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EXHIBIT A-5
[FORM OF BID NOTE AGREEMENT*]
[Date]
Conectiv
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention:
Re: Uncommitted Credit Facility for Bid Notes
Ladies/Gentlemen:
We are pleased to make available to you an uncommitted credit facility
for general corporate purposes on the terms set forth in this letter (the
"Letter Agreement).
1. We agree to consider from time to time your requests that we make advances
to you, on either an interest bearing or a discount basis ("Advances"), in
an aggregate amount not to exceed at any one time outstanding the amount set
forth on Schedule I hereto as the "Facility Amount", on the terms and
conditions set forth below. This is not a committed line of credit and
Advances hereunder, if any, shall be made by us in our sole desecration.
Nothing contained herein or any other documents executed or delivered
herewith shall be construed to obligate us to make any Advances. This Letter
Agreement sets forth the procedures to be used in connection with your
requests for our making of Advances to you from time to time on or prior to
the termination hereof pursuant to paragraph 9 and, in the event that we
make Advances to you hereunder, your obligations to us with respect thereto.
2. The net amount of each Advance shall be in an amount at least equal to the
amount set forth on Schedule I hereto as the "Minimum Advance Amount" and
shall be made upon (i) your request to us by telephone, facsimile or letter,
given by any of the person listed on Exhibit A hereto or otherwise
designated by you in writing ("Designated Persons"), that you wish to borrow
money on a specified date, in a specified amount and for a specified term
(which shall, in no event, be longer than the number of days set forth on
Schedule I hereto as the "Maximum Term"); and (ii) our mutual agreement as
to such date, amount and term and as to the interest rate per annum or, in
the case of an Advance made on a discount basis, discount applicable to any
such Advance. We shall be entitled to rely upon any instruction which we
reasonably believe to have been given by a Designated Person. On the date of
any such Advance, we will make such Advance available to you in same day
funds by directing our administrative agent to transfer or wire the net
proceeds of such Advance to an account designated in writing by a Designated
Person. Promptly after the date of each Advance, our administrative agent
will send you a written confirmation of such Advance and the amount and term
thereof and the interest rate per annum or, in the case of an Advance made
on a discount basis, the discount applicable thereto. We will enter on our
books and records, the date and amount of each Advance, the interest rate
(or as the case may be, the discount basis) and the term applicable thereto,
as well as the date and amount of each payment made by you.
3. Prior to the making of any Advance hereunder, you shall provide us with an
executed copy of this Letter Agreement; evidence of the due authorization by
you of the execution, delivery and performance by you of this Letter
Agreement; and such other instruments as we shall reasonably require in form
and substance satisfactory to us. Your agreement and acceptance of this
Letter Agreement shall constitute a representation and warranty by you that
(a) the execution, delivery and performance by you of this Letter Agreement
has been duly authorized by all necessary corporate action and does not
contravene any law, or any contractual or legal restriction, applicable to
you and (b) no authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required
for such execution, delivery and performance or for the making of any
Advance.
* THIS IS A GENERIC FORM OF BID NOTE AGREEMENT. INDIVIDUAL NOTES ARE NEGOTIATED
WITH EACH LENDER
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4. Each request by you for an Advance shall constitute a representation and
warranty by you, as of the making of such Advance and giving effect to the
application of the proceeds therefrom, that (i) you shall have performed and
complied with all agreements and conditions required hereunder, (ii) no
condition or event shall exist which constitutes an Event of Default (as
herein defined) or which, with the passage or time, the giving of notice, or
both, would constitute an Event of Default, (iii) such Advance when made
will constitute your legal, valid and binding obligation, (iv) such Advance
is being incurred, and will be repaid at maturity, in the ordinary course of
our business out of the cash flow generated in the normal day-to-day conduct
and operation of your business, and (v) no event has occurred and no
circumstance exists as a result of which the information which you have
provided to us in connection herewith would include an untrue statement of a
material fact or omit to state any material fact or any fact necessary to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
5. You hereby promise to pay to us or our order with respect to each Advance:
(a) in the case of an Advance made on an interest bearing basis, the
principal amount of such Advance made to you, on the date mutually
agreed to by both parties at the time of such Advance as the maturity
date thereof, together with interest on the principal amount of each
Advance outstanding from time to time from and including the date on
which such Advance is made until the maturity date of such Advance, at
an interest rate per annum mutually agreed to by both parties at the
time of such Advance, payable on the maturity date of such Advance; and
(b) in the case of each Advance made on a discount basis to you, the stated
or face amount of such advance on the date mutually agreed to by both
parties at the time of such Advance as the maturity date thereof.
6. If any Advance or other amount is not paid when due, you shall pay interest
on such amount until is paid in full at a rate per annum (the "Default
Rate") equal to ______ percent ( %) above the [Bank] Prime Rate but not more
than the maximum rate allowed by law. As used herein, "[Bank] Prime Rate"
shall mean the rate publicly announced by the [Bank], as its prime rate. The
[Bank] Prime Rate is determined from time to time by [Bank] as a means of
pricing some loans to its borrowers.
7. You shall make each payment hereunder in same day funds on or before 12:00
noon (eastern time) on the day when due in lawful money or the United States
of America to Account No. __________ maintained at [Bank]. All computations
of interest shall be made by us on the basis of a year of 360 days, for the
actual number of days (including the first day but excluding the last day)
elapsed.
8. Whenever any payment to be made hereunder shall be otherwise due on a
Saturday, a Sunday or other day of the year on which commercial banks are
required or authorized to close in _________________(any other day being a
"Business Day", Such payment shall be made on the next succeeding Business
Day.
9. This Letter Agreement may be terminated at any time by either you or us by
notice of such termination to the other party hereto, but no such
termination shall affect your obligations with respect to the Advances
hereunder outstanding at the time of such termination.
10. All notices, demands, requests, consents, approvals and other communications
required or permitted hereunder must be in writing and will be effective
upon receipt if delivered personally to such party, or if sent by facsimile
transmission with confirmation of delivery, or by nationally recognized
overnight courier service, to the address specified on Schedule I hereto or
to such other address as any party may give to the other in writing for such
purpose.
11. You may not assign your rights or obligations hereunder or any interest
herein to any person. We may assign to one or more financial institutions or
other entities all or any part of, or may grant participations to one or
more financial institutions or other entities in or to all or any part of,
any Advance or Advances hereunder without your consent and without notice to
you.
12. You agree to pay on demand all costs, expenses (including reasonable fees
and expenses of counsel) and losses, if any, incurred by us in connection
with the enforcement of this Letter Agreement.
13. You agree to furnish us promptly with such financial statements or other
information as we may reasonably request.
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14. If any of the following events (each, an "Event of Default") shall occur and
be continuing: (a) you shall fail to pay any amount due hereunder when the
same becomes due and payable; or (b) any representation or warranty made by
your (or any of your officers) in connection with any Advance or otherwise
in connection herewith shall prove to have been false, erroneous or
misleading in any material respect when made; or (c) you shall, without our
prior written consent, merge or consolidate with or into, or convey,
transfer, lease or dispose of (whether in one transaction or in a series of
transactions) all or substantially all of your assets to, any person or
entity; or (d) you shall fail to perform or observe any other material term,
covenant or agreement in connection with any Advance or otherwise in
connection herewith on your part to be performed or observed; or (e) you
shall fail to pay any principal of or premium or interest on any Material
Debt (as that term is defined on Schedule I attached hereto), when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Material Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Material Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Material Debt or any such Material Debt shall be declared to be due
and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or (f) any
material adverse change in your businesses, assets, operations, financial
condition or results of operations; or (g) the entry of a Material Final
Judgment against you and your failure to discharge such Material Final
Judgment with in thirty days of the entry thereof; or (h) you shall
generally not pay your debts as such debts become due, or shall admit in
writing your inability to pay your debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against you seeking to adjudicate you as bankrupt or
insolvent or seeking a reorganization for relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for you or any substantial part of your
property; or you shall take any corporate action to authorize any of the
actions set forth above in this subsection (h); then, upon the occurrence of
any such Event of Default, we may declare all amounts payable hereunder to
be forthwith due and payable, whereupon all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind all of which you hereby expressly waive; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to you under the Federal Bankruptcy Code, all such other
amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by you.
15. As long as you shall have any Advances outstanding, you agree that you will
maintain separate lines of credit, with one or more commercial banks, in an
unutilized aggregate amount equal to the amount of all outstanding Advances.
16. Our obligations under this Letter Agreement are solely the corporate
obligations of [Bank]. No recourse shall be had for the payment of any
amount owing by the Bank hereunder or any other obligation or claim of or
against the lender arising out of or based upon the Letter Agreement against
any stockholder, employee, officer, director or incorporator of the Lender.
17. This letter agreement will be interpreted and the rights and liabilities of
the parties hereto determined in accordance with the laws of the
______________________________.
18. No modification, amendment or waiver of any provision of this Letter
Agreement nor consent to any departure by you from the terms thereof, will
in any event be effective unless the same is in writing and signed by us,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which it was given.
19. This Letter Agreement (including the document and instruments referred to
herein) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
20. This Letter Agreement may be signed in any number of counterpart copies and
by the parties hereto on separate counterparts, but all such copies shall
constitute one and the same instrument.
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If the terms of this Letter Agreement are satisfactory to you, please
indicate your agreement and acceptance thereof by signing a counterpart of this
Letter Agreement and returning it to us.
Agreed to and Accept Very truly yours,
CONECTIV [BANK]
By: ______________________________ By: _________________________________
Name: ____________________________ Name: _______________________________
Title: ___________________________ Title _______________________________
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SCHEDULE I
to
Letter Agreement
dated as of
between [Bank] and
Conectiv
(ii) For the purpose of Sections 1 and 2 of the Letter
Agreement: The "Facility Amount" is $ ______ . The
"Minimum Advance Amount is "$ ______ . The "Maximum Term"
is _____ days.
(ii) For the purpose of Section 11 of this Letter Agreement:
The address for written communication to you is:
Conectiv
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:
Telephone:
Fax:
The address for written communications to us is:
(iii) For the purpose of Section 15 of this Letter Agreement, the
term "Material Debt" means indebtedness (other than indebtedness
incurred under this Letter Agreement) in an amount in excess of
$ _________________ .
(iv) For the purpose of Section 15 of this Letter Agreement, the
term "Material Final Judgment" means a judgment for damages in excess of
$ _____________ for which all relief and all appeals have been exhausted
and the time for seeking such relief and taking such appeals has
expired.
(v) For purposes of the Letter Agreement, instructions for wire
transfer of funds to you are:
Name:
Bank ABA Number:
Customer Number:
Reference:
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EXHIBIT A
to
the Letter Agreement
dated as of ________________
between [Bank] and
Conectiv
For the purpose of Section 2 of the Letter Agreement, the "Designated
Persons" are:
Name Title
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________
