EXHIBIT 4.6
EXECUTION COPY
================================================================================
$1,450,000,000
CREDIT AGREEMENT
dated as of December 23, 2003
among
NRG ENERGY, INC.,
NRG POWER MARKETING INC.,
THE LENDERS PARTY HERETO
and
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Administrative Agent
------------------------------
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
and
XXXXXX BROTHERS INC.,
as Joint Lead Book Runners and Joint Lead Arrangers
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
GENERAL ELECTRIC CAPITAL CORPORATION,
as Revolver Agent
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I.
Definitions
SECTION 1.01. Defined Terms.......................................................................... 1
SECTION 1.02. Terms Generally........................................................................ 41
SECTION 1.03. Classification of Loans and Borrowings................................................. 41
SECTION 1.04. Pro Forma Calculations................................................................. 42
ARTICLE II.
The Credits
SECTION 2.01. Commitments............................................................................ 42
SECTION 2.02. Loans.................................................................................. 42
SECTION 2.03. Borrowing Procedure.................................................................... 44
SECTION 2.04. Repayment of Loans; Evidence of Debt................................................... 45
SECTION 2.05. Fees................................................................................... 46
SECTION 2.06. Interest on Loans...................................................................... 48
SECTION 2.07. Default Interest....................................................................... 48
SECTION 2.08. Alternate Rate of Interest............................................................. 48
SECTION 2.09. Termination and Reduction of Commitments; Return, Reduction and Conversion of Credit-
Linked Deposits........................................................................ 49
SECTION 2.10. Conversion and Continuation of Borrowings.............................................. 50
SECTION 2.11. Repayment of Term Borrowings........................................................... 52
SECTION 2.12. Prepayment............................................................................. 53
SECTION 2.13. Mandatory Prepayments.................................................................. 53
SECTION 2.14. Reserve Requirements; Change in Circumstances.......................................... 55
SECTION 2.15. Change in Legality..................................................................... 57
SECTION 2.16. Indemnity.............................................................................. 58
SECTION 2.17. Pro Rata Treatment..................................................................... 58
SECTION 2.18. Sharing of Setoffs..................................................................... 58
SECTION 2.19. Payments............................................................................... 59
SECTION 2.20. Taxes.................................................................................. 59
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate................ 61
SECTION 2.22. Swingline Loans........................................................................ 62
SECTION 2.23. Letters of Credit...................................................................... 63
SECTION 2.24. Credit-Linked Deposit Account.......................................................... 69
ARTICLE III.
Representations and Warranties
SECTION 3.01. Organization; Powers................................................................... 70
SECTION 3.02. Authorization; No Conflicts............................................................ 70
SECTION 3.03. Enforceability......................................................................... 71
SECTION 3.04. Governmental Approvals................................................................. 71
SECTION 3.05. Financial Statements................................................................... 71
SECTION 3.06. No Material Adverse Change............................................................. 72
SECTION 3.07. Title to Properties; Possession Under Leases........................................... 72
SECTION 3.08. Subsidiaries........................................................................... 72
SECTION 3.09. Litigation; Compliance with Laws....................................................... 72
SECTION 3.10. Agreements............................................................................. 73
SECTION 3.11. Federal Reserve Regulations............................................................ 73
SECTION 3.12. Investment Company Act................................................................. 74
SECTION 3.13. Use of Proceeds........................................................................ 74
SECTION 3.14. Tax Returns............................................................................ 74
SECTION 3.15. No Material Misstatements; Recapitalization Documentation.............................. 74
SECTION 3.16. Employee Benefit Plans................................................................. 75
SECTION 3.17. Environmental Matters.................................................................. 75
SECTION 3.18. Insurance.............................................................................. 76
SECTION 3.19. Security Documents..................................................................... 76
SECTION 3.20. Location of Real Property.............................................................. 77
SECTION 3.21. Labor Matters.......................................................................... 77
SECTION 3.22. Liens.................................................................................. 77
SECTION 3.23. Intellectual Property.................................................................. 77
SECTION 3.24. Energy Regulation...................................................................... 78
SECTION 3.25. Solvency............................................................................... 78
ARTICLE IV.
Conditions of Lending
SECTION 4.01. All Credit Events...................................................................... 79
SECTION 4.02. First Credit Event..................................................................... 79
ARTICLE V.
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties................................................... 84
SECTION 5.02. Insurance.............................................................................. 84
SECTION 5.03. Obligations and Taxes.................................................................. 85
SECTION 5.04. Financial Statements, Reports, etc..................................................... 85
SECTION 5.05. Litigation and Other Notices........................................................... 86
SECTION 5.06. Information Regarding Collateral....................................................... 87
SECTION 5.07. Maintaining Records; Access to Properties and Inspections; Environmental Assessments... 87
ii
SECTION 5.08. Use of Proceeds........................................................................ 89
SECTION 5.09. Additional Collateral, etc............................................................. 89
SECTION 5.10. Further Assurances..................................................................... 91
SECTION 5.11. Interest Rate Protection............................................................... 91
SECTION 5.12. Xcel Cash Account; Separate Bank Settlement Cash Account............................... 92
ARTICLE VI.
Negative Covenants
SECTION 6.01. Indebtedness........................................................................... 92
SECTION 6.02. Liens.................................................................................. 95
SECTION 6.03. Sale and Lease-Back Transactions....................................................... 97
SECTION 6.04. Investments, Loans and Advances........................................................ 97
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.............................. 99
SECTION 6.06. Restricted Payments; Restrictive Agreements............................................ 101
SECTION 6.07. Transactions with Affiliates........................................................... 102
SECTION 6.08. Business of the Company and Subsidiaries; Limitation on Hedging Agreements............. 103
SECTION 6.09. Other Indebtedness and Agreements...................................................... 103
SECTION 6.10. Capital Expenditures................................................................... 104
SECTION 6.11. Consolidated Interest Coverage Ratio................................................... 104
SECTION 6.12. Consolidated Leverage Ratio............................................................ 104
SECTION 6.13. Parent Interest Coverage Ratio......................................................... 104
SECTION 6.14. Parent Leverage Ratio.................................................................. 104
SECTION 6.15. Fiscal Year............................................................................ 104
ARTICLE VII.
Events of Default
ARTICLE VIII.
The Agents and the Arrangers
ARTICLE IX.
Miscellaneous
SECTION 9.01. Notices................................................................................ 110
SECTION 9.02. Survival of Agreement.................................................................. 111
SECTION 9.03. Binding Effect......................................................................... 111
SECTION 9.04. Successors and Assigns................................................................. 111
SECTION 9.05. Expenses; Indemnity.................................................................... 115
iii
SECTION 9.06. Right of Setoff........................................................................ 117
SECTION 9.07. Applicable Law......................................................................... 117
SECTION 9.08. Waivers; Amendment..................................................................... 118
SECTION 9.09. Interest Rate Limitation............................................................... 118
SECTION 9.10. Entire Agreement....................................................................... 119
SECTION 9.11. WAIVER OF JURY TRIAL................................................................... 119
SECTION 9.12. Severability........................................................................... 119
SECTION 9.13. Counterparts........................................................................... 120
SECTION 9.14. Headings............................................................................... 120
SECTION 9.15. Jurisdiction; Consent to Service of Process............................................ 120
SECTION 9.16. Confidentiality........................................................................ 120
SECTION 9.17. Joint and Several Liability; Postponement of Subrogation............................... 121
SECTION 9.18. Delivery of Lender Addenda............................................................. 122
Exhibits and Schedules
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Affiliate Subordination Agreement
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Borrowing Request
Exhibit E Form of Collateral Trust Agreement
Exhibit F Form of Guarantee and Collateral Agreement
Exhibit G Form of Lender Addendum
Exhibit H Form of Mortgage
Exhibit I Northeast/South Central Plan
Exhibit J NRG Plan
Exhibit K Form of Perfection Certificate
Exhibit L Form of Revolving Note
Exhibit M Form of Term Note
Exhibit N Form of Opinion of Xxxxxxxx & Xxxxx LLP
Schedule 1.01(a) Excluded Foreign Subsidiaries
Schedule 1.01(b) Excluded Project Subsidiaries
Schedule 1.01(c) Existing Non-Recourse Indebtedness
Schedule 1.01(d) Mortgaged Properties
Schedule 1.01(e) Permitted Encumbrances
Schedule 1.01(f) Surviving Indebtedness
Schedule 1.01(g) Specified Assets Held for Sale
Schedule 1.01(h) Subsidiary Guarantors
Schedule 3.07 Properties
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
iv
Schedule 3.18 Insurance
Schedule 3.19(a) UCC Filing Offices
Schedule 3.19(c) Mortgage Filing Offices
Schedule 3.20 Owned and Leased Real Property
Schedule 3.24 Energy Regulation
Schedule 4.02(g) Capital Structure
Schedule 5.09(b) Title Insurance and Survey Requirements
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.03 Excluded Sale and Lease-Back Transactions
Schedule 6.04 Existing Investments
Schedule 6.06(b) Existing Restrictions and Conditions
v
CREDIT AGREEMENT dated as of December 23, 2003 (this "Agreement"),
among NRG ENERGY, INC., a Delaware corporation (the "Company"), NRG POWER
MARKETING INC., a Delaware corporation ("NRG Power Marketing"), the LENDERS from
time to time party hereto, CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch, and XXXXXX BROTHERS INC., as joint lead book runners and joint
lead arrangers (in such capacities, collectively, the "Arrangers"), CREDIT
SUISSE FIRST BOSTON, acting through its Cayman Islands Branch, as administrative
agent (in such capacity and together with its successors, the "Administrative
Agent") and as collateral agent (in such capacity and together with its
successors, the "Collateral Agent"), XXXXXX COMMERCIAL PAPER INC., as
syndication agent (in such capacity, the "Syndication Agent") and GENERAL
ELECTRIC CAPITAL CORPORATION, as revolver agent (in such capacity and together
with its successors, the "Revolver Agent").
The parties hereto agree as follows:
ARTICLE I.
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Account" shall have the meaning assigned to such term in the UCC.
"Additional Non-Recourse Indebtedness" shall mean secured Indebtedness
for borrowed money of a Subsidiary that is not a Loan Party as of the Closing
Date (so long as such Subsidiary does not become (and remain for a period of 365
days or more) a Subsidiary Guarantor after the Closing Date), or a Subsidiary
that becomes a Subsidiary after the Closing Date, that is incurred to finance
the development, construction or acquisition by such Subsidiary of a power
generation facility (or a power transmission, distribution, fuel supply or fuel
transportation facility), which facility in each case either does not exist as
of the Closing Date (and in respect of which no development or construction
thereof has taken place as of the Closing Date) or is owned by a person other
than the Company or an Affiliate of the Company as of the Closing Date, and
fixed or capital assets related thereto; provided that (a) such Indebtedness is
without recourse to the Company or any other Subsidiary or to any property or
assets of the Company or any other Subsidiary (other than, in each such case,
another Subsidiary (x) which is the direct parent or a direct or indirect
Subsidiary of the Subsidiary that incurred or issued such Indebtedness (other
than any such Indebtedness constituting a Guarantee) or (y) that is a Subsidiary
that itself has Non-Recourse Indebtedness (other than any such Indebtedness
constituting a Guarantee) or is the direct parent or a direct or indirect
Subsidiary of a Subsidiary that itself has Non-Recourse Indebtedness (other than
any such Indebtedness constituting a Guarantee)), (b) neither the Company nor
any other Subsidiary (other than another Subsidiary (x) which is the direct
parent or a direct or indirect Subsidiary of the Subsidiary that incurred or
issued such Indebtedness
(other than any such Indebtedness constituting a Guarantee) or (y) that is a
Subsidiary that itself has Non-Recourse Indebtedness (other than any such
Indebtedness constituting a Guarantee) or is the direct parent or a direct or
indirect Subsidiary of a Subsidiary that itself has Non-Recourse Indebtedness
(other than any such Indebtedness constituting a Guarantee)) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness) or is directly or indirectly liable as a
guarantor or otherwise in respect of such Indebtedness or in respect of the
business or operations of the applicable Subsidiary that is the obligor on such
Indebtedness or any of its subsidiaries (other than (i) any such credit support
or liability consisting of reimbursement obligations in respect of Letters of
Credit issued under, and subject to the terms of, Section 2.23 to support
obligations of such applicable subsidiary and (ii) any investments in such
applicable subsidiary made in accordance with Section 6.04(a)), (c) neither the
Company nor any other Subsidiary or Affiliate of any thereof constitutes the
lender of such Indebtedness, (d) no default with respect to such Indebtedness
(including any rights that the holders of such Indebtedness may have to take
enforcement action against a Subsidiary that is not a Loan Party) would permit
upon notice, lapse of time or both any holder of any other Indebtedness of the
Company or any other Loan Party (other than Indebtedness incurred pursuant to
Section 6.01(a), (b) or (f)) to declare a default on such other Indebtedness or
cause the payment of the Indebtedness to be accelerated or payable prior to its
stated maturity, (e) the Liens securing such Indebtedness shall exist only on
(i) the property and assets of any Subsidiary that is not a Loan Party and (ii)
the Equity Interests in any Subsidiary that is not a Loan Party (and shall not
apply to any other property or assets of the Company or any other Subsidiary
that is a Loan Party) and (f) the lenders of such Indebtedness have been
notified in writing that they will not have any recourse to the stock or assets
of the Company or any other Loan Party, except, in the case of each of clauses
(a), (b) and (f) for (x) agreements of the Company or any other Subsidiary to
provide corporate or management services or operation and maintenance services
to such Subsidiary, (y) Guarantees of the Company or any other Subsidiary with
respect to debt service reserves established with respect to such Subsidiary to
the extent that such Guarantee shall result in the immediate payment of funds,
pursuant to dividends or otherwise, in the amount of such Guarantee to the
Company or such other Subsidiary and (z) contingent obligations of the Company
or any other Subsidiary to make capital contributions to such Subsidiary, in the
case of each of clauses (x), (y) and (z), which are otherwise permitted
hereunder.
"Adjusted Distributed Income" shall mean, for any period, Distributed
Income for such period minus the sum of the following amounts (determined
without duplication), in each case to the extent paid by the Company during such
period and regardless of whether any such amount was accrued during such period:
(a) tax expenses of the Company and the Subsidiaries and (b) general and
administrative expenses, including corporate overhead expenses.
"Adjusted Excess Cash Flow" shall mean, for any fiscal year of the
Company, Excess Cash Flow for such fiscal year minus $25,000,000.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum equal to the
product of (a) the LIBO Rate in effect for such Interest Period and (b)
Statutory Reserves.
"Administrative Agent" shall have the meaning assigned to such term in
the preamble.
2
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified; provided, however, that, (a) for purposes of Section 6.07, the term
"Affiliate" shall also include any person that directly or indirectly owns 10%
or more of any class of Equity Interests in the person specified or that is an
officer or director of the person specified and (b) for purposes of Section
3.24, the term "Affiliate" shall have the meaning assigned to such term in
Section 2(a)(11) of PUHCA.
"Affiliate Subordination Agreement" shall mean an Affiliate
Subordination Agreement in the form of Exhibit B pursuant to which intercompany
obligations and advances owed to any Loan Party are subordinated to the Secured
Obligations hereunder.
"Agents" shall have the meaning assigned to such term in Article VIII.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Agreement" shall have the meaning assigned to such term in the
preamble.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1% and (c) 2.50%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" shall mean, for any day, for each Type of Loan, the
rate per annum set forth under the relevant column heading below:
ABR Loans Eurodollar Loans
--------- ----------------
Revolving Loans and Swingline Loans 3.00% 4.00%
Term Loans 3.00% 4.00%
"Arrangers" shall have the meaning assigned to such term in the
preamble.
"Asset Sale" shall mean the direct or indirect sale, lease (other than
an operating lease entered into in the ordinary course of business), sale and
leaseback, lease and leaseback, assignment, conveyance, transfer, issuance or
other disposition (by way of merger, consolidation,
3
casualty, condemnation, operation of law or otherwise (other than pursuant to a
Recovery Event)) by the Company or any of the Subsidiaries to any person other
than the Company or any Subsidiary Guarantor of (a) any Equity Interests of any
of the Subsidiaries (other than directors' qualifying shares or investments by
foreign nationals required by applicable law) or (b) any other assets of the
Company or any of the Subsidiaries, including Equity Interests of any person
that is not the Company or a Subsidiary; provided that (i) any asset sale or
series of related asset sales described in clause (b) above having a value not
in excess of $5,000,000 shall be deemed not to be an "Asset Sale" for purposes
of this Agreement (other than for purposes of the definition of Designated Asset
Sale Proceeds); and (ii) each of the following transactions shall be deemed not
to be an "Asset Sale" for purposes of this Agreement: (A) the sale, transfer or
other disposition by the Company or any Subsidiary of obsolete assets, scrap and
Permitted Investments, in each case in the ordinary course of business, (B) the
sale by the Company or any Subsidiary of power, capacity, fuel and other
products or services, in each case in the ordinary course of business and
consistent with the terms hereof, (C) the sale by the Company or any Subsidiary
of emission credits in the ordinary course of business, (D) the sale, transfer
or other disposition by any Subsidiary that is not a Loan Party of its assets
(other than any such assets which are Collateral) in connection with a
foreclosure by the applicable lenders with respect to any Indebtedness of such
Subsidiary (or in lieu of such a foreclosure, but not in connection with a
negotiated disposition) to the extent that such assets are collateral security
for such Indebtedness and (E) the sale, transfer or other disposition by any
Subsidiary that is not a Loan Party of any of its assets (other than any such
assets constituting Collateral) to any other Subsidiary that is not a Loan
Party; provided that if such transferor Subsidiary is a Domestic Subsidiary then
such sale, transfer or other disposition may only be to another Domestic
Subsidiary.
"Asset Sale Proceeds Account" shall mean a segregated account under the
exclusive dominion and control of the Collateral Trustee, for the benefit of the
Secured Parties, which is free from any other Liens.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any person whose
consent is required by Section 9.04), substantially in the form of Exhibit C or
such other form as shall be approved by the Administrative Agent.
"Bankruptcy Cases" shall mean the cases filed under Chapter 11 of the
Bankruptcy Code in the Bankruptcy Court by the Company, NRG Northeast and NRG
South Central and certain of their respective subsidiaries (to the extent
subject to the NRG Plan or the Northeast/South Central Plan, as the case may be)
prior to the date hereof.
"Bankruptcy Code" shall mean Title 11 of United States Code, 11 U.S.C.
Sections 101, et seq., as amended from time to time.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Southern District of New York.
"Benchmark LIBO Rate" shall have the meaning assigned to such term in
Section 2.24(b).
4
"Benefit Plan" shall mean any employee pension benefit plan (other than
a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Tax Code or Section 307 of ERISA, and in respect of which the Company
or any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowers" shall mean the Revolving Loan Borrowers and the Term Loan
Borrower.
"Borrowing" shall mean (a) Loans of the same Class and Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" shall mean a request by a Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit D, or
with such changes as may be approved by the Administrative Agent acting
reasonably.
"Breakage Event" shall have the meaning assigned to such term in
Section 2.16.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which commercial banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan
(including with respect to all notices and determinations in connection
therewith and any payments of principal, interest or other amounts thereon), the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Business Plan" shall have the meaning assigned to such term in Section
4.02(q).
"Capital Expenditures" shall mean, for any period, (a) the expenditures
(by expenditure of cash or any other consideration or the incurrence of
Indebtedness) for additions to property, plant and equipment and other capital
expenditures of the Company and its consolidated Subsidiaries that are (or
should be) included in "additions to property, plant and equipment", "capital
expenditures" or other similar items reflected in a consolidated statement of
cash flows of the Company for such period prepared in accordance with GAAP and
(b) Capital Lease Obligations incurred by the Company and its consolidated
Subsidiaries during such period.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) the
Permitted Holders shall own directly or indirectly, beneficially or of record,
Equity Interests representing 50% or more of either the aggregate ordinary
voting power or the aggregate equity value represented by
5
the issued and outstanding Equity Interests in the Company; (b) any "person" or
"group" (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the date hereof) other than the Permitted Holders shall own
directly or indirectly, beneficially or of record, Equity Interests representing
more than 30% of either the aggregate ordinary voting power or the aggregate
equity value represented by the issued and outstanding Equity Interests in the
Company; (c) a majority of the seats (other than vacant seats) on the board of
directors of the Company shall at any time be occupied by persons who are not
Continuing Directors; (d) the Company shall at any time fail to own directly or
indirectly, beneficially and of record, 100% of each class of issued and
outstanding Equity Interests in NRG Power Marketing free and clear of all Liens
(other than Liens created by the Guarantee and Collateral Agreement); or (e) any
change of control (or similar event, however denominated) shall occur under and
as defined in the Senior Note Documents.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.14, by any lending office of
such Lender or by such Lender's or Issuing Bank's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Charges" shall have the meaning assigned to such term in Section 9.09.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Credit Commitment, Term Loan
Commitment, Swingline Commitment or Credit-Linked Deposit.
"Closing Date" shall mean the date of the first Credit Event.
"Collateral" shall mean all property and assets of the Loan Parties,
now owned or hereafter acquired, other than the Excluded Assets.
"Collateral Agent" shall have the meaning assigned to such term in the
preamble.
"Collateral Trust Agreement" shall mean the Collateral Trust Agreement
in the form of Exhibit E, to be executed and delivered by the Company and each
Subsidiary Guarantor.
"Collateral Trust Joinder" shall have the meaning assigned to such term
in the Collateral Trust Agreement.
"Collateral Trustee" shall mean Deutsche Bank Trust Company Americas,
acting as collateral trustee under the Collateral Trust Agreement.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment, Swingline Commitment and
Credit-Linked Deposit.
6
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Commitment Fee Rate" shall mean a rate per annum equal to (a) 1.00%,
if the average daily unused amount of the average Revolving Credit Commitment
during the preceding quarter (or other applicable period) shall equal 66-2/3% or
more of such average Revolving Credit Commitments, (b) 0.75%, if the average
daily unused amount of the average Revolving Credit Commitment during the
preceding quarter (or other applicable period) shall be greater than 33-1/3% but
less than 66-2/3% of such average Revolving Credit Commitment and (c) 0.50%, if
the average daily unused amount of the average Revolving Credit Commitment
during the preceding quarter (or other applicable period) shall be 33-1/3% or
less of such average Revolving Credit Commitment.
"Commitment Letter" shall mean the Commitment Letter dated as of August
19, 2003, among the NRG Entities, Credit Suisse First Boston, acting through its
Cayman Islands Branch, Xxxxxx Brothers Inc. and Xxxxxx Commercial Paper Inc.
"Commodity Account" shall have the meaning assigned to such term in the
UCC.
"Commodity Contract" shall have the meaning assigned to such term in
the UCC.
"Company" shall have the meaning assigned to such term in the preamble.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Company dated December 6, 2003.
"Confirmation Orders" shall mean the NRG Confirmation Order and the
Northeast/South Central Confirmation Order.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) consolidated income tax expense for such
period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) any extraordinary or non-recurring non-cash charges (other than the
write-down of current assets) for such period (including any such non-cash
charges for such period relating to the application of fresh start accounting
principals), (v) any non-cash goodwill or other intangible asset impairment
charges incurred after the date hereof resulting from the application of
Statement Number 142 of the Financial Accounting Standards Board, (vi) any
non-recurring expenses incurred in connection with the Financing Transactions
and (vii) any non-cash compensation charges, including any such charges arising
from stock options, restricted stock grants and other equity incentive programs
(provided that to the extent that all or any portion of the income of any
Subsidiary or other person is excluded from Consolidated Net Income pursuant to
the definition thereof for all or any portion of such period any amounts set
forth in the preceding clauses (i) through (vii) that are attributable to such
Subsidiary or other person shall be not be included for purposes of this clause
(a) for such period or portion thereof), and minus (b) without duplication (i)
all cash payments made during such period on account of reserves, restructuring
charges and other non-cash charges added to Consolidated Net Income pursuant to
clause (a) above in a previous period and (ii) to the extent included in
determining such Consolidated Net Income, any extraordinary gains and all
non-cash items of income for
7
such period, all determined on a consolidated basis in accordance with GAAP;
provided that for purposes of calculating Consolidated EBITDA for any period for
purposes of the covenant set forth in Section 6.12 (A) the Consolidated EBITDA
of any Acquired Entity acquired by the Company or any Subsidiary pursuant to a
Permitted Acquisition during such period for which the aggregate consideration
paid by the Company or any Subsidiary shall be equal to or greater than
$25,000,000 shall be included on a pro forma basis for such period (assuming the
consummation of such acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred as of the first day of such
period) and (B) the Consolidated EBITDA of any person or line of business sold
or otherwise disposed of by the Company or any Subsidiary during such period for
which the aggregate consideration received by the Company or any Subsidiary
shall be equal to or greater than $25,000,000 shall be excluded for such period
(assuming the consummation of such sale or other disposition and the repayment
of any Indebtedness in connection therewith occurred as of the first day of such
period).
"Consolidated Interest Coverage Ratio" shall mean, on any date, the
ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date, taken as one accounting
period, to (b) Consolidated Interest Expense for the period of four consecutive
fiscal quarters most recently ended on or prior to such date, taken as one
accounting period.
"Consolidated Interest Expense" shall mean, for any period, (a) the sum
of, without duplication, (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations and Synthetic Lease Obligations)
of the Company and the Subsidiaries for such period (including all commissions,
discounts and other fees and charges owed by the Company and the Subsidiaries
with respect to letters of credit and bankers' acceptance financing), net of
interest income, in each case determined on a consolidated basis in accordance
with GAAP, plus (ii) any interest accrued during such period in respect of
Indebtedness of the Company or any Subsidiary that is required to be capitalized
rather than included in consolidated interest expense for such period in
accordance with GAAP, minus (b) to the extent included in such consolidated
interest expense for such period, amounts attributable to the amortization of
financing costs and non-cash amounts attributable to the amortization of debt
discounts. For purposes of the foregoing, interest expense shall be determined
after giving effect to any net payments made or received by the Company or any
Subsidiary with respect to interest rate Hedging Agreements.
"Consolidated Leverage Ratio" shall mean, on any date, the ratio of (a)
Total Debt on such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such date, taken
as one accounting period.
"Consolidated Net Income" shall mean, for any period, the net income or
loss before cumulative effect in change of accounting principles of the Company
and the Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded (a) the income of
any Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by the Subsidiary of that income is not, as a result of a
Subsidiary Debt Default, at the time permitted by operation of the terms of the
agreement or other documents governing the Indebtedness under which such
Subsidiary Debt Default shall have occurred (provided that such income of such
Subsidiary shall only be so excluded for that
8
portion of such period during which the condition described in this clause (a)
shall so exist), (b) the income or loss of any person accrued prior to the date
it becomes a Subsidiary or is merged into or consolidated with the Company or
any Subsidiary or the date that such person's assets are acquired by the Company
or any Subsidiary, (c) the income of any person (other than a Subsidiary) in
which any other person (other than the Company or a wholly owned Subsidiary or
any director or foreign national holding qualifying shares in accordance with
applicable law) has an interest, except to the extent of the amount of dividends
or other distributions actually paid to the Company or a wholly owned Subsidiary
by such person during such period, and (d) any gains attributable to sales of
assets out of the ordinary course of business.
"Continuing Directors" shall mean, at any time, any member of the board
of directors of the Company who (a) was a member of such board of directors on
the Closing Date or (b) was nominated for election or elected to such board of
directors with the approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such nomination or election.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" shall have meanings
correlative thereto; provided that when used in connection with the Collateral
Trustee's rights with respect to, or security interest in, any Collateral,
"control" shall have the meaning specified in the UCC with respect to that type
of Collateral.
"Control Agreement" shall mean each Control Agreement to be executed
and delivered by each Loan Party and the other parties thereto, as required by
the Guarantee and Collateral Agreement.
"Core Collateral" shall mean all Equity Interests in, and property and
assets of, XXX Xxx-Xxxxxxxx, XXX Xxxxxxxxx xxx XXX Xxxxx Xxxxxxx and their
respective subsidiaries (other than NRG Sterlington Power LLC, Bayou Cove
Peaking Power LLC and Big Cajun I Peaking Power LLC for so long as such entities
shall constitute Excluded Project Subsidiaries), whether now owned or hereafter
acquired.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Credit-Linked Deposit" shall mean, with respect to each Lender, the
cash deposit, if any, made by such Lender pursuant to Section 2.23(d), as the
same may be (a) reduced from time to time pursuant to Section 2.02(f), 2.09(b)
or 2.09(d) and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The amount of each
Lender's Credit-Linked Deposit on the Closing Date is set forth on the Lender
Addendum delivered by such Lender.
"Credit-Linked Deposit Account" shall mean, collectively, one or more
operating and/or investment accounts of, and established by, the Administrative
Agent under its sole and exclusive control and maintained at the office of the
Administrative Agent located at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(or such other office as the Administrative Agent
9
shall from time to time designate to the Company), in any such case that shall
be used for the purposes set forth in Article II.
"Creditor Notes" shall mean unsecured notes of the Company in an
aggregate principal amount of up to $100,000,000 which may be issued pursuant to
the NRG Plan to certain holders of unsecured pre-petition claims against the
Company and NRG Power Marketing to the extent that the Company does not maintain
a reserve for such claims after the Closing Date; provided that such notes (a)
shall have an interest rate not to exceed 10%, (b) shall not be Guaranteed by
any of the Subsidiaries and (c) shall not have a stated maturity, and shall not
be subject to mandatory repurchase, redemption or amortization (other than
pursuant to customary asset sale or change of control provisions requiring
redemption or repurchase only if and to the extent permitted by this Agreement),
prior to the date that is seven years following the Closing Date.
"Default" shall mean any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would constitute an Event
of Default.
"Deposit Account" shall have the meaning assigned to such term in the
UCC.
"Designated Asset Sale Proceeds" shall mean (a) Net Asset Sale Proceeds
received by the Company or any Subsidiary in respect of an Asset Sale (other
than an Asset Sale that relates to the Specified Assets Held for Sale), which
(i) not later than the 330th day following the consummation of the applicable
Asset Sale are so designated by the Company or such Subsidiary, as the case may
be, pursuant to a notice (a "Designated Asset Sale Notice") delivered to the
Administrative Agent specifying the amount thereof, the Permitted Acquisition to
which such Net Asset Sale Proceeds will be applied and the amount of any
Permitted Acquisition Indebtedness to be incurred in connection therewith and
(ii) are, within 365 days of the date of receipt thereof applied to consummate
the Permitted Acquisition specified in such Designated Asset Sale Notice in the
amount so specified and (b) Net Asset Sale Proceeds from Asset Sales that relate
to the Specified Assets Held for Sale.
"Designated Country" shall mean Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the
Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, the
United Kingdom, the United States and any other country that shall at any time
after the Closing Date become a member state of the European Union.
"Designated Non-Recourse Indebtedness" shall mean the Non-Recourse
Indebtedness of NRG Peaker Finance Co. LLC existing on the date hereof.
"Disclosure Statement" shall mean the Third Amended Disclosure
Statement for Debtors' second amended joint plan of reorganization pursuant to
Chapter 11 of the Bankruptcy Code dated as of October 10, 2003, as approved by
the Bankruptcy Court on October 14, 2003.
"Distributed Income" shall mean, for any period, the sum of the
following amounts (determined without duplication, and excluding any amount that
previously represented Distributed Income for purposes of this definition), but
only to the extent received in cash by the Company from a Subsidiary during such
period: (a) dividends paid to the Company by the Subsidiaries during such
period, (b) consulting and management fees paid to the Company by the
10
Subsidiaries during such period, (c) tax sharing payments made to the Company by
the Subsidiaries during such period and (d) interest and other cash payments
made to the Company by the Subsidiaries during such period other than (i)
returns of invested capital, except for returns on invested capital in
accordance with the ordinary course of business, (ii) payments of the principal
of Indebtedness of any such Subsidiary to the Company and (iii) payments in an
amount equal to the aggregate amount released from debt service reserve accounts
upon the issuance of Guarantees by any Loan Party or letters of credit for the
account of any Loan Party and for the benefit of the beneficiaries of such
accounts. For purposes of determining Distributed Income, proceeds received by
the Company, directly or indirectly from a Subsidiary, from Asset Sales,
Recovery Events, Equity Issuances or the incurrence of Indebtedness or any
merger, consolidation, liquidation or dissolution shall not be included in
Distributed Income for any period.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated,
formed or organized under the laws of the United States of America, any State
thereof or the District of Columbia.
"Easement" shall have the meaning assigned to such term in Section
3.07.
"Engagement Letter" shall mean the Engagement Letter dated as of August
19, 2003, among the NRG Entities, Xxxxxx Brothers Inc. and Credit Suisse First
Boston LLC.
"Environmental Laws" shall mean all former, current and future Federal,
state, local and foreign laws (including common law), treaties, regulations,
rules, ordinances and codes, and legally binding decrees, judgments, directives
and orders (including consent orders), in each case, relating to protection of
the environment, natural resources, occupational health and safety or the
presence, Release of, or exposure to, Hazardous Materials, or the generation,
manufacture, processing, distribution, use, treatment, storage, transport,
recycling or handling of, or the arrangement for such activities with respect
to, Hazardous Materials.
"Environmental Liability" shall mean all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a partnership or limited liability company, beneficial interests in
a trust or other equity interests in any person, or any obligations convertible
into or exchangeable for, or giving any person a right, option or warrant to
acquire, such equity interests or such convertible or exchangeable obligations.
"Equity Issuance" shall mean any issuance or sale by the Company of any
Equity Interests of the Company, or the receipt by the Company of any capital
contribution, as
11
applicable, except in each case for (a) any receipt of any capital contribution
from any Subsidiary, (b) any issuance of directors' qualifying shares or any
issuance of shares to foreign nationals required by applicable law, (c) sales or
issuances of common stock or other Equity Interests of the Company to management
or employees of the Company or any Subsidiary under any employee stock option or
stock purchase plan or employee benefit plan in existence from time to time in
the ordinary course of business or (d) any issuance of Equity Interests pursuant
to the Recapitalization as provided in the NRG Plan.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Tax Code, or solely for purposes of Section
302 of ERISA and Section 412 of the Tax Code, is treated as a single employer
under Section 414 of the Tax Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Benefit Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Benefit Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Tax Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Tax Code
or Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Benefit Plan; (d) the incurrence by the Company or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Benefit Plan or the withdrawal or partial
withdrawal of the Company or any of its ERISA Affiliates from any Benefit Plan
or Multiemployer Plan; (e) the receipt by the Company or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Benefit Plan or Plans or to appoint a trustee to
administer any Benefit Plan; (f) the adoption of any amendment to a Benefit Plan
that would require the provision of security pursuant to Section 401(a)(29) of
the Tax Code or Section 307 of ERISA; (g) the receipt by the Company or any of
its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from the Company or any of its ERISA Affiliates of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; or (h) the occurrence of a material non-exempt "prohibited
transaction" with respect to which the Company or any of the Subsidiaries is a
"disqualified person" (within the meaning of Section 4975 of the Tax Code) or
with respect to which the Company or any such Subsidiary could otherwise be
liable.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Company, the
excess of (a) the sum, without duplication, of the cash flow from operations
determined on an unconsolidated
12
basis in accordance with GAAP of the Company and the Subsidiaries and, to the
extent of the Company's or any Subsidiary's interest therein, any person (other
than a Subsidiary) in which the Company or any Subsidiary has an interest;
provided that there shall be excluded the cash flow from operations of any
Subsidiary or other person in which the Company or any Subsidiary has an
interest to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary or such other person of that cash flow from
operations is not at the time permitted by operation of the terms of its
governing documents or any agreement, instrument, judgment, decree, statute,
rule or governmental regulation applicable to such Subsidiary, over (b) the sum,
without duplication, of (i) the cash outflow from investments determined on an
unconsolidated basis in accordance with GAAP of the Company and the Subsidiaries
and, to the extent of the Company's or any Subsidiary's interest therein, any
person (other than a Subsidiary) in which the Company or any Subsidiary has an
interest, (ii) permanent repayments of Indebtedness (other than mandatory
prepayments of Loans under Section 2.13) made by the Company and the
Subsidiaries during such fiscal year, but only to the extent that such
prepayments by their terms cannot be reborrowed or redrawn and do not occur in
connection with a refinancing of all or any portion of such Indebtedness and
(iii) to the extent reflected in cash flow from operations of the Company and
the Subsidiaries for such period, any Xcel Cash.
"Excess Credit-Linked Deposits" shall mean, at any time, the excess, if
any, of the Total Credit-Linked Deposit over the aggregate Funded L/C Exposure
at such time.
"Excluded Assets" shall mean (i) any lease, license, contract, property
right or agreement to which any Loan Party is a party or any of such Loan
Party's rights or interests thereunder if and only for so long as the grant of a
security interest therein under the Security Documents shall constitute or
result in a breach, termination or default or invalidity under any such lease,
license, contract, property right or agreement (other than to the extent that
any such term would be rendered ineffective pursuant to Sections 9-406, 9-407,
9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable
law or principles of equity); provided that such lease, license, contract,
property right or agreement shall be an Excluded Asset only to the extent and
for so long as the consequences specified above shall result and shall cease to
be an Excluded Asset and shall become subject to the security interest granted
under the Security Documents, immediately and automatically, at such time as
such consequences shall no longer result; (ii) any interests in real property
owned or leased by any Loan Party only for so long as such interest represents
an Excluded Perfection Asset; (iii) any Equity Interests in any Excluded Project
Subsidiary the pledge of which pursuant to the Security Documents would
constitute a default under the applicable Non-Recourse Indebtedness in respect
of which it is an obligor and any voting Equity Interests in excess of 66% (or,
in the case of NRG International Holdings GmbH, NRG International Holdings
(No.2) GmbH and NRGenerating International BV, 65%) of the total outstanding
voting Equity Interests in any Excluded Foreign Subsidiary; (iv) any Deposit
Account, Securities Account or Commodities Account (and all cash, Permitted
Investments and Commodity Contracts held therein) if and only for so long as
such Deposit Account, Securities Account or Commodities Account is subject to a
Lien permitted under Section 6.02(g)(ii); (v) the Equity Interests in, and all
properties and assets of, NRG Energy Insurance Ltd. (Cayman Islands); (vi) the
Equity Interests in, and all properties and assets of, NRGenerating Holdings
(No. 4) GmbH (only for so long as such entity shall remain a direct subsidiary
of NRG International LLC and shall have no assets other than those owned on the
date hereof), NRGenerating III (Gibraltar), NRGenerating Holdings (No. 23) BV,
NRGenerating
13
IV Gibraltar, ONSITE Marianas Corporation, NGR Pacific Corporate Services Pty
Ltd., Coniti Holding BV (only for so long as such entity shall own no assets
other than the Equity Interests in Tosli (Gibraltar) BV) and Tosli (Gibraltar)
BV (only for so long as such entity shall own no assets); (vii) the Equity
Interests in, and all properties and assets of, NRG Latin America Inc., Sterling
Luxembourg (No. 4) S.a.r.l, NRGenerating Luxembourg (No. 6) S.a.r.l.,
NRGenerating Holdings (No. 21) BV (only for so long as such entity shall own no
assets other than the stock of its subsidiaries owned on the date hereof) and
Compania Boliviana de Energia Elexctrica S.A. (Cobee Nova Scotia); (viii) the
Equity Interests in NRG Sterlington Power LLC and Big Cajun I Peaking Power LLC
for so long as such Equity Interests are pledged within 90 days of the Closing
Date to the lenders of Non-Recourse Indebtedness of NRG Peaker Finance Co. LLC
existing on the date hereof; (ix) any Equity Interest of a person (other than a
Subsidiary) held by any Loan Party if and for so long as the pledge thereof
under the Security Documents shall constitute or result in a breach, termination
or default under any joint venture, stockholder or partnership agreement between
such Loan Party and one or more other holders of Equity Interests of such
person; provided that (A) such Loan Party shall have used reasonable efforts to
obtain the consent or waiver of such other holders of Equity Interests of such
person to such a pledge and such consent or waiver shall not have been obtained
and (B) such Equity Interest shall be an Excluded Asset only to the extent and
for so long as the consequences specified above shall result and shall cease to
be an Excluded Asset and shall become subject to the security interest granted
under the Security Documents, immediately and automatically, at such time as
such consequences shall no longer result; (x) all personal property and
equipment (except two heat recovery steam generators) of Meriden Gas Turbines
LLC; provided that such equipment is transferred to Dick Corporation within 180
days of the Closing Date; (xi) all properties and assets of the Company's
resource recovery facility located at North Newport, MN and all properties and
assets of the Company's resource recovery facility located at Elk River, MN if
and for so long as the grant of a security interest therein under the Security
Documents shall constitute or result in a breach, termination or default under
any service agreement with the applicable municipalities in which such
facilities reside; provided that (A) the Company shall have used reasonable
efforts to obtain the consent or waiver of such municipalities to the grant of
such security interests and such consent or waiver shall not have been obtained
and (B) such properties and assets shall be an Excluded Asset only to the extent
and for so long as the consequences specified above shall result and shall cease
to be an Excluded Asset and shall become subject to the security interest
granted under the Security Documents, immediately and automatically, at such
time as such consequences shall no longer result; (xii) any Account of NRG Power
Marketing solely to the extent that (x) such Account relates to the sale by NRG
Power Marketing of power or capacity that was purchased by NRG Power Marketing
from a Subsidiary that is an Excluded Project Subsidiary and (y) the grant of a
security interest in such Account under the Security Documents shall constitute
or result in a breach, termination or default under any agreement or instrument
governing the applicable Existing Non-Recourse Indebtedness of such Subsidiary
(as such agreement or instrument is in effect on the date hereof); (xiii) the
Deposit Account (and all cash held therein not to exceed $37,000,000) which has
been pledged to ANZ Bank to cash collateralize a letter of credit issued by ANZ
Bank and the Deposit Account (and all cash held therein not to exceed $600,000)
which has been pledged to Xxxxxx Bank to cash collateralize a letter of credit
issued by Xxxxxx Bank; provided that each such Deposit Account (and all cash
held therein) shall automatically cease to be an Excluded Asset from and after
the date that is 60 days after the Closing Date, (xiv) the Equity Interests in
(x)
14
either of the NEO Companies and (y) any of Commonwealth Atlantic Power LLC,
Hanover Energy Company, Chickahominy River Energy Corp. or Commonwealth Atlantic
Power Limited Partnership, in the case of each of clause (x) and (y) to the
extent that a grant of a security interest in such Equity Interests under the
Security Documents shall constitute or result in a breach, termination or
default under any agreement or instrument governing the applicable Existing
Non-Recourse Indebtedness of their subsidiaries (as such agreement or instrument
is in effect on the date hereof); provided that the Equity Interests in the
entities listed in clause (y) shall automatically cease to be Excluded Assets
from and after the date that is 180 days after the Closing Date; (xv) the
Deposit Account established by the Company pursuant to the NRG Plan in respect
of the Consolidated Edison dispute and all cash held therein not to exceed (x)
$11,700,000 as of the Closing Date plus (y) any amounts required by the NRG Plan
to be deposited therein in respect of invoices owing to Consolidated Edison;
provided that such Deposit Account (and all cash therein) shall automatically
cease to be an Excluded Asset from and after the date that such dispute is
resolved and (xvi) the Xcel Cash Account and all Xcel Cash therein.
"Excluded Capital Expenditures" shall mean, for any period, any Capital
Expenditures made by the Company and the Subsidiaries during such period with
the net cash proceeds from Asset Sales or Recovery Events during such period;
provided that (a) any such Capital Expenditure is made within 365 days of
receipt of such net cash proceeds and (b) the assets acquired in connection with
any such Capital Expenditure are productive assets of a kind then used or usable
in the business of the Company and the Subsidiaries as then conducted or
proposed to be conducted in such time period pursuant to the Business Plan and,
if such proceeds result from the sale of assets that constitute Collateral
(other than the Specified Assets Held for Sale), such proceeds shall only be
used to acquire assets that will constitute Collateral.
"Excluded Entities" shall mean (a) those entities the Equity Interests,
properties and assets of which represent "Excluded Assets" pursuant to clauses
(vi) and (vii) of such definition, (b) those entities the Equity Interests of
which represent "Excluded Assets" pursuant to clause (ix) of such definition,
(c) those entities that are deemed to be "Excluded Foreign Subsidiaries"
pursuant to clause (ii) of the proviso contained in such definition and (d)
those entities that are deemed to not be "Material Subsidiaries" pursuant to the
proviso contained in such definition (other than the Peakers Entities).
"Excluded Foreign Subsidiaries" shall mean, at any time, any Foreign
Subsidiary that is (or is treated as) for United States federal income tax
purposes either (a) a corporation or (b) a pass-through entity owned directly or
indirectly by another Foreign Subsidiary that is (or is treated as) a
corporation; provided that (i) none of NRG Mid-Atlantic, NRG Northeast or NRG
South Central or any of their respective subsidiaries may at any time be an
Excluded Foreign Subsidiary and (ii) notwithstanding the foregoing, the
following entities will be deemed to be "Excluded Foreign Subsidiaries":
Sterling Luxembourg (No. 4) S.a.r.l., Tosli Acquisition BV, NRGenerating
Luxembourg (No. 6) S.a.r.l., NRGenerating Holdings (No. 4) GmbH (only for so
long as such entity shall remain a direct subsidiary of NRG International LLC
and shall have no assets other than those owned on the date hereof),
NRGenerating Holdings (No. 3) Gibraltar, NRGenerating Holdings (No. 23) BV, NRG
Pacific Corporate Services Pty Ltd., NRGenerating III (Gibraltar), NRGenerating
IV (Gibraltar), Coniti Holding BV (only for so long as such entity shall own no
assets other than the Equity Interests in Tosli (Gibraltar)
15
BV) and Tosli (Gibraltar) BV (only for so long as such entity shall own no
assets). The Excluded Foreign Subsidiaries on the Closing Date are set forth on
Schedule 1.01(a).
"Excluded Perfection Assets" shall mean (a) any Specified Assets Held
for Sale if and only to the extent that the grant of a security interest with
respect thereto cannot be perfected by the filing of a financing statement under
the UCC of the relevant jurisdiction or, in the case of any Specified Assets
Held for Sale that consist of Equity Interests, either the filing of a financing
statement under the UCC of the relevant jurisdiction or the possession of
certificates representing such Equity Interests; provided that any of such
Specified Assets Held for Sale that are not sold or otherwise disposed of by the
Company or any of the Subsidiaries to any person other than the Company or any
of the Subsidiaries within 12 months of the Closing Date shall cease to be an
Excluded Perfection Asset; and (b) any other property or assets (other than any
Core Collateral except (i) the lease of Dunkirk Power LLC relating to 000 Xxxxxx
Xxxxxx, Xxxxxxx, XX, (ii) the lease of Astoria Gas Turbine Power LLC relating to
the Consolidated Edison site located at 00-00 00xx Xxxxxx, Xxxxxxx, XX, (xxx)
the lease of Astoria Gas Turbine Power LLC relating to the A-11 dock located at
00-00 00xx Xxxxxx, Xxxxxxx, XX, (iv) the lease of NRG New Roads Holding LLC
relating to the turbine storage facilities located at GTS Duratek, 0000 Xxxx
Xxxxxx, Xxxxxxx, XX, (v) the lease of NRG New Roads Holding LLC relating to the
turbine storage facilities located at Liebherr American Inc., 0000 Xxxxxxxx,
Xxxxxxx Xxxx, XX and (vi) the lease of NRG New Roads Holding LLC relating to the
warehouse facilities for turbine storage located at Tidewater Warehouses, Bay 3,
000 Xxxxxx Xxxxxx, Xxxxxxx, XX) in which a security interest cannot be perfected
by the filing of a financing statement under the UCC of the relevant
jurisdiction or, in the case of Equity Interests, either the filing of a
financing statement under the UCC of the relevant jurisdiction or the possession
of certificates representing such Equity Interests; provided that such property
or assets shall not have a fair market value at any time exceeding $2,000,000
(or, if such property or asset is a Deposit Account or Securities Account,
$250,000) individually or $20,000,000 in the aggregate and, to the extent that
the fair market value of any such property or asset shall exceed $2,000,000 (or,
if such property or asset is a Deposit Account or Securities Account, $250,000)
individually, such property or asset shall cease to be an Excluded Perfection
Asset and, to the extent that the fair market value of such property or assets
shall exceed $20,000,000 in the aggregate at any time, such property or assets
shall cease to be Excluded Perfection Assets to the extent of such excess fair
market value.
"Excluded Project Subsidiaries" shall mean, at any time, (a) any
Subsidiary existing as of the Closing Date that is an obligor with respect to
Existing Non-Recourse Indebtedness outstanding at such time and (b) any
Subsidiary that is set forth on Schedule 1.01(b) as of the Closing Date (so long
as such Subsidiary does not become (and remain for a period of 365 days or more)
a Subsidiary Guarantor after the Closing Date) or any Subsidiary that becomes a
Subsidiary after the Closing Date that is an obligor with respect to Additional
Non-Recourse Indebtedness outstanding at such time, in each case if and for so
long as the grant of a security interest in the property or assets of such
Subsidiary or the pledge of the Equity Interests of such Subsidiary, in each
case in favor of the Collateral Trustee for the benefit of the Secured Parties,
shall constitute or result in a breach, termination or default under the
agreement or instrument governing the applicable Non-Recourse Indebtedness;
provided that such Subsidiary shall be an Excluded Project Subsidiary only to
the extent that and for so long as the requirements and consequences above shall
exist; provided further that none of NRG Mid-Atlantic, NRG Northeast or NRG
South Central or any of their respective subsidiaries (other than NRG
16
Sterlington Power LLC, Bayou Cove Peaking Power LLC and Big Cajun I Peaking
Power LLC for so long as such entities shall constitute Excluded Project
Subsidiaries) may at any time be an Excluded Project Subsidiary. The Excluded
Project Subsidiaries on the Closing Date are set forth on Schedule 1.01(b).
"Excluded Subsidiary" shall mean an Excluded Foreign Subsidiary or an
Excluded Project Subsidiary.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Bank and any other recipient of any payment to be made
by or on account of any obligation of a Borrower hereunder, and, for purposes of
Section 2.20 only, by or on account of any obligation of the Administrative
Agent pursuant to Section 2.24(b), (a) income or franchise taxes imposed on (or
measured by) each such person's net income by the United States of America, or
as a result of a present or former connection between such recipient and the
jurisdiction imposing such tax (or any political subdivision thereof), other
than any such connection arising solely from such recipient having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by a Borrower under Section
2.21(a)), any United States withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.20(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from such Borrower with respect to such withholding tax pursuant to
Section 2.20(a) or (b).
"Existing Non-Recourse Indebtedness" shall mean secured Indebtedness
for borrowed money outstanding as of the Closing Date of a Subsidiary (or of
Cadillac Renewable Energy LLC) existing as of the Closing Date and any Permitted
Refinancing Indebtedness in respect of such Indebtedness that was incurred to
finance the development, construction or acquisition of or by, or repairs,
improvements or additions to, fixed or capital assets of such Subsidiary
(including power generation facilities); provided that, except as set forth on
Schedule 1.01(c), (a) such Indebtedness is without recourse to the Company or
any other Subsidiary or to any property or assets of the Company or any other
Subsidiary (other than, in each such case, another Subsidiary (x) which is the
direct parent or a direct or indirect Subsidiary of the Subsidiary that incurred
or issued such Indebtedness (other than any such Indebtedness constituting a
Guarantee) or (y) that is a Subsidiary that itself has Non-Recourse Indebtedness
(other than any such Indebtedness constituting a Guarantee) or is the direct
parent or a direct or indirect Subsidiary of a Subsidiary that itself has
Non-Recourse Indebtedness (other than any such Indebtedness constituting a
Guarantee)), (b) neither the Company nor any other Subsidiary (other than
another Subsidiary (x) which is the direct parent or a direct or indirect
Subsidiary of the Subsidiary that incurred or issued such Indebtedness (other
than any such Indebtedness constituting a Guarantee) or (y) that is a Subsidiary
that itself has Non-Recourse Indebtedness (other than any such Indebtedness
constituting a Guarantee) or is the direct parent or a direct or indirect
Subsidiary of a Subsidiary that itself has Non-Recourse Indebtedness (other than
any such Indebtedness constituting a Guarantee)) provides credit support of any
kind (including any undertaking, agreement or instrument that would constitute
Indebtedness) or is directly or indirectly liable as a guarantor or
17
otherwise in respect of such Indebtedness or in respect of the business or
operations of the applicable Subsidiary that is the obligor on such Indebtedness
or any of its subsidiaries (other than (i) any such credit support or liability
consisting of reimbursement obligations in respect of Letters of Credit issued
under, and subject to the terms of, Section 2.23 to support obligations of such
applicable subsidiary and (ii) any investments in such applicable subsidiary
made in accordance with Section 6.04(a)), (c) neither the Company nor any other
Subsidiary or Affiliate of any thereof constitutes the lender of such
Indebtedness, (d) no default with respect to such Indebtedness (including any
rights that the holders of such Indebtedness may have to take enforcement action
against a Subsidiary that is not a Loan Party) would permit upon notice, lapse
of time or both any holder of any other Indebtedness of the Company or any other
Loan Party (other than Indebtedness incurred pursuant to Section 6.01(a), (b) or
(f)) to declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its stated maturity and (e)
the Liens securing such Indebtedness shall exist only on (i) the property and
assets of any Subsidiary that is not a Loan Party and (ii) the Equity Interests
in any Subsidiary that is not a Loan Party (and shall not apply to any other
property or assets of the Company or any other Subsidiary that is a Loan Party),
except, in the case of each of clauses (a) and (b) for (x) agreements of the
Company or any other Subsidiary to provide corporate or management services or
operation and maintenance services to such Subsidiary, (y) Guarantees of the
Company or any other Subsidiary with respect to debt service reserves
established with respect to such Subsidiary to the extent that such Guarantee
shall result in the immediate payment of funds, pursuant to dividends or
otherwise, in the amount of such Guarantee to the Company or such other
Subsidiary and (z) contingent obligations of the Company or any other Subsidiary
to make capital contributions to such Subsidiary, in the case of each of clauses
(x), (y) and (z), which are otherwise permitted hereunder.
"Federal Funds Effective Rate" shall mean, for any day, 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 on the
next succeeding 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 the day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated as of August 19, 2003,
among the NRG Entities, Credit Suisse First Boston, acting through its Cayman
Islands Branch, Xxxxxx Brothers Inc. and Xxxxxx Commercial Paper Inc.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
any Prepayment Fee, the L/C Participation Fees and the Issuing Bank Fees.
"FERC" shall mean the Federal Energy Regulatory Commission or its
successor.
"Financial Institution" shall mean a bank, an investment bank or an
Affiliate of a bank or an investment bank.
"Financial Officer" of any person shall mean any of the chief financial
officer (or if no individual shall have such designation, the person charged by
the board of directors of such
18
person with such powers and duties as are customarily bestowed upon the
individual with such designation) or the audit or finance committee of the board
of directors of such person.
"Financing Transactions" shall mean the negotiation, execution,
delivery and performance by each Loan Party of each Loan Document and each
Senior Note Document to which it is a party.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrowers are incorporated or
organized. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"FPA" shall mean the Federal Power Act and the rules and regulations
promulgated thereunder, as amended from time to time.
"Funded Issuing Bank Fees" shall have the meaning assigned to such term
in Section 2.05(d).
"Funded L/C Commitment" shall mean the commitment of the Issuing Bank
to issue Funded Letters of Credit pursuant to Section 2.23.
"Funded L/C Disbursements" shall mean a payment or disbursement made by
the Issuing Bank pursuant to a Funded Letter of Credit.
"Funded L/C Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Funded Letters of Credit at such
time and (b) the aggregate amount of all Funded L/C Disbursements that have not
yet been reimbursed at such time (or deemed to have not yet been reimbursed at
such time pursuant to Section 2.23(e)). The Funded L/C Exposure of any Term
Lender at any time shall equal its Pro Rata Percentage of the aggregate Funded
L/C Exposure at such time.
"Funded L/C Fee Payment Date" shall have the meaning assigned to such
term in Section 2.05(d).
"Funded L/C Participation Fee" shall have the meaning assigned to such
term in Section 2.05(d).
"Funded Letter of Credit Availability Period" shall mean the period
from and including the Closing Date to but excluding the earlier of the Funded
Letter of Credit Maturity Date and the date on which all of the Credit-Linked
Deposits are returned to the Term Lenders, utilized to reimburse the Issuing
Bank for Funded L/C Disbursements or converted into Term Loans.
"Funded Letter of Credit Maturity Date" shall mean the Term Loan
Maturity Date.
19
"Funded Letter of Credit" shall mean, at any time, any Letter of Credit
that has been designated by the Term Loan Borrower (or deemed designated) as a
Funded Letter of Credit in accordance with the provisions of Section 2.23.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Good Utility Practices" shall mean any of those practices, methods,
standards and acts (including the practices, methods, standards and acts engaged
in or approved by a significant portion of the electric power generation
industry in the United States) that, at a particular time, in the exercise of
reasonable judgment in light of the facts known or that should have reasonably
been expected to have been known at the time a decision was made, could have
reasonably been expected to accomplish the desired result consistent with good
business practices, reliability, economy, safety and expedition, and which
practices, methods, standards and acts conform in all material respects to
applicable law, permits and other governmental approvals.
"Governmental Authority" shall mean the government of the United States
of America or any other nation, any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Granting Lender" shall have the meaning assigned to such term in
Section 9.04(i).
"Guarantee" of or by any person (the "guarantor") shall mean any
obligation, contingent or otherwise, of (a) the guarantor or (b) another person
(including any bank under a letter of credit) to induce the creation of which
the guarantor has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation, contingent or otherwise, of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation or (v) to otherwise assure or hold harmless the owner
of such Indebtedness or other obligation against loss in respect thereof;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee and Collateral Agreement" shall mean the Guarantee and
Collateral Agreement in the form of Exhibit F, to be executed and delivered by
the Company and each Subsidiary Guarantor.
20
"Hazardous Materials" shall mean (a) any petroleum products or
byproducts and all other hydrocarbons, coal ash, coal combustion by-products or
waste, boiler slag, scrubber residue, flue desulfurization material, radon gas,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
chlorofluorocarbons and all other ozone-depleting substances and (b) any
hazardous or toxic chemical, material, substance or waste that is prohibited,
limited or regulated by or pursuant to any Environmental Law.
"Hedging Agreement" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies, fuel or
other commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions;
provided, however, that no phantom stock or similar plan providing for payments
and on account of services provided by current or former directors, officers,
employees or consultants of the Company or any Subsidiary shall be a Hedging
Agreement.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to advances of any
kind, (b) all obligations of such person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such person under conditional
sale or other title retention agreements relating to property or assets acquired
by such person, (d) all obligations of such person in respect of the deferred
purchase price of property or services (other than trade accounts payable
incurred in the ordinary course of business that are not more than 90 days past
due), (e) all obligations of such person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value, or make any payment in cash
(whether dividends, interest or otherwise) prior to the Term Loan Maturity Date
in respect of, any Equity Interests in such person, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the Indebtedness secured thereby has
been assumed (provided that, if such person has not assumed such Indebtedness of
another person, then the amount of Indebtedness of such person for purposes of
this clause (f) shall be equal to the lesser of the amount of the Indebtedness
of the other person and the fair market value of the assets of such person which
secures such Indebtedness), (g) all Guarantees by such person of Indebtedness of
others, (h) all Capital Lease Obligations or Synthetic Lease Obligations of such
person, (i) all obligations, contingent or otherwise, of such person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such person in respect of bankers'
acceptances. The Indebtedness of any person shall include the Indebtedness of
any other person (including any partnership in which such person is a general
partner) to the extent such person is liable therefor as a result of such
person's ownership interest in, or other relationship with, such other person,
except to the extent the terms of such Indebtedness provide that such person is
not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes and
Other Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section
9.05(b).
"Information" shall have the meaning assigned to such term in Section
9.16.
21
"Intellectual Property Collateral" shall have the meaning assigned to
such term in the Guarantee and Collateral Agreement.
"Intellectual Property Security Agreement" shall mean all Intellectual
Property Security Agreements to be executed and delivered by the Loan Parties,
each substantially in the applicable form required by the Guarantee and
Collateral Agreement.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan
(other than a Swingline Loan), the last Business Day of each March, June,
September and December, (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" shall mean (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is 1, 2, 3 or 6 months
thereafter (or 9 or 12 months thereafter if, at the time of the relevant
Borrowing, an interest period of such duration is available to all Lenders
participating therein), as the applicable Borrower may elect and (b) with
respect to the Credit-Linked Deposits, each period commencing on the date the
Credit-Linked Deposits are initially funded or on the last day of the preceding
Interest Period applicable thereto, as the case may be, and ending on the
numerically corresponding date in the calendar month that is 3 months
thereafter; provided, however, that (i) a single Interest Period shall at all
times apply to all Credit-Linked Deposits, (ii) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (iii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Issuing Bank" shall mean, as the context may require, (a) Credit
Suisse First Boston, acting through its Cayman Islands Branch, in its capacity
as the issuer of Funded Letters of Credit hereunder, (b) General Electric
Capital Corporation, in its capacity as the issuer of Revolving Letters of
Credit hereunder, and (c) any other Lender that may become an Issuing Bank
pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit issued
by such Lender. The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank or other
financial institutions, in which case the term "Issuing Bank" shall include any
such Affiliate or other financial institution with respect to Letters of Credit
issued by such Affiliate or other financial institution.
22
"Issuing Bank Fees" shall mean Revolving Issuing Bank Fees and Funded
Issuing Bank Fees.
"L/C Commitment" shall mean a Revolving L/C Commitment or a Funded L/C
Commitment.
"L/C Disbursement" shall mean a Revolving L/C Disbursement or a Funded
L/C Disbursement.
"L/C Exposure" shall mean, at any time, the Revolving L/C Exposure and
the Funded L/C Exposure at such time.
"L/C Exposure Cap" shall mean $125,000,000.
"Lender Addendum" shall mean, with respect to any initial Lender, a
Lender Addendum in the form of Exhibit G, or such other form as may be supplied
by the Administrative Agent, to be executed and delivered by such Lender on the
Closing Date.
"Lenders" shall mean (a) the persons that deliver a Lender Addendum
(other than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance) and (b) any person that has become a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise requires,
the term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean a Revolving Letter of Credit or a Funded
Letter of Credit.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing or
Credit-Linked Deposit for any Interest Period, the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m., London time, on the date
that is two Business Days prior to the commencement of such Interest Period by
reference to the British Bankers' Association Interest Settlement Rates for
deposits in dollars (as set forth by the Bloomberg Information Service or any
successor thereto or any other service selected by the Administrative Agent
which has been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal
to such Interest Period; provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition, the
"LIBO Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the average of the rates per annum at which deposits
in dollars are offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of such Interest Period; provided further that if the
LIBO Rate determined as provided above for any Eurodollar Borrowing for any
Interest Period would be less than 1.50% per annum, then the "LIBO Rate" for
such Borrowing for such Interest Period shall be deemed to be 1.50% per annum.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, deed to secure debt, lien (statutory or otherwise), pledge,
hypothecation, encumbrance, restriction, collateral assignment, charge or
security interest in, on or of such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing)
23
relating to such asset and (c) in the case of Equity Interests or debt
securities, any purchase option, call or similar right of a third party with
respect to such Equity Interests or debt securities.
"Loan Documents" shall mean this Agreement, any promissory note
delivered pursuant to Section 2.04(e), the Security Documents and the Affiliate
Subordination Agreement.
"Loan Parties" shall mean the Company and each Subsidiary Guarantor.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"Majority Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), Revolving L/C Exposure, Funded L/C Exposure,
Swingline Exposure, unused Revolving Credit Commitments and Term Loan
Commitments and Excess Credit-Linked Deposits representing at least a majority
of the sum of all Loans outstanding (excluding Swingline Loans), Revolving L/C
Exposure, Funded L/C Exposure, Swingline Exposure, unused Revolving Credit
Commitments and Term Loan Commitments and Excess Credit-Linked Deposits at such
time.
"Majority Revolving Credit Lenders" shall mean, at any time, Revolving
Credit Lenders having Revolving Loans (excluding Swingline Loans), Revolving L/C
Exposure, Swingline Exposure and unused Revolving Credit Commitments
representing at least a majority of the sum of all Revolving Loans outstanding
(excluding Swingline Loans), Revolving L/C Exposure, Swingline Exposure and
unused Revolving Credit Commitments at such time.
"Majority Term Lenders" shall mean, at any time, Term Lenders having
Term Loans, Funded L/C Exposure, unused Term Loan Commitments and Excess
Credit-Linked Deposits representing at least a majority of the sum of all Term
Loans outstanding, Funded L/C Exposure, unused Term Loan Commitments and Excess
Credit-Linked Deposits at such time.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean a material adverse change in or
material adverse effect on (a) the condition (financial or otherwise), results
of operations, assets, liabilities or prospects of the Company and the
Subsidiaries, taken as a whole, or (b) the validity or enforceability of any of
the Loan Documents or the rights and remedies of the Arrangers, the
Administrative Agent, the Collateral Agent, the Collateral Trustee or the
Secured Parties thereunder.
"Material Contract" shall have the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Company or any of the Subsidiaries in an
aggregate principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Company
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Company or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
24
"Material Subsidiary" shall mean, at any time, any Subsidiary that at
such time shall own or otherwise hold more than 2.5% of the Company's total
consolidated assets; provided that the following Subsidiaries shall not in any
event be Material Subsidiaries for purposes hereof so long as at any time after
the Closing Date (a) such Subsidiaries shall not merge or consolidate with the
Company, any other Subsidiary or any other person and (b) neither the Company
nor any other Subsidiary or other person shall sell, transfer, lease, issue or
otherwise dispose of (in one transaction or series of related transactions)
assets with a fair market value in excess of $1,000,000 to such Subsidiary: NRG
Ilion LP LLC, NRG Ilion Limited Partnership, Meriden Gas Turbine LLC, LSP
Xxxxxxx Energy LLC, LSP-Pike Energy LLC, LSP-Xxxxxx Energy LLC, NRG Xxxxxx
Turbines LLC, NRG Xxxxxxx Valley Energy I, Inc., NRG XxXxxxx LLC, NRG Audrain
Holding LLC, NRG Audrain Generating LLC and the Peakers Entities.
"Maximum Rate" shall have the meaning assigned to such term in Section
9.09.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any successor
entity.
"Mortgaged Properties" shall mean, initially, each parcel of real
property and the improvements located thereon and appurtenants thereto owned or
leased by a Loan Party and specified on Schedule 1.01(d), and shall include each
other parcel of real property and improvements located thereon with respect to
which a Mortgage is granted pursuant to Section 5.09 or 5.10.
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents granting a Lien on any Mortgaged Property to secure the Secured
Obligations, each in the form of Exhibit H with such changes as are reasonably
satisfactory to the Company (which shall be evidenced by the signature thereof
by the applicable Loan Party), the Collateral Agent and the Collateral Trustee.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Asset Sale Proceeds" shall have the meaning assigned to such term
in the definition of "Net Cash Proceeds".
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale or
Recovery Event, the proceeds thereof in the form of cash and Permitted
Investments (including any such proceeds subsequently received (as and when
received) in respect of noncash consideration initially received), net of (i)
expenses related to such Asset Sale or Recovery Event (including reasonable and
customary broker's fees or commissions, legal fees and taxes incurred by the
Company and the Subsidiaries in connection therewith and the Company's good
faith estimate of any other taxes to be paid or payable in connection with such
Asset Sale or Recovery Event, after taking into account any available tax
credits or deductions and any tax sharing arrangements, and any out-of-pocket
costs of remediation, repair or closure required to be incurred by the Company
and the Subsidiaries by the applicable Governmental Authority in connection with
such Recovery Event), (ii) amounts remitted in an escrow or provided as a
reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations or purchase price adjustment associated with such
Asset Sale (provided that, to the extent and at the time any such amounts
25
are released from such reserve or escrow to the benefit of the Company or any
Subsidiary, such amounts shall constitute Net Cash Proceeds) and (iii) the
principal amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money, purchase money Indebtedness or Capital Lease
Obligations which is secured by the asset transferred, taken or sold in such
Asset Sale or Recovery Event and which is required to be repaid with such
proceeds (other than any such Indebtedness hereunder or assumed by the purchaser
of such asset) (such proceeds described in this clause (a) with respect to any
Asset Sale (other than Asset Sales relating to Specified Assets Held for Sale),
"Net Asset Sale Proceeds"); provided, however, that, during each fiscal year of
the Company the initial $25,000,000 of Net Asset Sale Proceeds that is received
during such fiscal year shall not be subject to the mandatory prepayment
provisions of Section 2.13(b) even if the terms of the following proviso are not
complied with respect to such $25,000,000 of Net Asset Sale Proceeds, but shall
be subject to and included in the amounts and limitations set forth in the last
sentence of this definition; provided further, however, that, subject to the
last sentence of this definition, if (v) the Company shall deliver a certificate
of a Financial Officer to the Administrative Agent at the time of receipt
thereof setting forth the Company's intent to reinvest such proceeds in
Permitted Acquisitions or productive assets of a kind then used or usable in the
business of the Company and the Subsidiaries within 365 days of receipt of such
proceeds, (w) pending such use of such proceeds such proceeds are held in an
Asset Sale Proceeds Account or are temporarily used to prepay Revolving Credit
Borrowings hereunder pending such permitted reinvestment, (x) no Default or
Event of Default shall have occurred and shall be continuing at the time of such
certificate or at the proposed time of the application of such proceeds (both
before and after giving effect to such application), (y) if such proceeds (1)
result from the sale of the Equity Interests in any person that is incorporated,
formed or organized under the laws of the United Sates of America, any State
thereof or the District of Columbia (a "U.S. Person") or any other assets
located in the United States, such proceeds shall only be used to make a
Permitted Acquisition of a person that will, following the consummation of such
acquisition, be a Domestic Subsidiary or an acquisition of other assets that are
located in the United States or (2) result from the sale of the Equity Interests
in any person other than a U.S. Person, such proceeds shall only be used to make
a Permitted Acquisition of a person that is incorporated, formed or organized
under the laws of a Designated Country or an acquisition of other assets that
are located in a Designated Country and (z) if such proceeds result from the
sale of any Equity Interests in any Subsidiary Guarantor or any other assets
that constitute Collateral, such proceeds shall only be used to make a Permitted
Acquisition of a person that will, following the consummation of such
acquisition, be a Subsidiary Guarantor or an acquisition of other assets that
will constitute Collateral, then such proceeds shall not be subject to the
mandatory prepayment provisions of Section 2.13(b) (but shall be subject to and
included in the amounts and limitations set forth in the last sentence of this
definition) except to the extent not so used at the end of such 365-day period,
at which time such proceeds shall be subject to the mandatory prepayment
provisions of Section 2.13(b); provided further, however, that, subject to the
last sentence of this definition, if (A) such proceeds shall result from an
Asset Sale or Recovery Event to the extent involving assets, rights or other
property of a Subsidiary that is not a Loan Party, (B) the terms of any
Indebtedness of such Subsidiary require that such proceeds be applied to repay
such Indebtedness, (C) the Company shall deliver a certificate of a Financial
Officer to the Administrative Agent at the time of receipt thereof setting forth
the Company's intent to use such proceeds to repay such Indebtedness of such
Subsidiary solely to the extent required thereby and, if such Indebtedness to be
repaid is revolving credit Indebtedness, to
26
correspondingly reduce commitments with respect thereto, within 365 days of
receipt of such proceeds and (D) no Default or Event of Default shall have
occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, then such proceeds shall not
be subject to the mandatory prepayment provisions of Section 2.13(b) (but shall
be subject to and included in the amounts and limitations set forth in the last
sentence of this definition) except to the extent not so used at the end of such
365-day period, at which time such proceeds shall be subject to the mandatory
prepayment provisions of Section 2.13(b); and (b) with respect to any issuance
or disposition of Indebtedness or any Equity Issuance, the cash proceeds
thereof, net of all taxes and reasonable and customary fees, commissions, costs
and other expenses incurred by the Company and the Subsidiaries in connection
therewith. Notwithstanding the foregoing, (a) all Net Asset Sale Proceeds
received in any fiscal year in excess of $100,000,000 (excluding any proceeds
from Asset Sales relating to Specified Assets Held for Sale) and (b) all Net
Asset Sale Proceeds received at any time after the aggregate amount of Net Asset
Sale Proceeds that are deemed to not constitute Net Cash Proceeds as a result of
the reinvestment rights and repayment rights set forth in the immediately
preceding sentence shall exceed $500,000,000 (excluding any amounts that are
used to repay Term Loans pursuant to Section 2.13(b) as a result of the failure
to reinvest such amounts within 365 days of receipt thereof as provided above)
shall in each case immediately constitute Net Cash Proceeds for purposes of
Section 2.13(b) and all other purposes hereunder and the provisions set forth in
the immediately preceding sentence shall not apply thereto.
"Non-Recourse Indebtedness" shall mean (a) Existing Non-Recourse
Indebtedness of any Subsidiary existing as of the Closing Date and (b)
Additional Non-Recourse Indebtedness of any Subsidiary that is not a Loan Party
as of the Closing Date (so long as such Subsidiary does not become (and remain
for a period of 365 days or more) a Subsidiary Guarantor after the Closing Date)
or any Subsidiary that becomes a Subsidiary after the Closing Date.
"Northeast/South Central Confirmation Order" shall mean the
confirmation order dated November 25, 2003 of the Bankruptcy Court with respect
to the Northeast/South Central Plan.
"Northeast/South Central Plan" shall mean the joint plan of
reorganization with respect to NRG Northeast and NRG South Central filed under
Chapter 11 of the Bankruptcy Code and confirmed by the Bankruptcy Court on
November 25, 2003, a copy of which is attached hereto as Exhibit I.
"NRG Confirmation Order" shall mean the confirmation order dated
November 24, 2003 of the Bankruptcy Court with respect to the NRG Plan.
"NRG Entities" shall mean the Company, XXX Xxx-Xxxxxxxx, XXX Xxxxxxxxx
xxx XXX Xxxxx Xxxxxxx.
"NRG Mid-Atlantic" shall mean NRG Mid-Atlantic Generating LLC, a
Delaware limited liability company that is a wholly owned Subsidiary.
"NRG Northeast" shall mean NRG Northeast Generating LLC, a Delaware
limited liability company that is a wholly owned Subsidiary.
27
"NRG Plan" shall mean the plan of reorganization filed by the Company
and certain of its Affiliates, including NRG Power Marketing, under Chapter 11
of the Bankruptcy Code, as the same was modified and confirmed by the Bankruptcy
Court in an order dated November 24, 2003, a copy of which is attached hereto as
Exhibit J, which, among other things, provides for the NRG Plan Transactions.
"NRG Plan Transactions" shall mean the following transactions that are
provided for in the NRG Plan as of the date hereof: (a) a settlement with Xcel
Energy Inc. pursuant to the Xcel Settlement Agreement under which the Company is
expected to receive $640,000,000 from Xcel Energy Inc. in exchange for a global
release of claims from the Company and its creditors and (b) the pro rata
distribution to certain pre-petition creditors of the Company of (i) Xcel Cash
of which (A) $515,000,000 will be paid to certain of the pre-petition creditors
in 2004, (B) an additional $25,000,000 (to the extent that the Company satisfies
certain liquidity requirements) is expected to be paid to certain of the
pre-petition creditors in 2004 and (C) the remaining $100,000,000 may be used by
the Company for any other purpose permitted hereunder, (ii) $500,000,000 will be
paid to certain of the pre-petition creditors of the Company on the Closing Date
in lieu of the issuance of an equivalent amount of unsecured notes of the
Company to such creditors as provided for in the NRG Plan and (iii) 100 million
shares of the Company's common stock.
"NRG Power Marketing" shall have the meaning assigned to such term in
the preamble.
"NRG South Central" shall mean NRG South Central Generating LLC, a
Delaware limited liability company that is a wholly owned Subsidiary.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Parent Debt" shall mean, at any time, the aggregate amount of
Indebtedness of the Company outstanding at such time, in the amount that would
be reflected on a balance sheet of the Company prepared at such time on an
unconsolidated basis in accordance with GAAP.
"Parent Interest Coverage Ratio" shall mean, on any date, the ratio of
(a) Adjusted Distributed Income for the period of four consecutive fiscal
quarters most recently ended on or prior to such date, taken as one accounting
period to (b) Parent Interest Expense for the period of four consecutive fiscal
quarters most recently ended on or prior to such date, taken as one accounting
period.
"Parent Interest Expense" shall mean, for any period, the sum of,
without duplication, (a) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations and Synthetic Lease Obligations)
of the Company for such period (including all commissions, discounts and other
fees and charges owed by the Company with respect to letters of credit and
bankers' acceptance financing), net of interest income, in each case determined
in accordance with GAAP, plus (b) any interest accrued during such period in
respect of Indebtedness of the Company that is required to be capitalized rather
than included in interest
28
expense for such period in accordance with GAAP. For purposes of the foregoing,
interest expense shall be determined after giving effect to any net payments
made or received by the Company with respect to interest rate Hedging
Agreements.
"Parent Leverage Ratio" shall mean, on any date, the ratio of (a)
Parent Debt on such date to (b) Adjusted Distributed Income for the period of
four consecutive fiscal quarters most recently ended on or prior to such date,
taken as one accounting period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Peakers Entities" shall mean LSP Energy Limited Partnership, NRG
Batesville LLC, LSP Batesville Funding Corporation, LSP Batesville Holding LLC,
LSP Energy, Inc., NRG Peaker Finance Company LLC, Bayou Cove Peaking Power, LLC,
Big Cajun I Peaking Power LLC, NRG Rockford LLC, NRG Rockford II LLC, NRG
Rockford Equipment II LLC, NRG Capital II LLC and NRG Sterlington Power LLC.
"Perfection Certificate" shall mean the Pre-Closing UCC Diligence
Certificate substantially in the form of Exhibit K or any other form approved by
the Collateral Agent.
"Permitted Acquisition" shall mean the acquisition by the Company or
any Subsidiary of all or substantially all the assets of a person or line of
business of such person, or all of the Equity Interests of a person (referred to
herein as the "Acquired Entity"); provided that (i) the Acquired Entity shall be
a going concern and shall be in a similar line of business as that of the
Company and the Subsidiaries as conducted during the current and most recently
concluded calendar year; (ii) at the time of such transaction (A) both before
and after giving effect thereto, no Event of Default or Default shall have
occurred and be continuing; (B) the Company would be in compliance with the
covenants set forth in Sections 6.10, 6.11, 6.12, 6.13 and 6.14 as of the most
recently completed period ending prior to such transaction for which the
financial statements and certificates required by Section 5.04(a) or 5.04(b)
were required to be delivered or for which comparable financial statements have
been filed with the Securities and Exchange Commission, after giving pro forma
effect to such transaction and to any other event occurring after such period as
to which pro forma recalculation is appropriate (including any other transaction
described in this definition occurring after such period) as if such transaction
(and the occurrence or assumption of any Indebtedness in connection therewith)
had occurred as of the first day of such period; (C) after giving effect to such
acquisition, the sum of the unused and available Revolving Credit Commitments,
unused and available commitments in respect of Revolver Refinancing Indebtedness
and cash on hand of the Company shall exceed $25,000,000; and (D) the aggregate
amount of consideration paid in connection with such acquisition or acquisitions
pursuant to this definition shall not exceed the sum of the following amounts
(but may consist of any combination of the following amounts, subject to the
limitations that follow): (w) an amount of consideration not to exceed the
amount of any Designated Asset Sale Proceeds utilized as consideration for such
acquisition (net of the Company's good faith estimate of any taxes to be paid or
payable in each case in connection with the repatriation of such Designated
Asset Sale Proceeds from a Foreign Subsidiary to the Company or a Domestic
Subsidiary), (x) an amount of consideration not to exceed the amount of any
funds permanently withdrawn from the Xcel Cash Account pursuant to Section 5.12
that are utilized as consideration for such
29
acquisition, (y) an amount of consideration (excluding any Indebtedness of the
Acquired Entity that is assumed by the Company or any Subsidiary in connection
with such acquisition) not to exceed $100,000,000 in any fiscal year, subject to
permanent reduction in any one fiscal year as provided in Section 6.04(a);
provided that the amount of consideration payable in connection with Permitted
Acquisitions pursuant to this clause (D)(y) in respect of any fiscal year
commencing with the fiscal year ending December 31, 2005 shall be increased by
50% of the unused amount of consideration available to be used in the
immediately preceding fiscal year for Permitted Acquisitions pursuant to this
clause (D)(y) less the unused amount of such consideration carried forward to
such preceding fiscal year and/or (z) the proceeds of any Indebtedness incurred
or assumed in connection with such acquisition to the extent permitted by
Section 6.01; (iii) the Company and the Subsidiaries shall not incur or assume
any Indebtedness in connection with such acquisition, except as permitted by
Section 6.01; (iv) no later than 10 days prior to such acquisition the Company
shall have delivered to the Administrative Agent drafts of the acquisition
agreement and all other operative documents containing the terms and conditions
of such acquisition and an environmental report of an independent engineer or
environmental consultant with respect to the compliance of such Acquired Entity
with applicable Environmental Law, which report shall be reasonably satisfactory
to the Administrative Agent; and (v) the Company shall comply, and shall cause
the Acquired Entity to comply, with the applicable provisions of Sections 5.09
and 5.10 and the Security Documents, in each case to the extent required
thereby.
"Permitted Acquisition Indebtedness" shall mean, at any time, the
aggregate principal amount of Indebtedness ("Acquired Indebtedness") of any
person (or assumed or incurred by any person) that becomes a Subsidiary after
the date hereof in connection with a Permitted Acquisition that has been made
with Designated Asset Sale Proceeds and that has been properly specified in a
Designated Asset Sale Notice; provided that (a) in connection with each such
asset sale which has resulted in the receipt of such Designated Asset Sale
Proceeds all the Equity Interests in a Subsidiary shall have been sold and
Indebtedness of such Subsidiary in an aggregate principal amount that shall be
no less than the amount of the related Acquired Indebtedness shall have been
assumed by the purchaser thereof without any recourse to the Company or the
Subsidiaries, (b) the only obligors on any such Acquired Indebtedness are the
Subsidiary or Subsidiaries that are acquired in connection with the applicable
Permitted Acquisition and (c) the covenants and events of default relating to
any such Acquired Indebtedness are, taken as a whole, in the good faith
determination of a Financial Officer of the Company no less favorable in any
material respect to the Company and the applicable Subsidiary and the Lenders
than the covenants and events of default in respect of the Indebtedness assumed
by the purchaser of the Subsidiary that has been sold.
"Permitted Encumbrances" shall mean (a) those Liens or other exceptions
to title set forth on Schedule 1.01(e) and (b) those Liens or other exceptions
to title arising as a result of any shared facility agreement entered into after
the Closing Date with respect to any facility of the Company or any Subsidiary;
provided that in the case of any such shared facility agreement relating to any
facility located on Mortgaged Property (i) such shared facility agreement shall
be in form and substance reasonably satisfactory to the Administrative Agent and
(ii) the Company shall provide to the Administrative Agent a certificate of an
independent engineering firm of recognized standing certifying that such shared
facility agreement shall not materially and adversely affect the applicable Loan
Party's ability to use, operate or maintain such facility.
30
"Permitted Holders" shall mean MatlinPatterson Global Advisers LLC or
one or more investment funds controlled by or under common control with
MatlinPatterson Global Advisers LLC.
"Permitted Itiquira Indebtedness" shall mean Indebtedness of Itiquira
Energetica S.A. which is issued or incurred to refinance Indebtedness of
Itiquira Energetica S.A. existing on the date hereof; provided that the
principal amount of such refinancing Indebtedness is not greater than the sum of
(a) the principal amount of such refinanced Indebtedness plus the amount of any
premiums and penalties and accrued and unpaid interest paid thereon and
reasonable fees and expenses, in each case associated with such financing and
(b) $30,000,000 Brazilian Reais; provided, further, that such refinancing
Indebtedness otherwise meets the requirements of clauses (b), (c), (d), (e) and
(f) of the definition of "Permitted Refinancing Indebtedness" (except that such
Indebtedness may be secured by an assignment of receivables, contracts and other
assets of, and a pledge of the Equity Interests in, Itiquira Energetica S.A.).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date
of acquisition thereof;
(b) investments in commercial paper maturing within 270
days from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, the Administrative Agent
or any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (a)
above and entered into with a financial institution satisfying the
criteria of clause (c) above;
(e) investments in "money market funds" within the
meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended,
substantially all of whose assets are invested in investments of the
type described in clauses (a) through (d) above; and
(f) other short-term investments utilized by Foreign
Subsidiaries in accordance with normal investment practices for cash
management in investments of a type analogous to the foregoing.
"Permitted Liens" shall mean those Liens expressly permitted by clauses
(b), (d), (e), (f), (g), (h) and (k) of Section 6.02.
31
"Permitted Refinancing Indebtedness" shall mean Indebtedness issued or
incurred (including by means of the extension or renewal of existing
Indebtedness) to refinance, refund, extend, renew or replace existing
Indebtedness ("Refinanced Indebtedness"); provided that (a) the principal amount
of such refinancing, refunding, extending, renewing or replacing Indebtedness is
not greater than the principal amount of such Refinanced Indebtedness plus the
amount of any premiums or penalties and accrued and unpaid interest paid thereon
and reasonable fees and expenses, in each case associated with such refinancing,
refunding, extension, renewal or replacement, (b) such refinancing, refunding,
extending, renewing or replacing Indebtedness has a final maturity that is no
sooner than, and a weighted average life to maturity that is no shorter than,
such Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any
Guarantees thereof are subordinated to the Secured Obligations hereunder, such
refinancing, refunding, extending, renewing or replacing Indebtedness and any
Guarantees thereof remain so subordinated on terms no less favorable to the
Lenders, (d) the obligors in respect of such Refinanced Indebtedness immediately
prior to such refinancing, refunding, extending, renewing or replacing and any
additional person (other than a Loan Party) are the only obligors on such
refinancing, refunding extending, renewing or replacing Indebtedness, (e) unless
such refinancing, refunding, extending, renewing or replacing shall occur within
six months of the final maturity of such Refinanced Indebtedness, such
refinancing, refunding, extending, renewing or replacing Indebtedness contains
covenants and events of default and is benefited by Guarantees, if any, which,
taken as a whole, are determined in good faith by a Financial Officer of the
Company to be no less favorable to the Company or the applicable Subsidiary and
the Lenders in any material respect than the covenants and events of default or
Guarantees, if any, in respect of such Refinanced Indebtedness and (f) if such
Refinanced Indebtedness is Non-Recourse Indebtedness, such refinancing,
refunding, extending, renewing or replacing Indebtedness shall be Non-Recourse
Indebtedness.
"Permitted Schkopau Indebtedness" shall mean Indebtedness of Saale
Energie GmbH in an aggregate principal amount not exceeding Euro 27,000,000 at
any time outstanding; provided that (a) such Indebtedness shall only be secured
by an assignment of the loan from Saale Energie GmbH to NRGenerating
International BV and/or a pledge of, or equitable charge over, the Equity
Interests in Saale Energie GmbH and (b) such Indebtedness bears a market
interest rate and contains market covenants, events of default and other terms
for a financing transaction of this type (in each case as determined in good
faith by a Financial Officer of the Company) as of the time of issuance or
incurrence.
"Permitted Second Priority Secured Indebtedness" shall mean
Indebtedness of the Company that is secured by Liens on the Collateral granted
in favor of the Collateral Trustee; provided that such Liens are subordinate to
the Liens securing the Secured Obligations hereunder in the manner set forth in,
and are otherwise subject to, the Collateral Trust Agreement.
"person" shall mean any natural person, corporation, trust, business
trust, joint venture, joint stock company, association, company, limited
liability company, partnership, Governmental Authority or other entity.
"Plan Effective Date" shall have the meaning assigned to such term in
Section 4.02(m).
32
"Plans" shall mean the NRG Plan, the Northeast/South Central Plan and
any other plan with respect to any other Significant Subsidiary, or group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
that is filed under Chapter 11 of the Bankruptcy Code.
"Pledged Securities" shall have the meaning assigned to such term in
the Guarantee and Collateral Agreement.
"Prepayment Fee" shall have the meaning assigned to such term in
Section 2.05(d).
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by Credit Suisse First Boston as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective as of the opening of business on the date such change is
publicly announced as being effective. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually available.
"Pro Rata Percentage" of (a) any Revolving Credit Lender at any time
shall mean the percentage of the Total Revolving Credit Commitment represented
by such Lender's Revolving Credit Commitment and (b) any Term Lender at any time
shall mean the percentage of the Total Credit-Linked Deposit represented by such
Lender's Credit-Linked Deposit. In the event the Revolving Credit Commitments
shall have expired or been terminated, the Pro Rata Percentages of any Revolving
Credit Lender shall be determined on the basis of the Revolving Credit
Commitments most recently in effect prior thereto. In the event the
Credit-Linked Deposits shall have been applied in full to reimburse Funded L/C
Disbursements, the Pro Rata Percentage of any Term Lender shall be determined on
the basis of the Credit-Linked Deposits most recently in effect prior thereto.
"PUHCA" shall mean the Public Utility Holding Company Act of 1935 and
the rules and regulations promulgated thereunder, as amended from time to time.
"PURPA" shall mean the Public Utility Regulatory Policies Act of 1978
and the rules and regulations promulgated thereunder, as amended from time to
time.
"QF" shall mean a "qualifying facility" under PURPA.
"Qualified Counterparty" shall mean, with respect to any Specified
Hedging Agreement, any counterparty thereto that, at the time such Specified
Hedging Agreement was entered into, was a Lender, an Agent or the Syndication
Agent or an Affiliate of a Lender, an Agent or the Syndication Agent.
"Recapitalization" shall mean the recapitalization of the Company, NRG
Mid-Atlantic, NRG Northeast and NRG South Central pursuant to the Plans and the
other transactions contemplated by the Plans, including the repayment and
refinancing of all Indebtedness of the Company, XXX Xxx-Xxxxxxxx, XXX Xxxxxxxxx
xxx XXX Xxxxx Xxxxxxx existing prior to the date hereof (other than in each case
as set forth on Schedule 1.01(f)).
"Recapitalization Documentation" shall mean each instrument, agreement
or other legally binding arrangement entered into in connection with the
financing of the Recapitalization, including each Loan Document and each Senior
Note Document.
33
"Recovery Event" shall mean the receipt of cash proceeds with respect
to any settlement of or payment in respect of (a) any property or casualty
insurance claim or (b) any taking under power of eminent domain or by
condemnation or similar proceeding of or relating to any property or asset of
the Company or any Subsidiary; provided that any such recovery event or series
of related recovery events having a value not in excess of $25,000,000 shall not
be deemed to be a "Recovery Event" for purposes of Section 2.13(b).
"Register" shall have the meaning assigned to such term in Section
9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by such Lender, an Affiliate of such Lender, the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Related Parties" shall mean, with respect to any specified person,
such person's Affiliates and the respective directors, officers, trustees,
employees, agents and advisors of such person and such person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, pouring, emptying, deposit, disposal, discharge, dispersal, dumping,
escaping, leaching or migration into or through the environment or within or
upon any building, structure, facility or fixture.
"Repayment Date" shall have the meaning given such term in Section
2.11.
"Requested Prepayment Amount" shall have the meaning given to such term
in Section 2.13(f).
"Required Lenders" shall mean, at any time, the Majority Revolving
Credit Lenders and the Majority Term Lenders, each voting as a separate class.
"Required Prepayment Percentage" shall mean (a) in the case of any
Asset Sale or Recovery Event, 100%; (b) in the case of any Equity Issuance, 50%;
(c) in the case of any issuance or other incurrence of Indebtedness 100%; and
(d) in the case of any Adjusted Excess Cash Flow, if on the date of the
applicable prepayment, the Company's issuer credit rating (in the case of S&P)
or long term senior implied rating (in the case of Xxxxx'x) is (i) BB or lower
from S&P or Ba2 or lower from Moody's, 50%, (ii) BB+ or higher from S&P and Baa1
or higher from Moody's (but not meeting the ratings described in clause (iii)),
25% or (iii) BBB- or higher from S&P and Baa3 or higher from Moody's, 0%.
34
"Restricted Indebtedness" shall mean Indebtedness of the Company or any
Subsidiary, the payment, prepayment, repurchase or defeasance of which is
restricted under Section 6.09(b).
"Restricted Payment" shall mean any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, defeasance, retirement, acquisition,
cancellation or termination of any Equity Interests in the Company or any
Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in the Company or any Subsidiary.
"Revolver Agent" shall have the meaning assigned to such term in the
preamble.
"Revolver Refinancing Indebtedness" shall mean Indebtedness issued or
incurred under a new revolving credit facility (a "New Revolver") that
refinances, refunds, extends, renews or replaces the Revolving Credit
Commitments hereunder; provided that (a) the available commitments under such
New Revolver shall not exceed $250,000,000, (b) the Revolving Loan Borrowers
shall be the only borrowers under such New Revolver and the Subsidiary
Guarantors shall be the only guarantors, if any, with respect thereto, (c)
unless such New Revolver shall be incurred within six months of the Revolving
Credit Maturity Date, such New Revolver contains covenants and events of default
which, taken as a whole, are determined in good faith by a Financial Officer of
the Company to be substantially the same as the covenants contained herein, (d)
the Indebtedness under such New Revolver, if secured, is secured only by Liens
on the Collateral granted in favor of the Collateral Trustee that are subject to
the terms of the Collateral Trust Agreement, (e) if such New Revolver is
secured, the administrative agent in respect of such New Revolver executes and
delivers a Collateral Trust Joinder as required by the Collateral Trust
Agreement and (f) if such New Revolver is secured, the secured parties with
respect to such New Revolver agree in writing for the enforceable benefit of all
Secured Parties hereunder that such secured parties are bound by the provisions
set forth in the Collateral Trust Agreement relating to the order of application
of proceeds from the enforcement of Liens upon the Collateral to the same extent
that the Secured Parties are bound by such provisions as of the Closing Date.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment, if any, of such Lender to make Revolving Loans (and to acquire
participations in Revolving Letters of Credit and Swingline Loans) hereunder as
set forth on the Lender Addendum delivered by such Lender, or in the Assignment
and Acceptance pursuant to which such Lender assumed its Revolving Credit
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender in accordance with Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's Revolving L/C Exposure, plus the aggregate amount at such time of such
Lender's Swingline Exposure.
35
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean December 21, 2007.
"Revolving Issuing Bank Fees" shall have the meaning assigned to such
term in Section 2.05(c).
"Revolving L/C Commitment" shall mean the commitment of the Issuing
Bank to issue Revolving Letters of Credit pursuant to Section 2.23.
"Revolving L/C Disbursement" shall mean a payment or disbursement made
by the Issuing Bank pursuant to a Revolving Letter of Credit.
"Revolving L/C Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Revolving Letters of Credit at such time and (b)
the aggregate amount of all Revolving L/C Disbursements that have not been
reimbursed at such time. The Revolving L/C Exposure of any Revolving Credit
Lender at any time shall equal its Pro Rata Percentage of the aggregate
Revolving L/C Exposure at such time.
"Revolving L/C Fee Payment Date" shall have the meaning assigned to
such term in Section 2.05(c).
"Revolving L/C Participation Fee" shall have the meaning assigned to
such term in Section 2.05(c).
"Revolving Letter of Credit" shall mean, at any time, any Letter of
Credit that has been designated by a Revolving Loan Borrower (or deemed
designated) as a Revolving Letter of Credit in accordance with the provisions of
Section 2.23.
"Revolving Loan Borrowers" means the Company and NRG Power Marketing.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Revolving Loan Borrowers pursuant to clause (b) of Section 2.01.
"S&P" shall mean Standard & Poor's Ratings Group, Inc. or any successor
entity.
"Secured Obligations" shall have the meaning assigned to such term in
the Guarantee and Collateral Agreement.
"Secured Parties" shall mean the Administrative Agent, the Collateral
Agent, the Syndication Agent, the Lenders and, with respect to any Specified
Hedging Agreement, any Qualified Counterparty that has agreed to be bound by the
provisions of Article VIII hereof and Section 7.2 of the Guarantee and
Collateral Agreement as if it were a party hereto or thereto; provided that no
Qualified Counterparty shall have any rights in connection with the management
or release of any Collateral or the obligations of any Subsidiary Guarantor
under the Guarantee and Collateral Agreement or the Collateral Trust Agreement.
36
"Securities Account" shall have the meaning assigned to such term in
the UCC.
"Security Documents" shall mean the Guarantee and Collateral Agreement,
the Mortgages, the Control Agreements, the Intellectual Property Security
Agreements, the Collateral Trust Agreement and each of the other security
agreements, pledges, mortgages, assignments (collateral or otherwise), consents
and other instruments and documents executed and delivered pursuant to any of
the foregoing or pursuant to Section 5.09 or 5.10.
"Senior Note Documents" shall mean the indenture under which the Senior
Notes are issued and all other instruments, agreements and other documents
evidencing or governing the Senior Notes or providing for any Guarantee or other
right in respect thereof.
"Senior Notes" shall mean the Company's 8% Second Priority Senior
Secured Notes due 2013, in an aggregate principal amount of $1,250,000,000,
including any notes issued by the Company in full exchange for, and as
contemplated by, the Senior Notes with substantially identical terms as the
Senior Notes.
"Separate Bank Settlement Cash" shall mean up to $112,000,000 to be
paid by Xcel Energy Inc. through the Company, as disbursing agent, to certain
pre-petition lenders to the Company and NRG Finance Company I LLC, pursuant to
the terms of the Separate Bank Settlement Agreement delivered as of the
effective date of the NRG Plan by and among Xcel Energy Inc. and such lenders
party thereto.
"Separate Bank Settlement Cash Account" shall have the meaning assigned
to such term in Section 5.12.
"Significant Subsidiary" shall mean any Domestic Subsidiary (other than
a Domestic Subsidiary with no assets other than Equity Interests in a Foreign
Subsidiary) that is projected to account for 10% or more of Distributed Income
in any of the fiscal years ending December 31, 2004, 2005 or 2006 according to
financial projections provided to the Arrangers by a power market and fuel
consultant reasonably satisfactory to the Arrangers.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"Specified Assets Held for Sale" shall mean the assets set forth on
Schedule 1.01(g) (which shall describe such assets and indicate their
anticipated date of sale).
"Specified Hedging Agreement" shall mean any interest rate or foreign
exchange Hedging Agreement entered into by a Borrower or any Subsidiary
Guarantor and any Qualified Counterparty.
"Specified Joint Venture Sale" shall mean the sale after the date
hereof by the Company or a Subsidiary of its Equity Interest in Enfield Energy
Centre Limited or TermoRio S.A. to one or more holders of the remaining Equity
Interests therein pursuant to the terms of the joint venture agreements relating
thereto.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of
37
the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and any
other banking authority, domestic or foreign, to which the Administrative Agent
or any Lender (including any branch, Affiliate or other fronting office making
or holding a Loan) is subject for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Eurodollar Loans shall
be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, limited liability company,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or (b) that is, at the
time any determination is made, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" shall mean any subsidiary of the Company.
"Subsidiary Debt Default" shall mean, with respect to any Subsidiary,
the failure of such Subsidiary to pay any principal or interest or other amounts
due in respect of any Indebtedness, when and as the same shall become due and
payable, or the occurrence of any other event or condition that results in any
Indebtedness of such Subsidiary becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, lapse of time or
both) the holder or holders of such Indebtedness or any trustee or agent on its
or their behalf to cause such Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity.
"Subsidiary Guarantor" shall mean, initially, each Subsidiary specified
on Schedule 1.01(h) and, at any time thereafter, shall include each other
Subsidiary that is not (a) an Excluded Foreign Subsidiary or (b) an Excluded
Project Subsidiary at such time.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09 .
"Swingline Exposure" shall mean, at any time, the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean General Electric Capital Corporation, in
its capacity as lender of Swingline Loans hereunder.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
38
"Syndication Agent" shall have the meaning assigned to such term in the
preamble.
"Synthetic Lease Obligations" shall mean all monetary obligations of a
person under (a) a so-called synthetic, off-balance sheet or tax retention lease
or (b) an agreement for the use or possession of any property (whether real,
personal or mixed) creating obligations which do not appear on the balance sheet
of such person, but which, upon the insolvency or bankruptcy of such person,
would be characterized as Indebtedness of such person (without regard to
accounting treatment).
"Synthetic Purchase Agreement" shall mean any swap, derivative or other
agreement or combination of agreements pursuant to which the Company or any
Subsidiary is or may become obligated to make (a) any payment in connection with
a purchase by any third party from a person other than the Company or any
Subsidiary of any Equity Interest or Restricted Indebtedness or (b) any payment
(other than on account of a permitted purchase by it of any Equity Interest or
Restricted Indebtedness) the amount of which is determined by reference to the
price or value at any time of any Equity Interest or Restricted Indebtedness;
provided that no phantom stock or similar plan providing for payments only to
current or former directors, officers or employees of the Company or the
Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges, liabilities or withholdings imposed by any
Governmental Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Lender" shall mean a Lender with a Term Loan Commitment , an
outstanding Term Loan (including any Term Loan extended pursuant to Section
2.02(f) or resulting from a conversion pursuant to Section 2.09(d)) or a
Credit-Linked Deposit.
"Term Loan Borrower" shall mean the Company.
"Term Loan Commitment" shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make Term Loans hereunder as set forth on
the Lender Addendum delivered by such Lender, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Term Loan Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial aggregate amount of all
Term Loan Commitments is $950,000,000.
"Term Loan Maturity Date" shall mean June 23, 2010.
"Term Loans" shall mean the term loans made by the Lenders to the Term
Loan Borrower pursuant to Section 2.01(a), the term loans extended pursuant to
Section 2.02(f) and the term loans resulting from a conversion pursuant to
Section 2.09(d).
39
"Total Credit-Linked Deposit" shall mean, at any time, the sum of all
Credit-Linked Deposits at such time, as the same may be reduced from time to
time pursuant to Section 2.02(f), 2.09(b) or 2.09(d). The initial amount of the
Total Credit-Linked Deposit is $250,000,000.
"Total Debt" shall mean, at any time, the aggregate amount of
Indebtedness of the Company and the Subsidiaries outstanding at such time, in
the amount that would be reflected on a balance sheet prepared at such time on a
consolidated basis in accordance with GAAP.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
The initial Total Revolving Credit Commitment is $250,000,000.
"Transactions" shall mean, collectively, (a) the execution, delivery
and performance by the Loan Parties of the Loan Documents and the Senior Note
Documents to which they are a party, (b) the borrowings hereunder, the issuance
of the Senior Notes, the issuance of Letters of Credit and the use of proceeds
of each of the foregoing, (c) the granting of Liens pursuant to the Security
Documents, (d) the Recapitalization and (e) any other transactions entered into
in connection with any of the foregoing.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York or any other applicable jurisdiction.
"Uniform Customs" shall have the meaning assigned to such term in
Section 9.07.
"U.S. Person" shall have the meaning assigned to such term in the
definition of "Net Cash Proceeds."
"wholly owned subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares or
securities held by foreign nationals as required by applicable law) or other
ownership interests representing 100% of the Equity Interests are, at the time
any determination is being made, owned, controlled or held by such person or one
or more wholly owned subsidiaries of such person or by such person and one or
more wholly owned subsidiaries of such person; a "wholly owned Subsidiary" shall
mean any wholly owned subsidiary of the Company.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Xcel Cash" shall mean all amounts paid in cash by Xcel Energy Inc. to
the Company or any of the Subsidiaries after the date hereof in connection with
the Xcel Settlement Agreement, as specifically described in the definition of
"NRG Plan Transactions".
40
"Xcel Cash Account" shall have the meaning assigned to such term in
Section 5.12.
"Xcel Note" shall mean the unsecured promissory note made by the
Company in favor of Xcel Energy Inc. in a principal amount of $10,000,000
pursuant to the NRG Plan.
"Xcel Settlement Agreement" shall mean the Settlement Agreement
delivered as of the effective date of the NRG Plan by and among Xcel Energy
Inc., the Company and each of the Subsidiaries party thereto, which was approved
by the Bankruptcy Court on November 24, 2003.
Section 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including", and words of similar import, shall not be limiting and shall be
deemed to be followed by the phrase "without limitation". The word "will" shall
be construed to have the same meaning and effect as the word "shall". The words
"asset" and "property" shall be construed as having the same meaning and effect
and to refer to any and all rights and interests in tangible and intangible
assets and properties of any kind whatsoever, whether real, personal or mixed,
including cash, securities, Equity Interests, accounts and contract rights. The
words "herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision of this Agreement unless the context shall otherwise require. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any definition of, or reference to, any Loan
Document or any other agreement, instrument or document in this Agreement shall
mean such Loan Document or other agreement, instrument or document as amended,
restated, supplemented or otherwise modified from time to time (subject to any
restrictions on such amendments, restatements, supplements or modifications set
forth herein) and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Company notifies the Administrative Agent that the Company
wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders. For purposes of determining compliance with the
covenants set forth in Article VI, any amount specified in such Article to be in
dollars shall also include the equivalent of such amount in any currency other
than dollars, such equivalent amount to be determined at the rate of exchange
set forth on the Bloomberg Key Cross-Currency Rates Page at the close of
business on the Business Day immediately preceding any date of determination
thereof.
Section 1.03. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving
41
Borrowing") or by Type (e.g., a "Eurocurrency Borrowing") or by Class and Type
(e.g., a "Eurocurrency Revolving Borrowing").
Section 1.04. Pro Forma Calculations. All pro forma calculations
permitted or required to be made by the Company or any Subsidiary pursuant to
this Agreement shall (a) include only those adjustments that would be permitted
or required by Regulation S-X under the Securities Act of 1933, as amended, and
(b) be certified to by a Financial Officer of the Company as having been
prepared in good faith based upon reasonable assumptions.
ARTICLE II.
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions hereof
and relying upon the representations and warranties set forth herein, (a) each
Term Lender agrees, severally and not jointly, to make a Term Loan to the Term
Loan Borrower on the Closing Date in a principal amount not to exceed its Term
Loan Commitment, (b) each Revolving Credit Lender agrees, severally and not
jointly, to make Revolving Loans to the Revolving Loan Borrowers, at any time
and from time to time after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Revolving Credit Lender in accordance with the terms hereof,
in an aggregate principal amount at any time outstanding that will not result in
such Revolving Credit Lender's Revolving Credit Exposure exceeding such
Revolving Credit Lender's Revolving Credit Commitment and (c) each Term Lender
agrees, severally and not jointly, to fund its Credit-Linked Deposit with the
Administrative Agent on the Closing Date in accordance with Section 2.24. Within
the limits set forth in clause (b) of the preceding sentence and subject to the
terms, conditions and limitations set forth herein, the Revolving Loan Borrowers
may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid
in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans(a) . (a) Each Loan (other than Swingline Loans)
shall be made as part of a Borrowing consisting of Loans of the same Class and
Type made by the Lenders ratably in accordance with their respective Commitments
of the applicable Class; provided, however, that the failure of any Lender to
make any Loan required to be made by it shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f) and subject to Section 2.22 relating to Swingline
Loans, the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $1,000,000 and not less than
$5,000,000 or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request pursuant to Section 2.03; provided that all Borrowings made on the
Closing Date and during the period ending 14 days thereafter must be made as ABR
Borrowings (and may not be converted into Eurodollar Borrowings until the end of
such 14-day period), and no Borrowings may be converted into or continued as a
Eurodollar Borrowing having an Interest Period in excess of one month prior to
the date which is 60 days after the Closing Date. Each Lender may at its option
42
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrowers shall
not be entitled to request any Borrowing that, if made, would result in more
than ten Eurodollar Borrowings outstanding hereunder at any time. For purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f)
or Section 2.09(d) and subject to Section 2.22 relating to Swingline Loans, each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account designated by the applicable Borrower in the
applicable Borrowing Request or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) of this Section and the Administrative Agent may,
in reliance upon such assumption, make available to the applicable Borrower on
such date a corresponding amount. If the Administrative Agent shall have so made
funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the applicable
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the applicable Borrower to but
excluding the date such amount is repaid to the Administrative Agent at (i) in
the case of the applicable Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing (in lieu of interest which would otherwise
become due to such Lender pursuant to Section 2.06) or (ii) in the case of such
Lender, a rate determined by the Administrative Agent to represent its cost of
overnight or short-term funds (which determination shall be conclusive absent
manifest error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request any Revolving Credit Borrowing which
is a Eurodollar Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Credit Maturity Date.
(f) If the Issuing Bank shall not have received from the
applicable Borrower the payment required to be made by Section 2.23(e) with
respect to a Revolving Letter of Credit within the time specified in such
Section, the Issuing Bank will promptly notify the
43
Administrative Agent of the Revolving L/C Disbursement and the Administrative
Agent will promptly notify each Revolving Credit Lender of such Revolving L/C
Disbursement and its Pro Rata Percentage thereof. Each Revolving Credit Lender
shall pay by wire transfer of immediately available funds to the Administrative
Agent not later than 2:00 p.m., New York City time, on such date (or, if such
Revolving Credit Lender shall have received such notice later than 12:00 (noon),
New York City time, on any day, not later than 10:00 a.m., New York City time,
on the immediately following Business Day), an amount equal to such Lender's Pro
Rata Percentage of such Revolving L/C Disbursement (it being understood that
such amount shall be deemed to constitute an ABR Revolving Loan of such Lender
and such payment shall be deemed to have reduced the Revolving L/C Exposure),
and the Administrative Agent will promptly pay to the Issuing Bank amounts so
received by it from the Revolving Credit Lenders. The Administrative Agent will
promptly pay to the Issuing Bank any amounts received by it from the applicable
Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit
Lender makes any payment pursuant to this paragraph; any such amounts received
by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made such
payments and to the Issuing Bank, as their interests may appear. If any
Revolving Credit Lender shall not have made its Pro Rata Percentage of such
Revolving L/C Disbursement available to the Administrative Agent as provided
above, such Lender and the applicable Borrower severally agree to pay interest
on such amount, for each day from and including the date such amount is required
to be paid in accordance with this paragraph to but excluding the date such
amount is paid, to the Administrative Agent for the account of the Issuing Bank
at (i) in the case of the applicable Borrower, a rate per annum equal to the
interest rate applicable to Revolving Loans pursuant to Section 2.06(a) (in lieu
of interest which would otherwise become due to such Lender pursuant to Section
2.06), and (ii) in the case of such Lender, for the first such day, the Federal
Funds Effective Rate, and for each day thereafter, the Alternate Base Rate.
If the Issuing Bank shall not have received from the Term Loan Borrower
the payment that it may make pursuant to Section 2.23(e) with respect to a
Funded Letter of Credit within the time specified in such Section, the Issuing
Bank will promptly notify the Administrative Agent of the Funded L/C
Disbursement and the Administrative Agent will promptly notify each Term Lender
of such Funded L/C Disbursement and its Pro Rata Percentage thereof, and the
Administrative Agent shall promptly pay to the Issuing Bank each Term Lender's
Pro Rata Percentage of such Funded L/C Disbursement from such Term Lender's
Credit-Linked Deposit. Upon the payment made from the Credit-Linked Deposit
Account, or from funds of the Administrative Agent, pursuant to this paragraph
to reimburse the Issuing Bank for any Funded L/C Disbursement, the Term Loan
Borrower shall be deemed to have reimbursed the Issuing Bank as of such date and
the Term Lenders shall be deemed to have extended, and the Term Loan Borrower
shall be deemed to have accepted, a Term Loan in the aggregate principal amount
of such payment without further action on the part of any party, and the Total
Credit-Linked Deposit shall be permanently reduced by such amount; any amount so
paid pursuant to this paragraph shall, on and after the payment date thereof, be
deemed to be Term Loans for all purposes hereunder.
Section 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f),
as to which this Section 2.03 shall not apply), the applicable Borrower shall
notify the Administrative Agent by
44
telephone (promptly confirmed by fax) or shall hand deliver or fax to the
Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 12:00 (noon), New York City time, three
Business Days before a proposed Borrowing and (b) in the case of an ABR
Borrowing, not later than 12:00 (noon), New York City time, one Business Day
before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall
be signed by or on behalf of the applicable Borrower and shall specify the
following information: (i) whether the Borrowing then being requested is to be a
Term Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to
be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v)
if such Borrowing is to be a Eurodollar Borrowing, the initial Interest Period
with respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice
given in accordance with this Section 2.03 (and the contents thereof), and of
each Lender's portion of the requested Borrowing.
Section 2.04. Repayment of Loans; Evidence of Debt(a) . (a) Each
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender (i) the principal amount of each Term Loan of such
Lender made to such Borrower as provided in Section 2.11 and (ii) the then
unpaid principal amount of each Revolving Loan of such Lender made to such
Borrower on the Revolving Credit Maturity Date. Each Revolving Loan Borrower
hereby unconditionally promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan made to such Revolving Loan Borrower on
the earlier of the Revolving Credit Maturity Date and the first date after such
Swingline Loan is made that is the 15th day or the last day of a calendar month
and is at least three Business Days after such Swingline Loan is made.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the applicable
Borrower to such Lender resulting from each Loan made by such Lender to such
Borrower from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement, and
shall provide copies of such accounts to the Company upon its reasonable request
(at the Company's sole cost and expense).
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the applicable Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from any Borrower or any Guarantor and each
Lender's share thereof, and shall provide copies of such accounts to the Company
upon its reasonable request (at the Company's sole cost and expense).
45
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section shall be conclusive evidence of the
existence and amounts of the obligations therein recorded absent manifest error;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of each Borrower to repay the Loans made to such Borrower in
accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it hereunder be
evidenced by a promissory note. In such event, the applicable Borrower shall
execute and deliver to such Lender a promissory note payable to such Lender and
its registered assigns in the form of Exhibit L, if such promissory note relates
to Revolving Credit Borrowings, or in the form of Exhibit M, if such promissory
note relates to Term Borrowings and Credit Linked Deposits, or any other form
reasonably acceptable to the Administrative Agent. Notwithstanding any other
provision of this Agreement, in the event any Lender shall request and receive
such a promissory note, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees(a) . (a) The Company agrees to pay to each Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December in each year and on each date on which any Commitment of
such Lender shall expire or be terminated as provided herein, a commitment fee
(a "Commitment Fee") equal to the applicable Commitment Fee Rate in effect from
time to time on the average daily unused amount of the Commitments of such
Lender (other than the Swingline Commitment) during the preceding quarter (or
other period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which the Commitments of such Lender shall expire
or be terminated). All Commitment Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days. The Commitment Fee due to
each Lender shall commence to accrue on the date hereof and shall cease to
accrue on the date on which the Commitment of such Lender shall expire or be
terminated as provided herein. For purposes of calculating Commitment Fees with
respect to Revolving Credit Commitments only, no portion of the Revolving Credit
Commitments shall be deemed utilized under Section 2.17 as a result of
outstanding Swingline Loans.
(b) The Company agrees to pay to the Administrative Agent, for its
own account, the fees in the amounts and at the times from time to time agreed
to in writing by the Company and the Administrative Agent, including pursuant to
the Fee Letter (the "Administrative Agent Fees").
(c) Each Revolving Loan Borrower agrees to pay (i) to each
Revolving Credit Lender, through the Administrative Agent, on the last Business
Day of March, June, September and December of each year and on the date on which
the Revolving Credit Commitment of such Lender shall be terminated as provided
herein (each, a "Revolving L/C Fee Payment Date") a fee (a "Revolving L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the daily
aggregate Revolving L/C Exposure (excluding the portion thereof attributable to
unreimbursed Revolving L/C Disbursements which are earning interim interest
pursuant to Section 2.23(h)) during the preceding quarter (or shorter period
commencing with the date hereof
46
or ending with the Revolving Credit Maturity Date or the date on which all
Revolving Letters of Credit have been canceled or have expired and the Revolving
Credit Commitments of all Lenders shall have been terminated) at a rate per
annum equal to the Applicable Margin used to determine the interest rate on
Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to Section
2.06, and (ii) to the Issuing Bank with respect to each outstanding Revolving
Letter of Credit issued for the account of (or at the request of) such Borrower
a fronting fee, which shall accrue at the rate of -1/4 of 1% per annum or such
other lower rate as shall be separately agreed upon between such Borrower and
the Issuing Bank, on the drawable amount of such Revolving Letter of Credit,
payable quarterly in arrears on each Revolving L/C Fee Payment Date after the
issuance date of such Revolving Letter of Credit, as well as the Issuing Bank's
standard and reasonable fees with respect to the issuance, amendment, renewal or
extension of any Revolving Letter of Credit issued for the account of (or at the
request of) such Borrower or processing of drawings thereunder (the fees in this
clause (ii), collectively, the "Revolving Issuing Bank Fees"). All Revolving L/C
Participation Fees and Revolving Issuing Bank Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.
(d) Subject to the provisions of Section 2.07, the Term Loan
Borrower agrees to pay (i) to each Term Lender, through the Administrative
Agent, on the last Business Day of March, June, September and December of each
year and on the date on which the Credit-Linked Deposits are returned to the
Term Lenders (each, a "Funded L/C Fee Payment Date") a fee (a "Funded L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the daily
amount of the Total Credit-Linked Deposit (excluding the portion thereof
attributable to unreimbursed Funded L/C Disbursements which are earning interim
interest pursuant to Section 2.23(h)) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Funded Letter of
Credit Maturity Date or the date on which the entire amount of such Lender's
Credit-Linked Deposit is returned to it) at a rate per annum equal to the
Applicable Margin used to determine the interest rate on Term Borrowings
comprised of Eurodollar Loans pursuant to Section 2.06, (ii) to each Term
Lender, through the Administrative Agent, the fees referred to in the last
sentence of Section 2.24(b) and (iii) to the Issuing Bank with respect to each
outstanding Funded Letter of Credit issued for the account of (or at the request
of) such Borrower a fronting fee, which shall accrue at the rate of 1/4 of 1%
per annum or such other lower rate as shall be separately agreed upon between
such Borrower and the Issuing Bank, on the drawable amount of such Funded Letter
of Credit, payable quarterly in arrears on each Funded L/C Fee Payment Date
after the issuance date of such Funded Letter of Credit, as well as the Issuing
Bank's standard and reasonable fees with respect to the issuance, amendment,
renewal or extension of any Funded Letter of Credit issued for the account of
(or at the request of) such Borrower or processing of drawings thereunder (the
fees in this clause (ii), collectively, the "Funded Issuing Bank Fees"). All
Funded L/C Participation Fees and Funded Issuing Bank Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days.
(e) All optional prepayments of Term Loans and all optional
reductions of the Total Credit-Linked Deposit shall be accompanied by the
payment of a prepayment fee (each, a "Prepayment Fee") equal to (i) 3.0% of the
aggregate amount of such prepayment or reduction, as the case may be, if such
prepayment or reduction, as the case may be, is made during the period beginning
on the Closing Date and ending on the first anniversary thereof, (ii) 2.0% of
the aggregate amount of such prepayment or reduction, as the case may be, if
such prepayment or
47
reduction, as the case may be, is made during the period beginning on the day
following such first anniversary of the Closing Date and ending on the second
anniversary of the Closing Date and (iii) 1.0% of the aggregate amount of such
prepayment or reduction, as the case be, if such prepayment or reduction, as the
case may be, is made during the period beginning on the day following such
second anniversary of the Closing Date and ending on the third anniversary of
the Closing Date.
(f) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that the Issuing Bank Fees shall be paid
directly to the Issuing Bank. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the Alternate Base Rate
plus the Applicable Margin.
(b) Subject to the provisions of Section 2.07, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
Subject to Section 2.08, the applicable Alternate Base Rate or Adjusted LIBO
Rate for each Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If a Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due and payable hereunder or under any other Loan Document, by acceleration or
otherwise, such Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount to but excluding the date of
actual payment (after as well as before judgment) (a) in the case of overdue
principal, at the rate otherwise applicable to such Loan pursuant to Section
2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when determined by reference to the Prime Rate
and over a year of 360 days at all other times) equal to the rate that would be
applicable to an ABR Revolving Loan plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that prior to the commencement of any Interest Period for a Eurodollar
Borrowing or the determination of the Benchmark LIBO Rate on any day (a) the
Administrative Agent shall have determined that adequate and reasonable means do
not exist for determining the Adjusted LIBO Rate for such Interest Period or the
Benchmark LIBO Rate for such day or (b) the Administrative Agent is advised by
the Majority Revolving Credit Lenders or the Majority Term Lenders in good faith
48
that the Adjusted LIBO Rate for such Interest Period or the Benchmark LIBO Rate
for such day will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing or such
Credit-Linked Deposit, as applicable, for such Interest Period the
Administrative Agent shall, as soon as practicable thereafter, give written or
fax notice of such determination to the applicable Borrower and the Lenders. In
the event of any such notice, until the Administrative Agent shall have advised
the applicable Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) any request by a Borrower for a Eurodollar
Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for
an ABR Borrowing, (ii) any Interest Period election that requests the conversion
of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective and (iii) the Credit-Linked Deposits shall be invested so
as to earn a return equal to the greater of the Federal Funds Effective Rate and
a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation. Each determination by the
Administrative Agent under this Section 2.08 shall be conclusive absent manifest
error.
SECTION 2.09. Termination and Reduction of Commitments; Return,
Reduction and Conversion of Credit-Linked Deposits. (a) Unless previously
terminated in accordance with the terms hereof, (i) the Term Loan Commitments
shall automatically terminate at 5:00 p.m., New York City time, on the Closing
Date and (ii) the Revolving Credit Commitments, the Swingline Commitment and the
Revolving L/C Commitment shall automatically terminate on the Revolving Credit
Maturity Date. If any Funded Letter of Credit remains outstanding on the Funded
Letter of Credit Maturity Date, the Term Loan Borrower shall deposit with the
Administrative Agent an amount in cash equal to 100% of the aggregate undrawn
amount of such Letter of Credit to secure the full obligations with respect to
any drawings that may occur thereunder. Subject only to the Borrowers'
compliance with their obligations under the immediately preceding sentence, any
amount of the Credit-Linked Deposits held in the Credit-Linked Deposit Account
will be returned to the Term Lenders on the Funded Letter of Credit Maturity
Date pursuant to Section 2.11(c). Notwithstanding the foregoing, all the
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
December 23, 2003, if the initial Credit Event shall not have occurred by such
time.
(b) Upon at least three Business Days' prior irrevocable written
or fax notice to the Administrative Agent, the Company may at any time in whole
permanently terminate, or from time to time in part permanently reduce, in each
case without premium or penalty, the Revolving Credit Commitments or the
Swingline Commitment; provided, however, that (i) each partial reduction of the
Revolving Credit Commitments or the Swingline Commitment shall be in an integral
multiple of $1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total
Revolving Credit Commitment shall not be reduced to an amount that is less than
the Aggregate Revolving Credit Exposure then in effect. Upon at least three
Business Days' prior irrevocable written or fax notice to the Administrative
Agent, the Company may at any time in whole permanently terminate, or from time
to time permanently reduce, the Total Credit-Linked Deposit; provided, however,
that (i) each partial reduction of the Total Credit-Linked Deposit shall be in
an integral multiple of $1,000,000 and in a minimum amount of $5,000,000 and
(ii) the Total Credit-Linked Deposit shall not be reduced to an amount that
would result in the aggregate Funded L/C Exposure exceeding the Total
Credit-Linked Deposit (as so reduced). In the event the Credit-Linked Deposits
shall be reduced as provided in the immediately preceding
49
sentence, the Administrative Agent shall return all amounts in the Credit-Linked
Deposit Account in excess of the reduced Total Credit-Linked Deposit to the Term
Lenders ratably in accordance with their Pro Rata Percentages of the Total
Credit-Linked Deposit (as determined immediately prior to such reduction).
(c) Each reduction in the Revolving Credit Commitments or
Swingline Commitment, or reduction of the Total Credit-Linked Deposit, hereunder
shall be made ratably among the applicable Lenders in accordance with their Pro
Rata Percentages. The Company shall pay to the Administrative Agent for the
account of the applicable Lenders, on the date of each termination or reduction,
the Commitment Fees on the amount of the Commitments so terminated or reduced
accrued to but excluding the date of such termination or reduction.
(d) In addition to the foregoing and subject to the terms hereof,
so long as no Default or Event of Default shall have occurred and be continuing,
upon at least three Business Days' prior irrevocable written or fax notice to
the Administrative Agent, the Term Loan Borrower may, at any time and from time
to time, request that any unused portion of the Total Credit Linked Deposit in
an amount not greater than the excess of the Total Credit-Linked Deposit over
the aggregate Funded L/C Exposure be permanently converted into Term Loans, in
whole or in part, without premium or penalty; provided, however, that (i) each
partial conversion shall be an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Credit-Linked Deposit shall not be
reduced to an amount that would result in the aggregate Funded L/C Exposure
exceeding the Total Credit-Linked Deposit (as so reduced). Any such notice of
conversion shall include the date and amount of such conversion. If any such
notice of conversion is properly given, the Administrative Agent shall
irrevocably and permanently fund the requested amount in the Credit-Linked
Deposit Account to the Term Loan Borrower as proceeds of Term Loans made on such
date by the Term Lenders ratably in accordance with their Pro Rata Percentages
of the Total Credit-Linked Deposit, and the amount so funded shall permanently
reduce the Total Credit-Linked Deposit; any amount so funded pursuant to this
paragraph shall, on and after the funding date thereof, be deemed to be Term
Loans for all purposes hereunder.
SECTION 2.10. Conversion and Continuation of Borrowings. Each Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing of such
Borrower into an ABR Borrowing, (b) not later than 12:00 (noon), New York City
time, three Business Days prior to conversion or continuation, to convert any
ABR Borrowing of such Borrower into a Eurodollar Borrowing or to continue any
Eurodollar Borrowing of such Borrower as a Eurodollar Borrowing for an
additional Interest Period and (c) not later than 12:00 (noon), New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing of such Borrower to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro
rata among the Lenders in accordance with the respective principal
amounts of the Loans comprising the converted or continued Borrowing;
50
(ii) if less than all the outstanding principal amount of
any Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and
the Administrative Agent by recording for the account of such Lender
the new Loan of such Lender resulting from such conversion and reducing
the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued and unpaid interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by
the applicable Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
applicable Borrower shall pay, upon demand, any amounts due to the
Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar
Term Borrowing that would end later than a Repayment Date occurring on
or after the first day of such Interest Period if, after giving effect
to such selection, the aggregate outstanding amount of the sum of (A)
the Eurodollar Term Borrowings with Interest Periods ending on or prior
to such Repayment Date and (B) the ABR Term Borrowings would not be at
least equal to the principal amount of Term Borrowings to be paid on
such Repayment Date; and
(viii) after the occurrence and during the continuance of an
Event of Default, no outstanding Loan may be converted into, or
continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the applicable Borrower requests be converted or continued, (ii)
whether such Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the applicable Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall advise the
Lenders of any notice given pursuant to this Section 2.10 and of each Lender's
portion of any converted or continued Borrowing. If the applicable Borrower
shall not have given notice in accordance with this Section 2.10 to continue any
Borrowing into a subsequent
51
Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end
of the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be converted or continued into an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) Subject to the
provisions of paragraph (b) of this Section, on the dates set forth below, or if
any such date is not a Business Day, on the next preceding Business Day (each
such date being called a "Repayment Date"), the Term Loan Borrower shall pay to
the Administrative Agent, for the account of the Term Lenders, a principal
amount of the Term Loans (as adjusted from time to time pursuant to Sections
2.11(c), 2.12 and 2.13(g)), and an amount of Credit-Linked Deposits (as adjusted
from time to time pursuant to Sections 2.09(b), 2.11(c) and 2.13(g)) will be
returned to the Term Lenders, in an aggregate amount equal to the sum of (i) the
principal amount of Term Loans made on the Closing Date and (ii) the amount of
the Credit-Linked Deposits on the Closing Date, multiplied, in each case, by the
percentage set forth below for such date, together in each case with accrued and
unpaid interest and Fees on the amount to be paid or returned to but excluding
the date of such payment or return:
Repayment Date Percentage
-------------- ----------
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 0.25%
September 30, 2005 0.25%
December 31, 2005 0.25%
March 31, 2006 0.25%
June 30, 2006 0.25%
September 30, 2006 0.25%
December 31, 2006 0.25%
March 31, 2007 0.25%
June 30, 2007 0.25%
September 30, 2007 0.25%
December 31, 2007 0.25%
March 31, 2008 0.25%
June 30, 2008 0.25%
September 30, 2008 0.25%
December 31, 2008 0.25%
March 31, 2009 0.25%
June 30, 2009 0.25%
September 30, 2009 0.25%
December 31, 2009 0.25%
March 31, 2010 0.25%
Term Loan Maturity Date 93.75% or
Remainder
52
(b) Notwithstanding any provision in this Agreement to the
contrary, the aggregate amount to be repaid or returned on any date pursuant to
this Section 2.11 (other than the Term Loan Maturity Date) shall be applied
first to the repayment (to the extent of funds required to be so applied) of all
Term Loans outstanding on such date and thereafter (to the extent of any
residual) to the return of Credit-Linked Deposits outstanding on such date.
(c) In the event and on each occasion that any Term Loan
Commitments shall be reduced or shall expire or terminate other than as a result
of the making of a Term Loan, the installments payable on each Repayment Date
shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.
(d) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment. To the extent not previously returned in accordance with the provisions
hereof, all Credit-Linked Deposits shall be returned to the Term Lenders on the
Funded Letter of Credit Maturity Date.
(e) All repayments pursuant to this Section 2.11 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) Each Borrower shall have the right at
any time and from time to time to prepay any Borrowing of such Borrower, in
whole or in part, upon at least three Business Days' prior written or fax notice
(or telephone notice promptly confirmed by written or fax notice) in the case of
Eurodollar Loans, or written or fax notice (or telephone notice promptly
confirmed by written or fax notice) at least one Business Day prior to the date
of prepayment in the case of ABR Loans, to the Administrative Agent before 11:00
a.m., New York City time; provided, however, that each partial prepayment shall
be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000.
(b) Optional prepayments of Term Loans shall be applied pro rata
against the remaining scheduled installments of principal due in respect of the
Term Loans.
(c) Each notice of prepayment shall specify the prepayment date
and the principal amount of each Borrowing (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the applicable Borrower to prepay such
Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Sections 2.05(e) and
2.16. All prepayments under this Section 2.12 shall be accompanied by accrued
and unpaid interest on the principal amount to be prepaid to but excluding the
date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, each Revolving Loan
Borrower shall, on the date of such termination, repay or prepay all its
outstanding Revolving Credit Borrowings and all its outstanding Swingline Loans
and replace all its outstanding Revolving Letters of Credit and/or deposit an
amount equal to the Revolving L/C Exposure in cash in a cash collateral account
established with the Collateral Agent for the benefit of the Secured Revolving
Loan Parties. If as a result of any partial reduction of the Revolving Credit
Commitments the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment after giving effect
53
thereto, then the Revolving Loan Borrowers shall, on the date of such reduction,
repay or prepay Revolving Credit Borrowings or Swingline Loans (or a combination
thereof) and/or cash collateralize Revolving Letters of Credit in an amount
sufficient to eliminate such excess.
(b) Not later than the tenth Business Day following receipt of Net
Cash Proceeds from the completion of any Asset Sale (other than an Asset Sale
that relates to the Specified Assets Held for Sale) or the occurrence of any
Recovery Event, the Term Loan Borrower shall apply the Required Prepayment
Percentage of the Net Cash Proceeds received with respect thereto to prepay
outstanding Term Loans and permanently reduce the Total Credit-Linked Deposit,
such prepayment and reduction to be made in accordance with Section 2.13(f).
(c) In the event and on each occasion that an Equity Issuance
occurs, the Term Loan Borrower shall, substantially simultaneously with (and in
any event not later than the tenth Business Day next following) the occurrence
of such Equity Issuance, apply the Required Prepayment Percentage of the Net
Cash Proceeds therefrom to prepay outstanding Term Loans and permanently reduce
the Total Credit-Linked Deposit, such prepayment and reduction to be made in
accordance with Section 2.13(f).
(d) In the event that any Loan Party or any subsidiary of a Loan
Party shall receive Net Cash Proceeds from the issuance or other incurrence of
Indebtedness of any Loan Party or any subsidiary of a Loan Party (other than
Indebtedness permitted pursuant to Section 6.01 (other than pursuant to Section
6.01(i))), the Term Loan Borrower shall, substantially simultaneously with (and
in any event not later than the tenth Business Day next following) the receipt
of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount
equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay
outstanding Term Loans and permanently reduce the Total Credit-Linked Deposit,
such prepayment and reduction to be made in accordance with Section 2.13(f).
(e) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Term Loan Borrower, commencing with the fiscal year ending on
December 31, 2004, and (ii) the date on which the financial statements with
respect to such period are delivered pursuant to Section 5.04(a), the Term Loan
Borrower shall prepay outstanding Term Loans and permanently reduce the Total
Credit-Linked Deposit, such prepayment and reduction to be made in accordance
with Section 2.13(f), in an aggregate principal amount equal to the Required
Prepayment Percentage of Adjusted Excess Cash Flow for the fiscal year then
ended.
(f) Notwithstanding any provision in this Agreement to the
contrary, but subject to the right of each Term Lender to elect to decline all
or any portion of any prepayment or return pursuant to this Section 2.13 as
described below, the amount to be prepaid or returned on any date pursuant to
this Section 2.13 shall be applied first to the prepayment (to the extent
required to be so applied) of all Term Loans outstanding on such date and
thereafter (to the extent of any residual) to the permanent return of
Credit-Linked Deposits outstanding on such date (or to be deposited in an
account with the Administrative Agent if required under the circumstances
described in paragraph (g) below). No later than 5:00 p.m., New York City time,
one Business Day prior to the applicable prepayment or return date, each Term
Lender may provide written notice to the Administrative Agent either (i) setting
forth the maximum amount of the aggregate amount of its Term Loans and
Credit-Linked Deposits collectively that it wishes to have prepaid
54
or returned on such date pursuant to this Section (the "Requested Prepayment
Amount") or (ii) declining in its entirety any prepayment or return on such date
pursuant to this Section. In the event that any Term Lender shall fail to
provide such written notice to the Administrative Agent within the time period
specified above, such Term Lender shall be deemed to have elected a Requested
Prepayment Amount equal to its ratable share of such mandatory prepayment or
return (determined based on the percentage of the aggregate amount of all Term
Loans and the Total Credit-Linked Deposit represented by such Term Lender's Term
Loans and Credit-Linked Deposits, in each case as determined immediately prior
to such prepayment or return and without taking into account any Requested
Prepayment Amount of any other Lender). In the event that the amount of any
mandatory prepayment or return to be made pursuant to this Section shall be
equal to or exceed the aggregate amount of all Requested Prepayment Amounts of
all Term Lenders electing (or deemed to be electing) such a prepayment or
return, each Term Lender electing (or deemed to be electing) such a prepayment
or return shall have an amount of its Term Loans prepaid and, if applicable, its
Credit-Linked Deposits returned that is equal to such Term Lender's Requested
Prepayment Amount. In the event that the amount of any mandatory prepayment or
return to be made pursuant to this Section shall be less than the aggregate
amount of all Requested Prepayment Amounts of all Term Lenders electing (or
deemed to be electing) such a prepayment or return, each Term Lender electing
(or deemed to be electing) such a prepayment or return shall have its Term Loans
prepaid and, if applicable, its Credit-Linked Deposits returned in an amount
equal to the product of (A) the amount of such mandatory prepayment or return
and (B) the percentage of the aggregate Requested Prepayment Amounts of all Term
Lenders electing (or deemed to be electing) such a prepayment or return
represented by such Term Lender's Requested Prepayment Amount. Mandatory
prepayments of outstanding Term Loans and reductions of Credit-Linked Deposits
under this Agreement shall be applied pro rata against the remaining scheduled
installments due in respect of the Term Loans and the Credit-Linked Deposits
under Section 2.11.
(g) Notwithstanding any provision in this Agreement to the
contrary, in the event that any permanent reduction of the Total Credit-Linked
Deposit pursuant to this Section would result in the Funded L/C Exposure
exceeding the Total Credit-Linked Deposit, the Term Loan Borrower shall deposit
cash in a cash collateral account established with the Administrative Agent
pursuant to Section 2.23(j) in the amount of such excess.
(h) The Term Loan Borrower shall deliver to the Administrative
Agent, at the time of each prepayment or reduction required under this Section
2.13, (i) a certificate signed by a Financial Officer of the Term Loan Borrower
setting forth in reasonable detail the calculation of the amount of such
prepayment or reduction and (ii) to the extent practicable, at least ten days
prior written notice of such prepayment or reduction (and the Administrative
Agent shall promptly provide the same to each Term Lender). Each notice of
prepayment or reduction shall specify the prepayment or reduction date, the Type
of each Loan being prepaid and the principal amount of each Loan (or portion
thereof) to be prepaid and the amount of any reduction of the Total
Credit-Linked Deposit. All prepayments of Borrowings or reductions of the Total
Credit-Linked Deposit pursuant to this Section 2.13 shall be subject to Section
2.16, but shall otherwise be without premium or penalty.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall:
55
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender, the
Administrative Agent or the Issuing Bank (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or
(ii) impose on any Lender, the Administrative Agent or the
Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein or any Credit-Linked Deposit,
and the result of any of the foregoing shall be to increase the cost to such
Lender or the Issuing Bank of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to any
Lender, the Administrative Agent or the Issuing Bank of issuing or maintaining
any Letter of Credit or any Credit-Linked Deposit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount reasonably deemed by such Lender, the Administrative
Agent or the Issuing Bank to be material, then the Borrowers will pay to such
Lender, the Administrative Agent or the Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender, the Administrative Agent or the Issuing Bank
shall have determined that any Change in Law regarding capital adequacy has or
would have the effect of reducing the rate of return on such Lender's, the
Administrative Agent's or the Issuing Bank's capital or on the capital of such
Lender's, the Administrative Agent's or the Issuing Bank's holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations
in Letters of Credit purchased by, such Lender or the Letters of Credit issued
by the Issuing Bank to a level below that which such Lender, the Administrative
Agent or the Issuing Bank or such Lender's, the Administrative Agent's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's, the Administrative Agent's or the
Issuing Bank's policies and the policies of such Lender's, the Administrative
Agent's or the Issuing Bank's holding company with respect to capital adequacy)
by an amount reasonably deemed by such Lender, the Administrative Agent or the
Issuing Bank to be material, then from time to time the Borrowers shall pay to
such Lender, the Administrative Agent or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender, the
Administrative Agent or the Issuing Bank or such Lender's, the Administrative
Agent's or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender, the Administrative Agent or the
Issuing Bank setting forth the amount or amounts reasonably determined by such
person to be necessary to compensate such Lender, the Administrative Agent or
the Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrowers and
shall be conclusive absent manifest error. The Borrowers shall pay such Lender,
the Administrative Agent or the Issuing Bank, as the case may be, the amount or
amounts shown as due on any such certificate delivered by it within 10 days
after its receipt of the same.
56
(d) Failure or delay on the part of any Lender, the Administrative
Agent or the Issuing Bank to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender's, the Administrative Agent's or the
Issuing Bank's right to demand such compensation; provided that the Borrowers
shall not be under any obligation to compensate any Lender, the Administrative
Agent or the Issuing Bank under paragraph (a) or (b) above for increased costs
or reductions with respect to any period prior to the date that is 270 days
prior to such request if such Lender, the Administrative Agent or the Issuing
Bank knew or could reasonably have been expected to know of the circumstances
giving rise to such increased costs or reductions and of the fact that such
circumstances would result in a claim for increased compensation by reason of
such increased costs or reductions; provided further that the foregoing
limitation shall not apply to any increased costs or reductions arising out of
the retroactive application of any Change in Law within such 270-day period. The
protection of this Section shall be available to each Lender, the Administrative
Agent and the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the Change in Law that shall have occurred or
been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrowers and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will
not thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding
Eurodollar Loans made by it be converted to ABR Loans, in which event
all such Eurodollar Loans shall be automatically converted to ABR Loans
as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans. Any such conversion of a Eurodollar Loan under (i) above
shall be subject to Section 2.16.
(b) For purposes of this Section 2.15, a notice to the Borrowers
by any Lender shall be effective as to each Eurodollar Loan made by such Lender,
if lawful, on the last day of the Interest Period then applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrowers.
57
SECTION 2.16. Indemnity. The Borrowers shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, (iii) any Eurodollar
Loan to be made by such Lender (including any Eurodollar Loan to be made
pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the applicable Borrower
hereunder, (iv) the default by the Term Loan Borrower in making any reduction or
conversion of any Credit-Linked Deposits after notice thereof shall have been
given by the Term Loan Borrower hereunder or (v) the reduction or conversion of
any Credit-Linked Deposits on a day which is not the last day of the Interest
Period with respect thereto (any of the events referred to in this clause (a)
being called a "Breakage Event") or (b) any default in the making of any payment
or prepayment required to be made hereunder. In the case of any Breakage Event,
such loss shall include an amount equal to the excess, as reasonably determined
by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan or
Credit-Linked Deposit that is the subject of such Breakage Event for the period
from the date of such Breakage Event to the last day of the Interest Period in
effect (or that would have been in effect) for such Loan or Credit-Linked
Deposit, as the case may be, over (ii) the amount of interest likely to be
realized by such Lender in redeploying the funds released or not utilized by
reason of such Breakage Event for such period. A certificate of any Lender
setting forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.16 shall be delivered to the Borrowers and shall be
conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Section 2.13,
2.14, 2.15 or 2.20, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Term Loan Commitments or the Revolving
Credit Commitments and each conversion of any Borrowing to or continuation of
any Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any
time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments of the Lenders (including those Lenders which shall
not have made Swingline Loans) pro rata in accordance with such respective
Revolving Credit Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
any Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any
58
other means, obtain payment (voluntary or involuntary) in respect of any Loan or
Loans or L/C Disbursement as a result of which the unpaid principal portion of
its Loans and participations in L/C Disbursements shall be proportionately less
than the unpaid principal portion of the Loans and participations in L/C
Disbursements of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Loans and L/C
Exposure of such other Lender, so that the aggregate unpaid principal amount of
the Loans and L/C Exposure and participations in Loans and L/C Exposure held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal amount of
its Loans and L/C Exposure prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans and L/C
Exposure outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan or L/C Disbursement deemed to have been
so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by such Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
such Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) Each Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 12:00 (noon), New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.21(e)) shall be made to the Administrative Agent at its offices at Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 by wire transfer of immediately available
funds (or as otherwise agreed by the Company and the Administrative Agent). All
payments hereunder and under each other Loan Document shall be made in dollars.
(b) Except as otherwise expressly provided herein, whenever any
payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of
any obligation of any Borrower or any other Loan Party hereunder or under any
other Loan Document shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if any Borrower or any other
Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions
59
applicable to additional sums payable under this Section) the Administrative
Agent or such Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower or such
other Loan Party shall make (or cause to be made) such deductions and (iii) such
Borrower or such other Loan Party shall pay (or cause to be paid) the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law. In addition, any Borrower or any other Loan Party hereunder
shall pay (or cause to be paid) any Other Taxes imposed other than by deduction
or withholding to the relevant Governmental Authority in accordance with
applicable law.
(b) Any and all payments by or on account of any obligation of the
Administrative Agent pursuant to Section 2.24(b) hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Administrative Agent shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the Administrative
Agent shall so notify the Company and advise it of the additional amount
required to be paid so that the sum payable by the Administrative Agent pursuant
to Section 2.24(b) after making all required deductions (including deductions
applicable to additional sums payable under this Section) to the Term Lenders is
an amount from the Administrative Agent equal to the sum they would have
received from the Administrative Agent had no deductions been made, (ii) the
Borrowers shall pay such additional amount to the Administrative Agent, (iii)
the Administrative Agent shall make all required deductions, (iv) the
Administrative Agent shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law and (v) the Borrowers
shall jointly and severally indemnify, within 10 days after written demand
therefor, the Administrative Agent with respect to any payments made on account
of any obligation of the Administrative Agent pursuant to Section 2.24(b).
(c) Each Borrower shall jointly and severally indemnify the
Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, or any of their
respective Affiliates, on or with respect to any payment by or on account of any
obligation of any Borrower or any Loan Party hereunder or under any other Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto. A certificate
as to the amount of such payment or liability shall be delivered to any Borrower
by a Lender, or by the Administrative Agent on its behalf or on behalf of a
Lender, promptly upon such party's determination of an indemnifiable event and
such certificate shall be conclusive absent clearly demonstrable error; provided
that the failure to deliver such certificate shall not affect the obligations of
the Borrowers under this Section 2.20(c) except to the extent the Borrower is
actually prejudiced thereby. Payment under this Section 2.20(c) shall be made
within 15 days from the date of delivery of such certificate; provided that the
Borrower shall not be obligated to make any such payment to the Administrative
Agent or the Lender (as the case may be) in respect of penalties, interest and
other liabilities attributable to any Indemnified Taxes or Other Taxes if and to
the extent that such penalties, interest and other liabilities are attributable
to the gross negligence or willful misconduct of the Administrative Agent or
such Lender or to the failure of the Administrative Agent or a Lender to deliver
a certificate as to the amount of an indemnifiable liability within 180 days of
such party's determination of an indemnifiable event.
60
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by any Borrower or any other Loan Party to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which any
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the reasonable written request of such
Borrower, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate, provided that such Lender is legally entitled to complete,
execute and deliver such documentation and in such Lender's reasonable judgment
such completion, execution or delivery would not materially prejudice the legal
position of such Lender.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank
delivers a certificate requesting compensation pursuant to Section 2.14, (ii)
any Lender or the Issuing Bank delivers a notice described in Section 2.15 or
(iii) any Borrower is required to pay any additional amount to any Lender or the
Issuing Bank or any Governmental Authority on account of any Lender or the
Issuing Bank pursuant to Section 2.20, the Borrowers may, at their sole expense
and effort (including with respect to the processing and recordation fee
referred to in Section 9.04(b)), upon notice to such Lender or the Issuing Bank
and the Administrative Agent, require such Lender or the Issuing Bank to
transfer and assign, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all of its interests, rights and
obligations under this Agreement to an assignee that shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (x) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (y) the Borrowers shall have received the prior written consent of
the Administrative Agent (and, if a Revolving Credit Commitment is being
assigned, of the Issuing Bank and the Swingline Lender), which consent shall not
unreasonably be withheld, and (z) the Borrowers or such assignee shall have paid
to the affected Lender or the Issuing Bank in immediately available funds an
amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans or L/C Disbursements of such Lender or the
Issuing Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Issuing Bank hereunder (including any amounts
under Section 2.14 and Section 2.16); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or the Issuing Bank's claim for compensation under Section 2.14 or
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the
case may be, cease to cause such Lender or the Issuing Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.14 in respect of
such circumstances or event or shall withdraw its notice under Section 2.15 or
shall waive its right to
61
further payments under Section 2.20 in respect of such circumstances or event,
as the case may be, then such Lender or the Issuing Bank shall not thereafter be
required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request
compensation under Section 2.14, (ii) any Lender or the Issuing Bank delivers a
notice described in Section 2.15 or (iii) any Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrowers or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender or
the Issuing Bank in connection with any such filing or assignment, delegation
and transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to
the terms and conditions hereof and relying upon the representations and
warranties, set forth herein, the Swingline Lender agrees to make loans to the
Revolving Loan Borrowers, at any time and from time to time after the Closing
Date, and until the earlier of the Revolving Credit Maturity Date and the
termination of the Revolving Credit Commitments in accordance with the terms
hereof, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of all Swingline Loans exceeding
$25,000,000 in the aggregate or (ii) the Aggregate Revolving Credit Exposure,
after giving effect to any Swingline Loan, exceeding the Total Revolving Credit
Commitment. Each Swingline Loan shall be in a principal amount that is an
integral multiple of $500,000. The Swingline Commitment may be terminated or
reduced from time to time as provided herein. Within the foregoing limits, the
Revolving Loan Borrowers may borrow, pay or prepay, without premium or penalty,
and reborrow Swingline Loans hereunder, subject to the terms, conditions and
limitations set forth herein.
(b) Swingline Loans. Each Revolving Loan Borrower shall notify the
Administrative Agent by fax, or by telephone (confirmed by fax), not later than
10:00 a.m., New York City time, on the day of a proposed Swingline Loan to be
made to it. Such notice shall be delivered on a Business Day, shall be
irrevocable and shall refer to this Agreement and shall specify the requested
date (which shall be a Business Day) and amount of such Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any notice
received from a Revolving Loan Borrower pursuant to this paragraph (b). The
Swingline Lender shall make each Swingline Loan available to the applicable
Revolving Loan Borrower by means of a credit to the general deposit account of
such Revolving Loan Borrower with the Swingline Lender by 3:00 p.m. on the date
such Swingline Loan is so requested.
(c) Prepayment. The Revolving Loan Borrowers shall have the right
at any time and from time to time to prepay any Swingline Loan, in whole or in
part, upon giving written or fax
62
notice (or telephone notice promptly confirmed by written or fax notice) to the
Swingline Lender and to the Administrative Agent before 12:00 (noon), New York
City time, on the date of prepayment at the Swingline Lender's address for
notices specified in the Lender Addendum delivered by the Swingline Lender. All
principal payments of Swingline Loans shall be accompanied by accrued interest
on the principal amount being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and,
subject to the provisions of Section 2.07, shall bear interest as provided in
Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice
given to the Administrative Agent not later than 10:00 a.m., New York City time,
on any Business Day require the Revolving Credit Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Revolving Credit Lenders will participate. The Administrative Agent
will, promptly upon receipt of such notice, give notice to each Revolving Credit
Lender, specifying in such notice such Lender's Pro Rata Percentage of such
Swingline Loan or Loans. In furtherance of the foregoing, each Revolving Credit
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Revolving Credit Lender's Pro Rata Percentage of such
Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Credit
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Lender (and Section 2.02(c) shall apply,
mutatis mutandis, to the payment obligations of the Lenders under this Section)
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Revolving Loan Borrowers of any participations in any Swingline Loan
acquired pursuant to this paragraph and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the
Revolving Loan Borrowers (or other party on behalf of the Revolving Loan
Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve any Revolving Loan
Borrower (or other party liable for obligations of any Revolving Loan Borrower)
of any default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) General. Subject to the terms
and conditions hereof, (i) each Revolving Loan Borrower may request the issuance
of a Revolving Letter of Credit at any time and from time to time while the
Revolving Credit Commitments remain in effect, and (ii) the Term Loan Borrower
may request the issuance of a Funded Letter of Credit at any time and from time
to time during the Funded Letter of Credit Availability Period, in each
63
case for its own account or for the account of any of the Subsidiary Guarantors
or for the account of any other Subsidiary provided that the L/C Exposure with
respect to all such Letters of Credit for the account of Subsidiaries that are
not Subsidiary Guarantors shall not exceed the L/C Exposure Cap (and, if for the
account of a Subsidiary Guarantor or other Subsidiary, such Borrower and such
Subsidiary Guarantor or such other Subsidiary, as the case may be, shall be
co-applicants with respect to such Letter of Credit), in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank. This Section shall
not be construed to impose an obligation upon the Issuing Bank to issue any
Letter of Credit that is inconsistent with the terms and conditions of this
Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the applicable Borrower shall
hand deliver or fax to the Issuing Bank and the Administrative Agent (no less
than three Business Days (or such shorter period of time acceptable to the
Issuing Bank) in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, whether
such Letter of Credit shall be a Funded Letter of Credit or a Revolving Letter
of Credit, the date of issuance, amendment, renewal or extension, the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
below), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare
such Letter of Credit. The Issuing Bank shall promptly (i) notify the
Administrative Agent in writing of the amount and expiry date of each Letter of
Credit issued by it and (ii) provide a copy of such Letter of Credit (and any
amendments, renewals or extensions thereof) to the Administrative Agent. A
Funded Letter of Credit shall be issued, amended, renewed or extended only if,
and upon issuance, amendment, renewal or extension of each such Funded Letter of
Credit the Term Loan Borrower shall be deemed to represent and warrant that,
after giving effect to such issuance, amendment, renewal or extension the Funded
L/C Exposure shall not exceed the Total Credit-Linked Deposit at such time. A
Revolving Letter of Credit shall be issued, amended, renewed or extended only
if, and upon issuance, amendment, renewal or extension of each such Revolving
Letter of Credit the applicable Revolving Loan Borrower shall be deemed to
represent and warrant that, after giving effect to such issuance, amendment,
renewal or extension, the Aggregate Revolving Credit Exposure shall not exceed
the Total Revolving Credit Commitment. If the applicable Borrower shall fail to
specify whether any requested Letter of Credit is to be a Funded Letter of
Credit or a Revolving Letter of Credit, then the requested Letter of Credit
shall be deemed to be a Funded Letter of Credit unless the issuance thereof
would result in the Funded L/C Exposure exceeding the Total Credit-Linked
Deposit at such time, in which case it shall be deemed to be a Revolving Letter
of Credit, but only if the issuance of a Revolving Letter of Credit is
permissible at such time as described above. Notwithstanding the foregoing, the
issuance of Funded Letters of Credit shall also be subject to the limitations
set forth in Section 2.23(e) below.
(c) Expiration Date. Each Letter of Credit shall expire at the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit and (ii)(A) in the case of any Revolving
Letter of Credit, the date that is five Business Days prior to the Revolving
Credit Maturity Date and (B) in the case of any Funded Letter of Credit, the
date that is five Business Days prior to the Funded Letter of
64
Credit Maturity Date, unless such Letter of Credit expires by its terms on an
earlier date; provided, however, that a Letter of Credit may, upon the request
of the applicable Borrower, include a provision whereby such Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the date that is five Business Days prior to, in the
case of any Revolving Letter of Credit, the Revolving Credit Maturity Date or,
in the case of any Funded Letter of Credit, the Funded Letter of Credit Maturity
Date) unless the Issuing Bank notifies the beneficiary thereof at least 30 days
prior to the then-applicable expiration date that such Letter of Credit will not
be renewed.
(d) Participations. By the issuance of a Revolving Letter of
Credit and without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby grants to each Revolving Credit Lender, and
each such Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Pro Rata Percentage of the aggregate
amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Pro Rata Percentage of each Revolving L/C Disbursement made by the
Issuing Bank and not reimbursed by any Borrower (or, if applicable, another
party pursuant to its obligations under any other Loan Document) forthwith on
the date due as provided in Section 2.02(f). Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Revolving Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
On the Closing Date, without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Term Lender,
and each such Lender hereby acquires from the Issuing Bank, a participation in
each Funded Letter of Credit equal to such Lender's Pro Rata Percentage of the
aggregate amount available to be drawn under such Letter of Credit. The
aggregate purchase price for the participations of each Term Lender in Funded
Letters of Credit shall equal the amount of the Credit-Linked Deposit of such
Lender. Each Term Lender shall pay to the Administrative Agent its Credit-Linked
Deposit in full on the Closing Date. Each Term Lender hereby absolutely and
unconditionally agrees that if the Issuing Bank makes a Funded L/C Disbursement
which is not reimbursed by the Term Loan Borrower pursuant to Section 2.23(e),
the Administrative Agent shall reimburse the Issuing Bank for the amount of such
Funded L/C Disbursement, ratably as among the Term Lenders in accordance with
their Pro Rata Percentages of the Total Credit-Linked Deposit, from such Term
Lender's Credit-Linked Deposit on deposit in the Credit-Linked Deposit Account.
Each Term Lender acknowledges and agrees that its obligation to acquire and fund
participations in respect of Funded Letters of Credit pursuant to this paragraph
is unconditional and irrevocable and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default or the return of the Credit Linked Deposits, and that such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
Without limiting the foregoing, each Term Lender irrevocably authorizes the
Administrative Agent to apply amounts of its Credit-Linked Deposit as provided
in this paragraph.
65
(e) Reimbursement. If the Issuing Bank shall make any Revolving
L/C Disbursement in respect of a Revolving Letter of Credit, the applicable
Revolving Loan Borrower shall pay or cause to be paid to the Administrative
Agent an amount equal to such Revolving L/C Disbursement not later than two
hours after such Revolving Loan Borrower shall have received notice from the
Issuing Bank that payment of such draft will be made, or, if such Revolving Loan
Borrower shall have received such notice later than 10:00 a.m., New York City
time, on any Business Day, not later than 12:00 (noon), New York City time, on
the immediately following Business Day.
If the Issuing Bank shall make any Funded L/C Disbursement in respect
of a Funded Letter of Credit, the Term Loan Borrower shall have the right (but
not the obligation) to pay or cause to be paid to the Administrative Agent an
amount equal to the entire amount of such Funded L/C Disbursement not later than
two hours after the Term Loan Borrower shall have received notice from the
Issuing Bank that payment of such draft will be made or, if the Term Loan
Borrower shall have received such notice later than 10:00 a.m., New York City
time, on any Business Day, not later than 12:00 (noon), New York City time, on
the immediately following Business Day. If the Term Loan Borrower does not so
elect to reimburse the Issuing Bank for such Funded L/C Disbursement,
reimbursement of the Issuing Bank shall be made in accordance with the
provisions of Section 2.02(f). In the event that the Term Loan Borrower elects
to reimburse the Issuing Bank for any Funded L/C Disbursement, for a period of
91 days following such reimbursement payment by the Term Loan Borrower, the
Funded L/C Exposure shall be deemed to include for all purposes hereunder
(including for purposes of the issuance of any new Funded Letter of Credit
during such period) the amount of such reimbursement payment until the end of
such 91-day period.
(f) Obligations Absolute. Each Borrower's obligations to reimburse
L/C Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter
of Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of, or any consent to
departure from, all or any of the provisions of any Letter of Credit or
any Loan Document;
(iii) the existence of any claim, setoff, defense or other
right that the applicable Borrower, any other party guaranteeing, or
otherwise obligated with, such Borrower, any subsidiary or other
Affiliate thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
66
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind
of the Issuing Bank, any Lender, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
applicable Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of each
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or willful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
any Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each Borrower to the
extent permitted by applicable law) suffered by such Borrower that are caused by
the Issuing Bank's gross negligence or willful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute willful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall as promptly
as possible give telephonic notification, confirmed by fax, to the
Administrative Agent and the applicable Borrower of such demand for payment and
whether the Issuing Bank has made or will make an L/C Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the applicable Borrower of its obligation to reimburse the Issuing Bank
and the applicable Lenders with respect to any such L/C Disbursement. The
Administrative Agent shall promptly give each Revolving Credit Lender or each
Term Lender, as the case may be, notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, (i) in the case of any
Revolving L/C Disbursement, unless the applicable Borrower shall reimburse such
Revolving L/C Disbursement in full on such date or (ii) in the case of any
Funded L/C Disbursement, unless either the Term Loan Borrower shall
67
reimburse such Funded L/C Disbursement in full within the time period specified
in Section 2.23(e) or the Administrative Agent shall reimburse such Funded L/C
Disbursement with funds held in the Credit-Linked Deposit Account in full on
such date, in each case the unpaid amount thereof shall bear interest for the
account of the Issuing Bank, for each day from and including the date of such
L/C Disbursement to but excluding the earlier of the date of payment by the
applicable Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at (A) in the case of a Revolving L/C
Disbursement, the rate per annum that would apply to such amount if such amount
were an ABR Revolving Loan and (B) in the case of a Funded L/C Disbursement, the
rate per annum that would apply to such amount if such amount were an ABR Term
Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank
may resign at any time by giving 30 days' prior written notice to the
Administrative Agent, the Lenders and the Borrowers, and may be removed at any
time by the Company by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder without affecting its rights and
obligations with respect to Letters of Credit previously issued by it. At the
time such removal or resignation shall become effective, the Borrowers shall pay
all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of
any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrowers and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, the Borrowers shall, on the Business Day they receive notice
from the Administrative Agent or the Majority Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Credit Lenders and Term Lenders with
L/C Exposure representing greater than 50% of the total L/C Exposure) thereof
and of the amount to be deposited, deposit in an account with the Collateral
Agent, for the ratable benefit of the Lenders with L/C Exposure, an amount in
cash equal to the L/C Exposure as of such date. Such deposit shall be held by
the Collateral Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Collateral Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits in Permitted Investments, which investments shall be made at
the option and sole discretion of the Collateral Agent, such deposits shall not
bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall
68
(i) automatically be applied by the Administrative Agent to reimburse the
Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be
held for the satisfaction of the reimbursement obligations of the Borrowers for
the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders and Term
Lenders with L/C Exposure representing greater than 50% of the total L/C
Exposure), be applied to satisfy the Secured Obligations hereunder. If the
Borrowers are required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrowers within three Business
Days after all Events of Default have been cured or waived.
(k) Additional Issuing Banks. The Borrowers may, at any time and
from time to time with the consent of the Administrative Agent (which consent
shall not be unreasonably withheld) and such Lender, designate one or more
additional Lenders to act as an issuing bank under the terms of the Agreement.
Any Lender designated as an issuing bank pursuant to this paragraph shall be
deemed to be an "Issuing Bank" (in addition to being a Lender) in respect of
Letters of Credit issued or to be issued by such Lender, and, with respect to
such Letters of Credit, such term shall thereafter apply to the other Issuing
Bank and such Lender.
SECTION 2.24. Credit-Linked Deposit Account. (a) The Credit-Linked
Deposits shall be held by the Administrative Agent in the Credit-Linked Deposit
Account, and no party other than the Administrative Agent shall have a right of
withdrawal from the Credit-Linked Deposit Account or any other right or power
with respect to the Credit-Linked Deposits, except as expressly set forth in
Section 2.02(f), 2.09(b) or 2.09(d). Notwithstanding any provision in this
Agreement to the contrary, the sole funding obligation of each Term Lender in
respect of its participation in Funded Letters of Credit shall be satisfied in
full upon the funding of its Credit-Linked Deposit on the Closing Date.
(b) Each of the Borrowers, the Administrative Agent, the Issuing
Bank and each Term Lender hereby acknowledges and agrees that each Term Lender
is funding its Credit-Linked Deposit to the Administrative Agent for application
in the manner contemplated by Section 2.02(f) and that the Administrative Agent
has agreed to invest the Credit-Linked Deposits so as to earn a return (subject
to Section 2.08) for the Term Lenders equal to (i) the LIBO Rate (without giving
effect to the last proviso in the definition thereof) for the Interest Period in
effect for the Credit-Linked Deposits at such time (the "Benchmark LIBO Rate")
minus (ii) 0.10%. Such interest will be paid to the Term Lenders by the
Administrative Agent quarterly in arrears when Letter of Credit fees are payable
pursuant to Section 2.05(d). In addition to the foregoing payments by the
Administrative Agent, the Borrowers agree to make payments to the Term Lenders
quarterly in arrears when Letter of Credit fees are payable pursuant to Section
2.05(d) (and together with the payment of such fees) in an amount equal to the
sum of (i) 0.10% on the average daily amount of the Credit-Linked Deposit during
the applicable Interest Period and (ii) if the Benchmark LIBO Rate for such
preceding period was less than 1.50% per annum, the difference between 1.50% per
annum and the Benchmark LIBO Rate for such period on the average daily amount of
the Credit-Linked Deposit during the applicable Interest Period.
(c) Subject to Section 2.09(d), the Borrowers shall have no right,
title or interest in or to the Credit-Linked Deposits and no obligations with
respect thereto, it being acknowledged and
69
agreed by the parties hereto that the making of the Credit-Linked Deposits by
the Term Lenders, the provisions of this Section 2.24 and the application of the
Credit-Linked Deposits in the manner contemplated by Section 2.02(f) constitute
agreements among the Administrative Agent, the Issuing Bank and each Term Lender
with respect to the funding obligations of each Term Lender in respect of its
participation in Funded Letters of Credit and do not constitute any loan or
extension of credit to the Borrowers, subject to the provisions of Section
2.02(f).
(d) Subject to the Borrowers' compliance with the
cash-collateralization requirements set forth in Section 2.09, the
Administrative Agent shall return any remaining Credit-Linked Deposits to the
Term Lenders following the occurrence of the Funded Letter of Credit Maturity
Date.
ARTICLE III.
Representations and Warranties
Each Borrower jointly and severally represents and warrants to the
Arrangers, the Administrative Agent, the Collateral Agent, the Issuing Bank and
each of the Lenders that:
SECTION 3.01. Organization; Powers. The Company and each of the
Subsidiaries (a) is duly organized or formed, validly existing and in good
standing under the laws of the jurisdiction of its organization or formation,
(b) has all requisite power and authority, and the legal right, to own and
operate its property and assets, to lease the property it operates as lessee and
to carry on its business as now conducted and as proposed to be conducted, (c)
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (d) has the power and authority, and the legal
right, to execute, deliver and perform its obligations under this Agreement,
each of the other Loan Documents and each other agreement or instrument
contemplated hereby or thereby to which it is or will be a party, including, in
the case of the Borrowers, to borrow hereunder, in the case of each Loan Party,
to grant the Liens contemplated to be granted by it under the Security Documents
and, in the case of each Subsidiary Guarantor, to Guarantee the Secured
Obligations hereunder as contemplated by the Guarantee and Collateral Agreement.
SECTION 3.02. Authorization; No Conflicts. The Transactions (a) have
been duly authorized by all requisite corporate, partnership or limited
liability company and, if required, stockholder, partner or member action and
(b) will not (i) violate (A) any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Company or any Subsidiary, (B) any order of any
Governmental Authority or arbitrator or (C) any provision of any indenture or
any material agreement or other material instrument to which the Company or any
Subsidiary is a party or by which any of them or any of their property is or may
be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of
any obligation under any such indenture or material agreement or other material
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter
70
acquired by the Company or any other Loan Party (other than Liens created under
the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by each Borrower and constitutes, and each other Loan Document when
executed and delivered by each Loan Party party thereto will constitute, a
legal, valid and binding obligation of such Loan Party enforceable against such
Loan Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with, notice to, or any other action by, any
Governmental Authority is or will be required in connection with the
Transactions, except for (a) the filing of UCC financing statements and filings
with the United States Patent and Trademark Office and the United States
Copyright Office, (b) recordation of the Mortgages and (c) such as have been
made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. (a) The Company has heretofore
furnished to the Lenders its consolidated balance sheets and statements of
income and stockholder's equity (i) as of and for the fiscal year ended December
31, 2002, December 31, 2001 and December 31, 2000, audited by and accompanied by
the opinion of PricewaterhouseCoopers LLP, independent public accountants, and
(ii) as of and for the fiscal quarter and the portion of the fiscal year ended
September 30, 2003, certified by a Financial Officer of the Company and reviewed
by PricewaterhouseCoopers LLP, independent public accountants, as provided in
Statement on Auditing Standards No. 100. Such financial statements present
fairly in all material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries as of such dates and
for such periods, subject to normal year-end audit adjustments and the absence
of footnotes in the case of the financial statements referred to in clause (ii)
above. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Company and its consolidated
Subsidiaries as of the dates thereof. Such financial statements were prepared in
accordance with GAAP applied on a consistent basis (except, with respect to such
financial statements referred to in clause (ii) above, for the absence of
footnotes and normal year-end adjustments).
(b) The Company has heretofore delivered to the Lenders its
unaudited pro forma consolidated balance sheet and statements of income,
stockholder's equity and cash flows as of September 30, 2003, prepared giving
effect to the Transactions as if they had occurred, with respect to such balance
sheet, on such date and, with respect to such other financial statements, on the
first day of each of the 9-month period and 12-month period ending on such date.
Such pro forma financial statements (i) have been prepared in good faith by the
Company, based on the assumptions used to prepare the pro forma financial
information contained in the Confidential Information Memorandum (which
assumptions are believed by the Company on the date hereof and on the Closing
Date to be reasonable) and (ii) present fairly in all material respects on a pro
forma basis the estimated consolidated financial position of the Company and its
consolidated Subsidiaries as of such date and for such period, assuming that the
Transactions had actually occurred at such date or at the beginning of such
period, as the case may be (it being
71
understood that estimates, by their nature, are inherently uncertain and that no
assurances are being made that such results will be achieved).
SECTION 3.06. No Material Adverse Change. No event, change or condition
has occurred that has had, or could reasonably be expected to have, a Material
Adverse Effect, since March 31, 2003, other than the filing of the Bankruptcy
Cases, the events leading up to the Bankruptcy Cases as disclosed in the
Disclosure Statement and any other event, change or condition that has been
specifically disclosed in the Disclosure Statement.
SECTION 3.07. Title to Properties; Possession Under Leases. (a)
Each of the Company and the other Loan Parties has good and marketable title to,
or valid leasehold interests in, all its material properties and material assets
that are included in the Collateral (including all Mortgaged Property) and
including valid rights, title and interests in or rights to control or occupy
easements or rights of way used in connection with such properties and assets
("Easements"), free and clear of all Liens or other exceptions to title other
than Permitted Liens.
(b) Each of the Company and the Subsidiaries has complied with all
material obligations under all material leases to which it is a party and all
such material leases are in full force and effect. Each of the Company and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) None of the Company or any of the other Loan Parties has
received any notice of, nor has any knowledge of, any pending or contemplated
condemnation proceeding affecting the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation (i) as of the Closing Date or (ii)
at any time thereafter, which in the case of clause (ii) has had, or could
reasonably be expected to have, a Material Adverse Effect.
(d) Except as set forth on Schedule 3.07, none of the Company or
any of the Subsidiaries is obligated under any right of first refusal, option or
other contractual right to sell, assign or otherwise dispose of any Mortgaged
Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries, including each Subsidiary's exact legal name
(as reflected in such Subsidiary's certificate or articles of incorporation or
other constitutive documents) and jurisdiction of incorporation or formation and
the percentage ownership interest of the Company (direct or indirect) therein,
and identifies each Subsidiary that is a Loan Party. The shares of capital stock
or other Equity Interests so indicated on Schedule 3.08 are owned by the
Company, directly or indirectly, free and clear of all Liens (other than Liens
created under the Security Documents and, in the case of Equity Interests (other
than Pledged Securities), Liens expressly permitted hereunder) and all such
shares of capital stock are fully paid and non-assessable.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set
forth on Schedule 3.09, there are no actions, suits or proceedings at law or in
equity or by or before any arbitrator or Governmental Authority now pending or,
to the knowledge of any Borrower, threatened against the Company or any
Subsidiary or any business, property or rights of the Company or any Subsidiary
(i) that involve any Loan Document or the Transactions or (ii) as to which there
is a reasonable possibility of an adverse determination and that, if adversely
72
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) Except as set forth on Schedule 3.09, none of the Company or
any of the Subsidiaries or any of their respective material properties or assets
is in violation of any law, rule or regulation (including any zoning, building,
ordinance, code or approval or any building permits, but not including any
Environmental Law which is the subject of Section 3.17) or any restrictions of
record or agreements affecting the Mortgaged Property, or is in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
(c) Certificates of occupancy and permits are in effect for each
Mortgaged Property as currently constructed.
SECTION 3.10. Agreements. (a) None of the Company or any of the
Subsidiaries is a party to any agreement or instrument, or subject to any
corporate restriction, that, individually or in the aggregate, has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(b) None of the Company or any of the Subsidiaries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of the Company
or any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for purchasing or carrying Margin Stock or for the
purpose of purchasing, carrying or trading in any securities under such
circumstances as to involve any Borrower in a violation of Regulation X or to
involve any broker or dealer in a violation of Regulation T. No Indebtedness
being reduced or retired out of the proceeds of any Loans or Letters of Credit
was or will be incurred for the purpose of purchasing or carrying any Margin
Stock. Following the application of the proceeds of the Loans and the Letters of
Credit, Margin Stock will not constitute more than 25% of the value of the
assets of the Company and the Subsidiaries. None of the transactions
contemplated by this Agreement will violate or result in the violation of any of
the provisions of the Regulations of the Board, including Regulation T, U or X.
If requested by any Lender or the Administrative Agent, each Borrower will
furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1
referred to in Regulation U.
73
SECTION 3.12. Investment Company Act. None of the Company or any of the
Subsidiaries is an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended from time to time.
SECTION 3.13. Use of Proceeds. The Term Loan Borrower will use the
proceeds of the Term Loans (other than those Term Loans that may be made, or
deemed to be made, from any Credit-Linked Deposits) solely to finance the
Recapitalization, including to refinance all outstanding Indebtedness for
borrowed money of NRG Mid-Atlantic, NRG Northeast and NRG South Central, to pay
related fees and expenses and to pay $250,000,000 to certain pre-petition
creditors of the Company in lieu of an equivalent amount of unsecured notes of
the Company that were to be issued to such creditors pursuant to the NRG Plan.
The Revolving Loan Borrowers will use the proceeds of the Revolving Loans and
the Swingline Loans solely for the post-Closing Date working capital
requirements and general corporate purposes of the Company and the Subsidiary
Guarantors. The Revolving Loan Borrowers and the Term Loan Borrower, as the case
may be, will request the issuance of Letters of Credit solely for the
post-Closing Date working capital requirements and general corporate purposes of
(i) the Company and the Subsidiary Guarantors or (ii) any other Subsidiary,
provided that the L/C Exposure with respect thereto shall not exceed the L/C
Exposure Cap. The Term Loan Borrower will use the proceeds of the Term Loans
that may be made, or deemed to be made, from the requested conversion of
Credit-Linked Deposits into Term Loans solely for the post-Closing Date working
capital requirements and general corporate purposes of the Company and the
Subsidiary Guarantors.
SECTION 3.14. Tax Returns. Each of the Company and each of the
Subsidiaries has filed or caused to be filed all Federal, state, local and
foreign tax returns or materials required to have been filed by it and all such
tax returns are correct and complete in all material respects. Each of the
Company and each of the Subsidiaries has paid or caused to be paid all Taxes due
and payable by it and all assessments received by it, except Taxes that are
being contested in good faith by appropriate proceedings and for which the
Company or such Subsidiary, as applicable, shall have set aside on its books
adequate reserves. No Tax Lien has been filed, and to the knowledge of the
Company and each of the Subsidiaries, no claim is being asserted, with respect
to any Tax. Neither the Company nor any of the Subsidiaries (a) intends to treat
the Loans or any of the transactions contemplated by any Loan Document as being
a "reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4) or (b) is aware of any facts or events that would result in such
treatment.
SECTION 3.15. No Material Misstatements; Recapitalization
Documentation. (a) The Borrowers have disclosed to the Arrangers, the
Administrative Agent and the Lenders all agreements, instruments and corporate
or other restrictions to which the Company or any of the Subsidiaries is
subject, and all other matters known to any of them, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. None of (i) the Confidential Information Memorandum or (ii) any other
information, report, financial statement, exhibit or schedule furnished by or on
behalf of the Company or any Subsidiary to the Arrangers, the Administrative
Agent or any Lender for use in connection with the transactions contemplated by
the Loan Documents or in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain (as of the date of its delivery to the Arrangers, the Administrative
Agent or any Lender or, as modified or supplemented, as of the Closing Date) any
material misstatement of fact or omitted, omits or will
74
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were, are or will be made, not
misleading; provided that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each Borrower represents only that it acted in good faith and
utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
(b) As of the Closing Date, the representations and warranties of
the applicable Loan Parties set forth in the Recapitalization Documentation are
true and correct in all material respects.
SECTION 3.16. Employee Benefit Plans. Each of the Company and each of
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Tax Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events, could reasonably be expected to result in material liability of the
Company or any of its ERISA Affiliates.
SECTION 3.17. Environmental Matters. (a) Except as set forth in
Schedule 3.17 or except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of the Company or any of the Subsidiaries:
(i) has failed to comply with any Environmental Law or to
take all actions necessary to obtain, maintain, renew and comply with
any permit, license or other approval required under Environmental Law;
(ii) has become a party to any administrative or judicial
proceeding or possesses knowledge of any such proceeding that has been
threatened that may result in the termination, revocation or
modification of any permit, license or other approval required under
Environmental Law;
(iii) has become subject to any Environmental Liability or
possesses knowledge that any Mortgaged Property (A) is subject to any
Lien imposed pursuant to Environmental Law or (B) contains Hazardous
Materials of a form or type or in a quantity or location that could
reasonably be expected to result in any Environmental Liability;
(iv) has received written notice of any claim or
threatened claim with respect to any Environmental Liability other than
those which have been fully and finally resolved and for which no
obligations remain outstanding; or
(v) possesses knowledge of any facts or circumstances
that could form the basis for any Environmental Liability or could
materially interfere with or prevent continued material compliance with
Environmental Laws by the Company or the Subsidiaries.
75
(b) Since the date of this Agreement, there has been no change in
the status of the matters disclosed on Schedule 3.17 that, individually or in
the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
The representations and warranties in this Section 3.17 are the sole
representations and warranties herein with respect to Environmental Law.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by or on behalf of the Company
and the Subsidiaries as of the Closing Date. As of the Closing Date, such
insurance is in full force and effect and all premiums that are due and owed
have been duly paid. The Company and the Subsidiaries are insured by financially
sound and responsible insurers and such insurance is in such amounts and
covering such risks and liabilities (and with such deductibles, retentions and
exclusions) as are maintained by companies of a similar size operating in the
same or similar businesses. None of the Company or any of the Subsidiaries (a)
has received notice from any insurer under any such insurance (or any agent
thereof) that substantial capital improvements or other substantial expenditures
will have to be made in order to continue such insurance (i) as of the Closing
Date or (ii) at any time thereafter, which in the case of clause (ii) has had,
or could reasonably be expected to have, a Material Adverse Effect or (b) has
any reason to believe that it will not be able to renew its existing coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers at a substantially similar cost as available to companies of a similar
size operating in the same or similar businesses.
SECTION 3.19. Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Collateral Trustee, for the
ratable benefit of the Secured Parties, a legal, valid, binding and enforceable
security interest in the Collateral described therein and proceeds thereof and
(i) in the case of the Pledged Securities, upon the earlier of (A) when such
Pledged Securities are delivered to the Collateral Trustee and (B) when
financing statements in appropriate form are filed in the offices specified on
Schedule 3.19(a) and (ii) in the case of all other Collateral described therein
(other than Intellectual Property Collateral), when financing statements in
appropriate form are filed in the offices specified on Schedule 3.19(a), the
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Secured Parties
in such Collateral and proceeds thereof, as security for the Secured Obligations
hereunder, in each case prior and superior to the rights of any other person
(except, in the case of all Collateral other than Pledged Securities, with
respect to Liens expressly permitted by Section 6.02).
(b) Each Intellectual Property Security Agreement is effective to
create in favor of the Collateral Trustee, for the ratable benefit of the
Secured Parties, a legal, valid, binding and enforceable security interest in
the Intellectual Property Collateral described therein and proceeds thereof.
When each Intellectual Property Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office,
respectively, together with financing statements in appropriate form filed in
the offices specified in Schedule 3.19(a), such Intellectual Property Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in the Intellectual
Property Collateral and proceeds thereof, as security for the Secured
Obligations hereunder, in each case prior and superior in right to any other
person (except with respect to Liens expressly
76
permitted by Section 6.02) (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the grantors after the date hereof).
(c) Each of the Mortgages is effective to create in favor of the
Collateral Trustee, for the ratable benefit of the Secured Parties, a legal,
valid, binding, subsisting and enforceable Lien on, and security interest in,
all of the Loan Parties' right, title and interest in and to the Mortgaged
Property thereunder and proceeds thereof, and when the Mortgages are filed in
the offices specified on Schedule 3.19(c), each such Mortgage shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the grantors thereof in such Mortgaged Property and proceeds thereof, as
security for the Secured Obligations hereunder, in each case prior and superior
in right to any other person (except Liens expressly permitted by clauses (d),
(e) and (h) of Section 6.02).
SECTION 3.20. Location of Real Property. Schedule 3.20 lists completely
and correctly as of the Closing Date all real property owned or leased by the
Company and the other Loan Parties and all real property to which the Company
and the other Loan Parties have an interest via easement, license or permit and,
in each case, the addresses thereof, indicating for each parcel whether it is
owned or leased. As of the Closing Date, the Company and the other Loan Parties
own in fee or have valid leasehold or easement interests in, as the case may be,
all the real property set forth on Schedule 3.20.
SECTION 3.21. Labor Matters. As of the Closing Date, there are no
strikes, lockouts or slowdowns against the Company or any Subsidiary pending or,
to the knowledge of any Borrower, threatened. The hours worked by and payments
made to employees of the Company and the Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters. All payments due from the Company or any
Subsidiary, or for which any claim may be made against the Company or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of the
Company or such Subsidiary. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the Company or any
Subsidiary is bound.
SECTION 3.22. Liens. There are no Liens of any nature whatsoever on any
of the properties or assets of the Company or any of the Subsidiaries (other
than, in the case of any Mortgaged Property, Liens expressly permitted by
clauses (d), (e) and (h) of Section 6.02 and, in the case of any other property
or assets, Liens expressly permitted by Section 6.02).
SECTION 3.23. Intellectual Property. Each of the Company and each of
the Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Company and the Subsidiaries does not infringe upon
the rights of any other person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
77
SECTION 3.24. Energy Regulation. (a) Neither the Company nor any
Affiliate of the Company (other than First Energy Corp.) is, or by virtue of the
Transactions, will become, subject to regulation as (i) a "holding company,"
(ii) a "subsidiary company" of a "holding company" (other than Xcel Energy Inc.)
or (iii) a "public-utility company," in each case as such terms are defined in
PUHCA. As of the Plan Effective Date for the NRG Plan, none of the Company or
any of the Affiliates of the Company shall be a "subsidiary company" of a
"holding company," in each case as such terms are defined in PUHCA.
(b) None of the Company or any of the Subsidiaries is subject to
regulation as a "public utility" as such term is defined in the FPA, other than
(i) as a power marketer or an owner of generator leads, which has market-based
rate authority under Section 205 of the FPA or (ii) as a QF under PURPA, as
contemplated by 18 C.F.R. Section 292.601(c). Except as set forth in Schedule
3.24, each of the Company and any of the Subsidiaries that is subject to
regulation as a "public utility" as such term is defined in the FPA has validly
issued orders from FERC, not subject to any pending challenge, investigation or
proceeding (other than the FERC's generic proceeding initiated in Docket No.
EL01-118-000) (x) authorizing such Subsidiary to engage in wholesale sales of
electricity and, to the extent permitted under its market-based rate tariff,
other transactions at market-based rates and (y) granting such waivers and
blanket authorizations as are customarily granted to entities with market-based
rate authority, including blanket authorizations to issue securities and to
assume liabilities pursuant to Section 204 of the FPA; provided, however, that
FERC has indicated in at least one order that it will treat the Company as a
"public utility" for purposes of Section 204 of the FPA. The Company does not
have blanket authorizations to issue securities and assume liabilities pursuant
to Section 204 of the FPA. Except as set forth in Schedule 3.24, with respect to
each person described in the preceding sentence, FERC has not imposed any rate
caps or mitigation measures other than rate caps and mitigation measures
generally applicable to similarly situated marketers or generators selling
electricity, ancillary services or other services at wholesale at market-based
rates in the geographic market where such person conducts its business.
(c) None of the Company or any of the Subsidiaries is subject to
any state laws or regulations respecting rates or the financial or
organizational regulation of utilities, other than, with respect to those
Subsidiaries that are QF's, such state regulations contemplated by 18 C.F.R.
Section 292.602(c) and "lightened regulation" as defined by the New York State
Public Service Commission.
SECTION 3.25. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan (or other extension of credit hereunder) and after giving effect to
the application of the proceeds of each Loan (or other extension of credit
hereunder), (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of each Loan
Party will be greater than the amount that will be required to pay the probable
liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) no Loan Party will have unreasonably small capital with which
to conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following the Closing Date.
78
ARTICLE IV.
Conditions of Lending
The obligations of the Lenders to make Loans, the obligations of the
Issuing Bank to issue Letters of Credit and the obligations of the Term Lenders
to fund their Credit-Linked Deposits hereunder are subject to the satisfaction
or waiver of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan, and on the date of each issuance,
amendment, extension or renewal of a Letter of Credit (each such event being
called a "Credit Event"):
(a) The Administrative Agent shall have received a notice
of such Borrowing as required by Section 2.03 (or such notice shall
have been deemed given in accordance with Section 2.03) or, in the case
of the issuance, amendment, extension or renewal of a Letter of Credit,
the Issuing Bank and the Administrative Agent shall have received a
notice requesting the issuance, amendment, extension or renewal of such
Letter of Credit as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in each
Loan Document shall be true and correct in all material respects on and
as of the date of such Credit Event with the same effect as though made
on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects on and as of such earlier date.
(c) Each Borrower and each other Loan Party shall be in
compliance with all the terms and provisions set forth in each Loan
Document on its part to be observed or performed, and, at the time of
and immediately after such Credit Event, no Event of Default or Default
shall have occurred and be continuing.
(d) After giving effect to such Credit Event, the
Aggregate Revolving Credit Exposure shall not exceed the Total
Revolving Credit Commitment.
Each Credit Event shall be deemed to constitute a joint and several
representation and warranty by the Borrowers on the date of such Credit Event as
to the matters specified in paragraphs (b), (c) and (d) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on
behalf of itself, the Lenders and the Issuing Bank, a favorable written
opinion of (i) Xxxxxxxx & Xxxxx LLP, counsel for the Borrowers and the
Subsidiaries, substantially to the effect set forth in Exhibit N, and
(ii) each special and local counsel to the Borrowers and the
Subsidiaries (including special regulatory counsel) as the Arrangers
may reasonably request, in each case (A) dated the Closing Date, (B)
addressed to the Administrative Agent, the Issuing
79
Bank and the Lenders and (C) covering such matters relating to the Loan
Documents and the Transactions as the Arrangers shall reasonably
request and which are customary for transactions of the type
contemplated herein, and the Borrowers and the Subsidiaries hereby
request such counsel to deliver such opinions.
(b) The Administrative Agent shall have received (i) a
copy of the certificate or articles of incorporation or other formation
documents, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State of the state of
its organization, and a certificate as to the good standing of each
Loan Party as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party
dated the Closing Date and certifying (A) that attached thereto is a
true and complete copy of the by-laws of such Loan Party as in effect
on the Closing Date and at all times since a date prior to the date of
the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is
a party, in the case of the Borrowers, the borrowings hereunder, in the
case of each Loan Party, the granting of the Liens contemplated to be
granted by it under the Security Documents and, in the case of each
Subsidiary Guarantor, the Guaranteeing of the Secured Obligations
hereunder as contemplated by the Guarantee and Collateral Agreement,
and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the certificate or articles
of incorporation or other formation documents of such Loan Party have
not been amended since the date of the last amendment thereto shown on
the certificate of good standing furnished pursuant to clause (i) above
and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; (iii) a certificate
of another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; (iv) documentation and other information required by bank
regulatory authorities under applicable "know your customer" and
Anti-Money Laundering rules and regulations and (v) such other
documents as the Administrative Agent, the Arrangers, the Issuing Bank
or the Lenders may reasonably request.
(c) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Company, confirming compliance with the conditions precedent set
forth in paragraphs (b), (c) and (d) of Section 4.01.
(d) The Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of each
Borrower, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of the Company and each
Subsidiary Guarantor, (iii) a Mortgage covering each of the Mortgaged
Properties, executed and delivered by a duly authorized officer of each
Loan Party thereto, (iv) the Control Agreements, executed and delivered
by a duly authorized officer of each Loan Party thereto, (v) the
Intellectual Property Security Agreements, executed and delivered by a
duly authorized officer of each Loan Party thereto, (vi) the Collateral
Trust Agreement, executed and delivered by a duly authorized officer of
the Company and each Subsidiary Guarantor, (vii) if requested by any
Lender pursuant to
80
Section 2.04, a promissory note or notes conforming to the requirements
of such Section and executed and delivered by a duly authorized officer
of each Borrower and (viii) a Lender Addendum executed and delivered by
each Lender and accepted by the Borrowers.
(e) The Company shall have received gross cash proceeds
of not less than $1,000,000,000 from the issuance of the Senior Notes.
The terms and conditions of the Senior Notes and the provisions of the
Senior Note Documents shall be satisfactory in form and substance to
the Arrangers. The Arrangers shall have received copies of the Senior
Note Documents, certified by a Financial Officer of the Company as
complete and correct.
(f) There shall not exist (on a pro forma basis after
giving effect to the Transactions) any Default or Event of Default
hereunder or any default or event of default under the Senior Note
Documents or related documents or under any other material indebtedness
or agreement of the Company or any Significant Subsidiary, or group of
Subsidiaries that, taken together, would constitute a Significant
Subsidiary (excluding in each case the Peakers Entities).
(g) The capital structure of the Company and the
Subsidiaries after the Recapitalization and the sources and uses of
funds in the Recapitalization shall be as described in Schedule 4.02(g)
or as otherwise reasonably satisfactory to the Arrangers.
(h) Each of the NRG Entities shall have complied with all
of its obligations under and agreements in the Commitment Letter, the
Engagement Letter and the Fee Letter relating to the payment in full of
all fees and reimbursable expenses payable thereunder on or prior to
the Closing Date pursuant to the terms and conditions of the Commitment
Letter, the Engagement Letter and the Fee Letter, and complied with all
other obligations in the Commitment Letter, the Engagement Letter and
the Fee Letter in all material respects, including, without limitation,
its obligations with respect to the marketing of the Senior Notes.
(i) The Collateral Trustee, for the ratable benefit of
the Secured Parties, shall have been granted on the Closing Date first
priority perfected Liens on the Collateral (other than any Excluded
Perfection Assets) (subject, in the case of all Collateral other than
Pledged Securities, only to Liens expressly permitted by Section 6.02)
and customary Guarantees from the Subsidiary Guarantors and shall have
received such other reports, documents and agreements as the Collateral
Trustee or the Collateral Agent shall reasonably request and which are
customarily delivered in connection with security interests in real
property assets. The Pledged Securities shall have been duly and
validly pledged under the Guarantee and Collateral Agreement to the
Collateral Trustee, for the ratable benefit of the Secured Parties, and
certificates representing such Pledged Securities, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in
the actual possession of the Collateral Trustee.
(j) All conditions precedent to the confirmation of each
of the Plans and the "effective date" (or similar term) of each of the
Plans (each such date, in respect of any
81
particular Plan, the "Plan Effective Date" in respect of such Plan and,
collectively, the "Plan Effective Dates") shall have been met (or the
waiver thereof, if material and adverse, directly or indirectly, to
this Agreement or the Senior Notes, shall have been consented to by
each of the Arrangers, acting reasonably), each of the Plan Effective
Dates and substantial consummation of the Plans shall have occurred or
shall be scheduled to occur but for the making of the Loans hereunder
and the issuance of the Senior Notes, and the Plans as confirmed by the
Confirmation Orders and the Confirmation Orders shall be in full force
and effect; and the Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Company, confirming compliance with the conditions set forth in
this paragraph (j).
(k) Each of the facilities contemplated by this Agreement
and the Senior Notes shall have received a rating by S&P and by
Xxxxx'x.
(l) All material governmental and third party approvals
(including landlords' and other consents) and consents, including
approvals of FERC under the FPA and consents and approvals of the
Securities and Exchange Commission under PUHCA, and other regulatory
approvals necessary in connection with the Transactions and the
continuing operations of the Company and the Subsidiaries, taken as a
whole, shall have been obtained and be in full force and effect, and
all applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose material adverse conditions on
the Transactions.
(m) The Arrangers shall have received a business plan
(including financial projections supported by the Company's independent
market consultants, with appropriate sensitivities) through fiscal year
2011 and a satisfactory written analysis of the business and prospects
of the Company and the Subsidiaries for the period from the Closing
Date through the Term Loan Maturity Date, all in form and substance
reasonably satisfactory to the Arrangers (the "Business Plan").
(n) The Collateral Trustee and the Collateral Agent shall
have received a duly executed Perfection Certificate dated on or prior
to the Closing Date. The Arrangers shall have received the results of a
recent Lien and judgment search in each relevant jurisdiction with
respect to the Company and those of the Subsidiaries that shall be
Subsidiary Guarantors or shall otherwise have assets that are included
in the Collateral, and such search shall reveal no Liens on any of the
assets of the Company or any of such Subsidiaries except, in the case
of Collateral other than Pledged Securities, for Liens expressly
permitted by Section 6.02 and except for Liens to be discharged on or
prior to the Closing Date pursuant to documentation reasonably
satisfactory to the Arrangers.
(o) The Arrangers shall have received and, other than in
the case of the report specified in clause (iv) below, be reasonably
satisfied that the following appraisals, audits or reports are not
inconsistent in any material respect with the information or other
matters disclosed to the Arrangers prior to the date of the Commitment
Letter and which inconsistent information or other matters disclosed by
such appraisals, audits or reports has had or could reasonably be
expected to have a material adverse effect on (A) the
82
Recapitalization, (B) any of the Plans or the consummation of any of
the material transactions contemplated by the Plans, taken as a whole,
(C) the condition (financial or otherwise), results of operation,
assets, liabilities or prospects of the Company and the Subsidiaries,
taken as a whole, (D) the syndication of the financing contemplated by
the Commitment Letter or the Engagement Letter or (E) the validity or
enforceability of any of the Loan Documents or the Senior Note
Documents or the rights and remedies of the Arrangers, the
Administrative Agent or the Lenders thereunder: (i) an appraisal of
certain material assets (that are to be included in the Collateral) to
be specified by the Arrangers in consultation with the Company, (ii) an
environmental audit with respect to the material real property owned or
leased by the Company or any of the Subsidiaries to be specified by the
Arrangers in consultation with the Company, (iii) engineering reports
relating to the principal facilities owned by the Company or any of the
Subsidiaries to be specified by the Arrangers in consultation with the
Company, (iv) a report, prepared by PA Consulting Group, Inc. or
another power market and fuel consultant reasonably satisfactory to the
Arrangers, including independent financial modeling of the Company and
the Subsidiaries on a consolidated basis and reflecting market
forecasts by such consultant, including sensitivities, provided that
such report does not provide for financial projections or sensitivities
materially worse than those previously provided by the Company to the
Arrangers and (v) insurance reports with respect to material assets
(that are to be included in the Collateral), in each case prepared by
independent consultants.
(p) The Arrangers shall have received a solvency
certificate from either the chief financial officer or both the chief
accountant and treasurer of the Company, which certificate shall
confirm the solvency of the Company and each of the Subsidiary
Guarantors after giving effect to the Recapitalization and the other
Transactions, all in form and substance reasonably satisfactory to the
Arrangers.
(q) Substantially all of the current senior management
team will be available to manage the Company for a reasonable period of
time subsequent to the Closing Date unless a new Chief Executive
Officer and a new Chief Financial Officer in each case reasonably
satisfactory to the Arrangers shall be available to manage the Company
for such period.
(r) The Arrangers shall be reasonably satisfied with the
sufficiency of the aggregate Revolving Credit Commitment to meet the
ongoing working capital needs of the Company following the
Recapitalization and the consummation of the other Transactions.
(s) The amount, terms and conditions of any notes or
other Indebtedness issued to creditors of the Company or any of the
Subsidiaries pursuant to any of the Plans shall be consistent in all
material respects with the information provided in the Disclosure
Statements and otherwise shall be reasonably satisfactory to the
Arrangers.
83
ARTICLE V.
Affirmative Covenants
Each Borrower covenants and agrees with each Lender that so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document (other than
indemnification and other contingent obligations in each case not then due and
payable) shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full and all Credit-Linked Deposits have been returned to the Term Lenders
(or used to reimburse Funded L/C Disbursements or converted to Term Loans), each
Borrower will, and will cause each of its subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names material to the conduct of its business; maintain and operate such
business in substantially the manner in which it is presently conducted and
operated or contemplated to be operated pursuant to the Business Plan; comply in
all material respects with all applicable laws, rules, regulations and decrees
and orders of any Governmental Authority, whether now in effect or hereafter
enacted; comply with the terms of, and enforce its rights under, each material
lease of real property and each other material agreement so as to not permit any
material uncured default on its part to exist thereunder, except where the
necessity of compliance therewith is being currently contested in good faith by
appropriate proceedings and the Company or the applicable Subsidiary shall have
set aside on its books reasonable and appropriate reserves in accordance with
GAAP; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition in accordance with Good Utility Practices and from time to time
make, or cause to be made, all necessary and proper repairs, renewals and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its properties that are of an
insurable character adequately insured at all times by financially sound and
responsible insurers, which, in the case of any insurance on any Mortgaged
Property, are licensed to do business in the States where the applicable
Mortgaged Property is located; maintain such other insurance, to such extent and
against such risks (and with such deductibles, retentions and exclusions),
including fire and other risks insured against by extended coverage and coverage
for acts of terrorism, in each case as is customary with companies of a similar
size operating in the same or similar businesses, including public liability
insurance against claims for personal injury or death or property damage;
maintain such other insurance as may be required by law; and maintain such other
insurance as otherwise required by the Security Documents (and comply with all
covenants in the Security Documents with respect thereto).
84
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Company or
the applicable Subsidiary shall have set aside on its books adequate reserves
with respect thereto in accordance with GAAP and such contest operates to
suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien and, in the case of a Mortgaged Property, there is no risk
of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Company, furnish to the Administrative Agent for distribution to each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income,
stockholders' equity and cash flows showing the financial condition of
the Company and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, together with comparative figures
for the immediately preceding fiscal year (or, in the case of the
fiscal year ending December 31, 2005, the comparable period of more
than twelve months ending December 31, 2004), all audited by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing and accompanied by an opinion of such
accountants reasonably satisfactory to the Administrative Agent (which
shall not be qualified in any material respect, except for
qualifications relating to accounting changes (with which such
independent public accountants shall concur) in response to FASB
releases or other authoritative pronouncements) to the effect that such
consolidated financial statements fairly present the financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year, its unaudited consolidated
balance sheet and related statements of income, stockholders' equity
and cash flows showing the financial condition of the Company and its
consolidated Subsidiaries as of the close of such fiscal quarter and
the results of its operations and the operations of such Subsidiaries
during such fiscal quarter and the then elapsed portion of the fiscal
year, and comparative figures for the same periods in the immediately
preceding fiscal year, all certified by one of its Financial Officers
to the effect that such financial statements, while not examined by
independent public accountants, reflect in the opinion of the Company
all adjustments necessary to present fairly in all material respects
the financial condition and results of operations of the Company and
its consolidated Subsidiaries on a consolidated basis as of the end of
and for such periods in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
85
(c) within 30 days after the end of the first two fiscal
months of each fiscal quarter, its internal monthly financial
management reports showing the financial condition of the Company and
its consolidated Subsidiaries during such fiscal month and the then
elapsed portion of the fiscal year;
(d) (i) concurrently with any delivery of financial
statements under paragraph (a) above, a letter from the accounting firm
rendering the opinion on such statements (which letter may be limited
to accounting matters and disclaim responsibility for legal
interpretations) stating whether, in connection with their audit
examination, anything has come to their attention which would cause
them to believe that any Default or Event of Default existed on the
date of such financial statements and if such a condition or event has
come to their attention and (ii) concurrently with any delivery of
financial statements under paragraph (a) or (b) above, a certificate of
a Financial Officer of the Company (A) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto
and (B) setting forth computations in reasonable detail satisfactory to
the Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.10, 6.11, 6.12, 6.13 and 6.14 and, in the case
of a certificate delivered with the financial statements required by
paragraph (a) above, setting forth the Company's calculation of Excess
Cash Flow, Adjusted Excess Cash Flow and Consolidated EBITDA;
(e) at least 30 days prior to the commencement of each
fiscal year of the Company, a detailed consolidated budget for such
fiscal year (including a projected consolidated balance sheet and
related statements of projected operations and cash flows as of the end
of and for such fiscal year and setting forth the assumptions used for
purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other
materials filed by the Company or any Subsidiary with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any domestic
national securities exchange, or distributed to its shareholders
generally, as the case may be;
(g) promptly after the receipt thereof by the Company or
any of the Subsidiaries, a copy of any "management letter" received by
any such person from its certified public accountants and the
management's response thereto; and
(h) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Company or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender (acting through the
Administrative Agent) may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after the Company
obtains knowledge thereof:
86
(a) any Event of Default or Default, specifying the
nature and extent thereof and the corrective action (if any) taken or
proposed to be taken with respect thereto;
(b) the filing or commencement of any action, suit or
proceeding, whether at law or in equity or by or before any arbitrator
or Governmental Authority, against the Company or any Subsidiary that
could reasonably be expected to result in a Material Adverse Effect;
and
(c) the occurrence of any ERISA Event; and
(d) any development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.06. Information Regarding Collateral. (a) Furnish, and
will cause each Loan Party to furnish, to each of the Administrative Agent, the
Collateral Agent and the Collateral Trustee prompt written notice of (i) any
change (A) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (B) in the location of any Loan Party's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (C) in any Loan Party's identity or corporate structure or (D) in any
Loan Party's Federal Taxpayer Identification Number; (ii) any formation or
acquisition after the Closing Date of any Subsidiary; (iii) any sale, transfer,
lease, issuance or other disposition (by way of merger, consolidation, operation
of law or otherwise) after the Closing Date of any Equity Interests of any
Subsidiary to any person other than the Company or another Subsidiary; (iv) any
liquidation or dissolution after the Closing Date of any Subsidiary; and (v) any
Subsidiary that is an Excluded Subsidiary as of the Closing Date or at any time
thereafter ceasing to be an Excluded Subsidiary. Each Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless a
reasonable period has been provided (such period to be at least 10 days) for
making all filings under the UCC or otherwise and taking all other actions, in
each case that are required in order for the Collateral Trustee to continue at
all times following such change to have a valid, legal and perfected security
interest in all the Collateral (other than any Excluded Perfection Assets). Each
Borrower also agrees promptly to notify each of the Administrative Agent, the
Collateral Agent and the Collateral Trustee if any material portion of the
Collateral is damaged or destroyed.
(b) In the case of the Company, each year, at the time of delivery
of the annual financial statements with respect to the preceding fiscal year
pursuant to Section 5.04(a), deliver to the Administrative Agent a certificate
of a Financial Officer of the Company setting forth the information required
pursuant to Section I of the Perfection Certificate or confirming that there has
been no change in such information since the date of the Perfection Certificate
delivered on the Closing Date or the date of the most recent certificate
delivered pursuant to this Section.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections; Environmental Assessments. (a) Keep, and cause each Subsidiary
to keep, proper books of record and account in which full, true and correct
entries in conformity with GAAP and all requirements of law are made of all
financial operations. Each Borrower will, and will cause
87
each of its subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the financial records
and the properties of such Borrower or any of its subsidiaries at reasonable
times and as often as reasonably requested and to make extracts from and copies
of such financial records, and permit any representatives designated by the
Administrative Agent or any Lender to discuss the affairs, finances and
condition of such Borrower or any of its subsidiaries with the officers thereof
and independent accountants therefor.
(b) At its election, the Administrative Agent may retain an
independent engineer or environmental consultant to conduct an environmental
assessment of any Mortgaged Property or facility of the Company or any
Subsidiary. Any such environmental assessments conducted pursuant to this
paragraph (b) shall be at the Company's sole cost and expense only if conducted
following the occurrence of (i) an Event of Default or (ii) any event,
circumstance or condition that could reasonably be expected to result in an
Event of Default, in the case of each of clause (i) and (ii) that concerns or
relates to any Environmental Liabilities of the Company or any Subsidiary;
provided that the Company shall only be responsible for such costs and expenses
to the extent that such environmental assessment is limited to that which is
reasonably necessary to assess the subject matter of such Event of Default or
such event, circumstance or condition that could reasonably be expected to
result in an Event of Default. In addition, environmental assessments conducted
pursuant to this paragraph (b) shall not be conducted more than once every
twelve months with respect to any parcel of Mortgaged Property or any single
facility of the Company or any Subsidiary unless such environmental assessments
are conducted following the occurrence of (i) an Event of Default or (ii) any
event, circumstance or condition that could reasonably be expected to result in
an Event of Default, in the case of each of clause (i) and (ii) that concerns or
relates to any Environmental Liabilities of the Company or any Subsidiary. The
Company shall, and shall cause each of the Subsidiaries to, reasonably cooperate
in the performance of any such environmental assessment and permit any such
engineer or consultant designated by the Administrative Agent to have reasonable
access to each property or facility at reasonable times and after reasonable
notice to the Company of the plans to conduct such an environmental assessment.
Environmental assessments conducted under this paragraph shall be limited to
visual inspections of the Mortgaged Property or facility, interviews with
representatives of the Company or facility personnel, and review of applicable
records and documents pertaining to the property or facility.
(c) In the event that the Administrative Agent shall have reason
to believe that Hazardous Materials have been Released or are threatened to be
Released on any Mortgaged Property or other facility of the Company or any
Subsidiary or that any such property or facility is not being operated in
compliance with applicable Environmental Law, in each case where the Release,
threatened Release or failure to comply has resulted in, or could reasonably be
expected to result in, a material Environmental Liability of the Company or any
of the Subsidiaries, the Administrative Agent may, at its election and after
reasonable notice to the Company, retain an independent engineer or other
qualified environmental consultant to evaluate whether Hazardous Materials are
present in the soil, groundwater, or surface water at such Mortgaged Property or
facility in violation of Environmental Law or in excess of applicable remedial
action standards or whether the facilities or properties are being operated and
maintained in material compliance with applicable Environmental Laws. Such
environmental assessments may include detailed visual inspections of the
Mortgaged Property or facility, including any and all storage areas,
88
storage tanks, drains, dry xxxxx and leaching areas, and the taking of soil
samples, surface water samples and groundwater samples as well as such other
reasonable investigations or analyses as are reasonable and necessary to assess
the subject matter of the Release, threatened Release or non-compliance. The
scope of any such environmental assessments under this paragraph shall be
determined in the reasonable discretion of the Administrative Agent, but shall
be limited to that reasonably necessary to assess the subject matter of the
Release, threatened Release or non-compliance. The Company shall, and shall
cause each of the Subsidiaries to, reasonably cooperate in the performance of
any such environmental assessment and permit any such engineer or consultant
designated by the Administrative Agent to have reasonable access to each
property or facility at reasonable times and after reasonable notice to the
Company of the plans to conduct such an environmental assessment. All
environmental assessments conducted pursuant to this paragraph shall be at the
Company's sole cost and expense.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in
Section 3.13.
SECTION 5.09. Additional Collateral, etc. (a) With respect to any
Collateral acquired after the Closing Date or with respect to any property or
asset which becomes Collateral pursuant to the definition thereof after the
Closing Date or, in the case of inventory or equipment, any material Collateral
moved after the Closing Date by the Company or any other Loan Party (other than
any Collateral described in paragraphs (b), (c) or (d) of this Section) as to
which the Collateral Trustee, for the benefit of the Secured Parties, does not
have a perfected security interest, promptly (and, in any event, within 20 days
following the date of such acquisition or designation) (i) execute and deliver
to the Administrative Agent, the Collateral Agent and the Collateral Trustee
such amendments to the Guarantee and Collateral Agreement or such other Security
Documents as the Collateral Agent or the Collateral Trustee, as the case may be,
deems necessary or advisable to grant to the Collateral Trustee, for the benefit
of the Secured Parties, a security interest in such Collateral and (ii) take all
actions necessary or advisable to grant, to the Collateral Trustee, for the
benefit of the Secured Parties, a perfected first priority security interest in
such Collateral (other than any Excluded Perfection Assets), including the
filing of UCC financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent, the Collateral Agent or the Collateral Trustee.
(b) With respect to any fee interest in any Collateral consisting
of real property or any lease of Collateral consisting of real property acquired
or leased after the Closing Date by the Company or any other Loan Party or which
becomes Collateral pursuant to the definition thereof, promptly (and, in any
event, within 60 days following the date of such acquisition) (i) execute and
deliver a first priority Mortgage in favor of the Collateral Trustee, for the
benefit of the Secured Parties, covering such real property and complying with
the provisions herein and in the Security Documents, (ii) provide the Secured
Parties with (A) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such real property
(or such other amount as shall be reasonably specified by the Administrative
Agent, the Collateral Agent or the Collateral Trustee, which may be the value of
the generation assets, if applicable, situated thereon), together with such
endorsements as are reasonably required by the Administrative Agent, the
Collateral Agent or the Collateral Trustee and are obtainable in the State in
which such Mortgaged Property is located, as well as a current ALTA survey
thereof
89
complying with the requirements set forth in Schedule 5.09(b) and all of the
other provisions herein and in the Security Documents, together with a
surveyor's certificate and (B) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent, the Collateral Agent or the
Collateral Trustee in connection with such Mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Administrative Agent, the
Collateral Agent and the Collateral Trustee, (iii) deliver to the Administrative
Agent, the Collateral Agent and the Collateral Trustee legal opinions relating
to the matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Administrative Agent, the
Collateral Agent and the Collateral Trustee and (iv) deliver to the
Administrative Agent a notice identifying the consultant's reports,
environmental site assessments or other documents relied upon by the Company or
any other Loan Party to determine that any such real property included in such
Collateral does not contain Hazardous Materials of a form or type or in a
quantity or location that could reasonably be expected to result in a material
Environmental Liability.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary or an Excluded Project Subsidiary, except for an Excluded
Project Subsidiary the pledge of whose Equity Interests pursuant to the Security
Documents would not cause a default under the applicable Non-Recourse
Indebtedness in respect of which it is an obligor) created or acquired after the
Closing Date (which, for the purposes of this paragraph, shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary or an
Excluded Project Subsidiary and any Equity Interests in an Excluded Project
Subsidiary the pledge of which would no longer cause a default under the
applicable Non-Recourse Debt in respect of which it is an obligor) by the
Company or any of the Subsidiaries, promptly (and, in any event, within 10 days
following such creation or the date of such acquisition), (i) execute and
deliver to the Administrative Agent, the Collateral Agent and the Collateral
Trustee such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent, the Collateral Agent or the Collateral Trustee deems
necessary or advisable to grant to the Collateral Trustee, for the benefit of
the Secured Parties, a valid, perfected first priority security interest in the
Equity Interests in such new Subsidiary that are owned by the Company or any of
the Subsidiaries, (ii) deliver to the Collateral Trustee the certificates, if
any, representing such Equity Interests, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the Company or
such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not
an Excluded Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement (and provide Guarantees of the Secured Obligations hereunder), the
Collateral Trust Agreement and the Intellectual Property Security Agreements and
(B) to take such actions necessary or advisable to grant to the Collateral
Trustee, for the benefit of the Secured Parties, a perfected first priority
security interest in the Collateral described in the Guarantee and Collateral
Agreement and the Intellectual Property Security Agreement with respect to such
new Subsidiary that is not an Excluded Subsidiary, including the recording of
instruments in the United States Patent and Trademark Office and the United
States Copyright Office, the execution and delivery by all necessary Persons of
Control Agreements and the filing of UCC financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement, the
Intellectual Property Security Agreement or by law or as may be requested by the
Administrative Agent, the Collateral Agent or the Collateral Trustee and (iv)
deliver to the Administrative Agent, the Collateral Agent and the Collateral
Trustee, if requested, legal opinions relating to the matters
90
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent, the Collateral
Agent and the Collateral Trustee.
(d) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Closing Date by the Company or any of its Subsidiaries,
promptly (and, in any event, within 10 days following such creation or the date
of such acquisition) (i) execute and deliver to the Administrative Agent, the
Collateral Agent and the Collateral Trustee such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent, the Collateral Agent or the
Collateral Trustee deems necessary or advisable in order to grant to the
Collateral Trustee, for the benefit of the Secured Parties, a perfected first
priority security interest in the Equity Interests in such new Excluded Foreign
Subsidiary that is owned by the Company or any of its Domestic Subsidiaries
(provided that in no event shall more than 66% of the total outstanding voting
Equity Interests in any such new Excluded Foreign Subsidiary be required to be
so pledged), (ii) deliver to the Collateral Trustee the certificates
representing such Equity Interests, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the Company or
such Domestic Subsidiary, as the case may be, and take such other action as may
be necessary or, in the opinion of the Administrative Agent, the Collateral
Agent or the Collateral Trustee, desirable to perfect the security interest of
the Collateral Trustee thereon and (iii) deliver to the Administrative Agent,
the Collateral Agent and the Collateral Trustee, if requested, legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent, the Collateral Agent and the Collateral Trustee.
SECTION 5.10. Further Assurances. From time to time duly authorize,
execute and deliver, or cause to be duly authorized, executed and delivered,
such additional instruments, certificates, financing statements, agreements or
documents, and take all such actions (including filing UCC and other financing
statements), as the Administrative Agent, the Collateral Agent or the Collateral
Trustee may reasonably request, for the purposes of implementing or effectuating
the provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent, the Collateral
Agent, the Collateral Trustee and the Secured Parties with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
or products thereof or with respect to any other property or assets hereafter
acquired by the Company or any Subsidiary which may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise by the Administrative
Agent, the Collateral Agent, the Collateral Trustee or any Lender of any power,
right, privilege or remedy pursuant to this Agreement or the other Loan
Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Borrowers will execute and
deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that the
Administrative Agent, the Collateral Agent, the Collateral Trustee or such
Lender may be required to obtain from the Company or any of the Subsidiaries for
such governmental consent, approval, recording, qualification or authorization.
SECTION 5.11. Interest Rate Protection. No later than the 60th day
after the Closing Date, the Borrowers shall enter into, and for a minimum of 42
months thereafter maintain, Hedging Agreements acceptable to the Administrative
Agent that result in at least $500,000,000 in aggregate principal amount of the
Term Loans being effectively subject to a fixed or maximum interest rate
reasonably acceptable to the Administrative Agent.
91
SECTION 5.12. Xcel Cash Account; Separate Bank Settlement Cash Account.
(a) Deposit (no later than one Business Day following the receipt thereof) and
hold at all times pending the permitted uses described herein (and subject to
the requirements of this Section) in a single segregated Deposit Account or
Securities Account of the Company with an internationally recognized commercial
bank (the "Xcel Cash Account"), all Xcel Cash. Amounts at any time held in the
Xcel Cash Account may only be invested in Permitted Investments. At any time and
from time to time, the Company may withdraw any funds in the Xcel Cash Account
to be used to make a Permitted Acquisition pursuant to Sections 6.04 and 6.05
and/or for the purposes described in Sections 6.06(a) and/or 6.09(b)(i)(D)
and/or for general corporate purposes in a manner consistent with the other
terms and provisions of this Agreement; provided that the Company shall provide
written notice to the Administrative Agent within 5 days of any such withdrawal
and use, which notice shall specify the amount withdrawn from the Xcel Cash
Account and the permitted use to which such funds shall have been applied. All
funds withdrawn from the Xcel Cash Account shall permanently reduce the funds on
deposit therein, and no funds (other than the Xcel Cash) may be deposited or
held in the Xcel Cash Account at any time. The Company shall comply with all
applicable laws, rules, regulations and all decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted, and the
terms and provisions of the NRG Plan and all agreements relating thereto, in
connection with all uses of the Xcel Cash.
(b) Deposit (no later than one Business Day following the receipt
thereof) and hold at all times in a single segregated Deposit Account or
Securities Account of the Company with an internationally recognized commercial
bank (the "Separate Bank Settlement Cash Account"), all Separate Bank Settlement
Cash. It is understood and agreed for all purposes hereof that the Separate Bank
Settlement Cash Account and the Separate Bank Settlement Cash shall not be the
property of the Company or any of the Subsidiaries and the Company shall comply
with all applicable laws, rules, regulations and all decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted, and the
terms and provisions of the NRG Plan and all agreements relating thereto, in
connection with the distribution of the Separate Bank Settlement Cash.
ARTICLE VI.
Negative Covenants
Each Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document (other than
indemnification and other contingent obligations in each case not then due and
payable) shall have been paid in full and all Letters of Credit have been
cancelled or have expired and all amounts drawn thereunder have been reimbursed
in full and all Credit-Linked Deposits have been returned to the Term Lenders
(or used to reimburse Funded L/C Disbursements or converted to Term Loans), no
Borrower will, nor will it cause or permit any of its subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
92
(a) Indebtedness existing on the date hereof and set
forth in Schedule 6.01 and any Permitted Refinancing Indebtedness in
respect of any such Indebtedness;
(b) Indebtedness created hereunder and under the other
Loan Documents and any Revolver Refinancing Indebtedness;
(c) unsecured intercompany Indebtedness of the Company
and the Subsidiaries to the extent permitted by Section 6.04(c) so long
as such Indebtedness (if the borrower thereof is a Loan Party) is
subordinated to the Secured Obligations hereunder pursuant to an
Affiliate Subordination Agreement which has been executed and delivered
by both the applicable borrower and lender;
(d) Indebtedness of the Company or any Subsidiary
incurred to finance all or any part of the acquisition, lease,
construction, installation or improvement of any fixed or capital
assets (real or personal), and refinancings, refundings, extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof plus the amount of any
premiums paid thereon and reasonable fees and expenses, in each case
associated with such refinancing, refunding, extension, renewal or
replacement; provided that (i) such Indebtedness is incurred prior to
or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this Section 6.01(d), when combined with the
aggregate principal amount of all Capital Lease Obligations and
Synthetic Lease Obligations incurred pursuant to Section 6.01(e), shall
not exceed $100,000,000 at any time outstanding;
(e) Capital Lease Obligations and Synthetic Lease
Obligations in an aggregate principal amount, when combined with the
aggregate principal amount of all Indebtedness incurred pursuant to
Section 6.01(d), not in excess of $100,000,000 at any time outstanding;
(f) Indebtedness of the Company under (i) the Senior
Notes, (ii) the Creditor Notes and (iii) the Xcel Note and Indebtedness
of the Subsidiary Guarantors under any Guarantees in respect of the
Senior Notes and any Permitted Refinancing Indebtedness in respect of
any such Indebtedness;
(g) Additional Non-Recourse Indebtedness; provided that
(i) prior to the incurrence of any Indebtedness with a principal amount
of $150,000,000 or more pursuant to this Section 6.01(g) the Company
shall have received written confirmation from each of S&P and Xxxxx'x
that the credit ratings assigned by such entities to the facility
provided for herein shall be no lower than such ratings assigned by S&P
and Xxxxx'x, as the case may be, to such facility immediately prior to
the time that S&P and Xxxxx'x, as the case may be, shall have become
aware of such proposed incurrence of Indebtedness, the use of the
proceeds thereof and all transactions related thereto, in each case
after giving effect to such incurrence of Indebtedness, the use of the
proceeds thereof and all transactions related thereto and (ii) at the
time of such incurrence, both before and after giving effect thereto,
no Event of Default or Default shall have occurred and be continuing;
93
(h) (i) Permitted Acquisition Indebtedness and (ii)
Indebtedness secured by assets acquired by the Company or any
Subsidiary and Indebtedness of any person that either becomes a
Subsidiary or is merged into a Subsidiary in each case after the date
hereof; provided that in the case of clause (ii) (A) such Indebtedness
exists at the time such assets are acquired or such person becomes a
Subsidiary or is merged into a Subsidiary and is not created in
contemplation of or in connection with such acquisition or such person
becoming a Subsidiary or such merger and (B) the aggregate principal
amount of Indebtedness permitted by this Section 6.01(h)(ii) shall not
exceed $100,000,000 at any time outstanding;
(i) unsecured Indebtedness of the Company or Permitted
Second Priority Secured Indebtedness in each case (i) that does not
mature, and is not subject to mandatory repurchase, redemption or
amortization (other than pursuant to customary asset sale or change of
control provisions requiring redemption or repurchase only if and to
the extent permitted by this Agreement) prior to the date that is six
months after the Term Loan Maturity Date, (ii) that is not exchangeable
or convertible into Indebtedness of the Company (other than other
Indebtedness permitted by this clause) or any Subsidiary or any
preferred stock or other Equity Interest and (iii) solely to the extent
the Net Cash Proceeds thereof are used to refinance Term Loans or
refinance and permanently reduce commitments in respect of Revolving
Loans or Credit-Linked Deposits;
(j) Indebtedness under performance, surety, appeal or
indemnity bonds or with respect to workers' compensation claims,
self-insurance obligations or banker's acceptances, in each case
incurred in the ordinary course of business;
(k) unsecured Indebtedness in respect of obligations of
the Company or any Subsidiary to pay the deferred purchase price of
goods or services or progress payments in connection with such goods
and services; provided that such obligations are incurred in connection
with open accounts extended by suppliers on customary trade terms
(which require that all such payments be made with 30 days of the
incurrence of the related Indebtedness) in the ordinary course of
business and not in connection with the borrowing of money;
(l) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course
of business; provided that such Indebtedness is covered by the Company
or any Subsidiary within five Business Days of such honoring;
(m) (i) Permitted Schkopau Indebtedness in an aggregate
principal amount at any time outstanding not to exceed Euro 27,000,000
less any amount invested in, or lent or advanced to, Saale Energie GmbH
pursuant to Section 6.04(a)(iii)(D) and (ii) Permitted Itiquira
Indebtedness;
(n) Indebtedness of the Company or any Subsidiary that
may be deemed to exist in connection with agreements providing for
indemnification in connection with sales of assets effected in
accordance with the requirements of this Agreement; and
94
(o) other unsecured Indebtedness of the Borrower or the
Subsidiaries not to exceed $100,000,000 at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including Equity Interests or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except, in the case
of property or assets other than Equity Interests (except for purposes of
clauses (c)(i) and (j) below):
(a) Liens on property or assets of the Company and its
Subsidiaries existing on the date hereof and set forth in Schedule
6.02; provided that such Liens shall secure only those obligations
which they secure on the date hereof and refinancings, refundings,
extensions, renewals and replacements thereof permitted hereunder;
(b) any Lien created under the Loan Documents and the
rights and interests of the Secured Parties as provided in the Loan
Documents and Liens on the Collateral granted in favor of the
Collateral Trustee securing Revolver Refinancing Indebtedness permitted
by Section 6.01(b);
(c) (i) any Liens securing Permitted Acquisition
Indebtedness permitted by Section 6.01(h); provided that (A) such Liens
do not apply to any property or assets of the Company or any Subsidiary
other than the property or assets of the Subsidiary or Subsidiaries
that are acquired in connection with the applicable Permitted
Acquisition and (B) such Liens do not (x) materially interfere with the
use, occupancy or operation of any Mortgaged Property, (y) materially
reduce the fair market value of such Mortgaged Property but for such
Liens or (z) result in any material increase in the cost of operating,
occupying or owning or leasing such Mortgaged Property and (ii) any
Lien existing on any property or asset prior to the acquisition thereof
by the Company or any Subsidiary or existing on any property or asset
of any person (other than a person who was a Subsidiary prior to the
merger) that becomes a Subsidiary or is merged into a Subsidiary after
the date hereof prior to the time such person becomes a Subsidiary or
is merged into a Subsidiary; provided that (A) such Lien is not created
in contemplation of or in connection with such acquisition or such
person becoming a Subsidiary or merging into a Subsidiary, as the case
may be, (B) such Lien does not apply to any other property or assets of
the Company or any Subsidiary and (C) such Lien does not (x) materially
interfere with the use, occupancy or operation of any Mortgaged
Property, (y) materially reduce the fair market value of such Mortgaged
Property but for such Lien or (z) result in any material increase in
the cost of operating, occupying or owning or leasing such Mortgaged
Property;
(d) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in
compliance with Section 5.03;
(e) carriers', warehousemen's, materialmen's, mechanics',
worker's, repairmen's, employee's or other like Liens arising in the
ordinary course of business or in connection with the construction of
any Mortgaged Property, either for amounts not
95
more than 30 days past due or which are being contested in compliance
with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) (i) deposits to secure the performance of bids,
leases (other than Capital Lease Obligations), statutory or public
obligations (including environmental, municipal and public utility
commission obligations under applicable law), surety and appeal bonds
and other obligations of a like nature incurred in the ordinary course
of business, and (ii) Liens on cash and Permitted Investments (A)
deposited in margin accounts with or on behalf of futures contract
brokers or paid over to other contract counterparties or (B) pledged or
deposited as collateral to a contract counterparty, in the case of
clause (A) and (B) to secure obligations with respect to (x) contracts
(other than for Indebtedness) for commercial and trading activities in
the ordinary course of business for the purchase, transmission,
distribution, sale, lease or hedge of any energy related commodity or
service, (y) Hedging Agreements representing commodity price contracts
or derivatives or (z) Hedging Agreements with Qualified Counterparties
representing interest rate or foreign exchange swaps or derivatives;
(h) Permitted Encumbrances on Mortgaged Property as of
the Closing Date and, in the case of any Mortgaged Property acquired
after, or that becomes Mortgaged Property after, the Closing Date,
zoning restrictions, easements, rights-of-way, restrictions on use of
real property, operating leases or subleases and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not (i) materially and
adversely affect the ability of the Borrowers to pay in full any of the
Loans or any interest, Fees or other amounts thereon or (ii) materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Company or
any of the Subsidiaries or the ability of the Company or any of the
Subsidiaries to utilize such property for its intended purpose;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Company or any Subsidiary;
provided that (i) such security interests secure Indebtedness permitted
by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction) and (iii) such security interests do not
apply to any other property or assets of the Company or any Subsidiary;
(j) Liens on assets and Equity Interests of a Subsidiary
that is either not a Loan Party as of the Closing Date or becomes a
Subsidiary after the Closing Date securing Additional Non-Recourse
Indebtedness that is permitted by Section 6.01(g);
(k) judgment Liens securing judgments not constituting an
Event of Default under Article VII;
96
(l) Liens on the Collateral granted in favor of the
Collateral Trustee securing Indebtedness permitted by Section
6.01(f)(i) or Section 6.01(i); provided that such Liens are subordinate
to the Liens securing the Secured Obligations hereunder in the manner
set forth in, and are otherwise subject to, the Collateral Trust
Agreement;
(m) Liens on cash deposits arising in the ordinary course
of business by virtue of any statutory or common law provision relating
to banker's liens;
(n) rights of first refusal, options or other contractual
rights to sell, assign or otherwise dispose of any asset, which right
of first refusal, option or other contractual right is either described
on Schedule 6.02 or is in connection with an asset sale permitted by
Section 6.05;
(o) netting agreements which encumber rights under
agreements that are subject to such netting agreement; provided that
any such netting agreements are entered into in the ordinary course of
business;
(p) Liens upon specific items of inventory or other goods
of the Company or any Subsidiary securing obligations in respect of
banker's acceptances issued or created for the account of the Company
or such Subsidiary, as the case may be, to facilitate the purchase,
shipment or storage of such inventory or other goods;
(q) Liens arising from Uniform Commercial Code financing
statements filed on a precautionary basis in respect of operating
leases intended by the parties to be true leases (other than any such
leases entered into in violation of this Agreement); and
(r) Liens securing Permitted Schkopau Indebtedness and
Permitted Itiquira Indebtedness in each case permitted by Section
6.01(m); provided that any such Liens apply only to those assets
specifically described in the definition of Permitted Schkopau
Indebtedness or Permitted Itiquira Indebtedness, as the case may be.
SECTION 6.03. Sale and Lease-Back Transactions. Except as set forth on
Schedule 6.03, enter into any arrangement, directly or indirectly, with any
person whereby it shall, in related transactions, sell or transfer any property,
real or personal or mixed, used or useful in its business, whether now owned or
hereafter acquired, and in connection therewith rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale of such
property is permitted by Section 6.05 and (b) any Capital Lease Obligations or
Liens arising in connection therewith are permitted by Sections 6.01 and 6.02,
respectively.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any Equity Interests, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances or capital contributions to, or
incur or permit to exist any obligation to make capital contributions to, or
make or permit to exist any investment or any other interest in, any other
person, or make or permit to exist any Guarantee of obligations (other than
Indebtedness) of any person that is not a Loan Party in favor of any other
person, except:
97
(a) (i) investments by the Company and the Subsidiaries
existing on the date hereof in the Equity Interests of the Subsidiaries
as set forth on Schedule 6.04, (ii) additional investments by the
Company and the Subsidiaries in the Equity Interests of the
Subsidiaries and (iii) additional investments, loans and advances by
the Company and the Subsidiaries, and additional Guarantees of
obligations (other than Indebtedness) of any person that is not a Loan
Party (so long as the amount of the obligations in respect of such
Guarantee are expressly limited to a stated amount), in addition to the
investments permitted by clauses (b) through (i) below; provided that
(A) any such Equity Interests in a Subsidiary (other than an Excluded
Project Subsidiary (except for those the pledge of whose Equity
Interests pursuant to the Security Documents would not cause a default
under the applicable Non-Recourse Indebtedness in respect of which they
are an obligor) and, in the case of an Excluded Foreign Subsidiary,
subject to the limitations referred to in Section 5.09) held by a Loan
Party shall be pledged pursuant to the Guarantee and Collateral
Agreement, (B) the aggregate amount of investments by Loan Parties in,
and loans and advances and capital contributions by Loan Parties to,
Subsidiaries that are not Loan Parties, together with the aggregate
amount invested, loaned, advanced or Guaranteed pursuant to clause
(iii) hereof (in each case determined without regard to any write-downs
or write-offs of such investments, loans, advances or Guarantees),
after the date hereof shall not exceed $50,000,000 at any time
outstanding (in addition to the amount set forth on Schedule 6.04), no
more than $5,000,000 of which, in the aggregate, may represent
investments, loans or advances to, or Guarantees of obligations (other
than Indebtedness) of, the Excluded Entities at any time, (C) the
Company may elect, pursuant to a notice delivered to the Administrative
Agent, at any single time in any one fiscal year only to increase the
amount available in clause (B) of this proviso by an amount not to
exceed the amount that is available at such time in such fiscal year to
be used (but has not been so used) as consideration for Permitted
Acquisitions pursuant to clause (D)(y) of the definition thereof and,
in such event, the amount available in such fiscal year to be used as
consideration for Permitted Acquisitions pursuant to clause (D)(y) of
the definition thereof shall be permanently reduced by such amount and
(D) the Company may elect, pursuant to a notice delivered to the
Administrative Agent, to increase the amount available in clause (B) of
this proviso by an amount not to exceed $25,000,000 to make an
investment in, or loan or advance to, Saale Energy GmbH (provided that
the amount of any Permitted Schkopau Indebtedness to be incurred
pursuant to Section 6.01(m)(i) shall be reduced by a corresponding
amount);
(b) Permitted Investments;
(c) unsecured loans or advances made by the Company to
any Subsidiary and made by any Subsidiary to the Company or any other
Subsidiary; provided that (i) any such loans and advances made to a
Loan Party shall be subordinated to the Secured Obligations hereunder
pursuant to an Affiliate Subordination Agreement which has been
executed and delivered by both the applicable borrower and lender and
shall be evidenced by a promissory note pledged to the Collateral
Trustee for the ratable benefit of the Secured Parties pursuant to the
Guarantee and Collateral Agreement and (ii) the amount of such loans
and advances made by Loan Parties to Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (a)
above;
98
(d) investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent accounts
and disputes with, customers and suppliers, in each case in the
ordinary course of business;
(e) the Company and the Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $1,000,000 at any time
outstanding;
(f) Permitted Acquisitions;
(g) investments, including Guarantees of obligations
(other than Indebtedness), and equity contribution obligations existing
on the date hereof and set forth on Schedule 6.04;
(h) investments made as a result of the receipt of
non-cash consideration from an Asset Sale that was made in compliance
with Section 6.05;
(i) extensions of trade credit in the ordinary course of
business; and
(j) any issuance of Letters of Credit hereunder in
accordance with the terms hereof; provided that in the case of any such
Letters of Credit that are issued for the account of any Subsidiaries
that are not Loan Parties the aggregate L/C Exposure with respect
thereto shall not exceed the L/C Exposure Cap.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or permit
any other person to merge into or consolidate with it, or liquidate or dissolve,
or sell, transfer, lease, issue or otherwise dispose of (in one transaction or
in a series of transactions) all or substantially all the assets (whether now
owned or hereafter acquired) of any Borrower or less than all the Equity
Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or any substantial part of the
assets of any other person, except that if at the time thereof and immediately
after giving effect thereto no Event of Default or Default shall have occurred
and be continuing (i) any Subsidiary may merge into the Company in a transaction
in which the Company is the surviving corporation, (ii) any Subsidiary may merge
into or consolidate with any other Subsidiary in a transaction in which the
surviving entity is a Subsidiary and no person other than the Company or a
Subsidiary receives any consideration (provided that if any party to any such
transaction is (A) a Loan Party, the surviving entity of such transaction shall
be a Loan Party and (B) a Domestic Subsidiary, the surviving entity of such
transaction shall be a Domestic Subsidiary), (iii) any Subsidiary may liquidate
or dissolve if the Company determines in good faith that such liquidation or
dissolution is in the best interests of the Borrowers and is not materially
disadvantageous to the Lenders and (iv) the Company and the Subsidiaries may
make Permitted Acquisitions.
(b) Liquidate, dissolve, sell, transfer, lease, issue or otherwise
dispose of (in one transaction or in a series of transactions and whether by
merger or consolidation or otherwise) any of the Equity Interests of NRG
Mid-Atlantic, NRG Northeast or NRG South Central or all or
99
any significant portion of the assets, including assets consisting of Equity
Interests (whether now owned or hereafter acquired), of NRG Mid-Atlantic and its
subsidiaries, taken as a whole, NRG Northeast and its subsidiaries, taken as a
whole, or NRG South Central and its subsidiaries (other than NRG Sterlington
Power LLC, Bayou Cove Peaking Power LLC and Big Cajun I Peaking Power LLC for so
long as such entities shall constitute Excluded Project Subsidiaries), taken as
a whole.
(c) Engage in any Asset Sale otherwise permitted under paragraph
(a) above unless (i) such Asset Sale is for consideration at least 75% of which
is cash (and no portion of the remaining consideration shall be in the form of
Indebtedness of the Company or any Subsidiary), (ii) such consideration is at
least equal to the fair market value of the assets being sold, transferred,
leased or disposed of or, in the case of the Specified Joint Venture Sales, such
consideration shall be at least equal to the value prescribed by the agreements
relating to such Specified Joint Ventures as of the date hereof, (iii) prior to
the execution of a legally binding agreement to consummate (A) any Asset Sale
which shall relate to assets (other than the Specified Assets Held for Sale)
with a fair market value in excess of $100,000,000 or (B) if the fair market
value of all assets (other than the Specified Assets Held for Sale) sold,
transferred, leased or disposed of pursuant to this paragraph (c) shall exceed
$100,000,000 in any fiscal year, each Asset Sale thereafter during such fiscal
year, the Company shall have received written confirmation from each of S&P and
Xxxxx'x that the credit ratings assigned by such entities to the facility
provided for herein shall be no lower than such ratings assigned by S&P and
Xxxxx'x, as the case may be, to such facility immediately prior to the time that
S&P and Xxxxx'x, as the case may be, shall have become aware of such proposed
Asset Sale, the use of the proceeds thereof and all transactions related
thereto, in each case after giving effect to such Asset Sale, the use of the
proceeds thereof and all transactions related thereto and (iv) no Event of
Default or Default shall have occurred and be continuing and the Company would
be in compliance with the covenants set forth in Sections 6.10, 6.11, 6.12, 6.13
and 6.14 as of the most recently completed period ending prior to such
transaction for which financial statements and certificates required by Section
5.04(a) or 5.04(b) were required to have been delivered or for which comparable
financial statements have been filed with Securities and Exchange Commission, in
each case after giving effect to such transactions and to any other event
occurring during such period as to which pro forma recalculation is appropriate
(including any other transaction described in this paragraph occurring after
such period) as if such transaction (and the repayment of any Indebtedness in
connection therewith) had occurred as of the first day of such period.
(d) Engage in any Asset Sale that relates to the Specified Assets
Held for Sale unless the Net Asset Sale Proceeds with respect thereto shall be
deposited and held at all times pending the uses specified below in a segregated
Deposit Account or Securities Account with an internationally recognized
commercial bank, which Deposit Account or Securities Account shall be an account
of a Loan Party if the applicable Specified Assets Held for Sale were sold by a
Loan Party and, if such account is an asset of a Loan Party, shall be Collateral
in respect of which a Control Agreement shall be executed and delivered;
provided that upon the giving of notice by the Company to the Administrative
Agent at any time such Net Asset Sale Proceeds may be used for the following
purposes so long as at the time of such use, both before and after giving effect
thereto, no Event of Default or Default shall have occurred and be continuing:
(i) if such proceeds result from the sale of the Equity Interests in any U.S.
Person or any other assets
100
located in the United States, such proceeds may be used for general corporate
purposes or acquisitions in a manner consistent with the other terms and
provisions of this Agreement and (ii) if such proceeds result from the sale of
the Equity Interests in any person other than a U.S. Person or any other assets
located outside the United States, such proceeds may only be used to (A) make a
Permitted Acquisition of, or other investment in, a person that is incorporated,
formed or organized under the laws of (or operates substantially all of its
business in) a Designated Country, in each case consistent with the other terms
and provisions of this Agreement or (B) following the repatriation of such
proceeds from a Foreign Subsidiary to the Company or a Domestic Subsidiary, such
proceeds (net of the Company's good faith estimate of any taxes to be paid or
payable in each case in connection with the repatriation of such proceeds) may
be used for general corporate purposes or acquisitions in a manner consistent
with the other terms and provisions of this Agreement.
(e) Sell, transfer, lease or otherwise dispose of any interest in
any facility, equipment or other item of property or asset located on Mortgaged
Property (other than any such facility, equipment or other item of property or
asset that is not necessary for the use, operation or maintenance of the
operations conducted on or related to such Mortgaged Property) to any person
(other than the Company or any Subsidiary) unless the Company shall provide to
the Administrative Agent (simultaneously with or prior to such sale, transfer,
lease or other disposition) a certificate of an independent engineering firm of
recognized standing certifying that such sale, transfer, lease or other
disposition shall not materially and adversely affect the applicable Loan
Party's ability to use, operate or maintain the operations conducted on or
related to such Mortgaged Property.
SECTION 6.06. Restricted Payments; Restrictive Agreements. (a)
Declare or make, or agree to declare or make, directly or indirectly, any
Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or
incur any obligation (contingent or otherwise) to do so; provided, however, that
(i) any Subsidiary may declare and pay dividends or make other distributions
ratably to its equity holders, (ii) so long as no Event of Default or Default
shall have occurred and be continuing or would result therefrom, the Company may
repurchase its Equity Interests owned by employees of the Company or the
Subsidiaries or make payments to employees of the Company or the Subsidiaries
upon termination of employment in connection with the exercise of stock options,
stock appreciation rights or similar equity incentives or equity based
incentives pursuant to management incentive plans or in connection with the
death or disability of such employees in an aggregate amount not to exceed
$1,000,000 in any fiscal year and (iii) the Company may make the payments or
distributions to certain of the Company's creditors specifically described in
the definition of the NRG Plan Transactions with funds permanently withdrawn
from the Xcel Cash Account.
(b) Enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of the Company or any Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets, or (ii) the ability of any Subsidiary
to pay dividends or other distributions with respect to any of its Equity
Interests or to make or repay loans or advances to the Company or any other
Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary;
provided that (A) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document, (B) clause (i) of the foregoing shall
not apply to restrictions or conditions imposed by
101
(x) the Senior Note Documents as in effect on the date hereof and the Creditor
Notes and the indenture governing the Creditor Notes (provided that such
restrictions and conditions are not more restrictive than those contained in the
Senior Note Documents on the date hereof) and (y) the loan documentation with
respect to any Revolver Refinancing Indebtedness (provided that such
restrictions and conditions are substantially the same as those contained
herein), (C) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary or asset
pending such sale, provided such restrictions and conditions apply only to the
Subsidiary or asset that is to be sold and such sale is permitted hereunder, (D)
the foregoing shall not apply to restrictions and conditions imposed on any
Subsidiary that is not a Loan Party by the terms of any Indebtedness of such
Subsidiary permitted to be incurred hereunder, (E) the foregoing shall not apply
to restrictions or conditions existing on the date hereof and set forth on
Schedule 6.06(b), but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition in any material respect, (F) clause (i) of the foregoing and, in the
case of any Non-Recourse Indebtedness, clause (ii) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (G) clause (i)
of the foregoing and, in the case of any Non-Recourse Indebtedness, clause (ii)
of the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to any Indebtedness incurred by a Subsidiary prior to the
date on which such Subsidiary was acquired by the Company or another Subsidiary
(provided that such restriction or condition is not created in contemplation of
or in connection with such person becoming a Subsidiary), but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition in any material respect, (H) clause (i) of
the foregoing shall not apply to customary provisions in joint venture,
stockholder or partnership agreements or organizational documents relating to
joint ventures or partnerships (provided that such restrictions shall not apply
to any assets that are, or but for such restrictions would be, Collateral) and
(I) clause (i) of the foregoing shall not apply to customary provisions in
leases and other contracts (other than any such lease or contract that is a
Material Contract) restricting the assignment thereof (whether for collateral
purposes or otherwise).
SECTION 6.07. Transactions with Affiliates. Except for transactions by
or among Loan Parties, sell or transfer any property or assets to, or purchase
or acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) that the Company or any
Subsidiary may engage in any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Company or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties; provided that any intercompany agreements and
transactions between the Company and a Subsidiary that is a Loan Party or
between a Subsidiary and another Subsidiary that is a Loan Party, including any
agreements pursuant to which NRG Power Marketing shall procure fuel for,
purchase capacity, energy and ancillary services from, and perform additional
marketing and procurement services for, any Subsidiary, shall be on terms that
are no less favorable than those terms that are offered to Subsidiaries that are
not Loan Parties; (b) any issuance or repurchase of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements (including with respect to severance), stock
options and stock ownership plans or similar employee benefit plans approved by
the board of directors of the Company in the ordinary course of business;
provided that any payments of cash or transfers
102
of debt securities or assets pursuant to this clause (b) shall not exceed
$2,000,000 in any fiscal year; (c) intercompany transactions pursuant to
management agreements between the Company and a Subsidiary or between a
Subsidiary and another Subsidiary, in each case approved as being fair and
reasonable by the board of directors of the Company; provided that any such
contracts involving Loan Parties are on terms that are no less favorable than
those terms that would be offered to Subsidiaries that are not Loan Parties; (d)
the existence of, or the performance by the Company or any of the Subsidiaries
of its obligations under the terms of, any stockholders agreements (including
any registration rights agreement related thereto) to which it is a party as of
the date hereof (and as in effect on the date hereof); (e) the existence of, or
the performance by the Company of its obligations under the terms of, the
Creditor Notes and the related indenture and (f) the NRG Plan Transactions.
SECTION 6.08. Business of the Company and Subsidiaries; Limitation on
Hedging Agreements. (a) Engage at any time in any business or business
activity other than the business conducted by it as of the date hereof and
business activities reasonably incidental or related thereto or contemplated by
the Business Plan; or permit NRG Energy Insurance Ltd. (Cayman Islands) to
engage in any business or business activity other than the self-insurance
activities conducted by it as of the date hereof and business activities
reasonably incidental or related thereto; provided that in any event NRG Energy
Insurance Ltd. (Cayman Islands) shall not hold or be the beneficiary of third
party insurance policies applicable with respect to the Company and the other
Subsidiaries or its or their properties or assets.
(b) Enter into any Hedging Agreement other than (a) any such
agreement or arrangement entered into in the ordinary course of business and
consistent with prudent business practice to hedge or mitigate risks to which
the Company or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities or (b) any such agreement designed to alter its
risks in respect of interest rate and currency fluctuations entered into in the
ordinary course of business and consistent with prudent business practice;
provided that in each case such agreements or arrangements shall not have been
entered into for speculative purposes.
(c) Enter into any forward purchase or sale (or other forward
acquisition or disposition) of energy, fuel or transmission rights, or any
energy tolling transaction, as a seller of tolling services, in each case other
than purchase, sale or other transactions entered into in the ordinary course of
business.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any
waiver, supplement, modification, amendment, termination or release of any
indenture, instrument or agreement pursuant to which any Material Indebtedness
of the Company or any of the Subsidiaries (other than in respect of any
Specified Hedging Agreement) is outstanding if the effect of such waiver,
supplement, modification, amendment, termination or release would materially
increase the obligations of the obligor or confer additional material rights on
the holder of such Indebtedness in a manner materially adverse to the Company
and the Subsidiaries, taken as a whole, or the Lenders.
(b) (i) Make any distribution, whether in cash, property,
securities or a combination thereof, other than regular scheduled payments of
principal, fees and interest as and when due (to the extent not prohibited by
applicable subordination provisions), in respect of, or pay, or offer or
103
commit to pay, or directly or indirectly (including pursuant to any Synthetic
Purchase Agreement) redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
(other than intercompany Indebtedness of the Company and the Subsidiaries),
except (A) the payment of the Indebtedness created hereunder, (B) refinancings
of Indebtedness permitted by Section 6.01, (C) the payment of secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of,
or a Recovery Event with respect to, the property or assets securing such
Indebtedness and (D) the payments or distributions to certain of the Company's
creditors, in each case as specifically described in the definition of the NRG
Plan Transactions and with funds permanently withdrawn from the Xcel Cash
Account, or (ii) pay in cash any amount in respect of any Indebtedness or
preferred Equity Interests that may at the obligor's option be paid in kind or
in other securities.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Capital Expenditures made by the Company and the Subsidiaries in any period set
forth below (other than any Excluded Capital Expenditures made in such period)
to exceed the amount set forth below for such period:
Period Amount
------ ------
Closing Date through December 31, 2004 $150,000,000
Any fiscal year thereafter $150,000,000
The amount of permitted Capital Expenditures set forth above in respect of any
fiscal year commencing with the fiscal year ending on December 31, 2005, shall
be increased (but not decreased) by (a) 50% of the amount of unused permitted
Capital Expenditures for the immediately preceding fiscal year less (b) an
amount equal to unused Capital Expenditures carried forward to such preceding
fiscal year. In addition, the amount of permitted Capital Expenditures set forth
above in respect of any fiscal year commencing with the fiscal year ending on
December 31, 2004, may be increased at the option of the Company by utilizing up
to 25% of the amount of Capital Expenditures that are permitted for the
immediately following fiscal year; provided that the amount of any such increase
in any such fiscal year shall result in a corresponding decrease in the Capital
Expenditures that are permitted in such immediately following year.
SECTION 6.11. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio at any time on or after December 31, 2004
to be less than 1.40 to 1.00.
SECTION 6.12. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio at any time on or after December 31, 2004 to be greater than 8.50
to 1:00.
SECTION 6.13. Parent Interest Coverage Ratio. Permit the Parent
Interest Coverage Ratio at any time on or after December 31, 2004 to be less
than 1.20 to 1.00.
SECTION 6.14. Parent Leverage Ratio. Permit the Parent Leverage Ratio
at any time on or after December 31, 2004 to be greater than 8.50 to 1.00.
SECTION 6.15. Fiscal Year. With respect to the Company, change its
fiscal year-end to a date other than December 31.
104
ARTICLE VII.
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the Borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or L/C Disbursement or any Fee or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied for a
period of three Business Days;
(d) default shall be made in the due observance or performance by
the Company or any Subsidiary of any covenant, condition or agreement contained
in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
the Company or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in clauses (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent, the Collateral Agent, the
Collateral Trustee or any Lender to the Company;
(f) The Company or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Material
Indebtedness, when and as the same shall become due and payable (excluding any
amounts paid out of the claims reserve established pursuant to the NRG Plan), or
(ii) any other event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (ii) shall not apply to (A) secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness, (B) Designated Non-Recourse
Indebtedness and (C) any other Non-Recourse Indebtedness of the Company and the
Subsidiaries (except to the extent that the Company or any of the Subsidiaries
that are not parties to such Non-Recourse Indebtedness becomes directly or
indirectly liable, including pursuant to any contingent obligation, for any
Indebtedness or other
105
amounts thereunder and such liability, individually or in the aggregate, exceeds
$50,000,000 (excluding any amounts paid out of the claims reserve established
pursuant to the NRG Plan));
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Company or any Material Subsidiary (or any group of
Subsidiaries that, when taken together, would constitute a Material Subsidiary),
or of a substantial part of the property or assets of the Company or a Material
Subsidiary (or any group of Subsidiaries that, when taken together, would
constitute a Material Subsidiary), under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company or any Material Subsidiary (or any group of Subsidiaries that, when
taken together, would constitute a Material Subsidiary) or for a substantial
part of the property or assets of the Company or a Material Subsidiary (or any
group of Subsidiaries that, when taken together, would constitute a Material
Subsidiary) or (iii) the winding-up or liquidation of the Company or any
Material Subsidiary (or any group of Subsidiaries that, when taken together,
would constitute a Material Subsidiary); and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(h) the Company or any Material Subsidiary (or any group of
Subsidiaries that, when taken together, would constitute a Material Subsidiary)
shall (i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any
petition described in (g) above, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Company or any Material Subsidiary (or any group of Subsidiaries that,
when taken together, would constitute a Material Subsidiary) or for a
substantial part of the property or assets of the Company or any Material
Subsidiary (or any group of Subsidiaries that, when taken together, would
constitute a Material Subsidiary), (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 (excluding therefrom any amount covered by
insurance as to which the insurer has acknowledged in writing its obligation to
cover) or other judgments that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect shall be rendered
against the Company, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of the Company or any
Subsidiary to enforce any such judgment;
106
(j) an ERISA Event shall have occurred that, when taken together
with all other such ERISA Events, could reasonably be expected to result in
liability of the Company and its ERISA Affiliates in an aggregate amount
exceeding $50,000,000;
(k) any Guarantee under the Guarantee and Collateral Agreement for
any reason shall cease to be in full force and effect (other than in accordance
with its terms), or any Subsidiary Guarantor shall deny that it has any further
liability under its Guarantee (other than as a result of the discharge of such
Subsidiary Guarantor in accordance with the terms of the Loan Documents);
(l) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by the Company or any other Loan Party
not to be, a valid, perfected and, with respect to the Secured Parties, first
priority (except as otherwise expressly provided in this Agreement or such
Security Document) Lien on any material Collateral (other than any Excluded
Perfection Assets) covered thereby, unless such Lien is released in accordance
with the terms of the Loan Documents; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to any of the
Borrowers described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event either or both of the following actions may
be taken: (i) the Administrative Agent may with the consent of the Majority
Revolving Credit Lenders, and at the request of the Majority Revolving Credit
Lenders shall, by notice to the Company, terminate forthwith the Revolving
Credit Commitments and the Swingline Commitment and (ii) the Administrative
Agent may with the consent of the Majority Lenders, and at the request of the
Majority Lenders shall, by notice to the Company, declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrowers,
anything contained herein or in any other Loan Document to the contrary
notwithstanding, and the Administrative Agent and the Collateral Agent shall
have the right to take all or any actions and exercise any remedies available to
a secured party under the Security Documents or applicable law or in equity; and
in any event with respect to any of the Borrowers described in paragraph (g) or
(h) above, the Revolving Credit Commitments and the Swingline Commitment shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrowers, anything contained herein or in any other
Loan Document to the contrary notwithstanding, and the Administrative Agent and
the Collateral Agent shall have the right to take all or any actions and
exercise any remedies available to a secured party under the Security Documents
or applicable law or in equity.
107
ARTICLE VIII.
The Agents and the Arrangers
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
each of the Administrative Agent and the Collateral Agent (for purposes of this
Article VIII, the Administrative Agent and the Collateral Agent are referred to
collectively as the "Agents") its agent and authorizes the Agents to take such
actions on its behalf and to exercise such powers as are delegated to such Agent
by the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Without limiting the generality of the foregoing,
the Agents are hereby expressly authorized by the Lenders to execute any and all
documents (including releases and the Collateral Trust Agreement) with respect
to the Collateral and the rights of the Secured Parties with respect thereto,
and to appoint the Collateral Trustee as their agent in respect of the
Collateral Trust Agreement and the other Security Documents, in each case as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents. Each of the Lenders and the Issuing Bank hereby agrees to be
bound by the priority of the security interests and allocation of the benefits
of the Collateral and proceeds thereof set forth in the Security Documents. In
addition, each of the Lenders acknowledges the Credit Agreement Parallel Debt
(as defined in the Collateral Trust Agreement) that has been created in the
Collateral Trust Agreement in favor of the Collateral Trustee.
Each bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Company or any Subsidiary or any Affiliate thereof as if it were not an
Agent hereunder.
No Agent shall have any duties or obligations except those expressly
set forth in the Loan Documents. Without limiting the generality of the
foregoing, (a) no Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) no
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent or the Collateral Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose, nor shall it be liable for
the failure to disclose, any information relating to the Company or any of the
Subsidiaries that is communicated to or obtained by the bank serving as any
Agent or any of its Affiliates in any capacity. The Administrative Agent and the
Collateral Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08), in each case, in the absence of its own gross
negligence or willful misconduct. No Agent shall be deemed to have knowledge of
any Default unless and until written notice thereof is given to such Agent by
the Company or a Lender, and no Agent shall be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or
108
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. Each Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have
been made by the proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for any
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. Each Agent
and any such sub-agent may perform any and all its duties and exercise its
rights and powers by or through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
It is acknowledged and agreed that the Revolver Agent shall act as a
sub-agent of the Administrative Agent with respect to the administration of the
Revolving Credit Commitments, the making of Revolving Loans and the performance
of those other functions of the Administrative Agent hereunder that are
reasonably related thereto, including the administration of assignments of, and
the maintenance of the Register for, the Revolving Credit Commitments and
Revolving Loans. Accordingly, for purposes of Article II and Sections 9.04, 9.08
and 9.16 hereof, references to the "Administrative Agent" shall, to the extent
relating to the administration of the Revolving Credit Commitments, the making
of the Revolving Loans or the performance of such related functions, be deemed
to include the Revolver Agent as the context may require. In addition, the
provisions of the second, third, fourth and sixth paragraphs of this Article
shall be deemed to also apply to the Revolver Agent as if it were the
"Administrative Agent" or "Agent" referred to therein as the context may
require. The Company agrees to pay to the Revolver Agent, for its own account,
the fees in the amounts and at the times from time to time agreed to in writing
by the Company and the Revolver Agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, each Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Company. Upon any such resignation of the Administrative
Agent or the Collateral Agent, the Required Lenders shall have the right to
appoint a successor, subject to the Company's approval (not to be unreasonably
withheld or delayed) so long as no Default or Event of Default shall have
occurred and be continuing. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate
109
of any such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrowers to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrowers and such
successor. After an Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while acting as
Agent.
Each of the Syndication Agent and each Arranger, in its capacity as
such, shall have no duties or responsibilities, and shall incur no liability,
under this Agreement or any other Loan Document.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents, the Arrangers, the Syndication Agent or any other
Lender 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
Lender also acknowledges that it will, independently and without reliance upon
the Agents, the Arrangers, the Syndication Agent or any other Lender and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
To the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount equivalent to any
applicable withholding tax. If the Internal Revenue Service or any other
Governmental Authority asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
because the appropriate form was not delivered or was not properly executed or
because such Lender failed to notify the Administrative Agent of a change in
circumstance which rendered the exemption from, or reduction of, withholding tax
ineffective or for any other reason, such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including any penalties or interest
and together with all expenses (including legal expenses, allocated internal
costs and out-of-pocket expenses) incurred.
ARTICLE IX.
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by fax, as follows:
(a) if to a Borrower, to it at NRG Energy, Inc., 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000-0000, Attention of
Treasurer, Chief Financial Officer and General Counsel (Fax No. (612)
373-5312);
110
(b) if to the Administrative Agent or the Collateral
Agent, to Credit Suisse First Boston, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention of Xxxxx Xxxxxxxxx (Fax No. (000) 000-0000);
(c) if to the Revolver Agent, to General Electric Capital
Corporation, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention of
Xxxxxxx Xxxxxxxx (Fax No. (000) 000-0000); and
(d) if to a Lender, to it at its address (or fax number)
set forth in the Lender Addendum or the Assignment and Acceptance
pursuant to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by fax
or on the date five Business Days after dispatch by certified or registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the Credit-Linked Deposits and the
issuance of Letters of Credit by the Issuing Bank, regardless of any
investigation made by the Lenders or the Issuing Bank or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable (other than
indemnification and other contingent obligations that are not then due and
payable) under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit or Credit-Linked Deposit is outstanding and so
long as the Commitments have not been terminated. The provisions of Sections
2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
return, application or conversion of the Credit-Linked Deposits, the invalidity
or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent,
the Collateral Agent, the Revolver Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by each of the parties hereto and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of each Borrower, the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Lenders that
111
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans or Credit-Linked Deposits at
the time owing to it); provided, however, that (i) (x) except in the case of an
assignment to an Affiliate or Related Fund of a Lender, the Administrative Agent
(and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Bank and the Swingline Lender) must give its prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed)
and (y) except in the case of an assignment to a Lender or an Affiliate or
Related Fund of a Lender, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 (or, if less, the entire remaining
amount of such Lender's Commitment), (ii) the parties to each such assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance (such Assignment and Acceptance to be (x) electronically executed and
delivered to the Administrative Agent via an electronic settlement system then
acceptable to the Administrative Agent, which shall initially be the settlement
system of ClearPar, LLC, or (y) manually executed and delivered with a
processing and recordation fee of $3,500 paid by the assignor or assignee),
(iii) the assignee, if it shall not be a Lender immediately prior to the
assignment, shall deliver to the Administrative Agent an Administrative
Questionnaire and (iv) with respect to any Term Lender, any such assignment
shall be a pro rata assignment by the assignor to such assignee with respect to
all of such assignor's rights and interests as a Term Lender in the Term Loans
and Credit-Linked Deposits. No Lender is permitted to assign all or any portion
of its interests, rights or obligations under this Agreement (including all or a
portion of its Commitment and the Loans or Credit-Linked Deposits at any time
owing to it) except as specifically set forth in the immediately preceding
sentence and any purported assignment not in conformity therewith shall be null
and void. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees
accrued for its account and not yet paid). Without the consent of the Company
(which consent shall not be unreasonably withheld) and the Administrative Agent,
the Credit-Linked Deposit of any Term Lender shall not be released in connection
with any assignment by such Term Lender, but shall instead be purchased by the
relevant assignee and continue to be held for application (to the extent not
already applied) in accordance with Section 2.23(d) to satisfy such assignee's
obligations in respect of Funded L/C Disbursements. Notwithstanding the
foregoing, an assignment by a Lender to one of its Affiliates or Related Funds
will be effective, valid, legal and binding without regard to whether the
assignor has delivered an Assignment and Acceptance or Administrative
Questionnaire to the Administrative Agent (and the acceptance and recordation
thereof under paragraph (e) of this Section shall not be required); provided
that the
112
Administrative Agent and the Borrowers shall be entitled to deal solely with the
assignor unless and until the date that an Assignment and Acceptance and
Administrative Questionnaire have been delivered to the Administrative Agent
with respect to the applicable assignee.
(c) By executing and delivering (to the Administrative Agent or
the assigning Lender in the case of an assignment by a Lender to one of its
Affiliates or Related Funds pursuant to the last sentence of paragraph (b) of
this Section) an Assignment and Acceptance, the assigning Lender thereunder and
the assignee thereunder shall be deemed to confirm to and agree with each other
and the other parties hereto as follows: (i) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Term Loan Commitment and Revolving
Credit Commitment, and the outstanding balances of its Term Loans and Revolving
Loans and Credit-Linked Deposits and participations in Funded Letters of Credit,
in each case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of any Borrower
or any Subsidiary or the performance or observance by any Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, the Arrangers,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent
of each Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and one or more registers
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive and each Borrower, the Administrative Agent, the
Issuing Bank, the Collateral Agent and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each Borrower, the
Issuing Bank, the Collateral Agent and any Lender, at any reasonable time and
113
from time to time upon reasonable prior notice. In the case of any assignment
made in accordance with the last sentence of paragraph (b) of this Section that
is not reflected in the Register, the assigning Lender shall maintain a
comparable register reflecting such assignment.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder) and, if required, the written consent of the Swingline Lender,
the Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Bank and the Swingline Lender. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e). Notwithstanding the foregoing, an assignment by
a Lender to an Affiliate or Related Fund pursuant to the last sentence of
paragraph (b) of this Section shall not be required to be recorded in the
Register to be effective; provided that (i) such assignment is recorded in a
comparable register maintained by the assignor as provided in paragraph (b) of
this Section and (ii) the Administrative Agent and the Borrowers shall be
entitled to deal solely and directly with the assignor unless and until the date
that an Assignment and Acceptance and Administrative Questionnaire have been
delivered to the Administrative Agent with respect to the applicable assignee.
(f) Each Lender may without the consent of any Borrower, the
Swingline Lender, the Issuing Bank or the Administrative Agent sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans and Credit-Linked Deposits and participations in Funded
Letters of Credit owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with
respect to any particular participant, to no greater extent than the Lender that
sold the participation to such participant and (iv) each Borrower, the
Administrative Agent, the Issuing Bank and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of each Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans or the
Credit-Linked Deposits, increasing or extending the Commitments or releasing any
Guarantor or all or any substantial part of the Collateral).
(g) Any Lender or participant may, in connection with any
assignment, pledge or participation or proposed assignment, pledge or
participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to any
Borrower furnished to such Lender by or on behalf of the Borrowers; provided
that, prior to any such disclosure of information designated by any Borrower as
confidential, each such assignee or participant or proposed assignee or
participant shall execute an agreement
114
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement to secure extensions of credit to such Lender or in
support of obligations owed by such Lender, and, in the case of any Lender that
is a fund that invests in bank loans, such Lender may collaterally assign all or
any portion of its rights under this Agreement to any holder of, trustee for, or
other representative of any holders of, obligations owed or securities issued by
such fund as security for such obligations or securities; provided that no such
assignment described in this clause (h) shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Company, the option to provide to any
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to such Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC
may (i) with notice to, but without the prior written consent of, the Company
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Company and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.
(j) No Borrower shall assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank and each Lender, and any attempted assignment without such
consent shall be null and void.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree, jointly
and severally, to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, the Syndication Agent, the
Arrangers, the Issuing Bank and the Swingline Lender,
115
including the reasonable fees, charges and disbursements of Xxxxxx & Xxxxxxx
LLP, counsel for the Administrative Agent and the Collateral Agent, in
connection with the syndication of the credit facilities provided for herein and
the preparation and administration of this Agreement and the other Loan
Documents or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated), subject to any prior agreements entered into
between the Company and the Arrangers; provided that the Borrowers shall not be
responsible for the reasonable fees, charges and disbursements of more than one
separate law firm (in addition to local or special counsel, including special
workout counsel) pursuant to its obligations under this sentence only. The
Borrowers also agree, jointly and severally, to pay all out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent, the Syndication
Agent, the Arrangers, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans or Credit-Linked
Deposits made or Letters of Credit issued hereunder, including the fees, charges
and disbursements of Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent
and the Collateral Agent, and, in connection with any such enforcement or
protection, the fees, charges and disbursements of any other counsel (including
special workout counsel) for the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Arrangers, the Issuing Bank or any Lender.
(b) The Borrowers agree, jointly and severally, to indemnify the
Administrative Agent, the Collateral Agent, the Syndication Agent, the
Arrangers, each Lender, the Issuing Bank and each Related Party of any of the
foregoing persons (each such person being called an "Indemnitee") against, and
to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or Credit-Linked
Deposits or issuance of Letters of Credit, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release
of Hazardous Materials on any property owned or operated by the Company or any
of the Subsidiaries, or any Environmental Liability related in any way to the
Company or any of the Subsidiaries; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrowers fail to pay any amount
required to be paid by them to the Administrative Agent, the Collateral Agent,
the Syndication Agent, the Arrangers, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent, the Collateral Agent, the Syndication Agent, the
Arrangers, the Issuing Bank or the Swingline Lender, as the case may be, such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by
116
or asserted against the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Arrangers, the Issuing Bank or the Swingline Lender in
its capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the Aggregate Revolving Credit
Exposure, outstanding Term Loans and Credit-Linked Deposits and unused
Commitments at the time.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan, Credit-Linked Deposit or Letter of Credit or the use
of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the return, application or conversion of any of
the Credit-Linked Deposits, the expiration of the Commitments, the expiration of
any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Arrangers, any Lender or the Issuing Bank. All amounts
due under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off 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 Lender (other
than in respect of the Xcel Cash on deposit in the Xcel Cash Account) to or for
the credit or the account of any Borrower against any of and all the obligations
of any Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
117
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by any Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Borrower in any case
shall entitle such Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by each Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement or
extend the date on which the Credit-Linked Deposits are required to be returned
in full, or waive or excuse any such payment or any part thereof, or decrease
the rate of interest on any Loan, Credit-Linked Deposit or L/C Disbursement,
without the prior written consent of each Lender affected thereby, (ii) increase
or extend the Commitment or decrease or extend the date for payment of any Fees
of any Lender without the prior written consent of such Lender, (iii) amend or
modify the pro rata requirements of Section 2.17, the provisions of Section
9.04(j), the provisions of this Section or the definition of the term "Required
Lenders" or "Majority Lenders," or release any Guarantor, without the prior
written consent of each Lender, (iv) amend or modify the definition of the term
"Majority Term Lenders" without the prior written consent of each Term Lender,
(v) amend or modify the definition of the term "Majority Revolving Credit
Lenders" without the prior written consent of each Revolving Credit Lender, (vi)
release all or any substantial part of the Collateral without the prior written
consent of each Lender, (vii) change the provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans of one Class differently from the rights of Lenders
holding Loans of any other Class without the prior written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class or (viii) modify the protections afforded to an
SPC pursuant to the provisions of Section 9.04(i) without the written consent of
such SPC; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent, , the Issuing Bank or the Swingline Lender hereunder or under
any other Loan Document without the prior written consent of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as
applicable.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
Credit-Linked Deposit or participation in any L/C Disbursement, together with
all fees, charges and other amounts which
118
are treated as interest on such Loan or participation in such L/C Disbursement
under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any person (other
than the parties hereto and thereto, their respective successors and assigns
permitted hereunder (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Arrangers, the Issuing Bank and the Lenders ) any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
119
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement or of a Lender
Addendum by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, the Syndication Agent, the
Arrangers, the Issuing Bank or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents against any
Borrower or its properties in the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. Each of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information, except that Information may be disclosed (a)
to its and its Affiliates' officers, directors, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority or
quasi-regulatory authority (such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) in connection with the exercise of
120
any remedies hereunder or under the other Loan Documents or any suit, action or
proceeding relating to the enforcement of its rights hereunder or thereunder,
(e) subject to an agreement containing provisions substantially the same as
those of this Section 9.16, to (i) any actual or prospective assignee of or
participant in any of its rights or obligations under this Agreement and the
other Loan Documents or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Company or any
Subsidiary or any of their respective obligations, (f) with the consent of the
Company or (g) to the extent such Information becomes publicly available other
than as a result of a breach of this Section 9.16. For the purposes of this
Section, "Information" shall mean all financial statements, certificates,
reports, agreements and other information received from the Company or its
Subsidiaries and related to the Company or its business, other than any such
financial statements, certificates, reports, agreements and other information
that was available to the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender on a nonconfidential basis prior to its disclosure by
the Company; provided that, in the case of Information received from the Company
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any person required to maintain the confidentiality of
Information as provided in this Section 9.16 shall be considered to have
complied with its obligation to do so if such person has exercised the same
degree of care to maintain the confidentiality of such Information as such
person would accord its own confidential information. Notwithstanding any other
express or implied agreement, arrangement or understanding to the contrary, each
of the parties hereto agrees that each other party hereto (and each of its
employees, representatives or agents) are permitted to disclose to any persons,
without limitation, the tax treatment and tax structure of the Loans and the
other transactions contemplated by the Loan Documents and all materials of any
kind (including opinions and tax analyses) that are provided to the Loan
Parties, the Lenders, the Arrangers or any Agent related to such tax treatment
and tax aspects. To the extent not inconsistent with the immediately preceding
sentence, this authorization does not extend to disclosure of any other
information or any other term or detail not related to the tax treatment or tax
aspects of the Loans or the transactions contemplated by the Loan Documents.
SECTION 9.17. Joint and Several Liability; Postponement of Subrogation.
(a) The obligations of the Revolving Loan Borrowers hereunder and under the
other Loan Documents shall be joint and several and, as such, each Revolving
Loan Borrower shall be liable for all of the Secured Obligations of the other
Revolving Loan Borrower under this Agreement and the other Loan Documents. The
liability of each Revolving Loan Borrower for the Secured Obligations of the
other Revolving Loan Borrower under this Agreement and the other Loan Documents
shall be absolute, unconditional and irrevocable, without regard to (a) the
validity or enforceability of this Agreement or any other Loan Document, any of
the Secured Obligations or any other collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to time held by
any Secured Party, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance hereunder) which may at any time be available
to or be asserted by such other Revolving Loan Borrower or any other Person
against any Secured Party or (c) any other circumstance whatsoever (with or
without notice to or knowledge of such other Revolving Loan Borrower or such
Revolving Loan Borrower) which constitutes, or might be construed to constitute,
an equitable or legal discharge of such other Revolving Loan Borrower for the
Secured Obligations, or of such Revolving Loan Borrower under this Section, in
bankruptcy or in any other instance.
121
(b) Each Revolving Loan Borrower agrees that it will not exercise
any rights which it may acquire by way of rights of subrogation under this
Agreement, by any payments made hereunder or otherwise, until the prior payment
in full in cash of all of the Secured Obligations, the termination or expiration
of all Revolving Letters of Credit and the permanent termination of all
Revolving Credit Commitments. Any amount paid to any Revolving Loan Borrower on
account of any such subrogation rights prior to the payment in full in cash of
all of the Secured Obligations, the termination or expiration of all Revolving
Letters of Credit and the permanent termination of all Revolving Credit
Commitments shall be held in trust for the benefit of the Secured Parties and
shall immediately be paid to the Administrative Agent for the benefit of the
Secured Parties and credited and applied against the Secured Obligations of the
Revolving Loan Borrowers, whether matured or unmatured, in such order as the
Administrative Agent shall elect. In furtherance of the foregoing, for so long
as any Secured Obligations, Revolving Letters of Credit or Revolving Credit
Commitments remain outstanding, each Revolving Loan Borrower shall refrain from
taking any action or commencing any proceeding against the other Revolving Loan
Borrower (or any of its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made in respect of the Secured Obligations of the other Revolving Loan
Borrower to any Secured Party.
SECTION 9.18. Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Borrowers and the
Administrative Agent.
122
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NRG ENERGY, INC.
By: _______________________________________
Name:
Title:
NRG POWER MARKETING INC.
By: _______________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as
Administrative Agent, Collateral Agent,
Issuing Bank and Arranger,
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
XXXXXX BROTHERS INC., as Arranger,
By: _______________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent,
By: _____________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Revolver Agent, Issuing Bank and
Swingline Lender,
By: ________________________________________
Name:
Title:
