property Tax Reserve Account, the Greenhouse
Reserve Account, Bond Transfer Accounts and the Distributions Account.
"Accrued Interest Account": the Accrued Interest Account
established and maintained pursuant to the Security Deposit Agreement.
"Additional Collateral Account": the Additional Collateral
Account established and maintained pursuant to the Security Deposit Agreement.
"Additional Contract": any contract entered into by the
Borrower after the execution and delivery of the Project Loan Agreement,
providing for (i) the transmission or sale by the Borrower of any of the
Facility's electrical or steam output; (ii) the supply or
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transportation of Coal to the Facility; (iii) the removal of ash or other
by-products from the Facility; or (iv) the financing or leasing of equipment or
the supply of goods or services essential to the operation of the Facility
(other than employment contracts and contracts involving less than $500,000
annually or having a maximum term (including renewal options) of less than six
months).
"Administrative Agent": Credit Suisse, in its capacity as
administrative agent for the Banks, or any successor in such capacity appointed
pursuant to Section 13.1(i) of the Project Loan Agreement.
"Affiliate": as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
partnership or other ownership interests or by contract or otherwise; provided
that any Person owning, directly or indirectly, 10% or more of the securities
having ordinary voting power for the election of directors or other members of
the governing body of a corporation, or 10% or more of the partnership or other
ownership interests of any other Person, is deemed to control such corporation
or other Person.
"Agents": the Administrative Agent and the Security Agent.
"Aggregate Prepayment Amount": as defined in Section 7.4(b) of
the Project Loan Agreement.
"Agreement": as used in any Loan Document, such Loan Document,
as amended, supplemented or otherwise modified and in effect from time to time.
"Annual O&M Bonus": as defined in Section 1.2 of the Security
Deposit Agreement.
"Anticipated Commercial Operations Date": as defined in the
Power Purchase Agreement.
"Applicable Bank Loan Margin": for each Type of Bank Loan
during the applicable period set forth in Schedule 2 to the Project Loan
Agreement, the rate per annum set forth under the relevant column heading in
said Schedule 2.
"Applicable Institutional Loan Margin": with respect to each
Institutional Loan, the "Applicable Institutional Loan Margin" determined in
accordance with the Institutional Note evidencing such Institutional Loan.
"Arch": Arch Mineral Corporation.
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"Arch Back-Up Coal Supply Agreement": the Agreement dated as
of May 18, 1994 among Arch, Cumberland River Coal Company, ACS Sales Company,
the Coal Transporter and the Borrower, as amended, supplemented or otherwise
modified from time to time in accordance with Section 11.12(a) of the Project
Loan Agreement.
"Ash Disposal Agreement": the Ash Disposal Agreement dated as
of May 6, 1994 between JTM Industries, Inc. and the Borrower, relating to ash
hauling and disposal services in respect of the Facility, as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions of Section 11.12(a) of the Project Loan Agreement.
"Available Loan Commitments": at any time, the excess of (a)
the Total Loan Commitments (other than the Total Bank L/C Loan Commitments) over
(b) the aggregate principal amount of Loans (other than Bank L/C Loans and Bank
Liquidity Loans) then outstanding.
"Bank Commitment Percentage": at any time:
(a) with respect to any Bank, a fraction (expressed as a
percentage), the numerator of which is the sum of (i) the aggregate
unpaid principal amount of Bank Loans then outstanding, (ii) the unused
portion of the Total Bank Loan Commitments then in effect and (iii) the
Letter of Credit Exposure at such time, and the denominator of which is
the Total Exposure; and
(b) with respect to any Interest Rate Hedging Counterparty, a
fraction (expressed as a percentage), the numerator of which is the
aggregate amount of Swap Termination Obligations calculated as of such
day, and the denominator of which is the Total Exposure.
As used in this definition, "Total Exposure" means, at any time, the sum of (i)
the aggregate unpaid principal amount of Loans then outstanding, (ii) the unused
portion of the Total Bank Loan Commitments then in effect, (iii) the Letter of
Credit Exposure at such time and (iv) the aggregate amount of Swap Termination
Obligations calculated as of such day.
"Bank Default Rate": (a) with respect to any Base Rate Loan,
for each date during the applicable period, the rate applicable pursuant to
paragraph (b) of Section 3.7 of the Project Loan Agreement plus 2.0%, (b) with
respect to any C/D Rate Loan or Eurodollar Loan, during the Bank Loan Interest
Period with respect thereto, the rate applicable during such Bank Loan Interest
Period pursuant to paragraph (a) or (c), as the case may be, of Section 3.7 of
the Project Loan Agreement plus 2.0% and (c) with respect to any other amount
payable by the Borrower, the Base Rate plus the Applicable Bank Loan Margin for
Base Rate Loans plus 2.0%.
"Bank Fee Letter": the letter agreement dated the date of the
Project Loan Agreement among the Co-Agents, the Administrative Agent and the
Borrower setting forth certain fees payable by the Borrower to the
Administrative Agent and the Banks.
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"Bank L/C Loans": Bank Loans the proceeds of which are to be
used solely as provided in Section 10.1(b)(ii) of the Project Loan Agreement.
"Bank L/C Note": as defined in Section 3.3(b) of the Project
Loan Agreement.
"Bank Liquidity Loan": Bank Loans the proceeds of which are to
be used solely to finance Bond Reimbursement Obligations arising in respect of
Liquidity Drawings as provided in Section 10.1(b)(iii) of the Project Loan
Agreement.
"Bank Liquidity Note": as defined in Section 3.3(c) of the
Project Loan Agreement.
"Bank Loan Commitment Period": (a) with respect to Bank
Project Loans, the period commencing on and including the first day of the
Construction Period to and including the last day thereof, (b) with respect to
Bank L/C Loans made to finance Construction VP Reimbursement Payments, the
period commencing on and including the first day of the Construction Period to
and including the termination of the Construction VP Letter of Credit in
accordance with Section 6.5 of the Project Loan Agreement, (c) with respect to
Bank L/C Loans made to finance Term VP Reimbursement Payments, the period
commencing on and including the date on which the Term VP Letter of Credit is
issued to and including the termination thereof in accordance with Section 6.5
of the Project Loan Agreement and (d) with respect to Bank L/C Loans and Bank
Liquidity Loans made to finance Bond Reimbursement Payments under a Bond Letter
of Credit, the period commencing on and including the date on which such Bond
Letter of Credit is issued to and including the termination thereof in
accordance with Section 5.4 of the Project Loan Agreement; provided that Bank
L/C Loans made to refinance Bank Liquidity Loans may be made only on the
applicable Bond L/C Expiration Date.
"Bank Loan Facility": the construction and term credit
facility provided by the Banks to the Borrower pursuant to Section 3 of the
Project Loan Agreement, under which the Banks will make Bank Loans from time to
time in accordance with the terms thereof.
"Bank Loan Final Maturity Date": the fifteenth anniversary of
the Commercial Operations Date.
"Bank Loan Installment Payment Date": as defined in Section
3.4(a) of the Project Loan Agreement.
"Bank Loan Interest Payment Date": (a) as to any Base Rate
Loan, the last day of March, June, September and December of each year,
commencing with the first such day to occur after the Closing Date, and the date
on which such Loan is paid or converted into a Bank Loan of another Type, (b) as
to any Eurodollar Loan having a Bank Loan Interest Period of three months or
less and any C/D Rate Loan having a Bank Loan Interest Period of 90 days or
less, the last day of such Bank Loan Interest Period, and (c) as to any
Eurodollar Loan or C/D Rate Loan having a Bank Loan Interest Period longer than
three months or 90 days, respectively, each
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5
day which is three months or 90 days, respectively, or a whole multiple thereof,
after the first day of such Bank Loan Interest Period, and the last day of such
Bank Loan Interest Period.
"Bank Loan Interest Period": (a) with respect to any
Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months (or, if available to all
of the Banks, nine months, twelve months or longer) thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of
the next preceding Bank Loan Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months (or, if
available to all of the Banks, nine months, twelve months or longer)
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Bank Loan Interest Period with respect
thereto; and
(b) with respect to any C/D Rate Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such C/D Rate Loan
and ending 30, 60, 90 or 180 days (or, if available to all of the
Banks, 270 days) thereafter, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(ii) thereafter, each period commencing on the last day of
the next preceding Bank Loan Interest Period applicable to such C/D
Rate Loan and ending 30, 60, 90 or 180 days (or, if available to all of
the Banks, 270 days) thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than two
Business Days prior to the last day of the then current Bank Loan
Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Bank Loan Interest
Periods are subject to the following:
(1) if any Bank Loan Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a Business
Day, such Bank Loan Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Bank Loan Interest Period into another calendar month, in
which event such Bank Loan Interest Period shall end on the immediately
preceding Business Day;
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6
(2) if any Bank Loan Interest Period pertaining to a C/D Rate
Loan would otherwise end on a day that is not a Business Day, such Bank
Loan Interest Period shall be extended to the next succeeding Business
Day;
(3) any Bank Loan Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Bank Loan Interest Period) shall end on the
last Business Day of a calendar month;
(4) the Borrower shall select Bank Loan Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan or C/D
Rate Loan during a Bank Loan Interest Period for such Loan; and
(5) the Borrower shall not select a Bank Loan Interest Period
that ends after the Bank Loan Final Maturity Date.
"Bank Loans": as defined in Section 3.1 of the Project Loan
Agreement.
"Bank Notes": collectively, the Bank Project Notes, the Bank
L/C Notes and the Bank Liquidity Notes.
"Bank Project Loans": Bank Loans the proceeds of which are
to be used solely to pay Project Costs and otherwise as provided in Section
10.1(b)(i) of the Project Loan Agreement.
"Bank Project Note": as defined in Section 3.3(a) of the
Project Loan Agreement.
"Bank Transfer Supplement": as defined in Section 14.7(b) of
the Project Loan Agreement.
"Bankruptcy Code": Title 11, Unites States Code, as amended
from time to time.
"Banks": the banks and other financial institutions which are
identified as "Banks" in, and are from time to time party to, the Project Loan
Agreement.
"Base Case Projections" as defined in Section 9.1(w) of the
Project Loan Agreement.
"Base Fuel Compensation Price": as defined in Section 10.2 of
the Power Purchase Agreement.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Federal
Funds Effective Rate as in effect at such time plus 0.5% and (b) the per annum
rate of interest from time to time publicly announced by the Administrative
Agent at its principal office in the United States as its base lending rate for
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domestic (United States) commercial loans (which rate may not be the lowest rate
of interest charged by the Administrative Agent in connection with extensions of
credit to its other customers). For purposes hereof, "Federal Funds Effective
Rate" means, with respect to each day, the rate per annum (rounded upward, if
necessary, to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (i) if such day is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Effective Rate for such day shall be the average rate quoted to
the Administrative Agent on such day on such transactions as the Administrative
Agent may reasonably determine. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate for any reason,
the Base Rate shall be determined without regard to clause (a) of the first
sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Base Rate due to a change in the
rate referred to in clause (b) of the first sentence of this definition or in
the Federal Funds Effective Rate shall be effective as of the opening of
business on the date of such change in the rate referred to in such clause (b)
or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Bank Loans the rate of interest applicable
to which is based on the Base Rate.
"Basic Monthly O&M Fee": as defined in Section 1.2 of the
Security Deposit Agreement.
"Birchwood Development": Birchwood Development Corp., a
Delaware corporation.
"Bond Contribution Amount": as defined in the Southern Equity
Contribution Agreement.
"Bond Documents": collectively, the Bonds and each other
instrument or agreement entered into by the Borrower, the Bond Issuer or any
Bond Trustee in connection with the issuance, sale and marketing from time to
time of the Bonds, including without limitation any Bond Indenture, sale
agreement between the Bond Issuer and the Borrower, Bond purchase agreement,
official statement and remarketing agreement, as amended, supplemented or
otherwise modified from time to time in accordance with Section 11.11(a) of the
Project Loan Agreement.
"Bond Indenture": with respect to each issuance of Bonds, the
indenture executed by the Bond Issuer and the relevant Bond Trustee pursuant to
which such Bonds are issued.
"Bond Issuer": the Industrial Development Authority of King
Xxxxxx County, Virginia.
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"Bond L/C Expiration Date": with respect to each Bond Letter
of Credit, the seventh anniversary of the Closing Date, or such later date to
which the Bond L/C Expiration Date with respect to such Bond Letter of Credit
has been extended in accordance with Section 5.6 of the Project Loan Agreement.
"Bond Letter of Credit": each irrevocable direct pay letter of
credit to be issued by the Issuing Bank in favor of the Bond Trustee on any
Business Day during the Construction Period pursuant to Section 5.1(a) of the
Project Loan Agreement, substantially in the form of Exhibit C-3 to the Project
Loan Agreement (with such changes therein as shall be acceptable to the Issuing
Bank and the Majority Banks), as amended, supplemented or otherwise modified
from time to time in accordance with its terms, and any replacement therefor
issued pursuant to Section 5.2(b) of the Project Loan Agreement.
"Bond Letter of Credit Disbursement": any payment or
disbursement made by or on behalf of the Issuing Bank under any Bond Letter of
Credit.
"Bond Letter of Credit Facility": the letter of credit
facility provided by the Issuing Bank and the Banks to the Borrower pursuant to
Section 5 of the Project Loan Agreement, under which the Issuing Bank agrees to
issue the Bond Letters of Credit in accordance with the terms thereof.
"Bond Pledge Agreement": a pledge agreement to be entered into
among the Borrower, the Security Agent and a bond pledge agent with respect to
an issue of Bonds, which shall provide for the pledge of Bonds that are
purchased with the proceeds of a drawing under the related Bond Letter of Credit
and not immediately remarketed and shall be satisfactory in form and substance
to the Administrative Agent and the Majority Institutions.
"Bond Reimbursement Obligations": as defined in Section 5.5(b)
of the Project Loan Agreement.
"Bond Reimbursement Payment": as defined in Section 5.5(a) of
the Project Loan Agreement.
"Bonds": the Series 1994A, Series 1994B, Series 1995, Series
1996A and, if issued, Series 1996B tax-exempt private activity bonds issued or
to be issued by the Bond Issuer at the request of the Borrower pursuant to one
or more Bond Indentures in accordance with Section 10.25 of the Project Loan
Agreement, in an original aggregate principal amount not to exceed $50,000,000.
"Bond Transfer Accounts": the Bond Transfer Account-Series
1994A, the Bond Transfer Account-Series 1994B, the Bond Transfer Account-Series
1995, the Bond Transfer Account-Series 1996A and the Bond Transfer
Account-Series 1996B, established and identified as such pursuant to Section
3.1(a) of the Security Deposit Agreement.
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"Bond Trustee": with respect to each issuance of Bonds, the
trustee under the Bond Indenture pursuant to which such Bonds are issued, and
its successors in such capacity appointed in the manner provided for in such
Bond Indenture.
"Borrower": Birchwood Power Partners, L.P., a Delaware limited
partnership.
"Borrower Account": as defined in Section 7.11(b) of the
Project Loan Agreement.
"Borrower Representative": any officer or member of the
management committee of the Borrower or, for so long as it shall be a General
Partner, of SEI Birchwood.
"Borrower Stock Assignment": the Borrower Stock Assignment
made by the Borrower in favor of the Security Agent, substantially in the form
of Exhibit H to the Project Loan Agreement, as amended, supplemented or
otherwise modified from time to time.
"Borrower's Greenhouse Expenses": all payments of any kind
(whether in the form of a capital contribution, investment, loan, advance,
expense payment or otherwise) made by the Borrower to or for the benefit of the
Greenhouse Owner or Greenhouse Operator which are either (a) in excess of
$250,000 in any calendar year or (b) are in any amount to the extent that such
payments have been made for more than six consecutive months; provided that the
Borrower's Greenhouse Expenses shall exclude (i) loans made to the Greenhouse
Owner pursuant to the Greenhouse Loan Agreement, (ii) payments pursuant to the
Steam Sales Agreement and (iii) the proceeds of any withdrawals from the
Greenhouse Reserve Account.
"Borrowing Date": (a) with respect to Bank Loans, any of the
Closing Date, any Monthly Construction Disbursement Date or any Scheduled Senior
Debt Service Payment Date on which the Borrower requests Bank Project Loans, or
any Business Day on which the Borrower requests Bank L/C Loans or Bank Liquidity
Loans, in each case pursuant to Section 3.2 of the Project Loan Agreement; and
(b) with respect to Institutional Loans, any of the Closing Date or any Monthly
Construction Disbursement Date on which the Borrower requests Institutional
Loans pursuant to Section 4.2 of the Project Loan Agreement.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close and (with respect to Eurodollar Loans only) on which deposits in
foreign currencies and exchange between banks may be carried on in London,
England.
"Business Interruption Insurance Proceeds": any and all
proceeds of any insurance, indemnity, warranty or guaranty payable from time to
time with respect to the partial or complete interruption of the operation of
the Project.
"Buy-Down Amount Proceeds": any and all amounts paid by the
Facility Contractor to the Borrower pursuant to Section 8.1 or 8.6 of the
Facility Construction Contract
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or by the Parent Guarantor to the Borrower pursuant to the Facility Construction
Contract Guarantee in respect thereof.
"Buy-Down Prepayment Notice": as defined in Section 7.3(c) of
the Project Loan Agreement.
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Cash Operating Costs": for any period, the sum of the
following for the Borrower (determined without duplication): (i) all salaries,
bonuses, employee benefits and other compensation paid plus (ii) the cost of
Coal, limestone and other materials and utilities paid, including the
transportation costs paid for transporting Coal, limestone and such other
materials and utilities to the Facility, plus (iii) ash disposal costs paid plus
(iv) insurance premiums paid plus (v) costs of operating and maintaining the
Project (including, without limitation, Major Maintenance Expenses and other
payments made under the Operating and Maintenance Agreement) paid plus (vi) rent
paid under leases permitted by Section 11.15 of the Project Loan Agreement plus
(vii) amounts paid by the Borrower to the Greenhouse Owner pursuant to the Steam
Sales Agreement plus (viii) amounts deposited in the Repair and Maintenance
Account plus (ix) real and personal property, use, sales and similar taxes paid
plus (x) fees paid for accounting, legal and other professional services plus
(xi) general and administrative expenses paid plus (xii) capital expenditures
paid plus (xiii) ongoing fees and expenses of any Bond Trustee, the Security
Agent and the Administrative Agent paid (including, without limitation, amounts
paid pursuant to Section 6.7 of the Security Deposit Agreement or Section 14.5
of the Project Loan Agreement) plus (xiv) the Basic Monthly O&M Fee and Annual
O&M Bonus paid to the Facility Operator pursuant to the Operations and
Maintenance Agreement plus (xv) all other cash expenditures relating to
operating costs of the Project paid plus (xvi) federal, state and local income
taxes paid, if any; provided that there shall be excluded from the foregoing
items costs that are paid with amounts withdrawn from the Repair and Maintenance
Account.
"Cash Release Date": each Quarterly Distribution Date that
immediately follows a Quarterly Calculation Date on which neither the Historical
Debt Coverage Ratio nor the Projected Debt Coverage Ratio was less than 1.25 to
1.0.
"Cash Trap Date": each Quarterly Distribution Date immediately
following a Quarterly Calculation Date on which either the Historical Debt
Coverage Ratio or the Projected Debt Coverage Ratio was less than 1.20 to 1.0.
"Casualty Insurance Proceeds": any and all proceeds of any
insurance, indemnity, warranty or guaranty payable from time to time with
respect to any damage to, or destruction in whole or in part of, the Project.
"C/D Assessment Rate": for any day as applied to any C/D Rate
Loan, the net annual assessment rate (rounded upward, if necessary, to the
nearest 1/100th of 1%) determined
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by the Administrative Agent to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of the Administrative Agent in the United
States.
"C/D Base Rate": with respect to each day during each Bank
Loan Interest Period pertaining to a C/D Rate Loan, the rate of interest per
annum determined by the Administrative Agent to be the arithmetic average
(rounded upward, if necessary, to the nearest 1/16th of 1%) of the respective
rates determined by the Administrative Agent as the average rate bid at 10:00
A.M., New York City time, or as soon thereafter as practicable, on the first day
of such Bank Loan Interest Period, by a total of three certificate of deposit
dealers of recognized standing selected by the Administrative Agent for the
purchase at face value from the Administrative Agent of its certificates of
deposit in an amount comparable to the C/D Rate Loan of the Administrative Agent
to which such Bank Loan Interest Period applies and having a maturity comparable
to such Bank Loan Interest Period.
"C/D Rate": with respect to each day during each Bank Loan
Interest Period pertaining to a C/D Rate Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward, if necessary,
to the nearest 1/100th of 1%):
C/D Base Rate + C/D Assessment Rate
------------------------------
1.00 - C/D Reserve Percentage
"C/D Rate Loans": Bank Loans the rate of interest applicable
to which is based upon the C/D Rate.
"C/D Rate Tranche": as defined in Section 3.6 of the Project
Loan Agreement.
"C/D Reserve Percentage": for any day as applied to any C/D
Rate Loan, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal Reserve System (or
any successor) (the "Board"), for determining the maximum reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars.
"Change Order": (a) with respect to the Facility, a "Change"
(as defined in Section 1.1 of the Facility Construction Contract), or (b) with
respect to the Greenhouse, a "Change" defined in Section 1.1 of the Greenhouse
Construction Contract.
"Closing Date": May 25, 1994.
"Co-Agents": Banque Paribas, New York Branch, Barclays Bank
PLC, Credit Suisse and Union Bank.
"Coal": the coal purchased by the Borrower pursuant to the
Coal Supply Agreement, the SEI Coal Procurement Letter or the Arch Back-Up Coal
Supply Agreement for the operation of the Facility.
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"Coal Adjustment Agreement": the Special Adjustment Agreement
dated as of July 22, 1993 among the Coal Supplier, the Coal Transporter and the
Borrower, as amended, supplemented or otherwise modified from time to time in
accordance with Section 11.12(a) of the Project Loan Agreement.
"Coal Consultant": Xxxx X. Xxxx Company, or such other coal
consultant reasonably acceptable to the Borrower as the Majority Lenders may
designate to examine and advise the Lenders with respect to the matters referred
to in Section 9.1(l) of the Project Loan Agreement and to prepare the annual
Coal Report update required to be delivered pursuant to Section 10.2(d) of the
Project Loan Agreement.
"Coal Report": the report of the Coal Consultant delivered
pursuant to Section 9.1(l) of the Project Loan Agreement.
"Coal Supplier": (i) collectively, Neweagle Industries, Inc.,
a Virginia corporation, Neweagle Coal Sales Corp., a Virginia corporation,
Laurel Creek Co., Inc., a Delaware corporation, and Rockspring Development,
Inc., a Delaware corporation, or (ii) subject to compliance with the provisions
of Section 11.14 of the Project Loan Agreement, their respective successors and
assigns.
"Coal Supply Agreement": the Coal Supply Agreement dated as of
July 22, 1993, as amended by First Amendment dated as of May 18, 1994, between
the Borrower and the Coal Supplier, as may be further amended, supplemented or
otherwise modified from time to time in accordance with Section 11.12(a) of the
Project Loan Agreement.
"Coal Transportation Agreement": the Coal Transportation
Agreement dated as of July 22, 1993, as amended by First Amendment dated as of
April 28, 1994, between the Borrower and the Coal Transporter, as may be further
amended, supplemented or otherwise modified from time to time in accordance with
Section 11.12(a) of the Project Loan Agreement.
"Coal Transporter": ER&L Birchwood, Inc., a Delaware
corporation and a wholly-owned direct subsidiary of CSXT and a wholly-owned
indirect subsidiary of CSX.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": collectively, the Mortgaged Property, the
Security Deposit Collateral, the Southern Equity Contribution Collateral, the
Partner Collateral, and any Bonds (and the proceeds thereof) pledged pursuant to
a Bond Pledge Agreement.
"Commercial Operations Date": as defined in Section 1.5 of the
Power Purchase Agreement.
"Commitment": (a) as to any Bank, its Commitment Percentage of
the Total Bank Project Loan Commitments, the Total Bank L/C Loan Commitments,
the Total VP Letter of
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Credit Commitments and the Total Bond Letter of Credit Commitments; and (b) as
to any Institution, its Commitment Percentage of the Total Institutional
Commitments.
"Commitment Percentage": (a) with respect to any Bank, the
percentage set forth next to such Bank's name under the caption "Commitment
Percentage" on Part A of Schedule 1 to the Project Loan Agreement, as the same
may from time to time be modified or amended in accordance with Section 14.7 of
the Project Loan Agreement or otherwise in accordance with the terms thereof and
(b) with respect to any Institution, the percentage set forth next to such
Institution's name under the caption "Commitment Percentage" on Part B of
Schedule 1 to the Project Loan Agreement, as the same may from time to time be
modified or amended in accordance with Section 14.8 of the Project Loan
Agreement or otherwise in accordance with the terms thereof.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Completion Date": the date on which the following conditions
shall have been satisfied:
(a) the Commercial Operations Date shall have occurred and all
of the conditions set forth in Section 2.3 of the Power Purchase
Agreement shall have been satisfied;
(b) the Facility shall have been completed and accepted
(except for punchlist items) by the Borrower in accordance with Section
6.4.1 of the Facility Construction Contract, and the Greenhouse shall
have been completed and accepted (except for punchlist items) by the
Greenhouse Owner in accordance with Section 3.3 of the Greenhouse
Construction Contract;
(c) the Administrative Agent and the Institutions shall have
received, with a counterpart for each Bank, the Facility Completion
Certificate duly executed and delivered by the Borrower and the
Independent Engineer and the Greenhouse Completion Certificate duly
executed and delivered by the Borrower, the Greenhouse Owner, the
Greenhouse Operator and the Independent Engineer;
(d) the Administrative Agent and the Institutions shall have
received evidence in form and substance reasonably satisfactory to the
Administrative Agent and the Majority Institutions that either (i) all
Project Costs necessary to achieve Final Completion of the Facility and
the Greenhouse shall have been paid in full and there shall be no
disputes concerning payment for work performed, services rendered or
material or equipment furnished with respect to the Project or the
Greenhouse involving any potential liability to the Borrower
(collectively, "Disputes"); or (ii) there shall have been deposited
into the Final Completion Escrow Account pursuant to Section 4.3 of the
Security Deposit
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Agreement an amount equal to the sum of (x) 150% of the amount,
determined in good faith by the Borrower, the Administrative Agent and
Majority Institutions (after consultation with the Independent
Engineer), sufficient to pay all punchlist items and other Project
Costs necessary to achieve Final Completion of the Facility and the
Greenhouse, (y) 100% of the amount, determined in good faith by the
Borrower, the Administrative Agent and the Majority Institutions, which
would fully cover any potential liability of the Borrower with respect
to any pending Disputes and (z) the unpaid amount of the maximum Heat
Rate Bonus which is, or could be, owing to the Facility Contractor
following the Completion Date;
(e) (i) the Initial Repair and Maintenance Reserve Amount
shall have been deposited on or prior to such day in the Repair and
Maintenance Account; and (ii) the Borrower shall have applied at least
$3,500,000 of the proceeds of the Bank Project Loans and Equity Funding
Loans for initial working capital purposes or deposited such amount
into the Project Control Account on the Completion Date for such
purposes;
(f) all Governmental Approvals and other consents and
approvals referred to in Section 8.7 of the Project Loan Agreement,
including without limitation those listed in Part B of Schedule 6
thereof (other than filings required to be made on a later date by
the terms of such Governmental Approvals), shall have been duly
obtained or made and shall be in full force and effect, none of such
Governmental Approvals or other consents or approvals shall be the
subject of any pending or threatened judicial or administrative
proceedings, and if the applicable statute, rule or regulation provides
for a fixed period for judicial or administrative appeal or review
thereof, such period shall have expired. In addition, a copy of each
such Governmental Approval, consent or approval shall have been
delivered to the Administrative Agent (with a copy for each Bank) and
the Institutions; and
(g) the Equity Funding Termination Date shall have occurred;
provided that, for purposes hereof, the provisions of clause (iii) of
the definition of "Equity Funding Termination Date" shall be deemed to
have been satisfied if there are no unpaid amounts owing by Southern
under the Construction Contract Guarantees at such time.
"Consents to Assignment": collectively, (i) each Consent to
Assignment, each substantially in the form of one of Exhibits I-1 to I-10, to be
executed and delivered by each of the parties (other than the Borrower) to each
Project Document in effect on the Closing Date, and (ii) with respect to each
Additional Contract, the Consent to Assignment to be executed by the parties
thereto (other than the Borrower) as provided in Section 10.16 of the Project
Loan Agreement, which shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Majority Institutions.
"Construction Account": the Construction Account established
and maintained pursuant to the Security Deposit Agreement.
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"Construction Contracts": collectively, the Facility
Construction Contract and the Greenhouse Construction Contract.
"Construction Contract Guarantees": collectively, the Facility
Construction Contract Guarantee and the Greenhouse Construction Contract
Guarantee.
"Construction Period": the period from and including the
Closing Date to and including the Construction Period Termination Date.
"Construction Period Termination Date": the earlier of (a) the
Completion Date and (b) Date Certain.
"Construction Progress Report": the report of the Borrower
required to be delivered pursuant to Section 10.2(a) of the Project Loan
Agreement.
"Construction VP Expiration Date": the Date Certain, or such
later date to which the Construction VP Expiration Date has been extended in
accordance with Section 6.7 of the Project Loan Agreement.
"Construction VP Letter of Credit": the irrevocable direct pay
letter of credit to be issued by the Issuing Bank in favor of Virginia Power on
the Closing Date pursuant to Section 6.2(a) of the Project Loan Agreement,
substantially in form of Exhibit C-1 to the Project Loan Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, and any replacement therefor issued pursuant to Section 6.2(b) of the
Project Loan Agreement.
"Construction VP Letter of Credit Disbursement": any payment
or disbursement made by or on behalf of the Issuing Bank under the Construction
VP Letter of Credit.
"Construction VP Reimbursement Payment": as defined in Section
6.6(a) of the Project Loan Agreement.
"Contingent Bond Contribution": as defined in the Southern
Equity Contribution Agreement.
"Contingent Distribution": any payment of cash distributions
to Partners affiliated with Southern in accordance with clause (ii)(A) of
Section 11.4 of the Project Loan Agreement, in an aggregate amount not to exceed
the Contingent Distribution Amount.
"Contingent Distribution Amount": an aggregate amount equal to
the lesser of (i) $13,700,000 and (ii) the amount, if any, by which (x) the
Initial Budgeted Amount plus the Increased IDC Contribution Amount, if any,
contributed to the Borrower pursuant to the Southern Equity Contribution
Agreement exceeds (y) the aggregate amount of all Project Costs which have been
or are required to be incurred in order to achieve the occurrence of the
Completion Date
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and Final Completion of the Facility and the Greenhouse (including, in any
event, the Required Completion Date Reserve Deposits).
"Contingent Equity Contribution": as defined in the Southern
Equity Contribution Agreement.
"Contingent Increased IDC Contribution": as defined in the
Southern Equity Contribution Agreement.
"Contractors": collectively, the Facility Contractor and the
Greenhouse Contractor.
"Contractual Obligations": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension Date": (a) as to any Loan, the Borrowing
Date therefor, (b) as to any issuance of a VP Letter of Credit, the Closing Date
(in the case of the Construction VP Letter of Credit) or the Commercial
Operations Date (in the case of the Term VP Letter of Credit), and (c) as to any
issuance of a Bond Letter of Credit, the Business Day during the Construction
Period on which such Bond Letter of Credit is issued.
"Credit Facilities": as defined in 2.1 of the Project Loan
Agreement.
"CSX": CSX Corporation.
"CSXT": CSX Transportation, Inc., a Virginia corporation.
"CSXT Agreement": the Amended and Restated Agreement dated as
of May 18, 1994 between the Borrower and CSXT pursuant to which CSXT agrees to
cause the Coal Transporter to perform its obligations under the Coal
Transportif any, ation Agreement and the Coal Adjustment Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with Section
11.12(a) of the Project Loan Agreement.
"CT Corporation Agreement": the letter agreement dated as of
May 13, 1994 from the Borrower to The Corporation Trust Company and Corporate
Trinity Company, as amended, supplemented or otherwise modified in accordance
with Section 11.12(a) of the Project Loan Agreement.
"Damage Event": as defined in Section 1.2 of the Security
Deposit Agreement.
"Date Certain": June 1, 1997.
"Debt Service": for any period, the sum (determined without
duplication) of: (a) all amounts payable by the Borrower during such period
pursuant to the Project Loan Agreement and the Notes in respect of principal of,
and interest on, the Loans, (b) all amounts, if any
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payable by the Borrower to the Issuing Bank in respect of reimbursements for
Letter of Credit Disbursements, (c) all amounts, if any, payable by the Borrower
(minus the amounts, if any, receivable by the Borrower, to the extent such
amounts have actually been received by the Borrower, or may be set off or
applied by the Borrower against amounts payable by the Borrower) during such
period under any Interest Rate Hedging Transaction, (d) principal and interest
on the Bonds, if any, due and payable during such period, (e) Bond Letter of
Credit fees (including fronting fees) and fees in respect of the True-Up
Obligation, (f) VP Letter of Credit fees (including fronting fees), commitment
fees and administrative agent fees payable pursuant to the Project Loan
Agreement, (g) all other amounts in respect of principal, interest and other
fees and expenses payable by the Borrower during such period to any of the
Lenders pursuant to the Loan Documents and (h) all principal, interest and fees
payable with respect to any Refinancing Indebtedness or any purchase money
obligations permitted by Section 11.2(a) of the Project Loan Agreement; provided
that, for purposes of calculating "Historical Debt Coverage Ratio", "Projected
Debt Coverage Ratio" and "Debt Service Coverage Ratio", "Debt Service" shall not
include any General Indemnity Proceeds received by the Borrower. For the purpose
hereof, if the interest payable on any Loans or other Senior Debt for any period
is not determinable in advance because the interest rate is not a fixed rate, it
shall be assumed that such Loans or other Senior Debt will bear interest during
such period at the average interest rate in effect with respect thereto during
the six months immediately preceding such period.
"Debt Service Coverage Ratio": for any period, the ratio of
(i) Project Cash Flow for such period to (ii) the Debt Service for such period.
"Debt Service Letter of Credit": a letter of credit, in an
acceptable form to the Security Agent, established in favor of the Security
Agent by a bank which at all times is rated at least A+ by Standard & Poor's and
at least A1 by Xxxxx'x, which letter of credit is a substitute for a like amount
of cash required to be on deposit in the Debt Service Reserve Account; provided
that no such letter of credit shall be deemed a "Debt Service Letter of Credit"
unless the Borrower has no direct or indirect reimbursement obligations or
liabilities to the issuer of such letter of credit or to any other Person in
respect of draws under such letter of credit.
"Debt Service Loans": Bank Project Loans the proceeds of which
are to be used to pay principal, interest and/or fees, or the Swap Obligations,
as the case may be, due on the outstanding Senior Debt.
"Debt Service Reserve Account": the Debt Service Reserve
Account established and maintained pursuant to the Security Deposit Agreement.
"Default": any of the events specified in Section 12.1 of the
Project Loan Agreement, whether or not any requirement for the giving of notice,
the lapse of time, or both, or any other condition set forth in said Section
12.1, has been satisfied.
"Delay Damages Proceeds": as defined in Section 1.2 of the
Security Deposit Agreement.
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"Distribution": any distribution on or in respect of the
Partnership Interests, any payment on account of, or in connection with the
purchase, redemption, retirement or other acquisition of, Partnership Interests,
or any payment of principal or interest on, or in connection with any
redemption, purchase or other acquisition of, Junior Subordinated Debt.
"Distributions Account": the Distributions Account established
and maintained pursuant to the Security Deposit Agreement.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Dollar Loans": collectively, C/D Rate Loans and Base
Rate Loans.
"Easements": any easement, license, right-of-way or similar
real property interest or right that is the subject of an Easement Agreement.
"Easement Agreements": (i) the Waterline and Pumping Station
Easement Agreement, (ii) the Access and Utility Easement Agreement, (iii) the
Stormwater and Surface Water Runoff Easement Agreement, and (iv) each other
agreement entered into prior to the execution and delivery of the Project Loan
Agreement granting or assigning to the Borrower ownership of or other rights in
respect of any easement, license, right-of-way or similar real property interest
or right relating to the Facility or the Site or to the transportation and
delivery of Coal, lime, water, ash, electricity or steam to or from the Facility
or the Site or to ingress or egress to or from the Facility or the Site, each
such agreement to be satisfactory in form and substance to the Administrative
Agent and the Majority Institutions.
"Environmental Consultant": Rust Environment & Infrastructure,
or such other environmental consultant reasonably acceptable to the Borrower as
the Majority Lenders may designate to examine and advise the Lenders with
respect to environmental matters concerning the Site and the Project.
"Environmental Law": any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Government Authority relating to the protection of the
environment or natural resources, or to emissions, discharge, Releases or
threatened Releases of Hazardous Materials into the environment including,
without limitation, ambient air, surface water, groundwater or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials, as now or
hereafter may be in effect.
"Environmental Report": the reports entitled "Phase I
Environmental Assessment, SEI Birchwood Power Facility, Parcel A, King Xxxxxx
County, Virginia" and "Phase I Environmental Assessment, SEI Birchwood Power
Facility, Parcel B, King Xxxxxx County, Virginia" prepared by the Environmental
Consultant, each dated April 1994.
"Equity Contribution Amount": as defined in Section 1.2 of the
Southern Equity Contribution Agreement.
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"Equity Contribution Dates": as defined in Section 1.1 of the
Equity Contribution Agreement.
"Equity Contribution Proceeds": any and all payments made or
due and payable by Southern on account of the Mandatory Equity Contribution or
any Contingent Equity Contribution.
"Equity Funding Banks": the banks which are identified as the
"Banks" in, and are from time to time party to, the Equity Funding Loan
Agreement.
"Equity Funding Commitments": the "Total Commitments" from
time to time in effect under the Equity Funding Loan Agreement.
"Equity Funding Documents": collectively, the Equity Funding
Loan Agreement, the Equity Funding Guarantee and the Southern Equity
Contribution Agreement.
"Equity Funding Guarantee": the Guarantee made by Southern in
favor of the Equity Funding Banks and the administrative agent and co-agents
under the Equity Funding Loan Agreement, substantially in the form of Exhibit D
to the Equity Funding Loan Agreement, as amended, supplemented or otherwise
modified from time to time in accordance with Section 11.11(a) of the Project
Loan Agreement.
"Equity Funding Loan Agent": Credit Suisse, in its capacity as
administrative agent for the Equity Funding Banks, or any successor in such
capacity appointed pursuant to subsection 8.9 of the Equity Funding Loan
Agreement.
"Equity Funding Loan Agreement": the Credit Agreement dated as
of May 18, 1994 among the Borrower, the co-agents named therein, the Equity
Funding Banks and Credit Suisse, as administrative agent for the Equity Funding
Banks thereunder, as amended, supplemented or otherwise modified from time to
time in accordance with Section 11.11(a) of the Project Loan Agreement.
"Equity Funding Loan Borrowing Certificate": a "Borrowing
Certificate" as defined in the Equity Funding Loan Agreement.
"Equity Funding Loan Borrowing Date": a "Borrowing Date" as
defined in the Equity Funding Loan Agreement.
"Equity Funding Loans": the revolving credit and bid loans
made by the Equity Funding Banks to the Borrower during the Construction Period
pursuant to the Equity Funding Loan Agreement.
"Equity Funding Termination Date": the date on which (i) the
Equity Funding Loans and all other amounts owing under the Equity Funding Loan
Agreement have been paid in full and the lending commitments thereunder
terminated, (ii) the Mandatory Equity
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Contribution and any Contingent Equity Contribution has been made to the
Borrower in accordance with Section 2.1 of the Southern Equity Contribution
Agreement and (iii) Southern shall have paid all amounts owing by it under the
Construction Contract Guarantees.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates (expressed
as a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Government Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Bank Loan Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the average (rounded upward, if necessary, to the nearest 1/16th of 1%)
of the respective rates notified to the Administrative Agent by each of the
Reference Banks as the rate at which such Reference Bank is offered Dollar
deposits at or about 11:00 A.M., London time, two Business Days prior to the
beginning of such Bank Loan Interest Period in the London interbank eurodollar
market for delivery on the first day of such Bank Loan Interest Period, for the
number of days comprised therein and in an amount comparable to the amount of
its Eurodollar Loan to be outstanding during such Bank Loan Interest Period.
"Eurodollar Loans": Bank Loans the rate of interest applicable
to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Bank
Loan Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula (rounded
upward, if necessary, to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": as defined in Section 3.6 of the Project
Loan Agreement.
"Event of Default": any of the events specified in Section
12.1 of the Project Loan Agreement, provided that any requirement for the giving
of notice, the lapse of time, or both, or any other condition, has been
satisfied.
"Event of Loss": (a) the actual or constructive total loss of
all or substantially all of the Facility, or the condemnation, confiscation or
seizure of, or requisition of title to, or requisition by any Government
Authority of the use (for an indefinite period of time or for a period of time
in excess of twelve months) of, all or substantially all of the Facility; or
(b)(i) the
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loss, destruction or damage of, or (ii) the condemnation, confiscation or
seizure of, or requisition of title to, or requisition by any Government
Authority of the use of (in each case in this clause (ii) for an indefinite
period or for a period in excess of twelve months) such portion of the Project
as shall render the Facility unable to operate on a commercially feasible basis,
unless (in the case of this clause (b)): (w) no Event of Default shall have
occurred and be continuing at the time of occurrence of or immediately after
giving effect to any of the events specified in this clause (b), (x) it is
feasible to restore, rebuild or replace the affected portion of the Project, (y)
in the opinion of the Majority Lenders after consultation with the Independent
Engineer, sufficient funds are or will be available to the Borrower (A) to
restore, rebuild or replace the affected portion of the Project so that the
Facility will be able to operate on a commercially feasible basis and (B) to pay
all Debt Service until such restoration, rebuilding or replacement is completed
and (z) no party (other than the Borrower) to any Principal Project Document has
the right to terminate such Principal Project Document at any time during the
period of restoration, rebuilding or replacement as a result of any of the
events specified in this clause (b) unless such right has been waived in writing
in a manner reasonably satisfactory to the Security Agent. For the purpose of
clause (b) of this definition, the Event of Loss shall be deemed to have
occurred on the date on which the Security Agent shall notify the Borrower in
writing that one or more of the conditions (specifying the same) set forth in
clauses (w), (x), (y) and (z) has not been satisfied.
"Event of Loss Prepayment Date": in the case of an Event of
Loss described in clause (a) of the definition thereof, the earlier of (i) the
date which is 90 days after the date of such Event of Loss and (ii) the date on
which the insurance proceeds are received with respect to such Event of Loss;
and in the case of an Event of Loss described in clause (b) of the definition
thereof, the later of (x) the date on which such Event of Loss is deemed to have
occurred and (y) the earlier of the date on which the insurance proceeds are
received with respect to such Event of Loss or the date 90 days after such Event
of Loss is deemed to have occurred.
"Excess Cash Flow": as of any date of determination, the
amount available to be transferred from the Project Control Account to the
Distributions Account pursuant to clause twelfth of Section 5.3(a) of the
Security Deposit Agreement on such date.
"Extension of Credit": any of (a) the making of a Bank Project
Loan, (b) the making of a Bank L/C Loan, (c) the making of a Bank Liquidity
Loan, (d) the making of an Institutional Loan, (e) the issuance of a VP Letter
of Credit or (f) the issuance of a Bond Letter of Credit.
"Extension of Credit Request": a written request by the
Borrower for an Extension of Credit, substantially in the form of Exhibit X-0,
X-0 or B-3 of the Project Loan Agreement.
"Facility": the pulverized coal-fired cogeneration facility
having a nameplate rating of 220 megawatts to be constructed on the Site
pursuant to the Facility Construction Contract, consisting of the turbines,
boilers, fuel handling equipment and all other equipment installed on the
Borrower's side of the Interconnection Point that is not Interconnection
Facilities (as such terms are defined in the Power Purchase Agreement).
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"Facility Completion Certificate": a certificate substantially
in the form of Exhibit J-1 of the Project Loan Agreement, signed by the Borrower
and the Independent Engineer.
"Facility Construction Contract": the Amended and Restated
Agreement for Engineering, Procurement and Construction Services dated as of
April 19, 1994 between the Facility Contractor and the Borrower, as amended,
supplemented or otherwise modified from time to time in accordance with Section
11.12(a) of the Project Loan Agreement.
"Facility Construction Contract Guarantee": the Guaranty dated
as of May 18, 1994 made by the Parent Guarantor in favor of the Borrower, as
amended, supplemented or otherwise modified from time to time in accordance with
Section 11.12(a) of the Project Loan Agreement.
"Facility Construction Schedule": the schedule for the
Construction of the Facility prepared by the Borrower and the Facility
Contractor and approved by the Co-Agents, the Institutions and the Independent
Engineer, as set forth on Schedule 8 to the Project Loan Agreement.
"Facility Contractor": SEI.
"Facility Operator": SEI.
"Federal Funds Effective Rate": as defined in the definition
of "Base Rate".
"FERC": the Federal Energy Regulatory Commission or any
successor or analogous federal Government Authority.
"Final Completion": (a) with respect to the Facility, as
defined in Section 1.1 of the Facility Construction Contract, and (b) with
respect to the Greenhouse, as defined in Section 1.1 of the Greenhouse
Construction Contract.
"Final Completion Escrow Account": the Final Completion Escrow
Account established and maintained pursuant to the Security Deposit Agreement.
"Final Completion Prepayment Amount": the amount transferred
from the Final Completion Escrow Account to the Prepayment Subaccount on the
date of Final Completion of the Facility pursuant to clause second of Section
5.9(b) of the Security Deposit Agreement.
"Financing Documents": collectively, the Loan Documents, the
Interest Rate Hedging Agreements with an Interest Rate Hedging Counterparty
specified in clause (ii) of the definition thereof, the Bond Documents and the
Equity Funding Documents.
"Force Majeure": with respect to any Project Document, as
defined in such Project Document.
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"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Indemnity Payment Proceeds": any and all proceeds of
any insurance maintained by the Borrower or any indemnity, warranty, liquidated
damages or guaranty in favor of the Borrower under any Project Document or
Financing Document which are payable to the Borrower and are not required to be
paid by the Borrower to another Person upon the Borrower's receipt thereof, and
which does not constitute Casualty Insurance Proceeds, Business Interruption
Insurance Proceeds, Requisition Proceeds or Liquidated Damages Proceeds.
"General Partner Interest Pledge Agreements": the collective
reference to the separate General Partner Interest Pledge Agreements made by
each General Partner of the Borrower from time to time in favor of the Security
Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit F-1 to the Project Loan Agreement, as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"General Partners": (a) on the date of execution and delivery
of the Project Loan Agreement, the collective reference to SEI Birchwood and
Birchwood Development, in their capacity as owners of general partnership
interests in the Borrower; and (b) thereafter, subject to compliance with the
provisions of the Partnership Agreement and of Section 11.13(a) of the Project
Loan Agreement, each owner from time to time of a general partnership interest
in the Borrower.
"GNP Index": the Gross National Product Implicit Price
Deflator as presently issued by the Department of Commerce Bureau of Economic
Analysis in the publication entitled "Economic Indicators" published by the
Government Printing Office, or, if said historical index is no longer available
or is converted to a different standard reference base or is otherwise revised,
such historical index as the Borrower and the Administrative Agent may select
that measures all goods and services in the economy adjusted for real price
change.
"GNP Index Multiplier": for any calendar year, the sum of (a)
the Inflation Factor for the calendar year immediately preceding such calendar
year and (b) 1.0.
"Government Authority": any nation or government, any state or
other political subdivision thereof, and any entity exercising legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Governmental Approvals": authorizations, consents, approvals,
waivers, exemptions, variances, franchises, to the permissions, permits and
licenses of, and filings and declarations with, any Government Authority.
"Greenhouse": the approximately 36 acre greenhouse complex to
be constructed on the Leased Land pursuant to the Greenhouse Construction
Contract, as more particularly described in Section 1.1 of the Greenhouse
Construction Contract.
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"Greenhouse Xxxx of Sale": the Xxxx of Sale dated May 18, 1994
from the Greenhouse Operator, as seller, to the Greenhouse Owner, as buyer.
"Greenhouse Collateral": the Greenhouse and all other property
mortgaged, pledged or assigned to the Borrower or the Greenhouse Owner pursuant
to the Greenhouse Documents as security for the payment of the obligations under
the Greenhouse Loan Agreement or the Greenhouse Sublease, respectively.
"Greenhouse Completion Certificate": a certificate
substantially in the form of Exhibit J-2 of the Project Loan Agreement, signed
by the Borrower, the Greenhouse Owner, the Greenhouse Operator and the
Independent Engineer.
"Greenhouse Construction Contract": the Construction Contract
dated as of April 19, 1994 between the Greenhouse Contractor and the Greenhouse
Operator, as assigned by the Greenhouse Operator to, and assumed by, the
Greenhouse Owner pursuant to the Assignment and Assumption Agreement dated as of
May 18, 1994, as amended, supplemented or otherwise modified from time to time
in accordance with Section 11.12(a) of the Project Loan Agreement.
"Greenhouse Construction Contract Guarantee": the Guaranty
dated as of May 18, 1994 made by the Parent Guarantor in favor of the Greenhouse
Owner, as amended, supplemented or otherwise modified from time to time in
accordance with Section 11.12(a) of the Project Loan Agreement.
"Greenhouse Construction Schedule": the schedule for the
construction of the Greenhouse prepared by the Greenhouse Operator and the
Greenhouse Contractor and approved by the Co-Agents, the Institutions and the
Independent Engineer, as set forth in Schedule 9 to the Project Loan Agreement.
"Greenhouse Contractor": SEI.
"Greenhouse Deed": the Deed of Bargain and Sale dated as of
May 18, 1994 from the Greenhouse Operator, as Grantor, to the Greenhouse Owner,
as Grantee.
"Greenhouse Documents": collectively, the Greenhouse Loan
Agreement, the Greenhouse Note, the Greenhouse Xxxx of Sale, the Greenhouse
Mortgage, the Greenhouse Nondisturbance Agreement, the Greenhouse Master Lease,
the Greenhouse Pledge Agreements, the Greenhouse Stock Assignment, the
Greenhouse Construction Contract, the Greenhouse Sublease and the Greenhouse
Deed.
"Greenhouse Loan Agreement": the Loan and Contribution
Agreement dated as of May 18, 1994 between the Greenhouse Owner and the
Borrower, as amended, supplemented or otherwise modified from time to time in
accordance with Section 11.12(a) of the Project Loan Agreement.
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"Greenhouse Master Lease": the Deed of Master Lease dated as
of May 18, 1994 between the Borrower, as Master Landlord, and the Greenhouse
Owner, as Master Tenant, as amended, supplemented or otherwise modified from
time to time in accordance with Section 11.12(a) of the Project Loan Agreement.
"Greenhouse Mortgage": the Deed of Trust, Security Agreement
and Assignment of Leases and Rents dated as of May 18, 1994 by and between the
Greenhouse Owner, as grantor, Lawyers Title Insurance Corporation, as Trustee,
for the benefit of the Borrower, as amended, supplemented or otherwise modified
from time to time in accordance with Section 11.12(a) of the Project Loan
Agreement.
"Greenhouse Mortgage Assignment": the Collateral Assignment of
Greenhouse Note, Loan Agreement and Mortgage dated as of May 18, 1994 from the
Borrower, as assignor, to the Security Agent, as assignee, as amended,
supplemented or otherwise modified from time to time in accordance with Section
11.11(a) of the Project Loan Agreement.
"Greenhouse Nondisturbance Agreement": the Nondisturbance,
Attornment and Subordination Agreement dated as of May 18, 1994 by and between
the Security Agent and the Greenhouse Operator, as amended, supplemented or
otherwise modified from time to time in accordance with Section 11.12(a) of the
Project Loan Agreement.
"Greenhouse Note": the promissory note executed by the
Greenhouse Owner in the form of Exhibit A to the Greenhouse Loan Agreement,
payable to the order of the Borrower, and any and all renewals, reinstatements,
rearrangements, enlargements or extensions thereof or of any promissory note or
notes given therefor, as amended, supplemented or otherwise modified from time
to time in accordance with Section 11.12(a) of the Project Loan Agreement.
"Greenhouse Operator": Dominion Growers of Fredericksburg,
Inc., a Virginia corporation.
"Greenhouse Operator Pledge Agreements": the collective
reference to (i) the Stock Pledge Agreement made by Xxxxxxxx XxxXxxxxxxxx, the
sole stockholder of the Greenhouse Operator in favor of the Greenhouse Owner,
and (ii) following the Closing Date, the other Stock Pledge Agreements made by
each transferee of Xxxxxxxx XxxXxxxxxxxx in favor of the Greenhouse Owner, in
each case, substantially in the form of Exhibit __ to the Greenhouse Sublease,
as amended, supplemented or otherwise modified from time to time in accordance
with Section 11.12(a) of the Project Loan Agreement.
"Greenhouse Owner": Greenhost, Inc., a Delaware corporation.
"Greenhouse Owner Pledge Agreement": the Stock Pledge
Agreement dated as of May 18, 1994 made by Corporate Trinity Company, the sole
stockholder of the Greenhouse Owner, in favor of the Borrower, substantially in
the form of Exhibit C to the Greenhouse Loan Agreement, as amended, supplemented
or otherwise modified from time to time in accordance with Section 11.12(a) of
the Project Loan Agreement.
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"Greenhouse Pledge Agreements": collectively, the Greenhouse
Owner Pledge Agreement and the Greenhouse Operator Pledge Agreements.
"Greenhouse Prepayment Amount": as defined in Section 7.3(f)
of the Project Loan Agreement.
"Greenhouse Prepayment Notice": as defined in Section 7.3(f)
of the Project Loan Agreement.
"Greenhouse Prepayment Proceeds": with respect to any optional
or mandatory prepayment of loans pursuant to the Greenhouse Loan Agreement,
other than a mandatory prepayment of loans made with the proceeds of any
payments of Greenhouse Reserve Replenishment Rent under the Greenhouse Sublease,
85% of the proceeds thereof.
"Greenhouse Reserve Account": the Greenhouse Reserve Account
established and maintained pursuant to the Security Deposit Agreement.
"Greenhouse Reserve Replenishment Rent": any payments of
Supplemental Rent made pursuant to Section 15.06 of the Greenhouse Sublease
following a Greenhouse Reserve Withdrawal Event and until such time as the
amount of funds on deposit in the Greenhouse Reserve Account equals $2,000,000.
"Greenhouse Reserve Withdrawal Event": as defined in Section
1.2 of the Security Deposit Agreement.
"Greenhouse Stock Assignment": the Greenhouse Stock Assignment
dated as of May 18, 1994 between the Greenhouse Owner and the Borrower, as
amended, supplemented or otherwise modified from time to time in accordance with
Section 11.12(a) of the Project Loan Agreement.
"Greenhouse Sublease": the Deed of Sublease dated as of May
18, 1994 between the Greenhouse Owner, as sublessor, and the Greenhouse
Operator, as sublessee, as amended, supplemented or otherwise modified from time
to time in accordance with Section 11.12(a) of the Project Loan Agreement.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counter indemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, lease, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing 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 (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary
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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 owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee Obligation shall
not include (x) endorsements of instruments for deposit or collection in the
ordinary course of business, (y) obligations of the Borrower contained in any
Project Document on the Closing Date and (z) indemnity and "hold harmless"
provisions in the CT Corporation Agreement or in contracts (including Additional
Contracts) entered into by the Borrower in the ordinary course of business after
the Closing Date.
"Hazardous Materials": (a) any petroleum or petroleum
products, flammable explosives, radioactive materials, asbestos in any form that
is or could become friable, urea formaldehyde foam insulation and
polychlorinated biphenyls (PCB) to the extent regulated under any Environmental
Law; and (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants" or "pollutants", or words of
similar import, under any applicable Environmental Law.
"Heat Rate Bonus": as defined in Section 8.5 of the Facility
Construction Contract.
"Historical Debt Coverage Ratio": as of any Quarterly
Calculation Date, the ratio of (i) Project Cash Flow of the Borrower for the
six-month period ending on such Quarterly Calculation Date to (ii) Debt Service
for such six-month period.
"Increased IDC Contribution Amount": as defined in the
Southern Equity Contribution Agreement.
"Increased IDC Prepayment Amount":
(a) if the Applicable Institutional Loan Margin
(determined in accordance with the relevant Institutional Notes) of the initial
Institutional Loans made by the Institutions is 2.62%, but the Applicable
Institutional Loan Margin (determined in accordance with the relevant
Institutional Notes) of the subsequent Institutional Loans made by the
Institutions is 2.40%, $1,120,000; or
(b) if the Applicable Institutional Loan Margin
(determined in accordance with the relevant Institutional Notes) of both of the
Institutional Loans made by the Institutions is 2.62%, $2,239,000.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, (b) any other indebtedness of such Person which
is evidenced by a note, bond, debenture or similar instrument,
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(c) all obligations of such Person under Capital Leases, (d) all obligations of
such Person pursuant to Interest Rate Hedging Transactions, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person and (f) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become liable
for the payment thereof.
"Independent Engineer": Black & Xxxxxx, Engineers-Architects,
a Missouri partnership, or such other engineering firm reasonably acceptable to
the Borrower as the Majority Lenders may designate.
"Independent Engineer's Certificate": as defined in Section
9.2(d) of the Project Loan Agreement.
"Independent Engineer's Report": the report of the Independent
Engineer delivered pursuant to Section 9.1(m) of the Project Loan Agreement.
"Inflation Factor": for any calendar year (the "test year"),
the quotient obtained by dividing (a) the GNP Index for the test year minus the
GNP Index for the calendar year immediately preceding the test year, by (b) the
GNP Index for the calendar year immediately preceding the test year.
"Information Memorandum": the Birchwood Power Partners, L.P.
Non-Recourse Financing Amended and Restated Private Information Memorandum for
the Project dated May 18, 1994, prepared by the Borrower and delivered to the
Co-Agents and Institutions.
"Initial Budgeted Amount": $438,365,000.
"Initial Funding Period": the period from and including the
Closing Date to and including August 22, 1994.
"Initial Repair and Maintenance Reserve Amount": $1,000,000.
"Initial Repayment Date": the first Loan Installment Payment
Date to occur on or after the later of (i) the date which is three months after
the Completion Date and (ii) the date which is six months after the Commercial
Operations Date.
"Initial Synchronization Date": as defined in Section 1.23 of
the Power Purchase Agreement.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Institution Default Rate": for any day with respect to any
Institutional Loan, the rate per annum equal to the rate of interest borne by
the Institutional Note evidencing such Loan plus 2.00%.
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"Institutional Commitment Period": the period from and
including the Closing Date to and including the Institutional Commitment
Termination Date.
"Institutional Commitment Termination Date": February 15,
1995.
"Institutional Fee Letter": the letter agreement dated the
date of the Project Loan Agreement between the Institutions and the Borrower,
setting forth certain fees payable by the Borrower to the Institutions.
"Institutional Loan Facility": the construction and term loan
facility provided by the Institutions to the Borrower pursuant to Section 4 of
the Project Loan Agreement, under which the Institutions will make Institutional
Loans from time to time in accordance with the terms thereof.
"Institutional Loan Final Maturity Date": the twentieth
anniversary of the Commercial Operations Date.
"Institutional Loan Installment Payment Date": as defined in
Section 4.4(a) of the Project Loan Agreement.
"Institutional Loan Proceeds Account": the Institutional Loan
Proceeds Account established and maintained pursuant to the Security Deposit
Agreement.
"Institutional Loans": as defined in Section 4.1 of the
Project Loan Agreement.
"Institutional Note": as defined in Section 4.3 of the Project
Loan Agreement.
"Institutional Note Register": as defined in Section 4.7(a) of
the Project Loan Agreement.
"Institutional Transfer Supplement": as defined in Section
14.8(a) of the Project Loan Agreement.
"Institutions": the financial institutions, insurance
companies and other institutional investors which are identified as
"Institutions" in, and are from time to time party to, the Project Loan
Agreement.
"Insurance and Property Tax Reserve Account": the Insurance
and Property Tax Reserve Account established and maintained pursuant to the
Security Deposit Agreement.
"Insurance Consultant": Xxxx, Xxxxx & Co. Inc., or such other
insurance consultant reasonably acceptable to the Borrower as the Majority
Lenders may designate.
"Interest Drawing": as defined in the relevant Bond Letter of
Credit.
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"Interest Rate Election Notice": a written notice by the
Borrower delivered in connection with a borrowing of Bank Loans, substantially
in the form of Exhibit M to the Project Loan Agreement.
"Interest Rate Hedging Agreement": the agreement or agreements
entered into, or to be entered into, by the Borrower and one or more Interest
Rate Hedging Counterparties in connection with each Interest Rate Hedging
Transaction, as amended, supplemented or otherwise modified from time to time in
accordance with Section 11.11(a) of the Project Loan Agreement.
"Interest Rate Hedging Counterparty": (i) any Co-Agent or any
Affiliate thereof whose long-term unsecured debt securities are rated A- or
better by Standard & Poor's or A3 or better by Moody's or (ii) any other
financial institution whose long-term unsecured debt securities are rated AA- or
better by Standard & Poor's or Aa3 or better by Moody's, in each case at the
time of such Co-Agent's, such Affiliate's or such other financial institution's
entry into an Interest Rate Hedging Transaction with the Borrower.
"Interest Rate Hedging Transaction": any interest rate
protection agreement, interest rate swap transaction, interest rate "cap" or
"collar" transaction, interest rate future, interest rate option or other
interest rate hedging transaction.
"Investor Percentage": at any time:
(a) with respect to any Institution, a fraction (expressed as
a percentage), the numerator of which is the sum of (i) the aggregate unpaid
principal amount of Institutional Loans then outstanding held by such
Institution and (ii) the unused Institutional Loan Commitment of such
Institution then in effect, and the denominator of which is the Total Investor
Exposure at such time; and
(b) with respect to the Unsupported Bondholders, a fraction
(expressed as a percentage), the numerator of which is the aggregate unpaid
principal amount of Unsupported Bonds then outstanding, and the denominator of
which is the Total Investor Exposure at such time.
For purposes of this definition, "Total Investor Exposure" means, at any time,
the sum of (i) the aggregate unpaid principal amount of Institutional Loans then
outstanding, (ii) the aggregate unpaid principal amount of Unsupported Bonds
then outstanding and (iii) the unused portion of the Total Institutional
Commitments then in effect.
"IPP": an independent power production facility which is not a
Qualifying Facility.
"IPP Conversion Date": the date, if any, on which the Facility
shall cease to be a Qualifying Facility and shall become an IPP in compliance
with all relevant provisions of the Project Loan Agreement.
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"Issuing Bank": Credit Suisse, or when the context requires,
Credit Suisse, New York Branch, or any successor or assign, and shall be
interpreted accordingly throughout the Loan Documents.
"Junior Subordinated Indebtedness": unsecured indebtedness of
the Borrower for borrowed money that is evidenced by an instrument or
instruments containing the subordination provisions set forth in Exhibit N to
the Project Loan Agreement.
"L/C Cash Collateral Subaccount": as defined in Section 3.1(a)
of the Security Deposit Agreement.
"L/C Disbursement Date": the date on which any Letter of
Credit Disbursement is made.
"L/C Reimbursement Date": each date upon which any L/C
Reimbursement Obligation arises and the payment thereof is not financed with the
proceeds of a Bank L/C Loan or Bank Liquidity Loan under the Project Loan
Agreement.
"L/C Reimbursement Obligations": collectively, Bond
Reimbursement Obligations and VP Reimbursement Obligations.
"L/C Reimbursement Payments": collectively, Bond Reimbursement
Payments and VP Reimbursement Payments.
"Leased Land": that portion of the Site that is subject to the
Greenhouse Master Lease.
"Lenders": the Banks, the Issuing Bank and the Institutions.
"Lenders' Default Notice": as defined in Section 1.2 of the
Southern Equity Contribution Agreement.
"Letter of Credit Disbursement": any Construction VP Letter of
Credit Disbursement, any Term VP Letter of Credit Disbursement or any Bond
Letter of Credit Disbursement.
"Letter of Credit Exposure": on any date with respect to all
Letters of Credit then outstanding, the sum of (i) the aggregate undrawn portion
of the respective stated amounts of such Letters of Credit on such date and (ii)
the aggregate amount of L/C Reimbursement Obligations on such date which have
not been reimbursed by the Borrower from its own funds or financed with the
proceeds of a Bank L/C Loan or a Bank Liquidity Loan.
"Letters of Credit": collectively, the Bond Letters of Credit
and the VP Letters of Credit.
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"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
lease having substantially the same economic effect as any of the foregoing).
"Limited Partner Interest Pledge Agreement": the collective
reference to the separate Limited Partner Interest Pledge Agreements made by
each Limited Partner of the Borrower from time to time in favor of the Security
Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit F-2 to the Project Loan Agreement, as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Limited Partners": (a) on the date of the execution and
delivery of the Project Loan Agreement, SEI Birchwood, in its capacity as the
owner of all of the limited partnership interests of the Borrower; and (b)
thereafter, subject to compliance with the provisions of the Partnership
Agreement and of Section 11.13(b) of the Project Loan Agreement, each owner from
time to time of a limited partnership interest in the Borrower.
"Liquidity Drawing": a Tender Drawing -- Principal or a Tender
Drawing -- Interest (as each such term is defined in the relevant Bond Letter of
Credit), the proceeds of which are to be used to fund tenders of the relevant
Bonds in connection with a remarketing of the Bonds.
"Liquidity Loan Termination Date": with respect to Bank
Liquidity Loans the proceeds of which are used to finance Bond Reimbursement
Obligations in respect of a Liquidity Drawing under a Bond Letter of Credit, the
applicable Bond L/C Expiration Date of such Bond Letter of Credit.
"Loan Documents": the Project Loan Agreement, the Notes, each
Interest Rate Hedging Agreement with an Interest Rate Hedging Counterparty
specified in clause (i) of the definition thereof and the Security Documents.
"Loan Installment Payment Date": each of (i) the last day of
each March, June, September and December occurring on the first such day to
occur after the Commercial Operations Date, to and including the Bank Loan Final
Maturity Date (in the case of Bank Loans) or the Institutional Loan Final
Maturity Date (in the case of Institutional Loans) and (ii) the Bank Loan Final
Maturity Date (in the case of Bank Loans) or the Institutional Loan Final
Maturity Date (in the case of Institutional Loans).
"Loan Participants": as defined in Section 14.7(a) of the
Project Loan Agreement.
"Loans": collectively, the Bank Project Loans, the Bank L/C
Loans, the Bank Liquidity Loans and the Institutional Loans.
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"Majority Banks": at any time, Banks the Commitment
Percentages of which at such time aggregate at least 66 2/3%.
"Majority Institutions": at any time, Institutions and
Unsupported Bondholders (acting through the relevant Bond Trustee) the Investor
Percentages of which at such time aggregate at least 66 2/3%.
"Majority Lenders": at any time, each of (i) Banks,
Institutions and Unsupported Bondholders (acting through the relevant Bond
Trustee) the Senior Creditor Percentages of which at such time aggregate at
least 66 2/3%; and (ii) Banks the Commitment Percentages of which at such time
aggregate at least 66 2/3% and (iii) Institutions and Unsupported Bondholders
(acting through the relevant Bond Trustee) the Investor Percentages of which at
such time aggregate at least 66 2/3%; provided, however, that if at any time on
or after the first day of the fourteenth year following the Commercial
Operations Date, the Senior Creditor Percentage of either the Banks or the
Institutions is less than 20% of the Total Senior Creditor Exposure (as defined
in the definition of "Senior Creditor Percentage"), then "Majority Lenders"
shall be determined without reference to clause (ii) or (iii) above; provided,
further, that on and after the date on which the Bank Loans and all amounts
payable to the Banks, the Issuing Bank and the Administrative Agent under the
Loan Documents have been paid in full, no Letter of Credit is outstanding and
all of the Commitments of the Banks have been terminated, "Majority Lenders"
shall be determined without reference to clause (ii) above and clause (i) above
shall be calculated without reference to "Banks".
"Make-Whole Premium": a premium, determined as of the date of
any optional prepayment pursuant to Section 7.4 of the Project Loan Agreement,
any mandatory prepayment pursuant to Section 7.3 of the Project Loan Agreement
in respect of which the Make-Whole Premium is payable, or any acceleration
pursuant to Section 12.2 thereof, in respect of each Institutional Loan (or the
portion thereof) to be prepaid or each Institutional Loan being accelerated,
equal to the amount (but not less than zero) obtained by subtracting (i) the sum
of the unpaid principal amount of such Institutional Loan (or the portion
thereof) being prepaid or accelerated and the amount of interest thereon accrued
to the prepayment date or date of acceleration, as the case may be, from (ii)
the sum of the Current Values of each scheduled interest payment and principal
payment (each such amount of principal or interest being referred to herein as
an "Amount Payable") being prepaid or accelerated that would otherwise have
become due after the date of such determination if such Institutional Loan were
not being prepaid or accelerated. The "Current Value" of any Amount Payable
means such Amount Payable discounted on a quarterly basis to its present value
on the date of determination in accordance with the following formula:
Current Value = Amount Payable
--------------
(1 + d/p)(n)
where "d" is the sum of (a) 50 basis points and (b) the Treasury Yield per annum
expressed as a decimal, and "n" is an exponent (which need not be an integer)
equal to the number of
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quarterly periods and portions thereof (any such portion of a period to be
determined by dividing the number of days in such portion of such period by the
total number of days in such period, both computed on the basis of twelve 30-day
months in a 360-day year) from the date of such determination to the scheduled
payment date of the Amount Payable, and "p" is 4. The "Treasury Yield"
applicable to each Amount Payable shall be the yield to maturity implied by the
yields reported, as of 10:00 a.m. (New York City time) on the Business Day next
preceding the date fixed for prepayment or the date of acceleration, as the case
may be, with respect to the principal amount being prepaid or accelerated, on
the display designated as "Page 678" on the Telerate Service (or such other
display as may replace such Page 678) for actively traded U.S. Treasury
securities having a maturity equal to the then remaining weighted average life
of the Institutional Loan being prepaid or accelerated (the "Remaining Life") of
such principal amount as of such date, computed by dividing (x) the amount
referred to in clause (i) above into (y) the total of the products obtained by
multiplying (A) the amount of each remaining required repayment of principal by
(B) the number of years (calculated to the nearest one-twelfth) which will
elapse between the date as of which such computation is made and the due date of
such payment. If the Remaining Life is not equal to the constant maturity of a
U.S. Treasury security for which a weekly average yield is given, the Treasury
Yield shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of (a) the actively traded
U.S. Treasury security with a maturity closest to and greater than the Remaining
Life and (b) the actively traded U.S. Treasury security with a maturity closest
to and less than the Remaining Life, except that if the Remaining Life is less
than one year, the weekly average yield on actively traded U.S. Treasury
securities adjusted to a constant maturity of one year shall be used. The
Treasury Yield shall be computed to the fifth decimal place (one thousandth of a
percentage point) and then rounded to the fourth decimal place (one hundredth of
a percentage point).
"Mandatory Equity Contribution": as defined in the Southern
Equity Contribution Agreement.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations or financial condition of the Borrower, (b) the ability
of the Borrower to perform its obligations under the Loan Documents and the
Project Documents, or (c) the validity or enforceability of the Loan Documents
or the Project Documents or the rights, interests and remedies of the Lenders
under the Loan Documents.
"Maximum Partnership Interest": with respect to any Person,
(i) 50% of all general partnership interests in the Borrower and (ii)
Partnership Interests entitling such Person to receive 50% of the profits and
losses of the Borrower.
"Modified Make-Whole Premium": (a) with respect to any
optional prepayment of Institutional Loans pursuant to Section 7.4 of the
Project Loan Agreement with funds transferred from the Additional Collateral
Account pursuant to Section 5.6(b) of the Security Deposit Agreement, such
Institution's Pro Rata Share (as defined below) of the product of (x) the
aggregate amounts payable to the Banks pursuant to Section 7.7(a) or 7.7(d) of
the Project Loan Agreement in connection with such prepayment and (y) a
fraction, the numerator of which
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is the aggregate principal amount of Institutional Loans to be prepaid in
connection with such prepayment and the denominator of which is the aggregate
principal amount of Bank Loans to be prepaid in connection with such
prepayment; and (b) with respect to any other optional prepayment pursuant to
Section 7.4 of the Project Loan Agreement of Institutional Loans held by an
Institution exercising the Pro Rata Prepayment Option which has agreed to
receive the Modified Make-Whole Premium, a premium, determined as of the date
of such optional prepayment, calculated in accordance with the definition of
"Make-Whole Premium", except that, for purposes of the formula used to
determine "Current Value" in such definition, "d" shall be the sum of (i) 100
basis points and (ii) the Treasury Yield per annum expressed as a decimal. For
purposes of this definition, "Pro Rata Share", with respect to any Institution
exercising the Pro Rata Prepayment Option in connection with an optional
prepayment of Institutional Loans, is equal to a fraction, the numerator of
which is equal to the aggregate principal amount of Institutional Loans held by
such Institution on the date of such prepayment and the denominator of which is
equal to the aggregate principal amount of Institutional Loans held by all
Institutions exercising the Pro Rata Prepayment Option on the date of such
prepayment.
"Monthly Construction Disbursement Date": in any calendar
month during the Construction Period, the single Business Day in such calendar
month designated by the Borrower as the date on which the Borrower proposes to
borrow Bank Project Loans and/or Institutional Loans under the Project Loan
Agreement to pay Project Costs.
"Moody's": Xxxxx'x Investor Services, Inc.
"Mortgaged Property": the "Trust Property" as defined in the
Project Mortgage.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Restoration Prepayment Amount": as defined in Section
7.3(g) of the Project Loan Agreement.
"Non-Restoration Prepayment Notice": as defined in Section
7.3(g) of the Project Loan Agreement.
"Note Exchange Date": the first date on which interest is
payable (and has been paid) on the Institutional Loans following the second
borrowing of Institutional Loans pursuant to Section 4.1 of the Project Loan
Agreement.
"Notes": collectively, the Bank Notes and Institutional Notes.
"Notice to Proceed": (a) with respect to the Facility, as
defined in Section 1.1 of the Facility Construction Contract, or (b) with
respect to the Greenhouse, as defined in Section 1.1 of the Greenhouse
Construction Contract.
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"Operating and Maintenance Agreement": the Amended and
Restated Facility Operations and Maintenance Agreement dated as of May 18, 1994
between the Borrower and the Facility Operator, as amended, supplemented or
otherwise modified from time to time in accordance with Section 11.12(a) of the
Project Loan Agreement.
"Operating Budget": as defined in Section 10.23 of the Project
Loan Agreement.
"Operating Year": the consecutive twelve-month period
commencing on the Commercial Operations Date, and each consecutive twelve-month
period thereafter commencing on each anniversary of the Commercial Operations
Date.
"Optional Prepayment Notice": as defined in Section 7.4(a) of
the Project Loan Agreement.
"Ornamental Flower Market Consultant": Context Consulting, or
such other consultant reasonably acceptable to the Borrower as the Majority
Lenders may designate to examine and advise the Lenders with respect to the
Greenhouse, the Greenhouse Operator and the ornamental flower market.
"Parent Guarantor": Southern, as guarantor under the
Construction Contract Guarantees.
"Partner Collateral": the "Collateral" as defined in each
General Partner Pledge Agreement and each Limited Partner Pledge Agreement.
"Partners": collectively, the General Partners and the Limited
Partners.
"Partnership Agreement": the Limited Partnership Agreement of
the Borrower dated as of July 21, 1993, as amended by a First Amendment dated as
of April 27, 1994 and by a Second Amendment dated as of May 18, 1994, between
Birchwood Development, in its capacity as a general partner, and SEI Birchwood,
in its respective capacities as a general partner and as the sole limited
partner.
"Partnership Interests": collectively, the general partnership
interests and limited partnership interests in the Borrower.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Investments": collectively, (a) direct obligations
of the United States or of any agency or political subdivision thereof, or
obligations guaranteed as to principal and interest by the United States or by
any agency or political subdivision thereof, in any case maturing not more than
90 days from the date of acquisition thereof; (b) certificates of deposit issued
by any bank having capital, surplus and undivided profits of at least
U.S.$500,000,000 and a long-term unsecured senior debt rating of at least "A" by
Standard & Poor's and "A2" by
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Moody's, in any case maturing not more than 90 days from the date of acquisition
thereof; and (c) commercial paper rated "P-1" or better by Moody's or "A-1" or
better by Standard & Poor's, in any case maturing not more than 90 days from the
date of acquisition thereof.
"Permitted Liens": (i) Liens for taxes, assessments or
governmental charges which are not yet due or which are being Contested (as
defined below); (ii) Liens in connection with worker's compensation,
unemployment insurance, old-age pensions or other social security benefits or
obligations; (iii) mechanics', materialmen's, warehousemen's, carriers' or other
like Liens arising in the ordinary course of business securing obligations
incurred in connection with the Project which are not yet due or which are fully
bonded or are being Contested; (iv) Liens incurred or created in the ordinary
course of business in connection with or to secure the performance of bids,
tenders, contracts (other than for the payment of money), leases, statutory
obligations, surety bonds or appeal bonds; (v) Liens of judgments or awards
fully covered by insurance or with respect to which an appeal or proceeding for
review is being prosecuted by a Contest; (vi) the exceptions to title set forth
in Schedule B of the title insurance policy delivered to the Security Agent
pursuant to Section 9.1(j) of the Project Loan Agreement; and (vii) any
easements, rights-of-way, licenses and similar encumbrances incurred or created
in the ordinary course of business which do not singularly or in the aggregate
interfere with the use or impair the value of the Borrower's property or assets
or impair the rights or interests of the Lenders with respect to the Collateral.
For purposes of this definition, "Contest" means, with respect to any taxes,
assessments, governmental charges or levies or any Lien or other claim (each, a
"Claim"), a contest pursued in good faith challenging the validity or amount of
any such Claim by proper proceedings timely instituted if (a) the Borrower
diligently pursues such contest, (b) the Borrower sets aside on its books
adequate reserves in accordance with GAAP with respect to the contested Claim,
(c) during the period of such contest the enforcement of any contested Claim is
effectively stayed and any Lien asserted thereby is effectively removed of
record and (d) such contest (i) will not interfere with the construction or
operation of the Project and (ii) does not involve any substantial danger of a
sale, forfeiture or loss of any part of the Project, title thereto or any
interest therein.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Government Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Power Purchase Agreement": the Power Purchase and Operating
Agreement effective July 13, 1990 between SEI Birchwood and Virginia Power, as
assigned by SEI Birchwood to, and assumed by, the Borrower pursuant to an
Assignment and Assumption Agreement dated as of May 18, 1994 among SEI
Birchwood, the Borrower and Virginia Power, and as amended, supplemented or
otherwise modified from time to time in accordance with Section 11.12(a) of the
Project Loan Agreement.
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"Prepayment Subaccount": as defined in the Security Deposit
Agreement.
"Principal Project Documents": collectively, the Construction
Contracts, the Construction Contract Guarantees, the Power Purchase Agreement,
the Steam Sales Agreement, the Operating and Maintenance Agreement, the Coal
Supply Agreement, the Arch Back-Up Coal Supply Agreement, the SEI Coal
Procurement Letter, the Coal Transportation Agreement, the CSXT Agreement, the
Coal Adjustment Agreement, the Ash Disposal Agreement, the Real Estate
Documents, the Greenhouse Documents (to the extent not specified above) and the
Partnership Agreement, together with any replacement or substitute agreement for
any of the foregoing.
"Proceeds": all cash and other property, real, personal or
mixed, tangible or intangible, received upon the sale, exchange, collection or
other disposition of the Collateral or proceeds thereof, and, in any event,
including, but not limited to, Casualty Insurance Proceeds, Business
Interruption Insurance Proceeds, Requisition Proceeds, Buy-Down Amount Proceeds,
Delay Damages Proceeds, General Indemnity Payments Proceeds, Greenhouse
Prepayment Proceeds, Mandatory Equity Contribution Proceeds and all proceeds of
the Contingent Bond Contribution, if any, and the Contingent Increased IDC
Contribution, if any.
"Project": the Facility, the Site and all licenses, permits
and easements and other real property interests and rights relating to the
Facility or the Site which are owned or leased by the Borrower or in which the
Borrower has any rights, including, without limitation, the Easements.
"Project Cash Flow": for any period, the amount, if any, by
which Project Revenues for such period exceed the sum of (i) Cash Operating
Costs (excluding the Basic O&M Monthly Fee and the Annual O&M Bonus) for such
period plus (ii) the Borrower's Greenhouse Expenses, if any, for such period
plus (or minus) (iii) decreases (or increases) in cash working capital of the
Borrower from the prior period.
"Project Control Account": the Project Control Account
established and maintained pursuant to the Security Deposit Agreement.
"Project Cost Savings": the amount, if any, by which (a) the
sum of (i) the Initial Budgeted Amount and (ii) the Increased IDC Contribution
Amount, if any, contributed to the Borrower pursuant to the Southern Equity
Contribution Agreement on or prior to such date, exceeds (b) the aggregate
amount of all Project Costs which have been or are required to be incurred in
order to achieve the occurrence of the Completion Date and Final Completion of
the Facility and of the Greenhouse, including, in any event, (x) the Required
Completion Date Reserve Deposits specified in clauses (ii) through (v) of the
definition thereof and (y) the Required Debt Service Reserve Amount as of the
Completion Date.
"Project Costs": all costs and expenses incurred or to be
incurred by the Borrower to develop, design, finance, construct, test and
start-up the Project in the manner contemplated by the Principal Project
Documents and to achieve Final Completion of the Facility, including without
limitation (a) the amounts payable by the Borrower pursuant to the Facility
Construction
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Contract; (b) all costs and expenses payable by the Borrower in connection with
the performance by it of its covenants in the Facility Construction Contract;
(c) the costs of acquiring and preparing the Site and the Easements; (d) the
cost of owner-furnished equipment (including the fuel storage facility), spare
parts, power and water for construction and start-up, and utility
interconnection costs; (e) the cost of interconnecting the Facility with the
Greenhouse and of any equipment owned by the Borrower that is located on the
Leased Land; (f) the secured construction loans not exceeding $20,079,000
principal amount and capital contribution not exceeding $7,000,000 which the
Borrower has agreed to make to the Greenhouse Owner pursuant to the Greenhouse
Loan Agreement; (g) initial working capital (not exceeding $3,500,000) for the
Project, (h) the cost of insurance and bonds; (i) consulting fees of the
Independent Engineer, Insurance Consultant, Coal Consultant, Environmental
Consultant and Ornamental Flower Market Consultant; (j) legal, accounting,
engineering and financing fees and expenses, and interest during construction;
(k) other fees and expenses associated with arranging the financing contemplated
by the Project Loan Agreement, the Equity Funding Loan Agreement and the Bond
Documents, including placement agent and underwriting fees and other issuance
costs of the Bonds; (l) ad valorem taxes, real and personal property taxes and
sales, use and excise taxes; (m) general and administrative expenses directly
attributable to the Project; (n) the funding of the Debt Service Reserve Account
on the Completion Date in the amount of the Required Debt Service Reserve
Amount; (o) the funding of the Repair and Maintenance Account on the Completion
Date in the amount of the Initial Repair and Maintenance Reserve Amount, (p) the
Heat Rate Bonus (not exceeding $6,000,000), if any, payable to the Facility
Contractor in accordance with Section 8.5 of the Facility Construction Contract;
(q) project development and construction management fees, including without
limitation the development fee to be paid to Affiliates of Southern on the
Closing Date in an aggregate amount not to exceed $1,700,000; and (r) the
Contingent Distribution Amount, if any, payable on the Completion Date to
Partners affiliated with Southern; excluding, however, (i) the repayment of the
principal amount of Equity Funding Loans and any payment of interest on overdue
amounts of principal thereof and interest thereon and (ii) any costs, expenses,
fees and other amounts payable in connection with the issuance and sale by the
Borrower, or the assignment or transfer by any Partner, of a general or limited
partnership interest in the Borrower. In addition, for purposes of calculating
"Contingent Distribution Amount", "Project Costs" shall not include any amounts
in clause (r) above.
"Project Documents": collectively, the Principal Project
Documents, the CT Corporation Letter and, when entered to, each Additional
Contract.
"Project Loan Agreement": the Loan and Reimbursement Agreement
dated as of May 18, 1994 among the Borrower, the Banks, the Institutions, the
Co-Agents, the Issuing Bank and the Administrative Agent, as amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Project Mortgage": the Credit Line Deed of Trust, Assignment
and Security Agreement made by the Borrower, as Grantor, to Lawyers Title
Insurance Corporation, as trustee for the use and benefit of the Security Agent,
as Beneficiary, substantially in the form of Exhibit E of the Project Loan
Agreement, as amended, supplemented or otherwise modified from time to time.
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"Project Participants": collectively, the Borrower, the
Facility Contractor, the Greenhouse Contractor, the Parent Guarantor, Virginia
Power, the Facility Operator, the Coal Supplier, Arch, the Coal Transporter,
CSXT, the Greenhouse Owner, the Greenhouse Operator, the Partners and each other
Person from time to time party to a Project Document (including without
limitation, SEI as a party to the SEI Coal Procurement Letter).
"Project Revenues": for any period, the sum of (i) all
revenues received by the Borrower from the sale of electrical energy pursuant to
the Power Purchase Agreement and from the sale of steam pursuant to the Steam
Sales Agreement, (ii) any other operating revenues received by the Borrower for
such period, (iii) all payments received by the Borrower of any scheduled
repayment of loans or any mandatory prepayment of loans pursuant to the
Greenhouse Loan Agreement with the proceeds of rent payable pursuant to Section
3.01 of the Greenhouse Sublease, (iv) any General Indemnity Payment Proceeds and
(v) the earnings on Permitted Investments on deposit in the Accounts to the
extent distributed to the Project Control Account pursuant to the Security
Deposit Agreement.
"Projected Debt Coverage Ratio": as of any Quarterly
Calculation Date, the ratio of (i) Projected Project Cash Flow as of such date
to (ii) Projected Debt Service as of such date.
"Projected Debt Service": as of any Quarterly Calculation
Date, the projected Debt Service for the twelve-month period ending on the
fourth succeeding Quarterly Calculation Date.
"Projected Project Cash Flow": as of any Quarterly Calculation
Date, the projected Project Cash Flow for the twelve-month period ending on the
fourth succeeding Quarterly Calculation Date. Such Projected Project Cash Flow
shall be determined by using the same amount for Project Cash Flow for the
immediately preceding twelve-month period, and then adjusting such amount for
the effect thereon of any planned or anticipated changes during such succeeding
twelve-month period in the operation or maintenance of the Facility (as
determined in good faith by the Borrower, which determination shall be
reasonably acceptable to the Administrative Agent, upon consultation with the
Independent Engineer).
"Pro Rata Prepayment Option": as defined in Section 7.5(b) of
the Project Loan Agreement.
"Pro Rata Prepayment Share": with respect to any mandatory
prepayment of Loans pursuant to Section 7.3(c), 7.3(f) or 7.3(g) of the Project
Loan Agreement, or any optional prepayment of Loans pursuant to Section 7.4 of
the Project Loan Agreement (other than as provided in clause (i), (ii) or (iii)
of Section 7.5(a) thereof):
(a) if none of the Institutions exercises the Pro Rata
Prepayment Option in connection with such prepayment in accordance with
Section 7.5(b) of the Project Loan Agreement, (i) the Pro Rata
Prepayment Share of the Banks shall be equal to the Aggregate
Prepayment Amount, the Buy-Down Amount Proceeds, the Non-Restoration
Prepayment Amount or the Greenhouse Prepayment Amount, as the case may
be, and (ii) the Pro Rata Prepayment Share of the Institutions shall be
zero; and
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(b) if any of the Institutions exercises the Pro Rata
Prepayment Option with respect to such prepayment in accordance with
Section 7.5(b) of the Project Loan Agreement (the "Electing
Institutions"), then:
(A) the Pro Rata Prepayment Share of the Banks shall
be equal to the product of (1) the Aggregate Prepayment
Amount, the Buy-Down Amount Proceeds, the Non-Restoration
Prepayment Amount or the Greenhouse Prepayment Amount, as the
case may be, and (2) a fraction, the numerator of which shall
be the Total Bank Exposure on the date of the Optional
Prepayment Notice, the Buy-Down Prepayment Notice, the
Non-Restoration Prepayment Notice or the Greenhouse Prepayment
Notice, as the case may be, and the denominator of which shall
be the sum of (x) the Total Bank Exposure and (y) the
aggregate outstanding principal amount of Institutional Loans
held by all of the Electing Institutions, in each case on the
date of the Optional Prepayment Notice, the Buy-Down
Prepayment Notice, the Non-Restoration Prepayment Notice or
the Greenhouse Prepayment Notice, as the case may be;
(B) the Pro Rata Prepayment Share of each Electing
Institution shall be equal to the product of (1) the Aggregate
Prepayment Amount, the Buy-Down Amount Proceeds, the
Non-Restoration Prepayment Amount or the Greenhouse Prepayment
Amount, as the case may be, and (2) a fraction, the numerator
of which shall be the aggregate outstanding principal amount
of Institutional Loans held by such Electing Institution on
the date of the Optional Prepayment Notice, the Buy-Down
Prepayment Notice, the Non-Restoration Prepayment Notice or
the Greenhouse Prepayment Notice, as the case may be, and the
denominator of which shall be the sum of (x) the Total Bank
Exposure and (y) the aggregate outstanding principal amount of
Institutional Loans held by all of the Electing Institutions,
in each case on the date of the Optional Prepayment Notice,
the Buy-Down Prepayment Notice, the Non-Restoration Prepayment
Notice or the Greenhouse Prepayment Notice, as the case may
be; and
(C) the Pro Rata Prepayment Share of each Institution
which is not an Electing Institution shall be zero.
"Purchasing Banks": as defined in Section 14.7(b) of the
Project Loan Agreement.
"Purchasing Institutions": as defined in Section 14.8(a) of
the Project Loan Agreement.
"PUHCA": the Public Utility Holding Company Act of 1935, as
amended.
"PURPA": the Pubic Utility Regulatory Policies Act of 1978, as
amended from time to time.
"QF Plan": as defined in Section 10.18 of the Project Loan
Agreement.
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"Qualified Financial Institution": (a) Any bank satisfactory
to the Issuing Bank that has capital, surplus and undivided profits of at least
$500,000,000 and that is either organized under the laws of the United States or
any state thereof or has a branch office or agency located in the United States,
and (b) any other bank or financial institution approved by the Administrative
Agent and the Borrower (which approval will not be unreasonably withheld) and
satisfactory to the Issuing Bank.
"Qualified Limited Partner Transferee": any Person which, at
the effective time of the relevant transfer or issuance, (a) is a partnership,
corporation, business trust or unincorporated association, (b) individually, or
if a member of a consolidated group, with such Person's consolidated group, has
a tangible net worth (as defined in accordance with GAAP) of $25,000,000 or
more, (c) has not been convicted or pleaded guilty or no contest to any felony
within the previous five years, and (d) has knowledge and experience in
financial and business matters such that it is capable of evaluating the merits
and risks of the investment in the Borrower; provided that, after giving effect
to such transfer or issuance, more than 50% of the limited partnership interests
will be held by Persons which have knowledge and experience in the management of
or investment in power generating facilities.
"Qualifying Facility": a cogeneration facility meeting all of
the requirements for a "qualifying cogeneration facility" set forth in PURPA and
in Part 292 of the rules and regulations of FERC under PURPA.
"Quarterly Calculation Date": the last day of each March,
June, September and December of each year, commencing on the first of such days
to occur after the Commercial Operations Date.
"Quarterly Distribution Date": the last day of each calendar
month immediately succeeding the month in which a Quarterly Calculation Date
occurs (or, if any such date is not a Business Day, the immediately preceding
Business Day), commencing on the first of such dates to occur after the initial
Quarterly Calculation Date.
"Real Estate Documents": collectively, the Project Mortgage,
the Easement Agreements, the Greenhouse Mortgage Assignment and the Virginia
Power First Refusal Agreement.
"Reference Banks": Barclays Bank PLC, Credit Suisse and Union
Bank.
"Refinancing Indebtedness": Indebtedness incurred by the
Borrower which is permitted by clause (f) of Section 11.1 of the Project Loan
Agreement.
"Refinancing Transaction": as defined in clause (f) of Section
11.1 of the Project Loan Agreement.
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"Refunding Drawing": a drawing on a Bond Letter of Credit on
the applicable Bond L/C Expiration Date, the proceeds of which are to be used to
repay in full the Relevant Bonds or the purchase price of the Relevant Bonds.
"Register": as defined in Section 14.7(c) of the Project Loan
Agreement.
"Registered Institutional Notes": as defined in Section 4.7(a)
of the Project Loan Agreement.
"Reimbursable Expenses": as defined in Section 14.5 of the
Project Loan Agreement.
"Relative Bank Exposure": on any day, the number obtained by
dividing (i) the Total Bank Exposure on such date by (ii) the sum of (x) the
Total Bank Project Loan Commitments (calculated based on the assumption that all
of the Bonds have been issued prior to such day and that the Total Bank Project
Loan Commitments have been reduced by a corresponding amount in accordance with
Section 2.4 of the Project Loan Agreement), (y) the Total VP Letter of Credit
Commitments and (z) the Total Bond Letter of Credit Commitments.
"Relative Institution Exposure": on any day, the number
obtained by dividing (x) the aggregate principal amount of Institutional Loans
then outstanding by (b) the Total Institutional Commitments then in effect.
"Release of Hazardous Materials": the release of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Relevant Bonds": with respect to any Bond Letter of Credit,
the Bonds which are or are proposed to be supported by such Bond Letter of
Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
"Repair and Maintenance Account": the Repair and Maintenance
Account established and maintained pursuant to the Security Deposit Agreement.
"Reporting Party": the Borrower, the Greenhouse Operator, the
Coal Supplier, Arch, CSX and, prior to the Equity Funding Termination Date,
Southern.
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"Required Completion Date Reserve Deposits": the sum of (i)
with respect to the Debt Service Reserve Account, the Required Initial Debt
Service Reserve Deposit Amount (less, if a Debt Service Letter of Credit shall
be outstanding on the Completion Date, the aggregate amount available to be
drawn under such Debt Service Letter of Credit on such date), plus (ii) with
respect to the Repair and Maintenance Account, the Initial Repair and
Maintenance Reserve Amount, plus (iii) with respect to the Final Completion
Escrow Account, the amount required to be deposited into the Final Completion
Escrow Account on the Completion Date pursuant to clause (d) of the definition
of "Completion Date", plus (iv) with respect to the Project Control Account, the
amount if any, by which $3,500,000 exceeds the amount expended by the Borrower
prior to the Completion Date for initial working capital purposes plus (v) with
respect to the Distributions Account, $13,700,000, to be used to make the
Contingent Distribution.
"Required Debt Service Reserve Amount": as of any date of
determination, the projected Debt Service for the six months next succeeding
such date.
"Required Initial Debt Service Reserve Deposit Amount":
$8,250,000, or such lesser amount as shall have been agreed to in writing by the
Majority Lenders and the Borrower prior to the Completion Date.
"Required Project Control Reserve Amount": as defined in
Section 1.2 of the Security Deposit Agreement.
"Required Repair and Maintenance Reserve Amount": as defined
in Section 1.2 of the Security Deposit Agreement.
"Required Secured Parties": at any time, each of (i) Banks,
Institutions, Unsupported Bondholders (acting through the relevant Bond Trustee)
and Accelerated Interest Rate Hedging Counterparties (as defined below) the
Senior Creditor Percentages of which at such time aggregate at least 66 2/3%;
and (ii) Banks and Accelerated Interest Rate Hedging Counterparties the Bank
Commitment Percentages of which at such time aggregate at least 66 2/3% and
(iii) Institutions and Unsupported Bondholders (acting through the relevant Bond
Trustee) the Investor Percentages of which at such time aggregate at least 66
2/3%; provided, however, that if at any time on or after the first day of the
fourteenth year following the Commercial Operations Date, the Senior Creditor
Percentage of either the Banks and the Accelerated Interest Rate Hedging
Counterparties or the Institutions is less than 20% of the Total Senior Creditor
Exposure (as defined in the definition of "Senior Creditor Percentage"), then
"Required Secured Parties" shall be determined without reference to clause (ii)
or (iii) above; provided, further, that on and after the date on which the Bank
Loans and all amounts payable to the Banks, the Issuing Bank and the
Administrative Agent under the Loan Documents have been paid in full, no Letter
of Credit is outstanding and all of the Commitments of the Banks and the
Interest Rate Hedging Agreements have been terminated, "Required Secured
Parties" shall be determined without reference to clause (ii) above and clause
(i) above shall be calculated without reference to "Banks" or "Accelerated
Interest Rate Hedging Counterparties". For purposes of this definition,
"Accelerated Interest Rate Hedging Counterparties" shall include each
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Interest Rate Hedging Counterparty party to an Interest Rate Hedging Agreement
the Swap Termination Obligations in respect of which have become payable
following an unwind of all or a portion of such Interest Rate Hedging Agreement.
"Requirements of Law": as to any Person, the Certificate of
Incorporation and By-Laws or the partnership agreement or other organizational
or governing documents of such Person, and any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Government Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Requisite Partnership Interest": with respect to any Person,
both (i) 50% of all general partnership interests and (ii) Partnership Interests
entitling such Person to receive at least 35% of the profits and losses of the
Borrower.
"Requisition Proceeds": any and all payments (in any form
whatsoever) made or due and payable from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Project by any Government Authority (or any person acting under
color of any Government Authority).
"Reserved Amounts": on any date of calculation, the sum of:
(a) the amount by which the Required Initial Debt Service
Reserve Deposit Amount exceeds the sum of (i) the amount, if any, on
deposit in the Debt Service Reserve Account and (ii) if a Debt Service
Letter of Credit shall then be outstanding, the aggregate amount
available to be drawn under such Debt Service Letter of Credit on such
date; and
(b) the amount by which the Initial Repair and Maintenance
Reserve Amount exceeds the amount, if any, on deposit in the Repair and
Maintenance Account; and
(c) prior to the later to occur of Substantial Completion and
completion of the Unit Reliability Test (as defined in the Facility
Construction Contract), $6,000,000; and thereafter, the amount by which
the Heat Rate Bonus payable to the Facility Contractor exceeds the
amount of such Heat Rate Bonus paid to the Facility Contractor on or
prior to such date.
"Responsible Officer": (i) with respect to any Person other
than the Borrower, the president, vice president, treasurer or assistant
treasurer of such Person, and (ii) with respect to the Borrower, its chief
executive officer, its chief financial officer or any Responsible Officer of a
General Partner.
"Scheduled Senior Debt Service Payment Date": each date
occurring after the Completion Date on which (a) regularly scheduled
installments of principal, interest and/or fees are due on any Senior Debt
(other than the Interest Rate Hedging Agreements) or (b) payment of Swap
Obligations specified in clause (a) of the definition thereof which do not
constitute Swap
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Terminations Obligations are due pursuant to any Interest Rate Hedging Agreement
to which a Secured Counterparty is a party. For purposes of clause (a) of the
preceding sentence, each Bank Loan Interest Payment Date shall be deemed to be a
regularly scheduled interest payment date with respect to Bank Loans.
"Secured Bond Trustees": the one or more Bond Trustees which
become parties to the Security Deposit Agreement by executing a Security Deposit
Agreement Supplement in accordance with Section 9.4 of the Security Deposit
Agreement.
"Secured Counterparties": the one or more Co-Agents or
Affiliates thereof, as parties to the Interest Rate Hedging Agreements, which
are or become parties to an Interest Rate Hedging Agreement.
"Secured Obligations": the principal of and interest on the
Loans and the Unsupported Bonds (including any interest accruing after the
filing of a petition initiating any proceeding in bankruptcy, insolvency or like
proceeding with respect to the Borrower whether or not the claim for such
interest is allowed in such proceeding), the L/C Reimbursement Obligations, all
amounts payable from time to time under any Interest Rate Hedging Transaction
entered into with an Interest Rate Hedging Counterparty described in clause (i)
of the definition thereof, and all other indebtedness, obligations and
liabilities of the Borrower to the Secured Parties, whether direct or indirect,
absolute or contingent, due or to become due, or now or hereafter existing,
which may arise under, out of, or in connection with any of the Loan Documents
or the Bond Documents relating to any Unsupported Bonds (as any of the Loan
Documents or such Bond Documents may from time to time be amended, modified,
substituted, extended or renewed) and any other document made, delivered or
given in connection therewith, whether on account of principal, interest,
premiums, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise, and all deferrals, renewals, extensions and refinancings of any
indebtedness, obligations or liabilities referred to above.
"Secured Parties": collectively, the Security Agent, the
Administrative Agent, the Banks, the Issuing Bank, the Institutions, the
Interest Rate Hedging Counterparties described in clause (i) of the definition
thereof and each Secured Bond Trustee.
"Security Agent": Credit Suisse, in its capacity as security
agent for the Secured Parties under the Security Deposit Agreement, or any
successor security agent appointed pursuant to Section 2.6 of the Security
Deposit Agreement.
"Security Deposit Agreement": the Security Deposit and
Intercreditor Agreement to be entered into among the Borrower, the Secured
Parties and the Security Agent, substantially in the form of Exhibit D to the
Project Loan Agreement, as amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Security Deposit Agreement Supplement": as defined in Section
9.4(a) of the Security Deposit Agreement.
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"Security Deposit Collateral": as defined in Section 1.2 of
the Security Deposit Agreement.
"Security Documents": collectively, the Security Deposit
Agreement, the Project Mortgage, the General Partner Interest Pledge Agreements,
the Limited Partner Interest Pledge Agreements, the Greenhouse Mortgage
Assignment, the Borrower Stock Assignment, the Consents to Assignment, the
Southern Equity Contribution Agreement, each Bond Pledge Agreement and any other
agreement or instrument entered into by the Borrower or any other Person which
secures payment of all or any portion of the Secured Obligations.
"SEI": Southern Electric International, Inc., a Delaware
corporation.
"SEI Birchwood": SEI Birchwood, Inc., a Delaware corporation.
"SEI Coal Procurement Letter": the letter dated May 18, 1994
from SEI to the Borrower, as amended, supplemented or otherwise modified from
time to time in accordance with Section 11.12(a) of the Project Loan Agreement.
"Senior Creditor Percentage": at any time, either:
(a) for purposes of the definition of "Majority Lenders":
(i) with respect to any Bank, a fraction (expressed as a
percentage), the numerator of which is the sum of (i) the aggregate
unpaid principal amount of Bank Loans then outstanding, (ii) the unused
portion of the Total Bank Loan Commitments then in effect and (iii) the
Letter of Credit Exposure at such time, and the denominator of which is
the Total Senior Creditor Exposure;
(ii) with respect to any Institution, a fraction (expressed as a
percentage), the numerator of which is the sum of (i) the aggregate
unpaid principal amount of Institutional Loans then outstanding and
(ii) the unused portion of the Total Institutional Commitments, and the
denominator of which is the Total Senior Creditor Exposure; and
(iii) with respect to the Unsupported Bondholders, a fraction
(expressed as a percentage), the numerator of which is the aggregate
unpaid principal amount of Unsupported Bonds then outstanding, and the
denominator of which is the Total Senior Creditor Exposure; or
(b) for purposes of the definition of "Required Secured
Parties":
(i) with respect to any Bank, a fraction (expressed as a
percentage), the numerator of which is the sum of (i) the aggregate
unpaid principal amount of Bank Loans then outstanding, (ii) the unused
portion of the Total Bank Loan Commitments then in effect and (iii) the
Letter of Credit Exposure at such time, and the denominator of which is
the Total Senior Creditor Exposure;
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(ii) with respect to any Institution, a fraction (expressed as a
percentage), the numerator of which is the sum of (i) the aggregate
unpaid principal amount of Institutional Loans then outstanding and
(ii) the unused portion of the Total Institutional Commitments, and the
denominator of which is the Total Senior Creditor Exposure;
(iii) with respect to the Unsupported Bondholders, a fraction
(expressed as a percentage), the numerator of which is the aggregate
unpaid principal amount of Unsupported Bonds then outstanding, and the
denominator of which is the Total Senior Creditor Exposure; and
(iv) with respect to any Interest Rate Hedging Counterparty, a
fraction (expressed as a percentage), the numerator of which is the
aggregate amount of Swap Termination Obligations calculated as of such
day, and the denominator of which is the Total Senior Creditor
Exposure.
As used in this definition, "Total Senior Creditor Exposure" means, at any time,
the sum of (i) the aggregate unpaid principal amount of Loans then outstanding,
(ii) the unused portion of the Total Loan Commitments then in effect, (iii) the
Letter of Credit Exposure at such time, (iv) the aggregate unpaid principal
amount of Unsupported Bonds then outstanding and, for purposes of the definition
of "Required Secured Parties" only, (v) the aggregate amount of Swap Termination
Obligations calculated as of such day.
"Senior Debt": collectively, Indebtedness of the Borrower
incurred under or pursuant to (a) the Bank Loan Facility, (b) the Institutional
Loan Facility, (c) the VP Letter of Credit Facility, (d) the Bond Letter of
Credit Facility, (e) the Bonds and (f) Interest Rate Hedging Agreements.
"Senior Debt Agreements": the Loan Documents, the Bond
Documents executed in connection with the Bonds issued from time to time in
accordance with Section 10.25 of the Project Loan Agreement, the Interest Rate
Hedging Agreements and each other agreement evidencing any Senior Debt or
pursuant to which any Senior Debt is incurred.
"Senior Debt to Capital Ratio": as of the Completion Date, the
ratio of (a) the sum of (i) the aggregate principal amount of outstanding Loans,
(ii) the Letter of Credit Exposure and (iii) the aggregate principal amount of
outstanding Unsupported Bonds, in each case on the Completion Date, to (b) the
sum of (x) the Total Equity Contribution Amount and (y) (A) the aggregate
principal amount of Equity Funding Loans outstanding on the Completion Date
which are paid by Southern pursuant to the Equity Funding Guarantee, or (B) the
aggregate principal amount of any Equity Funding Loans repaid by Southern
pursuant to the Equity Funding Guarantee prior to the Completion Date, provided
that concurrently therewith the Equity Funding Commitments shall have been
terminated.
"SEWG": Southern Electric Wholesale Generators, Inc., a
Delaware corporation.
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"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Significant Project Participants": the Persons from time to
time party to the Principal Project Documents.
"Site": the land located in King Xxxxxx County, Virginia which
is described in Schedule 5 to the Project Loan Agreement, on which the Facility
and the Greenhouse are to be located.
"Sixth Amendment": the Sixth Amendment, dated as of September
18, 1995, to the Project Loan Agreement, among the Borrower, the Lenders and the
Administrative Agent.
"Sixth Amendment Effective Date": the date on which the Sixth
Amendment becomes effective in accordance with Article II(1) of the Sixth
Amendment.
"Southern": The Southern Company, a Delaware corporation.
"Southern Documents": collectively, the Equity Funding
Guarantee, the Southern Equity Contribution Agreement and the Construction
Contract Guarantees.
"Southern Equity Contribution Agreement": the Equity
Contribution Agreement to be entered into by Southern in favor of the Borrower
and the Security Agent, in substantially the form of Exhibit G of the Project
Loan Agreement, as amended, supplemented or otherwise modified from time to time
in accordance with Section 11.11(a) of the Project Loan Agreement.
"Southern Equity Contribution Collateral": the Equity
Contribution Amount payable pursuant to Section 2.1 of the Southern Equity
Contribution Agreement and all other claims, rights, powers, privileges,
interests and remedies referred to in clause (ii) of Section 3.1 thereof.
"Special Payment Account": the Special Payment Account
established and maintained pursuant to the Security Deposit Agreement.
"Special Senior Debt Prepayment Date": each date on which (a)
mandatory or optional prepayments of principal of the Bank Loans and/or
Institutional Loans are to be made pursuant to Section 7.3, 7.4 or 10.31 of the
Project Loan Agreement, (b) an early unwind of all or a portion of any Interest
Rate Hedging Agreement is to be effected or (c) mandatory or optional
prepayments of principal of the Bonds are to be made pursuant to the relevant
Bond Indenture.
"Specified Default": any Default under Section 12.1(a),
12.1(b) or 12.1(e) of the Project Loan Agreement.
"Standard & Poor's": Standard & Poor's Ratings Services.
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"Steam Sales Agreement": the Steam Sales Agreement dated as of
May 18, 1994 between the Borrower and the Greenhouse Owner, as amended,
supplemented or otherwise modified from time to time in accordance with Section
11.12(a) of the Project Loan Agreement.
"Stormwater and Surface Water Runoff Easement Agreement": the
Easement Agreement dated as of April 22, 1994 by and between the Greenhouse
Operator and the Borrower, as amended, supplemented or otherwise modified from
time to time in accordance with Section 11.12(a) to the Project Loan Agreement.
"Subsequent Funding Period": the period from and including the
Closing Date to and including the Institutional Commitment Termination Date.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.
"Substantial Completion": (a) with respect to the Facility, as
defined in Section 1.1 of the Facility Construction Contract, and (b) with
respect to the Greenhouse, as defined in Section 1.1 of the Greenhouse
Construction Contract.
"Substitute VP Letter of Credit": an irrevocable direct pay
letter of credit substantially in the form of Exhibit C-2 to the Project Loan
Agreement or in a form acceptable to Virginia Power (as evidenced by a written
confirmation from Virginia Power to such effect) to be issued in favor of
Virginia Power by a bank which at all times meets the credit rating requirements
set forth in clause (i) of the definition of "Interest Rate Hedging
Counterparty"; provided that no such letter of credit shall be deemed a
"Substitute VP Letter of Credit" unless (i) if any such letter of credit is
being issued prior to the Bank Loan Final Maturity Date, the Issuing Bank and
the Banks shall have been unwilling to extend the expiration date of the then
outstanding VP Letter of Credit, if any, pursuant to Section 6.7 of the Project
Loan Agreement, and (ii) the reimbursement obligations, if any, of the Borrower
to the issuer of such letter of credit or to any other Person in respect of
draws under such letter of credit shall be unsecured.
"Substitute VP Security": any security arrangement entered
into by the Borrower which meets the requirements of Section 13.3 or 13.5, as
the case may be, of the Power Purchase Agreement and is otherwise acceptable to
Virginia Power (as evidenced by a written confirmation from Virginia Power to
such effect); provided that no such security shall be deemed "Substitute VP
Security" unless (i) if any such security arrangement is entered into prior to
the Bank Loan Final Maturity Date, the Issuing Bank and the Banks shall have
been unwilling to extend the expiration date of the then outstanding VP Letter
of Credit, if any, pursuant to Section 6.7 of the Project Loan Agreement and
(ii) the reimbursement or payment obligations, if any, of the Borrower to the
provider of such security or to any other Person in respect of such security are
unsecured.
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"Swap Obligations": collectively, the payment of (a) all
scheduled amounts payable to the Secured Counterparties by the Borrower, as the
fixed-rate payor, under the Interest Rate Hedging Agreements with Secured
Counterparties (including, without limitation, interest accruing after the date
of any filing by the Borrower of any petition in bankruptcy or the commencement
of any bankruptcy, insolvency or similar proceeding with respect to the
Borrower), net of all scheduled amounts payable to the Borrower by such Secured
Counterparties as floating-rate payors, and (b) all other indebtedness, fees,
indemnities and other amounts payable by the Borrower to the Secured
Counterparties under the Interest Rate Hedging Agreements.
"Swap Termination Obligations": the aggregate amount of Swap
Obligations payable to any Secured Counterparty by the Borrower, as the fixed
rate payor, upon the early unwind of all or a portion of an Interest Rate
Hedging Agreement with such Secured Counterparty, net of all amounts payable to
the Borrower by such Secured Counterparty, as floating-rate payor.
"Taxes": as defined in Section 7.6(a) of the Project Loan
Agreement.
"Term VP Expiration Date": the seventh anniversary of the
Closing Date, or such later date to which the Term VP Expiration Date has been
extended in accordance with Section 6.7 of the Project Loan Agreement.
"Term VP Letter of Credit": the irrevocable direct pay letter
of credit to be issued by the Issuing Bank in favor of Virginia Power on the
Commercial Operations Date pursuant to Section 6.3(a) of the Project Loan
Agreement, substantially in form of Exhibit C-2 to the Project Loan Agreement,
as amended, supplemented or otherwise modified from time to time in accordance
with its terms, and any replacement therefor issued pursuant to Section 6.3(b)
of the Project Loan Agreement.
"Term VP Letter of Credit Disbursement": any payment or
disbursement made by or on behalf of the Issuing Bank under the Term VP Letter
of Credit.
"Term VP Reimbursement Payment": as defined in Section 6.6(a)
of the Project Loan Agreement.
"Title Company": Lawyers Title Insurance Corporation, or such
other title insurance company approved by the Co-Agents and the Institutions to
insure the priority of the Lien of the Project Mortgage.
"Total Available Project Credit": as of any date, the sum of
(a) the unutilized portion of the Total Bank Project Loan Commitments then in
effect, (b) the unutilized portion of the Total Institutional Commitments then
in effect, (c) the unutilized portion of the Equity Funding Commitments then in
effect and (d) the Increased IDC Contribution Amount, if any, contributed by
Southern to the Borrower pursuant to the Southern Equity Contribution Agreement
prior to such date.
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"Total Bank Exposure": on any day, the sum of (a) the
aggregate principal amount of Bank Loans then outstanding and (b) the Letter of
Credit Exposure on such date.
"Total Bank Loan Commitments": at any time, the sum of (i) the
Total Bank Project Loan Commitments then in effect and (ii) the Total Bank L/C
Loan Commitments then in effect; provided that in no event shall the Total Bank
Loan Commitments at any time exceed $215,976,000.
"Total Bank L/C Loan Commitments": at any time, the obligation
of the Banks to make Bank L/C Loans and Bank Liquidity Loans during the Bank
Loan Commitment Period in an aggregate principal amount equal to the excess of
(i) the aggregate stated amount of the Letters of Credit then outstanding over
(ii) the aggregate amount of Letter of Credit Disbursements, the L/C
Reimbursement Payment in respect of which has previously been paid by the
Borrower other than through a Bank L/C Loan or a Bank Liquidity Loan.
"Total Bank Project Loan Commitments": the obligation of the
Banks to make Bank Project Loans to the Borrower under the Project Loan
Agreement during the Bank Loan Commitment Period in an aggregate principal
amount equal to $208,191,000, as such amount may be reduced from time to time
pursuant to Section 2.3 and/or 2.4 of the Project Loan Agreement.
"Total Bond Letter of Credit Committments": $51,000,000.
"Total Equity Contribution Amount": as defined in Section 1.2
of the Southern Equity Contribution Agreement.
"Total Institutional Commitments": the obligation of the
Institutions to make Institutional Loans to the Borrower under the Project Loan
Agreement during the Institutional Commitment Period in an aggregate amount
equal to $135,000,000, as such amount may be reduced from time to time pursuant
to Section 2.3 of the Project Loan Agreement.
"Total Lender Exposure": as defined in Section 14.10(b) of the
Project Loan Agreement.
"Total Loan Commitments": the sum of (i) the Total Bank Loan
Commitments and (ii) the Total Institutional Commitments.
"Total VP Letter of Credit Commitments": $7,272,000.
"True-Up Amount": as defined in Section 14.10(b) of the
Project Loan Agreement.
"True-Up Obligation": the irrevocable and unconditional
obligation of the Banks to purchase undivided participating interests in the
Institutional Loans upon an acceleration of
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such Loans following an Event of Default under the Project Loan Agreement, as
set forth in Section 14.10(b) of the Project Loan Agreement.
"Trust Indenture-Series 1994A": the Trust Indenture by and
between the Industrial Development Authority of King Xxxxxx County, Virginia,
and Bankers Trust Company, as trustee, dated as of October 1, 1994.
"Trust Indenture-Series 1994B": the Trust Indenture by and
between the Industrial Development Authority of King Xxxxxx County, Virginia,
and Bankers Trust Company, as trustee, dated as of December 1, 1994.
"Trust Indenture-Series 1995": the Trust Indenture by and
between the Industrial Development Authority of King Xxxxxx County, Virginia and
Bankers Trust Company, as trustee, dated as of November 1, 1995.
"Trust Indenture-Series 1996A": the Trust Indenture by and
between the Industrial Development Authority of King Xxxxxx County, Virginia,
and Bankers Trust Company, as trustee (the "Trustee"), dated as of April 1,
1996.
"Trust Indenture-Series 1996B": the Trust Indenture by and
between the Industrial Development Authority of King Xxxxxx County, Virginia,
and the party therein named as trustee, pursuant to which the Series 1996B
Bonds, if any, are issued.
"Type": as to any Bank Loan, its nature as a Base Rate Loan, a
Eurodollar Loan or a C/D Rate Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1994 Revision), International Chamber of Commerce Brochure
No. 500, as the same may be amended from time to time.
"Unsupported Bondholders": holders from time to time of
Unsupported Bonds.
"Unsupported Bonds": Bonds issued pursuant to Section 10.25 of
the Project Loan Agreement which are not or are not proposed to be supported by
a Bond Letter of Credit.
"Virginia Power": Virginia Electric and Power Company, a
Virginia public service corporation.
"Virginia Power First Refusal Agreement": the Right of First
Refusal Agreement dated as of 23 between the Borrower and Virginia Power.
"Virginia Power Purchase Proceeds": any and all payments made
by Virginia Power in connection with its exercise of its purchase option
pursuant to Section 5.6 of the Power Purchase Agreement.
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"VP Cash Collateral Proceeds": as defined in Section 1.2 of
the Security Deposit Agreement.
"VP Letter of Credit Facility": the letter of credit facility
provided by the Issuing Bank and the Banks to the Borrower pursuant to Section 6
of the Project Loan Agreement, under which the Issuing Bank agrees to issue the
VP Letters of Credit in accordance with the terms thereof.
"VP Letters of Credit": collectively, the Construction VP
Letter of Credit and the Term VP Letter of Credit.
"VP Reimbursement Obligations": as defined in Section 6.6(b)
of the Project Loan Agreement.
"VP Reimbursement Payments": at any time, the sum of (i) the
Construction VP Reimbursement Payments and (ii) the Term VP Reimbursement
Payments.
"Water Line and Pumping Station Easement Agreement": the Water
Line and Pumping Station Easement Agreement dated September 22, 1992 between SEI
Birchwood and Xxxxx X. Xxxxxx and Xxxxx Xxxxxx Xxxxxx, as amended by that
certain Easement Amendment dated November 30, 1993 among Xxxxx X. Xxxxxx and
Xxxxx Xxxxxx Xxxxxx, and SEI Birchwood and Xxxxxx Xxxxxx Xxxxxxx and Xxxxx X.
Xxxxxxx, and as further amended by that certain Second Amendment to Easement,
dated March 18, 1994 among Xxxxx X. Xxxxxx and Xxxxx Xxxxxx Xxxxxx and the
Borrower, as the same may be further amended, supplemented or otherwise modified
in accordance with Section 11.12(a) to the Project Loan Agreement.
