Exhibit 10.22
EXECUTION COPY
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PPA LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated
November 10, 1999
among
Tenaska Georgia Partners, L.P.,
as Partnership
and
The Toronto-Dominion Bank,
as the Issuing Bank
as a Bank and as Agent
and
THE BANKS PARTY HERETO
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................................1
Section 1.2 Construction..................................................................6
ARTICLE II
PPA LETTER OF CREDIT
Section 2.1 Commitments...................................................................7
Section 2.2 Amount and Term of PPA Letter of Credit.......................................7
Section 2.3 Participation in PPA Letter of Credit.........................................8
Section 2.4 Drawing and Reimbursement.....................................................8
Section 2.5 Fees..........................................................................8
Section 2.6 Interest......................................................................9
(a) Rate.....................................................................9
(b) Method of Electing Interest Rates........................................9
(c) Funding Losses..........................................................11
(d) Basis for Determining Interest Rate Inadequate or Unfair................11
(e) Maximum Rate............................................................12
Section 2.7 Repayment....................................................................12
Section 2.8 Prepayments..................................................................12
Section 2.9 Security.....................................................................13
Section 2.10 Payments.....................................................................13
Section 2.11 Computation of Interest and Fees.............................................13
Section 2.12 Payments on Non-Business Days................................................14
Section 2.13 Sharing of Payments, Etc.....................................................14
Section 2.14 Evidence of Debt.............................................................15
Section 2.15 Increased Costs and Reduced Returns..........................................15
Section 2.16 Capital Adequacy.............................................................17
Section 2.17 Taxes........................................................................17
Section 2.18 Illegality...................................................................19
Section 2.19 Reduction in Commitments/Reimbursements......................................19
Section 2.20 Right of Set-off.............................................................19
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ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Closing Date.........................................20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of Partnership................................21
ARTICLE V
COVENANTS
Section 5.1 Covenants....................................................................21
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default............................................................21
Section 6.2 Remedies.....................................................................22
Section 6.3 Collateralization upon Acceleration of the Bonds.............................22
ARTICLE VII
CHARACTER OF OBLIGATIONS
Section 7.1 Obligations Absolute.........................................................23
Section 7.2 Limited Liability of Agent and Banks.........................................23
ARTICLE VIII
THE AGENT
Section 8.1 Authorization and Action.....................................................24
Section 8.2 Agent's Reliance, Etc........................................................25
Section 8.3 The Agent, the Issuing Bank and Affiliates...................................25
Section 8.4 Bank Credit Decision.........................................................25
Section 8.5 Indemnification..............................................................26
Section 8.6 Successor Agent..............................................................26
Section 8.7 Collateral...................................................................26
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ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments, Etc..............................................................27
Section 9.2 Notices, Etc.................................................................27
Section 9.3 No Waiver, Remedies..........................................................28
Section 9.4 Costs and Expenses...........................................................28
Section 9.5 Application of Money.........................................................28
Section 9.6 Severability.................................................................28
Section 9.7 Non-Recourse Liability.......................................................29
Section 9.8 Binding Effect...............................................................29
Section 9.9 Assignments and Participations...............................................29
Section 9.10 Indemnification..............................................................30
Section 9.11 Governing Law; Submission of Jurisdiction; Venue; Waiver of Jury Trial.......32
Section 9.12 Headings.....................................................................33
Section 9.13 Execution in Counterparts....................................................33
Exhibit A Form of PPA Letter of Credit
Exhibit B Form of Assignment and Acceptance
Exhibit C Amortization Schedule
Exhibit D Applicable Margin Table
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PPA LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This PPA LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT, dated November
10, 1999 (this "AGREEMENT"), is entered into by and among (1) TENASKA GEORGIA
PARTNERS, L.P., a Delaware limited partnership (the "PARTNERSHIP"); (2) THE
TORONTO-DOMINION BANK, as the Issuing Bank (the "ISSUING BANK"); (3) THE
TORONTO-DOMINION BANK, in its individual capacity, together with each other bank
that becomes a party hereto pursuant to Section 9.9 (each, including the Issuing
Bank, a "BANK" and collectively, the "BANKS"); and (4) THE TORONTO-DOMINION
BANK, as agent for the Banks (in such capacity, together with its successors in
such capacity, the "AGENT").
WHEREAS, the Partnership is constructing and will lease a 936MW (nominal
summer rating) natural gas-fired, simple-cycle electric generating facility in
Heard County, Georgia and related property and facilities (the "Facility");
WHEREAS, the Partnership intends to finance the construction and
equipping of the Facility through an offering of Bonds (the "Bonds") under Rule
144A, the proceeds of which Bonds will be used to purchase Taxable Industrial
Development Revenue Bonds issued by the Development Authority of Heard County,
Georgia, a public corporation created and existing under the laws of the State
of Georgia (the "DAHC Bonds"), the net proceeds of which will be used to pay
Project Costs related to the Facility;
WHEREAS, PECO Energy Company ("PECO") and the Partnership have entered
into a Power Purchase Agreement, dated as of August 24, 1999 (the "PPA")
pursuant to which the Partnership will sell and PECO will purchase the capacity
and associated energy from the Project; and
WHEREAS, in order to provide assurances in respect of the Partnership's
satisfaction of its obligations to PECO, the Partnership has requested that the
Issuing Bank agree to issue and the Banks participate in, and the Issuing Bank
is willing to agree to issue and the Banks are willing to participate in, the
PPA Letter of Credit upon the terms and conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. (a) Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to them in the Common
Agreement.
(b) The following terms are used in this Agreement with the following
respective meanings:
"ADDITIONAL COMMITMENT" means (i) the amount set forth opposite such
Bank's name on the signature pages hereof and described as being the Additional
Commitment or, if such Bank
has entered into one or more Assignments and Acceptances, set forth for such
Bank in the register maintained by the Agent for such purpose as the same may be
reduced from time to time in accordance with the provisions of this Agreement,
or (ii) as the context may require, the obligation of such Bank to make loans in
an aggregate amount of principal amount not exceeding such amount.
"ADJUSTED BASE RATE" means the higher of (i) the Federal Funds Rate plus
.50% and (ii) the Base Rate.
"AGENT" has the meaning set forth in the preamble to this Agreement.
"APPLICABLE MARGIN" means, at any time, the margin applicable at such
time to Base Rate Loans or Eurodollar Rate Loans or the letter of credit fee
payable under Section 2.5(a), in each case as set forth on Exhibit D hereto.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance entered
into by a Bank and another Person, substantially in the form of Exhibit B.
"BANK" has the meaning set forth in the preamble of this Agreement.
"BASE RATE" means the variable rate of interest PER ANNUM officially
announced or published by the Agent from time to time as its "base rate," such
rate being set by the Agent as a general reference rate of interest, taking into
account such factors as the Agent may deem appropriate, it being understood that
many of the Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Agent may make various commercial or other loans at rates
of interest having no relationship to such rate. For purposes of this Agreement,
each change in the Base Rate shall be effective as of the opening of business on
the date announced as the effective date of the change in such "base rate."
"BASE RATE LOAN" means a PPA Loan, or portion thereof, bearing interest
at a rate determined with reference to the Adjusted Base Rate.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for business in New York, New York, and with respect to all
notices and determinations in connection with, advances of, continuations of,
conversions from and to, and payments of principal and interest on, Eurodollar
Rate Loans, any day that is also a day for trading by and between banks in U.S.
dollar deposits in the London interbank Eurodollar market.
"CLOSING DATE" means the date on which the conditions precedent set
forth in Section 3.1 have been fulfilled.
"COMMITMENT" of a Bank means (i) prior to April 1, 2001 the Initial
Commitment and (ii) upon and after April 1, 2001, the sum of the Initial
Commitment and the Additional Commitment.
"COMMITMENTS" means all of the Commitments.
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"COMMON AGREEMENT" means the Agreement as to Certain Undertakings,
Common Representations, Warranties, Covenants and other items dated as of
November 1, 1999 made by and among the Partnership, the Trustee, the DSR LOC
Agent, the PPA LOC Agent, and the Collateral Agent.
"CREDIT DOCUMENTS" means this Agreement, the Security Documents, the
Collateral Agency Agreement and the PPA Letter of Credit.
"DEFAULT" means an event that with the giving of any required notice
and/or the lapse of any required time would constitute an Event of Default.
"DOLLARS" and "$" means freely transferable United States dollars.
"DRAWING" means a drawing under the PPA Letter of Credit.
"EUROCURRENCY LIABILITIES" has the meaning set forth in Regulation D.
"EUROCURRENCY RESERVE PERIOD" has the meaning set forth in Section
2.15(b).
"EURODOLLAR RATE" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate PER ANNUM equal to the average (rounded upwards,
if necessary, to the nearest 1/100 of 1%) of the offered rates which appear on
the Dow Xxxxx Telerate page 3750, British Bankers Association Interest
Settlement Rates for deposits in Dollars (or such other system for the purpose
of displaying rates of leading reference banks in the London interbank market,
as designated by the Agent) as of 11:00 a.m. (London time) on the day two
Business Days prior to the first day of such Interest Period in an amount
approximately equal to the principal amount of the Eurodollar Rate Loan to which
such Interest Period is to apply and for a period of time comparable to such
Interest Period.
"EURODOLLAR RATE LOAN" means a PPA Loan, or portion thereof, bearing
interest at a rate determined with reference to the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.1.
"EXCLUDED TAXES" has the meaning set forth in Section 2.17(a).
"EXPIRATION DATE" means seven years from the date hereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
PER ANNUM equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"INDEMNIFIED PARTY" has the meaning set forth in Section 9.10.
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"INITIAL COMMITMENT" means (i) the amount set forth opposite such Bank's
name on the signature pages hereof and described as being the Initial Commitment
or, if such Bank has entered into one or more Assignments and Acceptances, set
forth for such Bank in the register maintained by the Agent for such purpose as
the same may be reduced from time to time in accordance with the provisions of
this Agreement, or (ii) as the context may require, the obligation of such Bank
to make loans in an aggregate amount of principal amount not exceeding such
amount.
"INTEREST PERIOD" means with respect to each Eurodollar Rate Loan, a
period commencing on the date specified in the applicable Notice of Interest
Rate Election and ending one, two, three, six or, with the consent of the Banks,
nine or twelve calendar months thereafter, as the Partnership may elect in the
applicable Notice of Interest Rate Election; PROVIDED, that:
(a) any Interest Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(b) any Interest Period which 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 Interest Period) shall end on the last
Business Day of a calendar month;
(c) no Interest Period shall be selected to be applicable to a PPA Loan
or portion thereof if such Interest Period ends after the next scheduled
principal payment date therefor pursuant to this Agreement unless, at the time
of such selection, there are outstanding Base Rate Loans and/or Eurodollar Rate
Loans the Interest Period(s) applicable to which, end on or before such
scheduled payment date which the Partnership reasonably determines are in an
aggregate principal amount at least equal to the amount of such next scheduled
principal payment; and
(d) no Interest Period shall end after the latest Required Payment Date.
"ISSUING BANK" has the meaning set forth in the preamble of this
Agreement.
"LOAN OBLIGATIONS" means the Drawings and the principal of all PPA Loans
(including but not limited to the Partnership's obligations in respect of
amounts not yet disbursed).
"MAXIMUM STATED AMOUNT" means (i) $15,000,000 from the Closing Date
until March 31, 2001 and (ii) on and after April 1, 2001, the Stated Amount as
of such date plus $10,000,000 (in each case as such terms are defined in the
PPA), reduced by, in each case, the amount of any PPA Term Loan made as the
result of a Term Conversion Event.
"MORTGAGE BASIS" means in respect of each PPA Term Loan, an amortization
schedule which, taking into account the interest rate applicable to such PPA
Term Loan determined in accordance with Section 2.7(d) and assuming payments are
made on Interest Payment Dates, results in levelized payment of the principal of
and interest on such PPA Term Loan to and including the PPA Term Loan Required
Payment Date applicable thereto.
"NON-RECOURSE PARTY" has the meaning specified in Section 9.7.
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"NON-RENEWAL EVENT" means the failure of the PPA Letter of Credit to
have been extended or replaced at least 10 days prior to the stated expiration
date of such PPA Letter of Credit.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.6(b).
"OBLIGATIONS" means all of the Loan Obligations and any and all other
obligations of the Partnership to the Issuing Bank, the Banks or the Agent under
or in connection with the Credit Documents, whether for interest, fees,
expenses, indemnification or otherwise.
"PARTICIPANT" has the meaning set forth in Section 9.9(b).
"PARTNERSHIP" has the meaning set forth in the preamble of this
Agreement.
"PERCENTAGE INTEREST" means, for each Bank, the fraction, expressed as a
percentage, where the numerator is the Commitment of such Bank and the
denominator is the aggregate of all the Commitments held by all the Banks, as
set forth on the signature page opposite the name and signature of each
respective Bank or if applicable, in Schedule 1 to any Assignment and
Acceptance.
"PPA LETTER OF CREDIT" means a letter of credit in favor of PECO
substantially in the form of Exhibit A, issued or to be issued by the Issuing
Bank.
"PPA LOAN" means any PPA LOC Loan or PPA Term Loan, as applicable.
"PPA LOC LOAN" means a loan made as a result of Drawing on the PPA
Letter of Credit which, is not made upon the occurrence of a Non-Renewal Event.
"PPA LOC LOAN REQUIRED PAYMENT DATE" means, in respect of each PPA LOC
Loan, the earlier of (a) the date five years from the date such PPA LOC Loan is
made by the Banks pursuant to the terms of this Agreement and (b) the Final
Maturity Date.
"PPA TERM LOAN" means a PPA Term Loan made as a result of (i) the
occurrence of a Non-Renewal Event to fund a Drawing made upon such occurrence or
(ii) a Term Conversion Event.
"PPA TERM LOAN REQUIRED PAYMENT DATE" means, in respect of each PPA Term
Loan, the earlier of (a) the date five years from the date such PPA Term Loan is
made by the Banks pursuant to the terms of this Agreement and (b) the Final
Maturity Date.
"PURCHASING BANK" has the meaning set forth in Section 9.9(a).
"QUARTERLY DATE" has the meaning set forth in Section 2.5(a)
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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"REGULATORY CHANGE" means, subsequent to the date of this Agreement, any
adoption or change in United States Federal, state or municipal or foreign law
or regulations (including Regulation D) or the adoption or change or making of
any application, interpretation, directive, request or guideline of or under any
United States Federal, state or municipal or foreign law or regulations by any
court, central bank or Governmental Authority.
"REQUIRED BANKS" means, at any time, Banks (one of which shall be the
Agent) owed at least 66-2/3% of the sum of Loan Obligations then outstanding
and/or the Commitments; PROVIDED, HOWEVER, that, if and so long as there are
only two Banks, then "Required Banks" shall mean both of such Banks.
"REQUIRED PAYMENT DATE" means in the case of any PPA LOC Loan, the PPA
LOC Loan Required Payment Date or in the case of a PPA Term Loan, the applicable
PPA Term Loan Required Payment Date.
"STATED AMOUNT" means the amount (not to exceed the Maximum Stated
Amount) available to be drawn under the PPA Letter of Credit as of any date, as
reduced and reinstated from time to time in accordance with the terms hereof.
"TAXES" means any and all present or future income, stamp, transfer,
turnover and other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and any and all interest, penalties, claims or
other liabilities arising under or relating thereto, including those imposed on
any of the Banks or on payments to be made to or received by any of them from
the Partnership hereunder.
"TERM CONVERSION EVENT" means, in respect of a PPA LOC Loan, the failure
by the Partnership to have repaid (i) at least 50% of the original amount of
such PPA LOC Loan on the date 30 months after the making of such PPA LOC Loan or
(ii) the full amount of such PPA LOC Loan by the PPA LOC Loan Required Payment
Date.
"TERMINATION NOTICE" has the meaning set forth in Section 2.2(d).
Section 1.2 CONSTRUCTION. In this Agreement, unless expressly specified
to the contrary: the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible, visible form, but shall not
include electronic mail; the words "including," "includes" and "include" shall
be deemed to be followed by the words "without limitation;" references to
articles, sections (or subdivisions of sections), recitals, appendices,
exhibits, annexes or schedules are to those of this Agreement; references to
agreements and other instruments shall be deemed to include all amendments and
other modifications to such agreements and instruments, but only to the extent
such amendments and other modifications are not prohibited by the terms of this
Agreement; references to Persons include their respective permitted successors
and assigns and, in the case of Governmental Authorities, Persons succeeding to
their respective functions and capacities; and all accounting terms used in this
Agreement shall be interpreted, all accounting determinations under this
6
Agreement shall be made and all financial statements required to be delivered
under this Agreement shall be prepared in accordance with GAAP as in effect from
time to time, on a basis consistent with the most recent audited financial
statements, if any, of the relevant Person delivered to the Agent, or otherwise
reasonably acceptable to the Agent.
ARTICLE II
PPA LETTER OF CREDIT
Section 2.1 COMMITMENTS. Each Bank irrevocably agrees severally, on the
terms and conditions contained in this Agreement, to participate in the PPA
Letter of Credit and each Drawing thereunder in the Percentage Interest of such
Bank and in an aggregate amount not to exceed at any time such Bank's
Commitment.
Section 2.2 AMOUNT AND TERM OF PPA LETTER OF CREDIT. (a) Subject to the
terms and conditions contained in this Agreement, the Issuing Bank irrevocably
agrees to issue the PPA Letter of Credit on the Closing Date for the account of
the Partnership and in the Maximum Stated Amount.
(b) If a Non-Renewal Event shall have occurred and PECO shall have made
a Drawing in accordance with Section 2.4, the PPA Letter of Credit shall
thereupon terminate.
(c) If a Term Conversion Event shall have occurred, and the Agent,
subject to the approval of the Required Banks, elects to convert any PPA LOC
Loan into a PPA Term Loan in accordance with Section 2.7(e), the Stated Amount
shall be reduced by an amount equal to the amount of the PPA LOC Loan so
converted and the Maximum Stated Amount correspondingly reduced.
(d) The Issuing Bank shall have the right, upon the occurrence and
during the continuance of an Event of Default, to deliver to the Collateral
Agent and PECO a notice in the form of Annex E to the PPA Letter of Credit (a
"TERMINATION NOTICE"), which notice shall be given at least sixty (60) days
prior to the date of termination referred to in such notice. After the delivery
by the Issuing Bank of a Termination Notice, the Stated Amount shall be neither
increased, nor reinstated upon payment of any PPA LOC Loans notwithstanding any
other provision of this Agreement to the contrary.
(e) The Agent shall, solely for informational purposes, deliver to the
Partnership a copy of any Termination Notice given to the beneficiary under the
PPA Letter of Credit; PROVIDED, HOWEVER, that the Banks' ability to terminate
the PPA Letter of Credit shall not be contingent upon the Agent's delivery to
the Partnership of such notice and that neither the Agent nor the Banks shall
incur any liability whatsoever as a result of the Agent's failure to deliver
such notice to the Partnership.
Section 2.3 PARTICIPATION IN PPA LETTER OF CREDIT. Simultaneously with
the issuance of the PPA Letter of Credit, the Issuing Bank shall be deemed to
have sold and transferred to each Bank, and each Bank shall be deemed to have
purchased and received from the Issuing
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Bank, in each case irrevocably and without any further action by any party, an
undivided interest and participation in the PPA Letter of Credit, each Drawing
and the other Loan Obligations in respect thereof in an amount equal to such
Bank's Percentage Interest therein. The Agent shall promptly advise each Bank of
any reduction in the Maximum Stated Amount, change in the Stated Amount or
Expiration Date in respect of the PPA Letter of Credit or the cancellation or
other termination of the PPA Letter of Credit and any Drawing; PROVIDED,
HOWEVER, that failure to provide such notice shall not limit or impair the
rights of the Agent hereunder or under the Financing Documents.
Section 2.4 DRAWING AND REIMBURSEMENT. (a) The payment by the Issuing
Bank of a Drawing shall constitute the making by the Issuing Bank of a loan to
the Partnership in the amount of such payment. In the event that a Drawing is
not repaid by the Partnership by 10:00 a.m. (New York City time), on the day of
such Drawing, the Agent shall promptly notify each other Bank. Each such Bank
(including the Issuing Bank in its capacity as a Bank) shall, on the day of such
notification, make a loan to the Partnership, which shall be used to repay the
applicable portion of the Issuing Bank's loan with respect to such Drawing, in
an amount equal to the amount of such Bank's Percentage Interest in such
Drawing, for application to repay the Issuing Bank (each such loan by a Bank,
which shall be either a PPA LOC Loan or a PPA Term Loan, to be referred to as a
"PPA LOAN"), and shall deliver to the Agent for the Issuing Bank's account, on
the day of such notification and in immediately available funds, the amount of
such PPA Loan. In the event that any Bank fails to make available to the Agent
for the account of the Issuing Bank the amount of such PPA LOC Loan, the Issuing
Bank shall be entitled to recover such amount on demand from such Bank together
with interest thereon at the Federal Funds Rate and until such reimbursement is
made, the unreimbursed amount of the Issuing Bank's loan shall be deemed to be a
PPA Loan (either a PPA LOC Loan or a PPA Term Loan, as applicable) for all
purposes of this Agreement.
(b) If a Non-Renewal Event shall have occurred, PECO shall be entitled
to make a Drawing on the PPA Letter of Credit in an amount equal to the Stated
Amount of the PPA Letter of Credit as in effect immediately prior to such
Drawing and the PPA Letter of Credit shall thereupon terminate.
Section 2.5 FEES. The Partnership shall pay the following fees to the
Agent for the respective accounts of the persons specified below:
(a) for the respective accounts of the Banks, a letter of credit fee
equal to the product of (i) the average daily Stated Amount and (ii) a per annum
rate equal to the average daily Applicable Margin for Eurodollar Rate Loans, as
in effect during the applicable period, payable quarterly in arrears on the
first Business Day of each February, May, August and November (each such
Business Day, a "QUARTERLY DATE") occurring after the Closing Date calculated on
the basis of a 360-day year for the actual number of days elapsed;
(b) from and including the Closing Date, for the account of the Issuing
Bank, a fronting fee equal to the product of (x) the average daily Stated Amount
and (y) 0.125% per annum payable quarterly in arrears on each Quarterly Date
occurring after the Closing Date calculated on the basis of a 360-day year for
the actual number of days elapsed;
8
(c) from and after the Closing Date to and including April 1,
2001, for the account of each Bank an annual commitment fee, payable quarterly
in arrears on each Quarterly Date occurring after the Closing Date and
calculated on the basis of a 360 day year for the number of days elapsed in an
amount equal to 0.375% of the Additional Commitment; and
(d) such other fees specified in the fee letter among the
Partnership, the Agent.
Section 2.6 INTEREST. (a) RATE. The Partnership shall pay interest on
the unpaid principal amount of each PPA Loan for each day from the date such PPA
Loan is made until such principal amount has been paid in full as follows:
(i) BASE RATE LOANS. As to Base Rate Loans for each day until due at a
rate PER ANNUM equal to (x) the sum of the Adjusted Base Rate plus (y) the
Applicable Margin as in effect on such day payable monthly in arrears on the
first Business Day of each month; and
(ii) EURODOLLAR RATE LOANS. As to Eurodollar Rate Loans, for each day
until due at a rate PER ANNUM equal to the sum of (x) the Eurodollar Rate plus
(y) as in effect on such day the Applicable Margin, payable on the last day of
the applicable Interest Period or, if such Interest Period exceeds three months,
at intervals of three months from the first day of such Interest Period.
(iii) DEFAULT INTEREST. Interest payments for each day on any principal
amounts that have not been paid when due shall be payable at the Adjusted Base
Rate plus the Applicable Margin as in effect on such day plus 2%
(b) METHOD OF ELECTING INTEREST RATES. (i) Each PPA Loan shall
constitute a Base Rate Loan unless the Partnership elects otherwise pursuant to
the following provisions of this Section 2.6(b).
(ii) Each PPA Loan shall constitute a Base Rate Loan or a Eurodollar
Rate Loan as the Partnership may elect in accordance with this Section 2.6(b).
If no such election is timely made with respect to a PPA Loan, such PPA Loan
shall constitute a Base Rate Loan in accordance with Section 2.6(b)(i), provided
that, in the case of PPA Term Loans that arise on the occasion of a conversion
from PPA LOC Loans in accordance with Section 2.7(d) or 2.7(e), such PPA Term
Loans shall be continued as the same type of PPA Loan (i.e., Base Rate Loan or
Eurodollar Loan), and if any such PPA LOC Loan was a Eurodollar Loan, the then
current Interest Period shall continue after such conversion, until the end of
such Interest Period, at which time the provisions for election of Interest
Periods contained in this Section 2.6(b) shall apply. The Partnership may from
time to time elect to change or continue the interest rate borne by each PPA
Loan, subject to the conditions set forth below, as follows:
(A) with respect to PPA Loans that are Base Rate Loans, the
Partnership may elect to convert all or any portion of such PPA Loans to
Eurodollar Rate Loans as of any Business Day; and
(B) with respect to PPA Loans that are Eurodollar Rate Loans,
the Partnership may elect to convert all or any portion of such PPA
Loans to Base Rate Loans or elect to continue all or any portion of such
PPA Loans as
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Eurodollar Rate Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period applicable
to such PPA Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE Election") to the Agent (1) in the case of a conversion to or continuation
of a Eurodollar Rate Loan, not later than 10:00 a.m. (New York City time) on the
third Business Day prior to the day on which such conversion or continuation is
to be effective or (2) in the case of a conversion to a Base Rate Loan, at any
time prior to the day on which such conversion is to be effective. Each Notice
of Interest Rate Election shall be in writing (including facsimile transmission)
or by voice, promptly confirmed in writing. A Notice of Interest Rate Election
may, if it so specifies, apply to only a portion of the aggregate principal
amount of the relevant PPA Loan.
(iii) Each Notice of Interest Rate Election shall specify:
(A) the PPA Loans (or portion thereof) together with amount of
each thereof to which such notice applies;
(B) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (ii) above;
(C) if PPA Loans are to be converted, each new type of PPA Loan
together with amount thereof, and if such new PPA Loans are Eurodollar
Rate Loans, the duration of the initial Interest Period applicable
thereto; and
(D) if such PPA Loans are to be continued as Eurodollar Rate
Loans for additional Interest Periods, the duration of such Interest
Periods.
Each Interest Period specified in a Notice of Interest Rate Election
shall comply with the provisions of the definition of Interest Period. No
conversion into or continuation of a Eurodollar Rate Loans shall be permitted
when a Default or an Event of Default has occurred and is continuing, and if a
Default or an Event of Default has occurred and is continuing, each Eurodollar
Rate Loan shall automatically be converted into a Base Rate Loan on the last day
of the then current Interest Period applicable thereto.
(iv) A Notice of Interest Rate Election shall not be revocable by the
Partnership. If the Partnership fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Eurodollar Rate Loan, such PPA Loans shall be
converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
(c) FUNDING LOSSES. If the Partnership makes any payment of principal
with respect to any Eurodollar Rate Loan or any Eurodollar Rate Loan is
converted to a Base Rate Loan on any day other than the last day of an Interest
Period applicable thereto, or if the Partnership fails to borrow, repay or
prepay any Eurodollar Rate Loan after notice has been given to the Agent in
accordance with the terms hereof, the Partnership shall reimburse the Agent, for
the ratable account of the Banks, within 30 days after demand for any resulting
loss or expense incurred by them, including any loss incurred in obtaining,
liquidating or employing deposits from third parties. Without prejudice to the
foregoing, the Partnership shall indemnify
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the Agent and the Banks against any direct (as opposed to consequential) loss or
expense that the Agent or the Banks may sustain or incur as a consequence of a
failure by the Partnership in payment of principal of, or interest on, any
Eurodollar Rate Loan, or any part thereof, including any interest, premium or
penalty paid by the Agent or any Bank to lenders of funds borrowed by it or
deposited with it for the purpose of making or maintaining such Eurodollar Rate
Loan. A certificate as to the amount of any such loss or expense in reasonable
detail (specifying the basis of such loss or expense) shall be promptly
submitted by the Agent, or by any Bank through the Agent, to the Partnership and
shall be conclusive and binding as to the amount thereof, absent manifest error.
(d) BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. If on or
prior to the first day of any Interest Period for any Eurodollar Rate Loan:
(i) the Agent or any Bank determines, in its reasonable
judgment, that deposits in Dollars (in the applicable amounts) are not
being offered to the Agent or such Bank in the relevant market for such
Interest Period, or
(ii) the Agent or such Bank, in its reasonable judgment, shall
determine that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Agent or such Bank of funding its Eurodollar
Rate Loans for such Interest Period,
the Agent, or such Bank through the Agent, shall forthwith give notice thereof
(which notice shall describe in reasonable detail the basis for such
determination) to the Partnership, whereupon until the Agent, or such Bank
through the Agent, notifies the Partnership that the circumstances giving rise
to such suspension no longer exist, (A) the obligations of the Agent or such
Bank to make or continue Eurodollar Rate Loans or to convert outstanding PPA
Loans into Eurodollar Rate Loans shall be suspended and (B) each outstanding
Eurodollar Rate Loan, or if a Bank only shall be affected, each Eurodollar Rate
Loan held by such Bank shall be converted into a Base Rate Loan on the last day
of the then current Interest Period applicable thereto.
(e) MAXIMUM RATE. This Agreement is hereby expressly limited so that in
no contingency or event, whether by reason of acceleration of the maturity of
any indebtedness hereunder or otherwise, shall the interest contracted for or
charged or received by the Banks exceed the maximum amount permissible under
Applicable Law. If, from any circumstance whatsoever, interest would otherwise
be payable to the Banks in excess of the maximum lawful amount, the interest
payable to the Banks shall be reduced to the maximum amount permitted under
Applicable Law, and the amount of interest for any subsequent period, to the
extent less than that permitted by Applicable Law, shall to that extent be
increased by the amount of such reduction.
Section 2.7 REPAYMENT. (a) The Partnership shall repay the principal
amount of each PPA LOC Loan in accordance to the provisions of Exhibit C
applicable to PPA LOC Loans. Each PPA LOC Loan shall mature and be paid in full
on the applicable PPA LOC Loan Required Payment Date.
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(b) The Issuing Bank shall reduce the Stated Amount by the principal
amount of each PPA LOC Loan.
(c) Subject to Sections 2.2 and 6.2, the Issuing Bank shall, upon
receipt of written notice from the Partnership, reinstate the Stated Amount to
the extent of any repayment or prepayment of the principal amount of any PPA LOC
Loan; provided, that such reinstatement shall not cause the Stated Amount to
exceed the Maximum Stated Amount as then in effect. The Issuing Bank shall
provide notice to PECO in the form of Annex D if the Letter of Credit is
reinstated.
(d) Each PPA Term Loan (including the PPA Term Loans made after a
Non-Renewal Event and any PPA Term Loan made upon a conversion of a PPA LOC Loan
after the occurrence of a Term Conversion Event) shall, in accordance with
Exhibit C, (i) amortize and be payable on successive Scheduled Payment Dates in
amounts of principal and interest computed on a Mortgage Basis, and (ii) finally
mature and be due and payable on the applicable PPA Term Loan Required Payment
Date in the amount of remaining principal thereof and accrued interest thereon.
(e) If a Term Conversion Event shall have occurred as to any PPA LOC
Loan, then from and after the date such Term Conversion Event occurs, the Agent
may, subject to the approval of the Required Banks and upon 15 Business Days'
prior written notice to the Partnership and the other Senior Parties, convert
such PPA LOC Loan into a PPA Term Loan.
Section 2.8 PREPAYMENTS. The Partnership may, at any time and from time
to time on any Business Day, upon prior written notice to the Agent not later
than 11:00 a.m. (New York City time), at least one Business Day before the day
of any prepayment of the PPA LOC Loans, such notice stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Partnership shall, prepay without premium or penalty, except as provided in
Section 2.6(c), the outstanding principal amounts of the PPA LOC Loans in whole
or in part, together with accrued interest to the date of such prepayment on the
principal amount prepaid. PPA Term Loans shall be prepaid ratably with the Bonds
in the event the Bonds are prepaid, provided that in the event that an LOC Sweep
Notice shall have been given, the PPA Term Loans may be prepaid in accordance
with Section 3.3(c) of the Collateral Agency Agreement.
All prepayments made hereunder shall be applied by the Agent and the
Banks against the installments of principal amount of outstanding PPA Loans of a
particular class (i.e., PPA LOC Loans or PPA Term Loans), in inverse order of
maturity; such prepayments shall first be applied to the prepayment of
outstanding Base Rate Loans of a particular class (i.e., PPA LOC Loans or PPA
Term Loans) to the extent thereof and then to the prepayment of outstanding
Eurodollar Rate Loans of such class.
Section 2.9 SECURITY. The Obligations shall be secured by the Security
Documents, the rights and remedies in respect of which shall be exercised
pursuant to the Collateral Agency Agreement.
Section 2.10 PAYMENTS. (a) The Partnership shall make each payment
hereunder not later than 10:00 a.m. (New York City time), on the day when due to
the Agent at its address set
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forth in Section 9.2, in Dollars in immediately available funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal (including reimbursement of Drawings), interest or fees ratably
(other than amounts payable for the account of the Issuing Bank pursuant to
Section 2.5(a) and (b), which shall be payable solely to the Issuing Bank, or
payable pursuant to Section 9.4) to the Banks and like funds relating to the
payment of any other amount payable to any Bank, to such Bank, in each case to
be applied in accordance with the terms of this Agreement. The Agent may
withhold from any interest payment to any Bank an amount equal to any applicable
withholding tax (including upon the failure of any Bank to provide the forms or
other documentation required under Section 2.17(f)).
(b) Unless the Agent receives notice from the Partnership before the
date on which any payment is due to the Banks hereunder that the Partnership
will not make such payment in full, the Agent may assume that the Partnership
has made such payment in full to the Agent on such date, and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due to such Bank. If and to the extent
that the Partnership has not so made such payment in full to the Agent on the
date on which such payment is due, each Bank agrees, irrevocably and without
qualification or exception, to repay to the Agent forthwith on demand such
amount distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date on which
such Bank repays such amount to the Agent, at the Federal Funds Rate.
(c) All payments made by the Partnership to each of the Banks and the
Agent under this Agreement will be made without set-off, counterclaim or other
defense.
Section 2.11 COMPUTATION OF INTEREST AND FEES. All computations of
interest hereunder for Eurodollar Rate Loans shall be made on the basis of a
year of 360 days and for Base Rate Loans shall be made on the basis of a year of
365/366 days, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
or fees are payable. Each calculation and each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
Section 2.12 PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment
hereunder is stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
fees, as the case may be. If no due date is specified for the payment of any
amount payable by the Partnership hereunder, such amount shall be due and
payable not later than 10 Business Days after receipt by the Partnership of
written demand from the Agent for payment thereof.
Section 2.13 SHARING OF PAYMENTS, ETC. (a) Each Bank agrees that if, as
a result of the exercise of a right of set-off, banker's lien or counterclaim or
other similar right or the receipt of a secured claim it receives any payment in
respect of the PPA Loans or other Obligations hereunder it shall promptly notify
the Agent thereof (and the Agent shall promptly notify the other Banks). If, as
a result of such payment, such Bank receives a greater percentage of the
Obligations owed to it under this Agreement than the percentage received by any
other Bank, such Bank shall purchase a participation (which it shall be deemed
to have purchased
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simultaneously upon the receipt of such payment) in the Obligations then held by
such other Banks so that all such recoveries of principal and interest with
respect to all Obligations owed to each Bank shall be pro rata on the basis of
its respective amount of such Obligations owed to all Banks; PROVIDED, that if
all or part of such proportionately greater payment received by such purchasing
Bank is thereafter recovered by or on behalf of the Partnership from such Bank,
such purchase shall be rescinded and the purchase price paid for such
participation shall be returned to such Bank to the extent of such recovery, but
without interest.
(b) Each Bank which receives a secured claim as described in
subsection (a) above shall, to the extent practicable, exercise its rights in
respect of such secured claim in accordance with such subsection (a) and
otherwise in a manner consistent with the rights of the Banks entitled under
this Section 2.13 to share in the benefits of any recovery on such secured
claim.
(c) The Partnership expressly consents to the foregoing
arrangements and agrees that any holder of a participation in any Obligation so
purchased or otherwise acquired of which the Partnership has received notice may
exercise any and all rights of set-off, banker's lien or counterclaim with
respect to any and all monies owing by the Partnership to such holder as fully
as if such holder were a holder of such Obligation in the amount of the
participation held by such holder.
Section 2.14 EVIDENCE OF DEBT. (a) The indebtedness of the Partnership
resulting from all PPA Loans shall be evidenced by this Agreement.
(b) The books and accounts of the Agent shall be conclusive evidence,
absent manifest error, of the amounts of all Drawings, PPA Loans, fees, interest
and other amounts advanced, due, outstanding, payable or paid pursuant to this
Agreement.
Section 2.15 INCREASED COSTS AND REDUCED RETURNS. (a) If, on or after
the date hereof, the adoption of any Applicable Law, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Agent or any Bank with any request
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) shall subject the Agent or such Bank to any tax, duty or
other charge (other than routine examination fees or Taxes) with respect
to the Eurodollar Rate Loans or its obligation to make or continue
Eurodollar Rate Loans, or shall change the basis of taxation of payments
to the Agent or any Bank of the principal of or interest on its
Eurodollar Rate Loans or any other amounts due under this Agreement in
respect of its Eurodollar Rate Loans or its obligation to make or
continue PPA Loans or Eurodollar Rate Loans (except for changes in the
rate of tax on the net income of the Agent or such Bank imposed by the
federal, state or local jurisdiction in which the Agent's or such Bank's
principal executive office is located); or
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(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including any such requirement
imposed by the Board of Governors of the Federal Reserve System, but
excluding with respect to any Eurodollar Rate Loan any such requirement
provided in Section 2.17(b), against assets of, deposits with or for the
account of, or credit extended by, the Agent or any Bank or shall impose
on the Agent or any Bank or on the London interbank market any other
condition affecting the Eurodollar Rate Loans or its obligation to
advance Eurodollar Rate Loans;
and the result of any of the foregoing is to increase the cost to the Agent or
such Bank of making or continuing any Eurodollar Rate Loan or to reduce the
amount of any sum received or receivable by the Agent or such Bank under this
Agreement with respect thereto by an amount deemed by the Agent or such Bank to
be material, then, the Agent, or such Bank through the Agent, shall deliver to
the Partnership as promptly as practicable a certificate setting forth in
reasonable detail the additional amounts that the Agent or such Bank, as the
case may be, determines will fully compensate it for such reduction, increased
cost or payment and the basis for the determination of such amount; PROVIDED,
that the Partnership shall not be obligated to compensate the Agent or any Bank
for the amount of such increased cost incurred with respect to a period of time
prior to the date which is 90 days before the date on which the Agent first
notifies the Partnership of a claim for such compensation or that an event had
occurred which will entitle the Agent or a Bank to such compensation. Any such
amount claimed by the Agent or any Bank shall, in the case of clause (i) above,
be net of applicable tax savings, if any, directly attributable thereto. Within
15 Business Days after demand by the Agent, the Partnership shall pay to the
Agent, for its account or for the account of the applicable Bank, as the case
may be, such additional amount shown as due on any such certificate, absent
manifest error.
(b) In the event that the Agent or any Bank shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
on all the parties hereto) at any time that the Agent or such Bank is required
to maintain reserves in respect of Eurocurrency Liabilities during any period
during which any PPA Loan owing to it bears interest based on the Eurodollar
Rate (each such period, for the Agent or such Bank, a "EUROCURRENCY RESERVE
PERIOD"), but only in respect of any period during which any reserve shall
actually be maintained by the Agent or such Bank for any Eurodollar Rate Loan as
a result of a reserve requirement applicable to it under Regulation D in
connection with Eurocurrency Liabilities, then the Agent, or such Bank through
the Agent, shall promptly give notice to the Partnership of such determination,
and the Partnership shall directly pay to the Agent, for its account or for the
account of the applicable Bank, as the case may be, additional interest on the
unpaid principal amount of such PPA Loan during such Eurocurrency Reserve Period
at a rate PER ANNUM which shall, during each monthly period applicable to such
PPA Loan, be the amount by which (x) the Eurodollar Rate for such monthly period
divided (and rounded upward to the next whole multiple of 1/100 of 1%) by a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including any marginal, emergency, supplemental, special or other
reserves) applicable to the Agent or such Bank in respect of Eurocurrency
Liabilities exceeds (y) the Eurodollar Rate for such monthly period. The Agent,
or such Bank through the Agent, shall furnish along with such notice a
certificate setting forth in reasonable detail the cost actually incurred to
maintain such reserves and the basis for the determination of such amount;
PROVIDED, that the Partnership shall not be obligated to compensate the Agent or
any Bank for the amount of such increased cost incurred with respect to a period
of time prior to the date which is 90 days
15
before the date on which the Agent first notifies the Partnership of a claim for
such compensation or that an event has occurred which will entitle the Agent or
a Bank to such compensation. Additional interest payable pursuant to the
immediately preceding sentence shall be paid by the Partnership at the time that
it is otherwise required to pay interest in respect of such PPA Loan, or, if
later demanded by the Agent or any Bank, promptly on demand. Each of the Agent
and the Banks agrees that, if notice is given to the Partnership of the
existence of a Eurocurrency Reserve Period, the Agent, or the applicable Bank
through the Agent, shall promptly notify the Partnership of any termination
thereof, at which time the Partnership shall cease to be obligated to pay
additional interest to the Agent or such Bank pursuant to the first sentence of
this paragraph until such time, if any, as a subsequent Eurocurrency Reserve
Period shall occur.
(c) The Agent, and each Bank through the Agent, will promptly notify the
Partnership of any event of which it has knowledge, occurring after the date
hereof, which will entitle the Agent or such Bank to compensation pursuant to
this Section and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole judgment of the Agent or such Bank, be otherwise
disadvantageous to the Agent or such Bank.
Section 2.16 CAPITAL ADEQUACY. If the Agent or any Bank shall determine
that, after the date hereof, the adoption of any Applicable Law regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of the Agent or such Bank or
its holding company as a consequence of the Agent's or such Bank's obligations
hereunder to a level below that which the Agent or such Bank could have achieved
but for such adoption, change, request or directive (taking into consideration
its policies with respect to capital adequacy) by an amount deemed by the Agent
or such Bank to be material, then the Agent, or such Bank through the Agent,
shall deliver to the Partnership as promptly as practicable (but in no event
later than 120 days after the Agent or such Bank has actual knowledge of such
claim for capital adequacy) a certificate setting forth in reasonable detail the
amount being charged by the Agent or such Bank and the basis for the
determination of such amount. Within 15 Business Days after the delivery of such
certificates by the Agent, the Partnership shall pay to the Agent, for its
account or for the account of the applicable Bank, as the case may be, the
amount shown as due on any such certificate.
Section 2.17 TAXES. (a) Payments by the Partnership to the Agent and the
Banks under this Agreement will be made free and clear of and without deduction
for Taxes, other than Taxes based on the net income of the Agent or any Bank
(including franchise taxes imposed in lieu of net income taxes) imposed by (i)
the United States federal government, (ii) the jurisdiction where the Agent or
such Bank is organized or has its principal office or (iii) the jurisdiction of
the branch of such Bank maintaining any PPA Loan or the branch of the Agent
through which it renders its services as the Agent ("EXCLUDED TAXES"). If the
Partnership is required by law to deduct Taxes (other than Excluded Taxes) from
such a payment, then the sum payable under the instrument to which the payment
relates will be increased so that such deduction does not result in a diminution
in the amount the Agent or any Bank actually receives.
16
(b) To the extent permitted by law, without duplication of amounts paid
by the Partnership under Section 2.17(a), the Partnership hereby indemnifies and
holds harmless the Agent and each Bank from and against, and agrees to reimburse
the Agent and each Bank on an after-tax basis (computed taking into account any
deductions or other benefits available for federal income tax purposes for the
Agent or such Bank if it is a United States taxpayer and any deductions and
benefits available for income tax purposes in any jurisdiction in which the
Agent or such Bank is a taxpayer) on demand for, any and all Taxes paid or
incurred by the Agent or such Bank in connection with the transactions
contemplated by this Agreement; PROVIDED, HOWEVER, that the foregoing indemnity
does not cover Excluded Taxes. Reimbursement on an "after-tax basis" means on a
basis such that the Agent or such Bank is made whole after taking into account
income taxes that the Agent or such Bank will owe on the indemnity or
reimbursement payment in any jurisdiction and any related tax benefits, assuming
the Agent or such Bank is subject to income taxes at the highest marginal rates.
Nothing in this paragraph shall interfere with the right of the Agent or any
Bank to arrange its tax affairs in whatever manner it thinks fit and, in
particular, the Agent and the Banks are under no obligation to claim a deduction
or other benefit relating to these transactions ahead of any other claim,
relief, credit, deduction or other benefit to which it is entitled. The Agent,
or applicable Bank through the Agent, shall promptly give written notice to the
Partnership office (but in no event later than 60 days) the Agent or such Bank
has actual knowledge of the imposition of any Taxes subject to indemnification
hereunder; PROVIDED, HOWEVER, that failure to give such notice within such 60
day period will not relieve the Partnership of the obligation to indemnify the
Agent or such Bank in accordance with the terms hereof, except to the extent of
interest that would have been avoided had the notice been given prior to the end
of such 60-day period.
(c) The Partnership will provide evidence that all Taxes imposed on
payments under this Agreement, any PPA Loan have been fully paid to the
appropriate authorities by delivering official receipts or notarized copies to
the Agent within 15 Business Days after payment. The Partnership will compensate
the Agent or any Bank that has to pay any Taxes because the Partnership failed
to timely furnish such evidence; PROVIDED, that prior to paying such Taxes, the
Agent, or such Bank through the Agent, shall have notified the Partnership of
its intent to make such payment.
(d) If the Partnership so requests promptly in writing after receipt of
any notice under Section 2.17 hereof, the Agent or applicable Bank will contest
in good faith the Taxes at the Partnership's expense, keep the Partnership fully
informed about the progress of the contest, consult in good faith with the
Partnership's counsel regarding conduct of the contest, and not compromise or
otherwise settle the contest without the Partnership's consent (which shall not
be unreasonably withheld or delayed); PROVIDED, that the Agent or such Bank may
in its sole discretion select the forum for the contest and determine whether
the contest will be by resisting payment of the Taxes or by paying the Taxes and
seeking a refund; PROVIDED, FURTHER that the Agent or such Bank will be under no
obligation to contest unless (A) if the Agent or such Bank requests, the
Partnership has provided the Agent or such Bank an opinion of independent tax
counsel selected by the Partnership and reasonably acceptable to the Agent or
such Bank to the effect that there is a reasonable basis for the contest, (B)
the amount in controversy is at least $75,000, (C) the Agent or such Bank has
received satisfactory indemnification and security for any liability, loss, cost
or expense arising out of the contest (including, but not limited to, all
reasonable legal and accounting fees and expenses, penalties, interest and
additions to tax), (D) if
17
requested by the Agent or such Bank, the Partnership has admitted in writing its
duty to indemnify the Agent or such Bank for the Taxes if the contest is lost
(but such admission shall not preclude the Partnership from raising a defense to
liability if a court of competent jurisdiction has rendered a decision
articulating the cause of such Taxes, and the cause is not one for which the
Partnership is responsible under this Section 2.17), and (E) if the contest is
conducted in a manner that requires paying all or part of the Taxes, the
Partnership has paid the amount required.
(e) If the Partnership so requests within 10 days of notice to the
Partnership of the imposition of any Taxes on payments to any of the Banks of a
type not generally imposed on United States or foreign lenders making advances
of the types contemplated hereunder, such Banks shall (consistent with legal and
regulatory restrictions) comply with Section 2.19 hereof.
(f) At such times as may be required by Applicable Law or as the Agent
or the Partnership may reasonably request, each Bank agrees that it will deliver
to the Agent and the Partnership duly completed forms of any applicable
jurisdiction or other documentation reasonably satisfactory to the Agent and the
Partnership that such Bank is entitled to receive payments under this Agreement
without deduction or withholding of income tax under the Applicable Law of such
jurisdiction. Each Bank further agrees to notify the Agent and the Partnership
of the occurrence of any event (including any change in treaty, law or
regulation) that would render such Bank unable to receive payments hereunder
without such deduction or withholding.
Section 2.18 ILLEGALITY. If, on or after the date of this Agreement, the
adoption of any Applicable Law, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Agent or any Bank with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency shall make it unlawful or impossible for the
Agent or such Bank to make, continue or convert its Eurodollar Rate Loans, the
Agent, or such Bank through the Agent, shall so notify the Partnership,
whereupon until the Agent, or such Bank through the Agent, notifies the
Partnership that the circumstances giving rise to such suspension no longer
exist, the obligation of the Agent or such Bank to make or continue Eurodollar
Rate or convert outstanding PPA Loans into Eurodollar Rate Loans, shall be
suspended. Before giving any notice to the Partnership pursuant to this Section,
the Agent or applicable Bank shall designate a different lending office for the
Eurodollar Rate Loans if such designation will avoid the need for giving such
notice and will not, in the sole judgment of the Agent or such Bank, be
otherwise disadvantageous to the Agent or such Bank. If such notice is given,
each Eurodollar Rate Loan of the Agent or such Bank then outstanding shall
either (i) be converted to a Base Rate Loan on the last day of the then current
Interest Period applicable to such Eurodollar Rate Loan if the Agent or such
Bank may lawfully make or continue such PPA Loan to such day, or (ii) be
immediately converted to a Base Rate Loan if the Agent or such Bank shall
determine that it may not lawfully continue to make or continue such PPA Loan to
such day; PROVIDED, that the Partnership shall not be obligated to make any
payment pursuant to Section 2.6(c) as a result of such conversion. If the
Partnership so requests within 10 days of receipt of the notice referred to
above, the applicable Bank shall (consistent with legal and regulatory
restrictions) comply with Section 2.19 hereof.
18
Section 2.19 REDUCTION IN COMMITMENTS/REIMBURSEMENTS. The Partnership
shall have the right to refinance the Commitment and any outstanding PPA Loans,
if any, without premium or penalty, except as provided in Section 2.6(c), upon
at least 10 Business Days' prior written notice to the Agent.
Section 2.20 RIGHT OF SET-OFF. Subject to the terms and conditions of
the Collateral Agency Agreement, the Partnership hereby authorizes each Bank (in
addition to, and without limitation of, any right of set-off, banker's lien or
counterclaim a Bank may otherwise have), upon the occurrence and during the
continuance of any Event of Default, at any time and from time to time, without
notice to the Partnership or any Person other than the Collateral Agent (any
such notice being hereby expressly waived by the Partnership to the extent it
may legally do so) to set off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held, and
other indebtedness at any time owing, by such Bank in any of its offices,
wherever located (whether such deposits or indebtedness be in dollars or in any
other currency), to or for the credit or the account of the Partnership against
any and all of the Obligations and liabilities of the Partnership now or
hereafter existing under this Agreement, irrespective of whether or not such
Bank shall have made any demand hereunder or thereunder and although such
Obligations may be contingent or unmatured.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS PRECEDENT TO CLOSING DATE. The occurrence of the
Closing Date is subject to satisfaction or waiver of the following conditions
precedent:
(a) issuance of the Bonds;
(b) the Agent shall have received the following, each dated on or before
the Closing Date, in form and substance satisfactory to the Agent:
(i) the Common Agreement and the Collateral Agency Agreement
each duly executed by the parties thereto;
(ii) this Agreement duly executed by the Partnership;
(iii) an original of each of the Security Documents, duly
executed by the parties thereto;
(iv) written opinions of counsel covering such matters as the
Agent may reasonably request; and
(v) evidence reasonably satisfactory to the Agent that all
actions necessary or appropriate in order to effectively establish,
create or perfect the Security Interest have been duly taken.
19
(c) receipt by the Issuing Bank of a copy of the report of the
Independent Engineer in form and substance reasonably satisfactory to the Agent;
(d) receipt by the Issuing Bank of a copy of the Market Study in form
and substance reasonably satisfactory to the Agent; and
(e) payment by the Partnership of all accrued fees and expenses (as
provided in Sections 2.5 and 9.4) of the Agent and the Banks (including the
reasonable accrued fees and disbursements of counsel to the Agent and the
Banks), to the extent that one or more statements for such fees and expenses
have been presented for payment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 REPRESENTATIONS AND WARRANTIES OF PARTNERSHIP. The
Partnership hereby makes for the benefit of the Agent and the Banks all of the
representations and warranties of the Partnership contained in Article IV of the
Common Agreement (which representations and warranties are incorporated by
reference herein as if fully set forth herein together with all related
definitions and which representations and warranties shall be true and correct
as of the date hereof and the Closing Date).
ARTICLE V
COVENANTS
Section 5.1 COVENANTS. So long as any Commitment is in effect, the PPA
Letter of Credit is outstanding or the Obligations remain unpaid, the
Partnership shall observe and perform all of the covenants of the Partnership
contained in Article V of the Common Agreement (which covenants together with
all related definitions are incorporated herein by reference as if fully set
forth herein.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" under this Agreement so long as the same shall be continuing:
(a) any principal of any PPA Loans is not paid in full within 5 days
after the due date thereof;
(b) the Partnership shall fail to pay any amount due (other than amounts
due pursuant to Section 6.1(a)) under this Agreement within 15 days after the
due date thereof; or
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(c) an "Event of Default" under the Common Agreement shall have occurred
and be continuing.
Section 6.2 REMEDIES. Upon the occurrence and during the continuation of
an Event of Default, the Agent shall, at the request of the Required Banks, take
one or more of the following actions: (i) after giving any required notice to
the beneficiary of the PPA Letter of Credit and the lapse of the time period
required prior to termination of the PPA Letter of Credit, terminate the PPA
Letter of Credit in accordance with Section 2.2(d), (ii) declare the
Obligations, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, including but not limited to the
amount of any and all PPA Loans which may be made upon a Drawing under the PPA
Letter of Credit which occurs after the date on which the Agent declares such
amounts to be due and payable, but prior to the effective date of a termination
of the PPA Letter of Credit in accordance with Section 2.2(d), whereupon the
Obligations, all such interest and all such amounts shall become and be
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Partnership,
(iii) terminate the ability of the Partnership to cause reinstatement of the
Stated Amount through the reimbursement of Drawings, as contemplated by the
terms hereof or (iv) terminate the ability of the Partnership to continue PPA
Loans as, or convert PPA Loans to, Eurodollar Rate Loans; PROVIDED, that the
Agent and the Banks shall not have the right to exercise any other remedy
otherwise available to the Agent or any Bank except in accordance with the
provisions of the Collateral Agency Agreement.
Section 6.3 COLLATERALIZATION UPON ACCELERATION OF THE BONDS. In the
event that an Event of Default hereunder results from an "EVENT OF DEFAULT"
under the Common Agreement and the Trustee accelerates amounts due under the
Common Agreement, the Maximum Stated Amount shall be entitled to
collateralization pursuant to the terms of the Collateral Agency Agreement by
having the Collateral Agent deposit (in a separate account to be held by the
Collateral Agent), at the time that any amounts are paid to the Trustee in
respect of accelerated amounts due under the Common Agreement, an amount equal
to the amount that would have been disbursed to the Agent at such time (based on
pro rata payment requirements) if Drawings had been made to the full extent of
the Stated Amount ("DEEMED PPA LOC LOANS") and the Deemed PPA LOC Loans had been
accelerated at the same time as an acceleration under the Indenture. Upon a
Drawing on the PPA Letter of Credit, a portion of the amount in the separate
account equal to such Drawing's proportionate share of the Maximum Stated Amount
shall be transferred by the Collateral Agent to the Agent. The Agent, the
Issuing Bank and each Bank agree that upon termination or expiration of the PPA
Letter of Credit, all amounts in such separate collateral account that have not
been transferred pursuant to the previous sentence (to the extent of such
expiration or termination) shall be transferred to the Collateral Agent.
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ARTICLE VII
CHARACTER OF OBLIGATIONS
Section 7.1 OBLIGATIONS ABSOLUTE. The Obligations shall be absolute,
unconditional and irrevocable and shall not be affected or impaired under any
circumstances whatsoever, including the following circumstances:
(a) any lack of validity or enforceability of any provision of any
Project Document or Financing Document;
(b) any amendment or waiver of, or any consent to departure from, any
provision of any Project Document or Financing Document;
(c) the existence of any claim, set-off, defense or other right that the
Partnership may have at any time against the beneficiary of the PPA Letter of
Credit (or any Person for whom such beneficiary may be acting), any Bank, the
Agent or any other Person, whether in connection with any Project Document or
Financing Document, the transactions contemplated thereby or any unrelated
transaction;
(d) any statement or signature in any certificate or other document
presented under the PPA Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect, or any such statement being untrue or
inaccurate in any respect whatsoever;
(e) any exchange, release or nonperfection of any Collateral or other
collateral, or any release, amendment or waiver of or consent to departure from
any Project Document, Financing Document or any guaranty, for any of the
Obligations;
(f) payment by the Issuing Bank under the PPA Letter of Credit against
presentation of a draft or certificate that does not comply with the terms of
the PPA Letter of Credit; or
(g) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Section 7.2 LIMITED LIABILITY OF AGENT AND BANKS. As among the
Partnership, the Agent and the Banks (including the Issuing Bank), the
Partnership assumes all risks of the acts or omissions of the beneficiaries of
the PPA Letter of Credit with respect to the use of the PPA Letter of Credit.
Neither the Agent nor any Bank nor any of their respective officers, directors,
employees or agents shall be liable or responsible for (i) the use that may be
made of the PPA Letter of Credit or any acts or omissions of any beneficiaries
of the PPA Letter of Credit in connection with the PPA Letter of Credit; (ii)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted in connection with the PPA Letter of Credit or of any
endorsement thereon, even if such document or endorsement should prove to be
22
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(iii) payment by the Issuing Bank against presentation of any document that does
not comply with the terms of the PPA Letter of Credit, including failure of any
document to bear any reference or adequate reference to the PPA Letter of
Credit; or (iv) any other circumstance whatsoever in making, delaying to make or
failing to make payment under the PPA Letter of Credit; PROVIDED, however, that
the Partnership shall have a claim against the Issuing Bank, and the Issuing
Bank shall be liable to the Partnership, to the extent of any direct, as opposed
to consequential, damages suffered by the Partnership that the Partnership
proves were the result of the Issuing Bank's willful misconduct or gross
negligence in paying under the PPA Letter of Credit or the Issuing Bank's
willful or grossly negligent failure to pay under the PPA Letter of Credit after
the presentation to it by the beneficiary of a draft and certificate strictly
complying with the terms and conditions of the PPA Letter of Credit (unless the
Issuing Bank in good faith believed itself (based upon an opinion of counsel) 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
any document that appears on its face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
ARTICLE VIII
THE AGENT
Section 8.1 AUTHORIZATION AND ACTION. (a) Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Credit Documents (including
enforcement of and collection under any Credit Document or other Project
Document), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks;
PROVIDED, HOWEVER, that the Agent shall not be required to take any action that,
in the Agent's sole judgment, exposes the Agent to personal liability or that is
contrary to any Credit Document or other Project Document or Applicable Law. In
performing its function and duties hereunder as Agent, the Agent shall act
solely as the agent of the Banks and in its capacity as Issuing Bank, the
Issuing Bank shall act solely as issuer of the PPA Letter of Credit, and does
not assume and shall not be deemed to have assumed in either such capacity any
obligation towards or relationship of agency or trust or other fiduciary
relationship with or for the Partnership or any other party to any Project
Document.
(b) Each Bank hereby authorizes the Agent in the name of and on behalf
of such Bank to sign such documents, take all such actions and perform such
obligations that the Agent deems necessary or appropriate to bind each of the
Banks under the Credit Documents and to create, perfect or maintain the
existence or perfected status of any security interest created pursuant to any
such Credit Documents.
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Section 8.2 AGENT'S RELIANCE, ETC. Neither the Agent nor the Issuing
Bank nor any of its or their directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with any Credit Document or other Project Document, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent and the Issuing Bank (i) may treat any
Bank that has signed an Assignment and Acceptance as the holder of the
applicable portion of the Obligations; (ii) may consult with legal counsel
(including counsel for the Partnership or any Affiliate), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations made in or in connection with any
Credit Document or other Project Document; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Credit Document or other Project Document on the
part of the Partnership or any Affiliate or to inspect the property (including
the books and records) of the Partnership or any Affiliate thereof; (v) shall
not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Credit Document or
other Project Document or any other instrument or document furnished pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of any
Credit Document or other Project Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier or
otherwise) believed by it to be genuine and signed or sent by the proper party
or parties.
Section 8.3 THE AGENT, THE ISSUING BANK AND AFFILIATES. With respect to
its Commitment and participation in the PPA Letter of Credit, the Issuing Bank
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent or the Issuing Bank, as
the case may be; and the term "BANK" or "BANKS" shall, unless otherwise
expressly indicated, include the Agent and the Issuing Bank in their capacity as
a Bank (including the Issuing Bank in its capacity as such). The Agent and the
Issuing Bank and their Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind of business
with, the Partnership, any Affiliate thereof and any Person that may do business
with or own securities of the Partnership or any Affiliate thereof, all as if
the Agent and the Issuing Bank, respectively, were not the Agent and the Issuing
Bank and without any duty to account therefor to the Banks.
Section 8.4 BANK CREDIT DECISION. Each Bank agrees that it has,
independently and without reliance on the Agent, the Issuing Bank or any other
Bank and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also agrees that it will, independently and without reliance on the Agent,
the Issuing Bank or any other Bank and based on such documents and information
as it deems appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
Section 8.5 INDEMNIFICATION. The Banks agree to indemnify the Agent and
the Issuing Bank (to the extent not promptly reimbursed by the Partnership and
without limiting the obligation of the Partnership to do so), on demand, ratably
according to such Bank's Percentage Interest, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
24
judgments, suits, costs, expenses and disbursements of any kind or nature
whatsoever that may at any time (including at any time following the payment of
any Obligations or termination of this Agreement) be imposed on, incurred by or
asserted against the Agent or the Issuing Bank in any way relating to or arising
out of any Credit Document or other Project Document or any action taken or
omitted by the Agent under any Credit Document or other Project Document;
PROVIDED, HOWEVER, that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting solely from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs and expenses payable by the Partnership under Section 9.4, to
the extent that the Agent is not reimbursed for such costs and expenses by the
Partnership.
Section 8.6 SUCCESSOR AGENT. The Agent may resign at any time by giving
30 days prior written notice thereof to the Banks and the Partnership and may be
removed at any time with or without cause with the written approval of the
Required Banks. Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent with the consent of the Partnership,
which shall not be unreasonably withheld. If no successor Agent has been so
appointed by the Required Banks, and has accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent with the consent of the Partnership (which
shall not be unreasonably withheld), which successor Agent shall be a commercial
bank organized under the laws of the United States of America or of any state
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Credit
Documents and the other Project Documents. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was agent under this Agreement.
Section 8.7 COLLATERAL. (a) Except as expressly provided herein, the
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in respect of the Collateral. The Agent shall
incur no liability as a result of any private sale of the Collateral.
(b) The Banks hereby consent, and agree upon written request by the
Agent to execute and deliver such instruments and other documents as the Agent
may deem desirable to confirm such consent, to the release of the Liens on the
Collateral, including any release in connection with any sale, transfer or other
disposition of the Collateral or any part thereof, in accordance with the
Project Documents.
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ARTICLE IX
MISCELLANEOUS
Section 9.1 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or consent to any departure by the Partnership therefrom, shall
be effective unless in writing and signed or consented to (in writing) by the
Required Banks (and, in the case of amendments, the Partnership), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that (A) no amendment,
waiver or consent shall, unless in writing and signed or consented to (in
writing) by all of the Banks do any of the following: (i) waive any of the
conditions specified in Article 3; (ii) increase the Commitments of the Banks,
extend the term of any Commitments or subject the Banks to any additional
obligations; (iii) reduce the principal of, or interest on, the PPA Loans or any
fees or other amounts payable hereunder; (iv) postpone any date fixed for (a)
payment of principal of, or interest on, any PPA Loans (b) reimbursement of
drawings under the PPA Letter of Credit or (c) payment of fees or other amounts
payable hereunder; (v) change the percentage of the Commitments or the number of
Banks, required for the Banks or any of them to take any action hereunder; or
(vi) amend this Section 9.1; (B) no amendment, waiver or consent shall, unless
in writing or consented to (in writing) by the Issuing Bank, affect the rights
and obligations of the Issuing Bank hereunder; (C) no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Persons required above to take such action, affect the rights or duties of the
Agent under this Agreement or any other Credit Document; and (D) any provision
that is a part of this Agreement as a result of an incorporation by reference to
the Indenture shall be amended or waived as provided in Section 8.3 of the
Collateral Agency Agreement.
Section 9.2 NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing (including by telecopier and shall be mailed,
telecopied or delivered, if to the Partnership, to it at Tenaska Georgia
Partners, L.P., 0000 X. 000xx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000-0000,
Attention: Xxxxxxx X. Xxxxxx, telephone 000-000-0000, telecopier 000-000-0000;
if to any Bank other than the Issuing Bank, to it at the address or telecopier
number set forth below its name in the Assignment and Acceptance by which it
became a party hereto; if to the Agent or the Issuing Bank, to it at The
Toronto-Dominion Bank, 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, Attention: Xxxx
Xxxxx; telephone 000-000-0000, telecopier 000-000-0000, or, as to each party, to
it at such other address or telecopier number as designated by such party in a
written notice to the other parties. All such notices and communications shall
be deemed received, (i) if personally delivered, upon delivery, (ii) if sent by
first-class mail, on the third Business Day following deposit into the mails and
(iii) if sent by telecopier, upon acknowledgment of receipt thereof by the
intended recipient, except that notices and communications to the Agent pursuant
to Article 2 or 8 shall not be effective until received by the Agent.
Section 9.3 NO WAIVER, REMEDIES. No failure on the part of any Bank
(including the Issuing Bank) or the Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, and no single
or partial exercise of any such right shall preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
26
Section 9.4 COSTS AND EXPENSES. The Partnership agrees to pay on demand
(i) all reasonable costs and expenses of the Agent and the Banks (including the
Issuing Bank) in connection with the preparation, execution, delivery,
syndication, administration, modification and amendment of this Agreement, the
other Credit Documents, and the other documents to be delivered hereunder,
including (a) the reasonable fees and out-of-pocket expenses of counsel for the
Agent and the Banks with respect thereto and with respect to advising the Agent
and the Banks as to their rights and responsibilities, or the perfection,
protection or reservation of rights or interests, under this Agreement, the
other Credit Documents, the other Project Documents and the other documents to
be delivered hereunder, (b) the reasonable fees and expenses of any consultants,
auditors or accountants engaged by the Agent with the written consent (which
shall not be unreasonably withheld) of the Partnership pursuant hereto, and (ii)
all reasonable costs and expenses of the Agent and the Banks (including the
Issuing Bank) (including reasonable counsel fees and expenses of the Agent and
the Banks) in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the other Credit Documents,
the other Project Documents and the other documents to be delivered hereunder,
whether in any action, suit or litigation, bankruptcy, insolvency or similar
proceeding. In addition, the Partnership shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of the aforementioned documents, and
the Partnership agrees to indemnify and hold the Agent and the Banks (including
the Issuing Bank) harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay any of the
foregoing.
Section 9.5 APPLICATION OF MONEY. If any sum paid or recovered in
respect of the Obligations is less than the amount then due, the Agent may apply
that sum to principal, interest, fees or any other amount due under this
Agreement in such proportions and order and generally in such manner as the
Agent shall reasonably determine.
Section 9.6 SEVERABILITY. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
Section 9.7 NON-RECOURSE LIABILITY. Satisfaction of the Obligations
shall be had solely from the Collateral. Notwithstanding any provision to the
contrary in the Transaction Documents, there shall be no recourse against any
Affiliates, partners, stockholders, officers, directors, representatives or
employees of the Partnership, other than the Partnership (each a "NON-RECOURSE
PARTY"), for any payment due hereunder or under any other Financing Document or
Security Document from the Partnership or for the performance of any obligation
of such Non-Recourse Party, or breach of any representation or warranty made by
such Non-Recourse Party hereunder or thereunder. The sole recourse of the Agent
and the Banks hereunder or under any other Transaction Document or for the
performance of any obligation of the Partnership, or breach of any
representation or warranty made hereunder or thereunder by the Partnership,
shall be against the Partnership and its assets, it being expressly understood
by the Senior Parties that such obligations of the Partnership are obligations
solely of the Partnership and that no such
27
personal liability shall attach to, or be incurred by any Non-Recourse Party;
PROVIDED, that nothing contained in this Section 9.7 shall (i) impair in respect
of the Partnership the validity of any Credit Document, as applicable, prevent
the taking of any action permitted by law against the Partnership or any of its
Affiliates, or in any way affect or impair the rights of the Agent and the Banks
to take any action permitted by law, in either case to realize upon the
Collateral, (ii) be deemed to release the Partnership or any of its Affiliates,
or any past, present or future shareholder, partner, officer, employee, director
or agent of any thereof, from liability for its fraudulent actions, fraudulent
misrepresentations, gross negligence or willful misconduct or (iii) limit or
affect the obligations and liabilities of any Non-Recourse Party in accordance
with the terms of any other Transaction Document creating such obligations and
liabilities to which such Non-Recourse Party is a party.
Section 9.8 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Partnership, the Agent and the Banks and their
respective successors and assigns, except that the Partnership shall not have
the right to assign any of its rights and obligations hereunder without the
prior written consent of the Required Banks, and, except as provided in Section
9.9, no Bank other than the Issuing Bank shall have the right to assign any of
its rights and obligations hereunder.
Section 9.9 ASSIGNMENTS AND PARTICIPATIONS. (a) Any Bank may at any time
(with the consent of the Partnership, such consent not to be unreasonably
withheld or delayed, the consent of the Agent, such consent not to be
unreasonably withheld or delayed, and the consent of the Issuing Bank) sell to
one or more banks or other entities whose long-term unsecured debt is rated at
least "A-" or the equivalent by S&P and Xxxxx'x (a "PURCHASING BANK") all or any
part of its rights and obligations under this Agreement (which, except in the
case of an assignment to a Person that, immediately before such assignment, was
a Bank), shall be in an amount equal to not less 33 1/3% of the Maximum Stated
Amount pursuant to an Assignment and Acceptance, executed by such Purchasing
Bank, such transferor Bank, the Agent and the Issuing Bank (and, in the case of
a Purchasing Bank that is not then a Bank or an Affiliate thereof, by the
Partnership). Upon (i) such execution of such Assignment and Acceptance and (ii)
delivery of a copy thereof to the Partnership and payment of the amount of its
participation to the Agent or such transferor Bank, such Purchasing Bank shall
for all purposes be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank under this Agreement, to the same extent as if it were
an original party hereto with the Percentage Interest as set forth in such
Assignment and Acceptance, which shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Percentage Interests arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement.
(b) Any Bank may, from time to time, sell or offer to sell participating
interests in any PPA Loans owing to such Bank, such Bank's interest in any
Commitment of such Bank or any other interests and obligations of such Bank
hereunder, to one or more banks or other entities (each, a "PARTICIPANT"), on
such terms and conditions as may be determined by the selling Bank, without the
consent of or notice to the Partnership, and the grant of such participation
shall not relieve any Bank of its obligations, or impair the rights of any Bank,
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank shall remain solely responsible for the performance
of such Bank's obligations under this Agreement, the
28
Partnership, the Agent and the Issuing Bank will continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement and such Bank shall retain the sole right and
responsibility to exercise the rights of such Bank, and enforce the obligations
of the Partnership, including the right, subject to Section 9.1, to approve any
amendment, modification, supplement or waiver of any provision of any Credit
Document and the right to take action under Article 6 hereof, subject to Section
9.1, and such Bank shall not grant any such Participant any voting rights or
veto power over any such action by such Bank under this Agreement. No
Participant shall have any rights under this Agreement to receive payment of
principal, interest or any other amount payable hereunder except through a Bank
and as provided in this Section 9.9. The Partnership agrees that, upon the
occurrence and during the continuance of any Event of Default, each Participant
shall have the right of set-off in respect of its participating interest in
amounts owing under this Agreement as set forth in Section 2.20 hereof to the
same extent as if the amount of its participating interest was owing directly to
it as a Bank under this Agreement. The Partnership also agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
2.18 hereof with respect to its participation granted hereunder; PROVIDED, that
no Participant shall be entitled to receive any greater amount pursuant to such
Sections than the Bank transferring such participation would have been entitled
to receive in respect of the amount of the participation transferred to such
Participant had no such transfer occurred.
(c) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.9, disclose to
the Purchasing Bank or Participant or proposed Purchasing Bank or Participant
any information relating to the Partnership furnished to such Bank by or on
behalf of the Partnership; provided, however, that prior to any such disclosure,
the Person receiving such disclosure shall sign such confidentiality agreements
as the Partnership may reasonably request.
Section 9.10 INDEMNIFICATION. The Partnership agrees to indemnify, on
demand, and hold harmless the Agent and each Bank (including the Issuing Bank)
and each of their respective officers, directors, employees, agents and
affiliates from and against any and all claims, damages, losses, liabilities,
costs and expenses whatsoever that such indemnified party may incur (or that may
be claimed against such indemnified party by any Person) by reason of (i) any
untrue statement or alleged untrue statement of any material fact concerning the
Partnership or the Collateral, or the omission or alleged omission to state any
fact concerning the Partnership or the Collateral necessary to make any such
statement, in light of the circumstances under which it was made, not
misleading; (ii) the issuance, sale or delivery of the Senior Debt; (iii) the
use of the proceeds of the Senior Debt or any Drawing; (iv) any reasonable
action taken by such indemnified party in protecting and enforcing the rights
and remedies of the Agent and the Banks under the Project Documents; (v) subject
to Section 7.2, the execution, delivery or transfer of, or payment or failure to
pay under, the PPA Letter of Credit; (vi) any claim of any Person with respect
to any finder's fee, brokerage commission or other similar sum due in connection
with any Project Document; or (vii) any failure by the Partnership to comply
with any Environmental Laws; PROVIDED, HOWEVER, that the Partnership shall not
be required to indemnify the Issuing Bank for any claims, damages, losses,
liabilities, costs or expenses to the extent caused by the Issuing Bank's
willful misconduct or gross negligence in paying under the PPA Letter of Credit
or the Issuing Bank's willful or grossly negligent failure to pay under the PPA
Letter of Credit after the presentation to it by the beneficiary of a draft and
certificate strictly complying with the
29
terms and conditions of the PPA Letter of Credit (unless the Issuing Bank in
good faith believed itself (based upon an opinion of counsel) to be prohibited
by law or legal authority from making such payment). The Partnership, upon
demand by any party indemnified or intended to be indemnified pursuant to this
Section 9.10 at any time, shall also reimburse such party for any reasonable
legal or other expenses incurred in connection with investigating or defending
against any of the foregoing. If any action, suit or proceeding arising from any
of the foregoing is brought against any party indemnified or intended to be
indemnified pursuant to this Section 9.10 (an "INDEMNIFIED PARTY"), such
Indemnified Party shall promptly notify the Partnership in writing, enclosing a
copy of all papers served, but the omission so to notify the Partnership of any
such action shall not relieve it of any liability that it may have to any
Indemnified Party otherwise than under this Section 9.10; PROVIDED, HOWEVER,
that the Partnership shall not be liable for any settlement of any such action
effected without the Partnership's prior written consent. In case any such
action shall be brought against any Indemnified Party and it shall notify the
Partnership of the commencement thereof, the Partnership shall be entitled to
participate in and, to the extent that it shall wish, to assume the defense
thereof with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the Partnership to such Indemnified Party of the Partnership's
election so to assume the defense thereof, the Partnership shall not be liable
to such Indemnified Party for any subsequent legal or other expenses
attributable to such defense, except as provided below, other than reasonable
costs of investigation subsequently incurred by such Indemnified Party in
connection with the defense thereof. The Indemnified Party shall have the right
to employ its own counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
employment of counsel by such Indemnified Party has been authorized by the
Partnership, (ii) the Indemnified Party shall have reasonably concluded that
there may be a conflict of interest between the Partnership and the Indemnified
Party in the conduct of the defense of such action (in which case the
Partnership shall not have the right to direct the defense of such action on
behalf of the Indemnified Party) or counsel for the Partnership shall have
declined to represent the Indemnified Party in light of a potential conflict of
interest or (iii) the Partnership shall not in fact have employed counsel
reasonably satisfactory to the Indemnified Party to assume the defense of such
action.
Section 9.11 GOVERNING LAW; SUBMISSION OF JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES UNDER THIS
AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ANY LEGAL ACTION OR PROCEEDING AGAINST THE PARTNERSHIP WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX
XX XXX XXXX IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
PARTNERSHIP HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. THE PARTNERSHIP HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND
EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 000 XXXXXX
XXXXXX, 00XX XXXXX, XXX XXXX, XX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT
WITH RESPECT TO ANY ACTION OR PROCEEDING IN NEW YORK TO RECEIVE FOR AND ON ITS
BEHALF, AND IN
30
RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES
AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING AND AGREES
THAT THE FAILURE OF SUCH AGENT TO GIVE ANY ADVICE OF ANY SUCH SERVICE OF PROCESS
TO THE PARTNERSHIP SHALL NOT IMPAIR OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF
ANY CLAIM BASED THEREON. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT
SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE PARTNERSHIP AGREES TO DESIGNATE
A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT. THE PARTNERSHIP FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PARTNERSHIP AT ITS ADDRESS
SET FORTH IN SECTION 9.2, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING.
(b) THE PARTNERSHIP HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN SECTION 9.11(a) ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THIS AGREEMENT OR THE CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 9.12 HEADINGS. The section and subsection headings used herein
have been inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
Section 9.13 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
TENASKA GEORGIA PARTNERS, L.P.,
by Tenaska Georgia, Inc.,
its Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance & Treasurer
PERCENTAGE
COMMITMENT INTEREST
Initial Commitment $15,000,000 100% The Toronto-Dominion Bank
Additional Commitment $10,000,000 100% as Agent, the Issuing Bank
and as a Bank
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager Credit
EXHIBIT A
FORM OF LETTER OF CREDIT
IRREVOCABLE STAND-BY LETTER OF CREDIT NO.________
THE TORONTO-DOMINION BANK
PECO ENERGY COMPANY
[ADDRESS]
[Date]
Dear Sirs:
For the account of Tenaska Georgia Partners, L.P. ("Tenaska"), we hereby
authorize you to draw on us at sight $15,000,000 plus upon and after April 1,
2001, $10,000,000 (giving a total of $25,000,000 less any non-reimbursed draws)
(such amount, or after such date the sum of such amounts, as the same shall be
reduced and reinstated from time to time in accordance with the terms hereof,
being referred to herein as the "Stated Amount").
Funds under this Letter of Credit are available to you against your
sight draft(s) drawn on us and accompanied by a certificate purportedly signed
by your authorized representative in the form of ANNEX A attached hereto.
Presentation of such draft(s) and certificate(s) shall be made at our
office located at ________________, ________________, Attention: ______________
or at any other location _______________ which may be designated by us by
written notice delivered to you. Drafts must be marked "Drawn under [BANK]
Irrevocable Letter of Credit No. ________________". We hereby agree that all
drafts drawn under and in compliance with the terms of this Letter of Credit
will be duly honored by us upon due delivery of the draft(s) and certificate(s)
if presented at such office on or before the termination date hereof.
Payment under this Letter of Credit shall be made in accordance with the
payment instructions set forth in your certificate in the form of ANNEX A.
All drafts, certificates and notices shall be personally delivered to
us.
Upon our receipt of a certificate in the form of ANNEX B attached hereto
from your authorized representative, the Stated Amount will be reduced in
accordance with such certificate.
This Letter of Credit shall automatically terminate and be delivered to
us for cancellation upon the earliest of (i) our receipt of a certificate signed
by your authorized representative in the form of ANNEX C attached hereto, (ii)
the close of business on [DATE], and (iii) 60 days after our delivery to you of
a termination certificate stating that this Letter of Credit will terminate on
such 60th day by reason of an event of default having occurred under the
reimbursement agreement
Ex. B-1
between Tenaska and us. The earlier of the termination dates arising under
clause (ii) and (iii) above is the "Expiry Date."
Partial drawings under this Letter of Credit are permitted. Each drawing
hereunder shall reduce the Stated Amount by the amount paid on such drawing;
provided that a reduction in the Stated Amount may be reinstated by our delivery
to you of a certificate in the form of ANNEX D indicating that the Stated Amount
has been so increased.
This Letter of Credit is subject to the International Standby Practices
(ISP98). This Letter of Credit shall be deemed to be made under the laws of the
State of New York, including Article 5 of the Uniform Commercial Code, and
shall, as to matters not governed by the International Standby Practices
(ISP98), be governed by and construed in accordance with the laws of the State
of New York, excluding any choice of law provisions or conflict of law
principles which would require reference to the laws of any other jurisdiction.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein; and any
such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except for the certificate(s) and such sight
draft(s) referred to herein.
Very truly yours,
[BANK]
By:
--------------------------------------
Ex. B-2
Annex A
DRAWING CERTIFICATE
The undersigned, a duly authorized representative of PECO Energy Company
("PECO"), as the beneficiary of the Irrevocable Letter of Credit No. ___ (the
"Letter of Credit") issued by [BANK] (the "Bank") for the account of Tenaska
Georgia Partners, L.P. ("Tenaska"), certifies as follows to the Bank:
1. Tenaska and PECO are parties to a Power Purchase Agreement dated
August 24, 1999 (the "PPA"). [TENASKA HAS FAILED TO PAY PECO CERTAIN LIQUIDATED
DAMAGES PAYABLE UNDER SECTION 4.02, 8.08, 8.09, 8.10 OR 8.11 OF THE PPA] OR
[TENASKA HAS FAILED TO PAY AN AVAILABILITY ADJUSTMENT DUE UNDER THE PPA.] OR
[THE [EXPIRY DATE BEING THE DATE 7 YEARS AFTER THE ISSUE DATE OF THE LETTER OF
CREDIT] IS TO OCCUR WITHIN 10 DAYS OF THE DATE OF THIS DRAWING CERTIFICATE AND
THE LETTER OF CREDIT HAS NOT BEEN RENEWED OR REPLACED BY AN ACCEPTABLE CREDIT
SUPPORT (AS DEFINED IN THE PPA)] OR [THE [EXPIRY DATE BEING THE DATE 60 DAYS
AFTER DELIVERY OF A TERMINATION CERTIFICATE STATING THAT THIS LETTER OF CREDIT
WILL TERMINATE ON SUCH 60TH DAY BY REASON OF AN EVENT OF DEFAULT HAVING OCCURRED
UNDER TENASKA'S FINANCING DOCUMENTS] IS TO OCCUR WITHIN 30 DAYS OF THE DATE OF
THIS DRAWING CERTIFICATE AND THE LETTER OF CREDIT HAS NOT BEEN RENEWED OR
REPLACED BY AN ACCEPTABLE CREDIT SUPPORT (AS DEFINED IN THE PPA).
2. PECO is entitled to make a drawing under the Letter of Credit in the
amount of $_____. The amount of drawing to be made hereunder does not exceed (a)
(1) the amount of the obligations due and payable by Tenaska to PECO or (2) the
amount required to be posted as cash collateral upon the expiration of an
Acceptable Credit Support to PECO, pursuant to the PPA and (b) the Stated Amount
of the Letter of Credit.
3. All payments to PECO under the Letter of Credit shall be made by wire
transfer of immediately available funds to PECO at [PECO'S BANK], for credit to
account no. _____.
Any capitalized term used herein and not defined shall have its
respective meaning as set forth in the Letter of Credit.
PECO ENERGY COMPANY,
a Pennsylvania corporation
By:
--------------------------------------
Name:
Title:
Ex. B-3
Annex B
CONSENT TO REDUCTION OF LETTER OF CREDIT
Reference is made to the Irrevocable Stand-by Letter of Credit No. ____
(the "Letter of Credit") issued by [BANK] for the account of Tenaska Georgia
Partners, L.P. The undersigned beneficiary of such Letter of Credit hereby
consents to a permanent reduction in the amount available to be drawn under the
Letter of Credit, effective immediately, to
$-------------.
IN WITNESS WHEREOF, PECO Energy Company has executed and delivered this
certificate as of the ____ day of __________.
PECO ENERGY COMPANY,
a Pennsylvania corporation
By:
------------------------------------
Ex. B-4
Annex C
CONSENT TO TERMINATION OF LETTER OF CREDIT
Reference is made to the Irrevocable Stand-by Letter of Credit No. ____
(the "Letter of Credit") issued by [BANK] for the account of Tenaska Georgia
Partners, L.P. The undersigned beneficiary of such Letter of Credit hereby
consents to the termination of the Letter of Credit, effective immediately, and
is surrendering the Letter of Credit for cancellation.
IN WITNESS WHEREOF, PECO Energy Company has executed and delivered this
certificate as of the ____ day of __________, 20__.
PECO ENERGY COMPANY,
a Pennsylvania corporation
By:
------------------------------------
Ex. X-0
Xxxxx X
XXXXXXXXXXX XX XXXXXXXXXXXXX XX XXXXXX AMOUNT
[Date]
PECO
[Address]
Attn:
Ladies and Gentlemen:
Reference is made to [BANK], Letter of Credit No. [ ] Irrevocable
Standby Letter of Credit (the "LETTER OF CREDIT"), dated __________ __, 1999,
issued by us in your favor. Any capitalized term used herein and not defined
shall have its respective meaning as set forth in the Letter of Credit. This
constitutes our notice to you pursuant to the Letter of Credit that $______has
been added to the amount available to be drawn. The Stated Amount is therefore
increased by such amount to $___________.
Very truly yours,
[BANK]
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
Ex. B-6
Annex E
NOTICE OF TERMINATION OF LETTER OF CREDIT
Reference is made to the Irrevocable Stand-by Letter of Credit No. ____
(the "Letter of Credit") issued by [BANK] for the account of Tenaska Georgia
Partners, L.P. The undersigned [BANK] hereby provides notice that this Letter of
Credit will terminate on the 60th day after the date hereof by reason of an
event of default having occurred under the reimbursement agreement between
Tenaska and us.
IN WITNESS WHEREOF, the [BANK] has executed and delivered this
certificate as of the ____ day of __________, 20__.
[BANK]
By:
------------------------------------
Ex. B-7
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________, 200__
Reference is made to the PPA Letter of Credit and Reimbursement
Agreement, dated November 10, 1999 (the "REIMBURSEMENT AGREEMENT"), among
Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"PARTNERSHIP"), the Issuing Bank (as defined in the Reimbursement Agreement),
the Banks (as defined in the Reimbursement Agreement) and the Issuing Bank, as
Agent for the Banks (the "AGENT"). Terms defined in the Reimbursement Agreement
are used herein with the same meaning.
_________________ (the "ASSIGNOR") and ___________________ (the
"ASSIGNEE") agree as follows:
(1) The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the percentage interest
specified on Schedule 1 hereto in and to all of the Assignor's rights and
obligations under the Reimbursement Agreement as of the date hereof (after
giving effect to any other assignments thereof made before the date hereof,
whether or not such assignments have become effective, but without giving effect
to any other assignments thereof also made on the date hereof), including,
without limitation, such Percentage Interest in the Assignor's Commitment, each
of the PPA Loans owing to the Assignor and the PPA Letter of Credit. The
Assignee shall pay to the Assignor, at or before 12:00 noon, local time of the
Assignor, on the Effective Date (as defined below), the purchase price therefor
in an amount equal to the Percentage Interest of each of the PPA Loans owing to
the Assignor, as reflected on Schedule 1 hereto, in immediately available funds.
(2) The Assignor (a) represents and warrants that as of the date hereof
its Commitment, each of the PPA Loans owing to it and its participation in the
PPA Letter of Credit (after giving effect to any other assignments of the
foregoing made before the date hereof, whether or not such assignments have
become effective, but without giving effect to any other such assignments also
made on the date hereof) are in the respective dollar amounts specified therefor
on Schedule 1 hereto; (b) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (c) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any of the Credit
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any of the Credit Documents or any other instrument or
document furnished pursuant thereto; and (d) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Partnership or the performance or observance by the Partnership or any other
Person of any of its obligations under any of the Credit Documents or any other
instrument or document furnished pursuant thereto.
Ex. B-1
(3) The Assignee (a) confirms that it has received copies of the Credit
Documents and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance, including such documents evidencing satisfaction of the conditions
precedent set forth in the Reimbursement Agreement; (b) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Bank (including the Issuing Bank) and based on such documents and information as
it may deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Reimbursement Agreement; (c) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (d) agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Reimbursement Agreement are required to
be performed by it as a Bank; and (e) specifies as its address for notices the
address set forth beneath its name on Schedule 1 hereto.
(4) Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance and
recording by the Agent in the Register maintained by the Agent for such purpose.
The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Agent, unless otherwise specified on Schedule 1 hereto
(the "EFFECTIVE DATE").
(5) Upon such acceptance and recording by the Agent, as of the Effective
Date (a) the Assignee shall be a party to the Reimbursement Agreement and, to
the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Reimbursement Agreement.
(6) Upon such acceptance and recording by the Agent, from and after the
Effective Date the Agent shall make all payments under the Reimbursement
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and the Assignee shall make all appropriate
adjustments directly between themselves in respect of payments of principal,
interest and/or fees under the Reimbursement Agreement for periods before the
Effective Date.
(7) Each of the Assignor and the Assignee agrees that at any time and
from time to time upon the written request of the other party, it will execute
and deliver such further documents and do such further acts and things as the
other party may reasonably request in order to effect the purposes of this
Assignment and Acceptance.
(8) THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES UNDER THIS
ASSIGNMENT AND ACCEPTANCE SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(9) This Assignment and Acceptance is executed by the parties on
Schedule 1 hereto and may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document. Execution of this Assignment
Ex. B-2
and Acceptance by the Agent and the Partnership on Schedule 1 hereto shall
constitute any consent of such Person required pursuant to Section 9.9 of the
Reimbursement Agreement.
Ex. B-3
Schedule 1 to
Assignment and Acceptance
Section 1.
Percentage of Assignor interest
in Drawings, Commitments, and
PPA Loans to be assigned: _______%
Section 2.
Immediately prior to Effective Date:
Assignor's Initial Commitment: $_______
Assignor's Additional Commitment: $_______
Assignor's Total Commitment: $_______
PPA Loans owing to Assignor: $_______
Assignor's participation in remaining
amount of Stated Amount of PPA Letter
of Credit:
Initial Commitment Portion $_______
Additional Commitment Portion $_______
Assignor's Percentage Interest (as
defined in the Reimbursement Agreement) _______%
Section 3.
Upon Effective Date:
Assignor's Initial Commitment: $_______
Assignor's Additional Commitment: $_______
Assignor's Percentage Interest: _______%
Assignee's Initial Commitment: $_______
Assignee's Additional Commitment: $_______
Assignee's Percentage Interest: _______%
Ex. B-4
Section 4.
Effective Date:
----------------------------------
[ASSIGNOR]
By:
------------------------------------
Name:
Title:
[ADDRESS FOR NOTICES]
Consented to on this _____ day of __________, 200__:
[ ],
as Agent and the Issuing Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Consented to on this _____ day of __________, 200__:
TENASKA GEORGIA PARTNERS, L.P.,
by Tenaska Georgia, Inc.,
its Managing General Partner
By:
----------------------------------
Name:
Title:
Ex. B-5
EXHIBIT C
AMORTIZATION SCHEDULE
The principal amount of each PPA LOC Loan shall be due and payable in
semi-annual installments on consecutive Scheduled Payment Dates, commencing on
the first such Scheduled Payment Date to occur after such PPA LOC Loan is made,
and shall in any event be due and payable, to the extent not previously paid on
the applicable PPA LOC Loan Required Payment Date. The Partnership shall pay
interest on any PPA LOC Loan on such Scheduled Payment Date and on the PPA LOC
Loan Required Payment Date out of cash available in the Revenue Account at the
same level in the flow of funds as interest on other Senior Debt and shall repay
the principal amount, if any, of PPA LOC Loans on such Scheduled Payment Dates
and on the PPA LOC Loan Required Payment Date out of 100% of the cash available
in the Revenue Account after payment of Debt Service on all Senior Debt
(including but not limited to DSR LOC Loans) other than principal of PPA LOC
Loans.
The principal amount of each PPA Term Loan shall be due and payable in
semi annual installments on consecutive Scheduled Payment Dates, commencing on
the first such Scheduled Payment Date to occur after such PPA Term Loan is made,
and maturing in full on the applicable PPA Term Loan Required Payment Date. The
amount of principal payable on each such Scheduled Payment Date shall be equal
to the amount of the principal component only of an amortization schedule based
on the foregoing payment schedule and a final maturity date the earlier of (x)
five years from the date on which such PPA Term Loan is made and (y) the Final
Maturity Date and assuming (i) a fixed PER ANNUM interest rate equal to the
interest rate (whether determined with reference to the Adjusted Base Rate or
the Eurodollar Rate) applicable to such PPA Term Loan on such date and (ii)
mortgage-style payments of principal and interest.
Ex. C-1
EXHIBIT D
---------------------- -------------------- -------------------- --------------------
BBB-/Baa3 or BB+/Ba1* BB/Ba2 or
above* below*
---------------------- -------------------- -------------------- --------------------
EurodollarBase Eurodollar Base Eurodollar Base
Rate Rate Rate Rate Rate Rate
Loans Loans Loans Loans Loans Loans
and LOC and LOC and LOC
fees fees fees
---------------------- --------- ---------- ---------- --------- ---------- ---------
Year 1-4 137.5 137.5 bps 150.0 bps 150.0 200.0 bps 200.0
bps bps bps
---------------------- --------- ---------- ---------- --------- ---------- ---------
Year 5-7 150.0 150.0 bps 162.5 bps 162.5 212.5 bps 212.5
bps bps bps
---------------------- --------- ---------- ---------- --------- ---------- ---------
---------------
* In the event of a split rating, the lower rating will be used.
Ex. D-1
