Exhibit 10.2
EXECUTION COPY
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DEBT SERVICE RESERVE LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
among
INDIANTOWN COGENERATION, L.P.,
as Borrower
and
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
AND ENTITIES PARTIES HERETO FROM TIME TO TIME
and
BNP PARIBAS,
as Initial Bank
and
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent
dated as of October 10, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; CONSTRUCTION.............................................................................. 2
SECTION 1.1. Definitions.............................................................................. 2
SECTION 1.2. Construction............................................................................. 8
ARTICLE II DEBT SERVICE RESERVE LETTER OF CREDIT................................................................. 8
SECTION 2.1. Commitments.............................................................................. 8
SECTION 2.2. Amount and Term of Debt Service Reserve Letter of Credit................................. 9
SECTION 2.3. Participations in Debt Service Reserve Letter of Credit.................................. 10
SECTION 2.4. Drawing and Reimbursement................................................................ 10
SECTION 2.5. Fees..................................................................................... 11
SECTION 2.6. Interest................................................................................. 12
SECTION 2.7. Repayment................................................................................ 13
SECTION 2.8. Prepayments.............................................................................. 13
SECTION 2.9. Security................................................................................. 14
SECTION 2.10. Payments................................................................................ 14
SECTION 2.11. Computation of Interest and Fees........................................................ 14
SECTION 2.12. Payments on Non-Business Days........................................................... 15
SECTION 2.13. Sharing of Payments, Etc................................................................ 15
SECTION 2.14. Evidence of Debt........................................................................ 15
SECTION 2.15. Increased Debt Service Reserve Letter of Credit Costs................................... 15
SECTION 2.16. Capital Adequacy........................................................................ 16
SECTION 2.17. Taxes................................................................................... 16
SECTION 2.18. Change of Law........................................................................... 19
SECTION 2.19. Non-Availability........................................................................ 19
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SECTION 2.20. Assignments by Banks.................................................................... 19
SECTION 2.21. Reduction in Commitments/Loans.......................................................... 20
SECTION 2.22. Right of Set-off........................................................................ 20
SECTION 2.23. Minimum Amounts......................................................................... 20
ARTICLE III CONDITIONS PRECEDENT................................................................................. 21
SECTION 3.1. Conditions Precedent to Issuance of Debt Service Reserve Letter of Credit................ 21
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................ 24
SECTION 4.1. Representations and Warranties........................................................... 24
ARTICLE V COVENANTS.............................................................................................. 24
SECTION 5.1. Covenants................................................................................ 24
ARTICLE VI DEFAULTS AND REMEDIES................................................................................. 27
SECTION 6.1. Defaults and Remedies.................................................................... 27
ARTICLE VII CHARACTER OF OBLIGATIONS............................................................................. 30
SECTION 7.1. Obligations Absolute..................................................................... 30
SECTION 7.2. Limited Liability of Agent and Banks..................................................... 31
ARTICLE VIII THE AGENT........................................................................................... 31
SECTION 8.1. Authorization and Action................................................................. 31
SECTION 8.2. Agent's Reliance, Etc.................................................................... 32
SECTION 8.3. Initial Bank and Agent and Their Respective Affiliates................................... 32
SECTION 8.4. Bank Credit Decision..................................................................... 33
SECTION 8.5. Indemnification.......................................................................... 33
SECTION 8.6. Successor Agent.......................................................................... 33
SECTION 8.7. Collateral............................................................................... 33
ARTICLE IX MISCELLANEOUS......................................................................................... 34
SECTION 9.1. Amendments, Etc.......................................................................... 34
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SECTION 9.2. Notices, Etc............................................................................. 34
SECTION 9.3. No Waiver; Remedies...................................................................... 36
SECTION 9.4. Costs and Expenses....................................................................... 36
SECTION 9.5. Application of Moneys.................................................................... 36
SECTION 9.6. Severability............................................................................. 36
SECTION 9.7. Non-Recourse Liability................................................................... 37
SECTION 9.8. Binding Effect........................................................................... 37
SECTION 9.9. Assignments and Participations........................................................... 37
SECTION 9.10. Indemnification......................................................................... 39
SECTION 9.11. Governing Law........................................................................... 40
SECTION 9.12. Consent to Jurisdiction and Venue....................................................... 40
SECTION 9.13. Headings................................................................................ 40
SECTION 9.14. Execution in Counterparts............................................................... 40
SECTION 9.15. Waiver of Jury Trial.................................................................... 41
Schedule 1.1A Commitments
Schedule 1.1B Notices
Exhibit A Debt Service Reserve Letter of Credit
Exhibit B Debt Service Reserve Letter of Credit Promissory Note
Exhibit C [Intentionally Omitted]
Exhibit D Commitment Transfer Supplement
Exhibit E Reserve Bond Note
Exhibit F Exemption Certificate
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DEBT SERVICE RESERVE LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This Debt Service Reserve Letter of Credit and Reimbursement Agreement
(this "Agreement"), dated as of October 10, 2003, is entered into by and among
(1) INDIANTOWN COGENERATION, L.P., a Delaware limited partnership (the
"Borrower"), (2) BNP PARIBAS (in its individual capacity, the "Initial Bank")
and the other banks and other financial institutions or entities from time to
time parties to this Agreement (collectively and, together with the Initial
Bank, the "Banks") and (3) CREDIT LYONNAIS NEW YORK BRANCH ("Credit Lyonnais"),
as agent (in such capacity, together with its successors in such capacity, the
"Agent") for the Banks.
A. Pursuant to a Trust Indenture dated as of November 1, 1994
(the "Principal Indenture") among Indiantown Cogeneration Funding Corporation, a
Delaware corporation (the "Company"), the Borrower and NationsBank of Florida,
N.A., as trustee (in such capacity, together with its successors in such
capacity (as described in Recital E below), the "Trustee"), and each Series
Supplemental Indenture (as defined in the Principal Indenture) (the Principal
Indenture and all of the Series Supplemental Indentures herein collectively
called the "Indenture"), the Company and the Borrower authorized the creation of
issues of nonrecourse bonds, debentures, promissory notes and other evidences of
indebtedness to be issued in several series (collectively, the "Securities"),
the sale proceeds of which were advanced to the Borrower pursuant to the
Indenture.
B. In connection with the issuance of the Securities under the
Indenture, the Borrower, several banks parties thereto and Banque Nationale de
Paris, as initial bank (in such capacity, the "Original Initial Bank") and as
agent, entered into a Debt Service Reserve Letter of Credit and Reimbursement
Agreement dated as of November 1, 1994 (the "Original DSR LOC and Reimbursement
Agreement") pursuant to which the Original Initial Bank issued, and the banks
parties thereto agreed to participate in, the original debt service reserve
letter of credit with an initial Outstanding Amount of $60,000,000 (the
"Original DSR LOC") upon the terms and conditions set forth therein. On January
11, 1999, the Outstanding Amount of the Original DSR LOC was reduced to
$29,925,906.
C. On May 18, 2001, BNP Paribas (successor to Banque Nationale de
Paris), as agent under the Original DSR LOC and Reimbursement Agreement,
notified the Borrower that the expiration date of the Original DSR LOC would not
be extended. The Original DSR LOC expires on November 22, 2005.
D. Pursuant to Section 5.26 of the Principal Indenture, the
Borrower is required, in the event of loss of the availability of the Original
DSR LOC, to use all reasonable efforts to obtain a replacement Debt Service
Reserve Letter of Credit. The Borrower has requested the Agent and the Banks,
and the Agent and the Banks have agreed, to enter into this Agreement to replace
the Original DSR LOC and Reimbursement Agreement. Pursuant to this Agreement,
the Initial Bank will issue, and the Banks will participate in, a letter of
credit which will replace the Original DSR LOC upon the terms and conditions
hereinafter set forth.
E. The Bank of New York has succeeded NationsBank of Florida,
N.A., as Tax Exempt Trustee, and as Disbursement Agent.
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. Definitions. (a) Terms defined in the Indenture (in the
form of such terms as they exist on the date of this Agreement (including giving
effect to the Third Supplemental Indenture) and as they may hereafter be amended
from time to time, but only to the extent that the incorporation of any such
amendments into this Agreement has been consented to by the Required Banks in
writing) have, unless the same are defined herein or the context otherwise
requires, the same meaning when used herein (with appropriate substitutions
including without limitation the following: (i) the word "Indenture" as it
appears in the definition of Governmental Approvals shall be replaced by the
words "this Agreement" and (ii) the word "Trustee" as it appears in the
definition of Officers' Certificate shall be replaced by the word "Agent").
(b) The following terms are used in this Agreement with the
following respective meanings:
"Additional Contract" means any contract (other than a Project
Contract) providing for (i) the transmission or sale by the Borrower of
any of the Facility's electrical or steam output or (ii) the supply and
transportation of coal to the Facility (it being understood and agreed
that the Xxxxxx Coal Contract shall not be deemed to be an "Additional
Contract" for any purpose of this Agreement).
"Adjusted Base Rate" means the higher of (i) the Federal Funds
Rate plus 1% and (ii) the Prime Rate.
"Adjusted Base Rate Loan" means a Loan bearing interest at the
Adjusted Base Rate.
"Applicable LC Fee Rate" means the rate per annum set forth
below:
From and including the Closing Date to and
excluding the second anniversary of the Closing Date 2.25%
From and including the second anniversary of the Closing Date to
and excluding the fourth anniversary thereof 2.50%
From and including the fourth anniversary of the
Closing Date to and excluding the fifth anniversary thereof 2.75%
Thereafter 3.50%
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"Applicable Margin" means the rate per annum set forth under
the relevant column heading below:
Adjusted
Base Rate LIBOR
Loan Rate Loan
From and including the Closing Date to and excluding the 1.25% 2.25%
second anniversary of the Closing Date
From and including the second anniversary of the Closing 1.50% 2.50%
Date to and excluding the fourth anniversary thereof
From and including the fourth anniversary of the Closing 1.75% 2.75%
Date to and excluding the fifth anniversary thereof
From and including the fifth anniversary of the Closing 2.50% 3.50%
Date to and excluding the seventh anniversary thereof
Thereafter 2.75% 3.75%
"Closing Date" means the date on which the conditions
precedent set forth in Section 3.1 have been fulfilled.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Cogentrix Eastern America" means Cogentrix Eastern America,
Inc., a Delaware corporation.
"Commitment" has the meaning set forth in Section 2.1.
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement entered into by a Bank and another Person substantially in
the form of Exhibit D.
"Company" has the meaning set forth in Recital A.
"Credit Documents" means this Agreement, the Notes and the
Debt Service Reserve Letter of Credit.
"Debt Service Reserve Letter of Credit" means a letter of
credit substantially in the form of Exhibit A, issued or to be issued
by the Initial Bank, or any letter of credit issued by the Initial Bank
in replacement thereof.
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"Default" means an event that with the giving of any required
notice and/or the lapse of any required time would constitute an Event
of Default.
"Dollars" and "$" means dollars in lawful currency of the
United States.
"Drawing" means a drawing under the Debt Service Reserve
Letter of Credit.
"DSR LOC Note Repayment Date" means, in respect of each Loan,
the later of (i) fifteen (15) years from the Closing Date or (ii) ten
(10) years from the date of the Drawing giving rise to such Loan.
"Engineering Advisor" means Energy & Environmental
Engineering.
"Event of Default" has the meaning set forth in Section 6.1.
"Excluded Taxes" has the meaning set forth in Section 2.17(a).
"Expiration Date" means the earlier of (a) seven (7) years
from the Closing Date, unless extended pursuant to Section 2.2(b), in
which case such extended date, or (b) the date on which the Debt
Service Reserve Letter of Credit is terminated.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Final Maturity Date" means the later to occur of (i) the
latest Stated Maturity date of any series of Securities and (ii) the
Final Maturity Date (Tax Exempt).
"First Amendment to Amended and Restated Authority Loan
Agreement" means that certain First Amendment to Amended and Restated
Authority Loan Agreement, dated on or about the date hereof, among the
Borrower and Xxxxxx County Industrial Development Authority.
"First Amendment to Amended and Restated Management Services
Agreement" means that certain First Amendment to Amended and Restated
Management Services Agreement, dated on or about the date hereof,
between the Borrower, as Owner, and Power Services Company (f/k/a U.S.
Generating Company), as Manager.
"First Amendment to Amended and Restated Operation and
Maintenance Agreement" means that certain First Amendment to Amended
and Restated Operations and Maintenance Agreement, dated on or about
the date hereof, between the Borrower, as Owner, and PG&E Operating
Services Company (f/k/a U.S. Operating Services Company), as Operator.
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"First Amendment to Assignment and Security Agreement" means
that certain First Amendment to Assignment and Security Agreement,
dated on or about the date hereof, among the Borrower, Deutsche Bank
Trust Company Americas, as Collateral Agent, and The Bank of New York,
as Disbursement Agent.
"First Amendment to Intercreditor Agreement" means that
certain First Amendment to Collateral Agency and Intercreditor
Agreement, dated on or about the date hereof, among the Borrower and
the other parties to the Intercreditor Agreement.
"First Supplemental Indenture" means that certain First
Supplemental Indenture to the TAX-EXEMPT Indenture, dated on or about
the date hereof, between the Authority and the Tax Exempt Trustee.
"Fuel Supply Coverage Event" has the meaning set forth in
Section 1.1 of the Disbursement Agreement.
"Fuel Supply Coverage Test Date" has the meaning set forth in
Section 1.1 of the Disbursement Agreement.
"Indemnified Party" has the meaning set forth in Section 9.10.
"Indenture" has the meaning set forth in Recital A.
"Indexation Event" has the meaning set forth in Section 1.1 of
the Disbursement Agreement.
"Interest Period" means with respect to any LIBOR Rate Loan,
an interest period of one (1), three (3) or six (6) months; provided
that:
(A) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(B) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(C) any Interest Period that would otherwise extend
beyond the DSR LOC Note Repayment Date or, if such Loan is
converted into a Reserve Bond, the Final Maturity Date, shall
end on the DSR LOC Note Repayment Date or the Final Maturity
Date, as applicable.
"LIBOR Rate" means, with respect to each day during each
Interest Period pertaining to any LIBOR Rate Loan, the rate of interest
for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period
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appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period.
In the event that such rate does not appear on Page 3750 of the
Telerate Service (or otherwise on such service), the "LIBOR Rate" shall
be determined by reference to the London Interbank Fixing Rate as
published in the Financial Times, or if normal publication of the
Financial Times is suspended for more than two days at a time that a
quotation for a "LIBOR Rate" is sought, the "LIBOR Rate" shall be
determined by reference to the London Interbank Offered Rate as quoted
by National Westminster Bank plc (and displayed by Reuters). In the
event that none of the foregoing is available, the "LIBOR Rate" shall
instead be the rate per annum (rounded upward to the nearest 1/100th of
1%) at which the Agent is offered Dollar deposits (in the approximate
amount of the LIBOR Rate Loan to be made) at or about 11:00 A.M., local
time, two Business Days prior to the beginning of such Interest Period
in the interbank eurodollar market where the eurodollar and foreign
currency and exchange operations in respect of its LIBOR Rate Loans are
then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount
comparable to the amount of the LIBOR Rate Loans to be outstanding
during such Interest Period.
"LIBOR Rate Loan" means a Loan bearing interest at the LIBOR
Rate.
"Loan" has the meaning set forth in Section 2.4.
"Xxxxxx Coal Contract" means that certain Coal Purchase and
Sales Agreement, dated as of February 5, 2003, between the Borrower and
Xxxxxx Coal Sales Company, Inc., as amended, supplemented or otherwise
modified from time to time.
"Mortgage Basis" means in respect of each Reserve Bond, an
amortization schedule which, taking into account the interest rate
applicable to such Reserve Bond determined in accordance with Section
2.7(f) and assuming payments are made on Interest Payment Dates,
results in levelized payment of the principal of and interest on such
Reserve Bond to and including the maturity date applicable to such
Reserve Bond determined in accordance with Section 2.7(f).
"Note" has the meaning set forth in Section 2.14(a).
"Notice Date" has the meaning set forth in Section 2.2(b).
"Obligations" means all of the obligations of the Borrower to
the Banks and the Agent under this Agreement and the Notes, whether for
principal (including reimbursement of amounts drawn under the Debt
Service Reserve Letter of Credit), interest, fees, expenses,
indemnification or otherwise.
"Outstanding Amount" means an amount available to be drawn
under the Debt Service Reserve Letter of Credit not to exceed
$29,925,906 (which shall be the Outstanding Amount as of the Closing
Date), as the same may be reduced or reinstated from time to time in
accordance with the terms and provisions of the Debt Service Reserve
Letter of Credit.
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"Participant" has the meaning set forth in Section 9.9(b).
"Prime Rate" means the variable rate of interest per annum
officially announced or published by the Agent from time to time as its
"prime rate," such rate being set by the Agent as a general reference
rate of interest, taking into account such factors as the Agent may
deem appropriate, it being understood that many of the Agent's
commercial or other loans are priced in relation to such rate, that it
is not necessarily the lowest or best rate actually charged to any
customer and that the Agent may make various commercial or other loans
at rates of interest having no relationship to such rate. For purposes
of this Agreement, each change in the Prime Rate shall be effective as
of the opening of business on the date announced as the effective date
of the change in such "prime rate."
"Principal Indenture" has the meaning set forth in Recital A.
"Purchasing Bank" has the meaning set forth in Section 9.9(a).
"Quarterly Date" has the meaning set forth in Section 2.5(c).
"Register" has the meaning set forth in Section 2.1.
"Regulatory Change" means, subsequent to the date of this
Agreement, any adoption or change in United States Federal, state or
municipal or foreign law or regulations (including without limitation
Regulation D) or the adoption or change or making of any application,
interpretation, directive, request or guideline of or under any United
States Federal, state or municipal or foreign law or regulations by any
court, central bank or Governmental Authority.
"Required Banks" means, at any time, Banks (one of which shall
be the Agent) owed at least 66-2/3% of the sum of Obligations then
outstanding and/or the Commitments; provided, however, that, if and so
long as there are only two Banks, then "Required Banks" shall mean both
of such Banks.
"Reserve Bond" has the meaning set forth in Section 2.7(e).
"Reserve Bond Note" has the meaning set forth in Section
2.7(g).
"Reserve Requirement" means, for LIBOR Rate Loans, the rate
(expressed as a percentage) at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained
during the Interest Period therefor under Regulation D by member banks
of the Federal Reserve System in New York City with deposits exceeding
one billion Dollars against "Eurocurrency liabilities" (as such term is
used in Regulation D).
"Securities" has the meaning set forth in Recital A.
"Taxes" means any and all present or future income, stamp,
transfer, turnover and other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental
7
Authority, and any and all interest, penalties, claims or other
liabilities arising under or relating thereto, including those on any
of the Banks or on payments to be made to or received by any of them
from the Borrower hereunder. The term "Taxes" specifically includes
so-called recurring and nonrecurring intangibles taxes that are imposed
under Chapter 199 of the Florida statutes and documentary stamp taxes
that are imposed under Chapter 201 of the Florida statutes.
"Termination Notice" has the meaning set forth in Section
2.2(h).
"Third Supplemental Indenture" means that certain Third
Supplemental Indenture to the Principal Indenture, dated on or about
the date hereof, among the Borrower, the Company and the Trustee.
"Trustee" has the meaning set forth in Recital A.
SECTION 1.2. Construction. In this Agreement, unless expressly
specified to the contrary: the singular includes the plural and the plural the
singular; words importing any gender include the other genders; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible, visible form; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation;"
references to articles, sections (or subdivisions of sections), recitals,
appendices, exhibits, annexes or schedules are to those of this Agreement;
references to agreements and other instruments shall be deemed to include all
amendments and other modifications to such agreements and instruments, but only
to the extent such amendments and other modifications are not prohibited by the
terms of this Agreement; references to Persons include their respective
permitted successors and assigns and, in the case of Governmental Authorities,
Persons succeeding to their respective functions and capacities; and all
accounting terms used in this Agreement shall be interpreted, all accounting
determinations under this Agreement shall be made and all financial statements
required to be delivered under this Agreement shall be prepared in accordance
with generally accepted accounting principles as in effect from time to time.
ARTICLE II
DEBT SERVICE RESERVE LETTER OF CREDIT
SECTION 2.1. Commitments. Each Bank irrevocably agrees severally, on
the terms and conditions contained in this Agreement, to participate in the Debt
Service Reserve Letter of Credit in an aggregate amount not to exceed at any
time outstanding the amount set forth opposite such Bank's name on the attached
Schedule 1.1A or, if such Bank has entered into one or more Commitment Transfer
Supplements, set forth for such Bank in the register (the "Register") maintained
by the Agent (such agreement by such Bank, as the same may be reduced from time
to time pursuant to the terms of this Agreement, herein called such Bank's
"Commitment").
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SECTION 2.2. Amount and Term of Debt Service Reserve Letter of Credit.
(a) Subject to the terms and conditions contained in this Agreement, the Initial
Bank irrevocably agrees to issue the Debt Service Reserve Letter of Credit on
the Closing Date for the account of the Borrower and in the face amount of up to
$29,925,906, subject to reduction in accordance with Section 2.21(b). The Debt
Service Reserve Letter of Credit shall be issued on at least two (2) Business
Days' notice from the Borrower to the Agent specifying the date of issuance
thereof, which shall be a Business Day.
(b) On or prior to the date that is four (4) years and six (6)
months prior to the original Expiration Date of the Debt Service Reserve Letter
of Credit or any extension thereof pursuant to this Section 2.2(b) (the "Notice
Date"), the Banks may, in their sole discretion, extend the original or extended
Expiration Date, as the case may be, of such Debt Service Reserve Letter of
Credit for an additional year beyond the original or extended Expiration Date,
as the case may be. The Agent shall notify the Borrower of the Banks' decision
regarding such extension on or prior to the applicable Notice Date. Failure of
the Agent to provide the Borrower with written notice of renewal or non-renewal
on or prior to the applicable Notice Date in respect of the original Expiration
Date or any extended Expiration Date, as the case may be, shall be deemed a
non-renewal of the Debt Service Reserve Letter of Credit. If the Banks agree to
extend the then current Expiration Date, the Expiration Date of the Debt Service
Reserve Letter of Credit shall, effective from the notice to the Borrower, be
such extended date.
(c) If the Debt Service Reserve Letter of Credit is not
renewed as set forth in Section 2.2(b) on or prior to the date that is three (3)
years and six (6) months prior to the then current Expiration Date, the proviso
of Section 3.10(a)(5) of the Disbursement Agreement shall apply, the Outstanding
Amount shall be reduced by an amount equal to the Debt Service Reserve LOC
Credit Amount and the Outstanding Amount shall not be reinstated upon repayment
of any Loans.
(d) If Casualty Proceeds, Eminent Domain Proceeds or Buy-Down
Amounts are deposited in the Debt Service Reserve Account pursuant to Section
6(e)(v) or 6(f)(vi) of the Intercreditor Agreement, then the Outstanding Amount
of the Debt Service Reserve Letter of Credit shall be reduced by the amount of
such deposit and shall not be subject to reinstatement to the extent of such
reduction.
(e) If the Debt Service Reserve Account Required Balance shall
be reduced (other than as set forth in Section 2.2(d) above), the Outstanding
Amount of the Debt Service Reserve Letter of Credit shall be reduced by an
amount equal to the product of (i) the amount of such reduction in the Debt
Service Reserve Account Required Balance multiplied by (ii) a fraction equal to
(a) the sum of the Outstanding Amount of the Debt Service Reserve Letter of
Credit as in effect prior to such reduction plus the aggregate cash balances in
the Debt Service Reserve Account and the Tax Exempt Debt Service Reserve Account
plus the amount of any Debt Service Reserve Account Security, divided by (b) the
Debt Service Reserve Account Required Balance as in effect prior to such
reduction. Unless Section 2.2(c) shall apply, the Outstanding Amount of the Debt
Service Reserve Letter of Credit, as so reduced, shall be reinstated to the
extent that Loans are repaid, provided that such reinstatement shall not cause
the Outstanding Amount (when added to the aggregate balances in the Debt Service
Reserve Account and the Tax Exempt Debt Service Reserve Account plus the amount
of any Debt
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Service Reserve Account Security) to exceed the Debt Service Reserve Account
Required Balance.
(f) [Intentionally omitted.]
(g) The Borrower shall deliver, or cause to be delivered, (i)
to each of the Agent, the Initial Bank, the Trustee and the Tax Exempt Trustee,
prompt notice of the occurrence of any event resulting in an adjustment to the
Debt Service Reserve Account Required Balance, including, without limitation,
pursuant to Sections 3.14(i) and (j) of the Disbursement Agreement, and (ii) to
each of the Agent, the Initial Bank and the Disbursement Agent, the calculation
of the Outstanding Amount resulting from the adjustment referred to in clause
(i), together with all information reasonably necessary to make such
calculation. The Initial Bank shall deliver to the beneficiary of the Debt
Service Reserve Letter of Credit a notice in the form of Annex 7 to the Debt
Service Reserve Letter of Credit to effect a reduction in the Outstanding Amount
of the Debt Service Reserve Letter of Credit.
(h) The Initial Bank shall have the right, upon the occurrence
and during the continuance of an Event of Default, to deliver a notice in the
form of Annex 4 to the Debt Service Reserve Letter of Credit (a "Termination
Notice"). The Outstanding Amount shall not be reinstated upon repayment of any
Loans after the delivery by the Initial Bank of a Termination Notice.
(i) The Agent shall, solely for informational purposes,
deliver to the Borrower a copy of any termination notice given to the
beneficiary under the Debt Service Reserve Letter of Credit, provided, however,
that the Banks' ability to terminate the Debt Service Reserve Letter of Credit
shall not be contingent upon the Agent's delivery to the Borrower of such notice
and that neither the Agent nor the Banks shall incur any liability whatsoever as
a result of the Agent's failure to deliver such notice to the Borrower.
SECTION 2.3. Participations in Debt Service Reserve Letter of Credit.
Immediately upon the issuance of the Debt Service Reserve Letter of Credit, the
Initial Bank shall be deemed to have sold and transferred to each Bank, and each
Bank shall be deemed to have purchased and received from the Initial Bank, in
each case irrevocably and without any further action by any party, an undivided
interest and participation in the Debt Service Reserve Letter of Credit, each
Drawing and the other Obligations in respect thereof in an amount equal to the
product of (a) a fraction the numerator of which is the amount of the Commitment
of such Bank and the denominator of which is the aggregate amount of all of the
Commitments and (b) the maximum amount available to be drawn under the Debt
Service Reserve Letter of Credit plus outstanding Loans. The Agent shall
promptly advise each Bank of any change in the Outstanding Amount or Expiration
Date in respect of the Debt Service Reserve Letter of Credit, the cancellation
or other termination of the Debt Service Reserve Letter of Credit and any
Drawing, provided, however, that failure to provide such notice shall not limit
or impair the rights of the Agent hereunder or under the Financing Documents.
SECTION 2.4. Drawing and Reimbursement. The payment by the Initial Bank
of a Drawing shall constitute the making by the Initial Bank of a loan in the
amount of such payment. In the event that a Drawing is not repaid by the
Borrower by 10:00 a.m., New York time, on the
10
day of such Drawing, the Agent shall promptly notify each other Bank. Each such
Bank shall, on the day of such notification, make a loan to the Borrower, which
shall be used to repay the applicable portion of the Initial Bank's loan with
respect to such Drawing, in an amount equal to the amount of such Bank's
participation in such Drawing, for application to repay the Initial Bank, and
shall deliver to the Agent for the Initial Bank's account, on the day of such
notification and in immediately available funds, the amount of such loan. In the
event that any Bank fails to make available to the Agent for the account of the
Initial Bank the amount of such loan, the Initial Bank shall be entitled to
recover such amount on demand from such Bank together with interest thereon at
(i) for the first three (3) days of nonpayment, the Federal Funds Rate and (ii)
thereafter, the Federal Funds Rate plus 3.0%. Each loan by a Bank pursuant to
this Section 2.4 shall be deemed a "Loan" under this Agreement.
SECTION 2.5. Fees. The Borrower shall pay the following fees to the
Agent for the respective accounts of the Persons specified below:
(a) for the account of Credit Lyonnais, the fee set forth in
that certain letter agreement of even date herewith between the
Borrower and Credit Lyonnais, payable on the Closing Date;
(b) if there is more than one (1) Bank on the relevant due
date for payment, for the account of the Agent, an annual
administration fee of $50,000, payable on the Closing Date and on each
anniversary thereof until the later to occur of the Expiration Date and
the date on which all of the Loans have been paid in full;
(c) for the account of each Bank, an annual letter of credit
fee equal to (i) the sum of (x) the Applicable LC Fee Rate multiplied
by such Bank's ratable share of the difference between the Outstanding
Amount minus the daily average amount on deposit in the DSR LOC
Collateralization Fund (as defined in the Disbursement Agreement)
during the applicable quarterly period (such average amount, the "DSR
LOC Collateralization Fund Amount"); provided, however, that if
additional Senior Debt of the Borrower or the Company is issued for use
in connection with Required Modifications, the annual letter of credit
fee rate set forth in this clause (x) shall be increased by 0.1%, plus
(y) 0.50% per annum multiplied by such Bank's ratable share of the DSR
LOC Collateralization Fund Amount; and (ii) during the continuance of
an Event of Default or following a DSR LOC Note Repayment Date, the
rate that would otherwise apply pursuant to clause (i)(x) plus 2.0%
multiplied by such Bank's ratable share of the Outstanding Amount minus
the DSR LOC Collateralization Fund Amount, in each case in clause (i)
or (ii) above payable in quarterly installments on the first Business
Day of each March, June, September and December (each such Business
Day, a "Quarterly Date") following the Closing Date;
(d) for the account of the Initial Bank, an annual letter of
credit fronting fee equal to 0.325% of the Outstanding Amount, payable
in arrears on each Quarterly Date when applicable; and
(e) for the account of the Initial Bank, such additional
administrative fees and charges (including cable charges) as are
generally associated with letters of credit, in
11
accordance with the Initial Bank's standard internal charge guidelines,
payable on demand.
SECTION 2.6. Interest. (a) The Borrower shall pay interest on the
unpaid principal amount of each Loan resulting from a Drawing, from the date of
such Loan until such principal amount has been repaid in full. Such interest
shall be paid at a rate per annum equal to (i) so long as no Event of Default
has occurred and is continuing, either (x) the sum of the Adjusted Base Rate in
effect from time to time plus the Applicable Margin or (y) the sum of the LIBOR
Rate in effect from time to time plus the Applicable Margin, and (ii) so long as
an Event of Default is continuing, the Adjusted Base Rate plus the Applicable
Margin plus 2.0% per annum (the "Default Rate"). If the principal amount of a
Loan is not repaid in full by the applicable DSR LOC Note Repayment Date and no
Event of Default has occurred and is continuing, the Borrower shall pay interest
on the unpaid principal amount of such Loan at the Adjusted Base Rate plus the
Applicable Margin plus 2.0% per annum.
(b) Each Loan made pursuant to Section 2.4 shall initially
bear interest based on the Adjusted Base Rate as in effect from time to time
plus the Applicable Margin; provided, however, that prior to the making of any
Loan, the Borrower may give the Agent written notice of the Borrower's election
that such Loan shall bear interest based on the LIBOR Rate. Such notice shall be
irrevocable and shall be effective only if received by the Agent not later than
10:00 a.m. (New York time) three (3) Business Days prior to the occurrence of
the Drawing giving rise to such Loan. The Agent shall promptly notify the Banks
of the contents of each such notice. Subject to Sections 2.6(d), 2.19 and 2.23,
such Loan shall then bear interest based on the LIBOR Rate plus the Applicable
Margin from the date of such Loan.
(c) Subject to Sections 2.6(d), 2.19 and 2.23, unless an Event
of Default shall have occurred and be continuing, the Borrower may at any time,
(i) upon three (3) Business Days' irrevocable written notice to the Agent,
convert any Adjusted Base Rate Loan to a LIBOR Rate Loan or (ii) upon two (2)
Business Days' irrevocable written notice to the Agent, convert any LIBOR Rate
Loan to an Adjusted Base Rate Loan, provided that a LIBOR Rate Loan may be
converted only on the last day of the applicable Interest Period. The Agent
shall promptly notify the Banks of the contents of each such notice. In the
event that the Borrower fails to select the applicable interest rate, within the
time period and otherwise as provided in this Section 2.6(c), such Loan (if
outstanding as a LIBOR Rate Loan) will be automatically converted into an
Adjusted Base Rate Loan on the last day of the then current Interest Period for
such Loan or (if outstanding as an Adjusted Base Rate Loan) will remain as, or
(if not then outstanding) will be made as, an Adjusted Base Rate Loan.
(d) The Borrower shall pay to the Agent for the account of
each Bank, upon the request of such Bank through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense which such Bank determines is
attributable to any failure for any reason (i) of any LIBOR Rate Loan, pursuant
to a notice given under Section 2.6(b) to occur or (ii) of the Borrower to
convert an Adjusted Base Rate Loan from such Bank to a LIBOR Rate Loan as and
when specified in the relevant notice given pursuant to Section 2.6(b) or
2.6(c). Interest pursuant to Section 2.6 shall be payable monthly in arrears on
the first Business Day of each month.
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SECTION 2.7. Repayment. (a) The Borrower shall repay the principal
amount of each Loan as, when and to the extent monies are available for such
purpose pursuant to Section 3.4(e)(iv), 3.10(a)(5), 3.10(e) or 4.3(a) of the
Disbursement Agreement or Section 6(e)(iii) or 6(f)(iii) of the Intercreditor
Agreement. Each Loan shall mature on the applicable DSR LOC Note Repayment Date;
provided that the outstanding principal of each such Loan shall be due and
payable as, when and to the extent that monies are available for the purpose of
repayment of principal pursuant to Sections 3.4(e)(iv), 3.10(a)(5), 3.10(e) and
4.3(a) of the Disbursement Agreement and Sections 6(e)(iii) and 6(f)(iii) of the
Intercreditor Agreement, as applicable.
(b) The Initial Bank shall reduce the Outstanding Amount by
the outstanding principal amount of each Loan.
(c) Subject to Sections 2.2 and 6.1, the Initial Bank shall,
upon receipt of written notice from the Borrower, reinstate the Outstanding
Amount to the extent of any repayment or prepayment of the principal amount of
any Loan.
(d) [Intentionally omitted.]
(e) Notwithstanding the foregoing provisions of this Section
2.7, if (i) 50% or more of the principal amount of any Loan remains outstanding
on or after the fifth (5th) anniversary of the Drawing giving rise to such Loan
or (ii) the principal amount of any Loan remains outstanding on or after the
later of (x) fifteen (15) years from the Closing Date and (y) the tenth (10th)
anniversary of the Drawing giving rise to such Loan, the Agent may, subject to
the approval of the Required Banks and upon thirty (30) days prior written
notice to the Borrower and the other Secured Parties, convert any Loan into a
substitute loan (such converted Loan, a "Reserve Bond").
(f) Each Reserve Bond shall (i) amortize on a Mortgage Basis,
(ii) finally mature on the Final Maturity Date and (iii) bear interest at a
fixed rate equal to the higher of (x) the interest rate last applicable to the
Loan converted into such Reserve Bond and (y) the then current (at the time of
conversion of the Loan to such Reserve Bond) rate of interest on US Treasury
Notes with an average life most comparable to the average life of such Reserve
Bond plus 3.5%.
(g) Upon the expiration of the thirty (30) day period
specified in Section 2.7(e), or such shorter period agreed to by the Agent and
the Borrower, the Agent shall deliver to the Borrower the Note (marked canceled)
evidencing the Loan which is to be converted into a Reserve Bond and the
Borrower shall deliver to the Agent an appropriately completed Reserve Bond Note
substantially in the form of Exhibit E (each a "Reserve Bond Note").
(h) The Borrower shall pay interest on each Reserve Bond
monthly in arrears in accordance with Section 3.10(a)(4) of the Disbursement
Agreement and shall pay principal on each Reserve Bond on each Interest Payment
Date in accordance with Section 3.6(f) of the Disbursement Agreement.
SECTION 2.8. Prepayments. (a) The Borrower may, at any time and from
time to time on any Business Day, upon prior written notice to the Agent not
later than 10:00 a.m., New York time, (i) at least two (2) Business Days before
the day of any prepayment in the case of Adjusted
13
Base Rate Loans and (ii) at least three (3) Business Days before the day of any
prepayment in the case of LIBOR Rate Loans, such notice stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay without premium or penalty the outstanding
principal amounts of the Loans in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid.
(b) The Borrower agrees to indemnify each Bank and hold each
Bank harmless from any direct loss (but excluding any indirect, consequential or
incidental loss or damage), cost or out-of-pocket expense which such Bank incurs
as a result of a prepayment of any LIBOR Rate Loan on a date which is not the
last day of an Interest Period applicable thereto.
(c) All prepayments made hereunder shall be applied by the
Agent and the Banks against the principal amount of outstanding Loans in the
order they were made.
SECTION 2.9. Security. The Obligations shall be secured by the Security
Documents, the rights and remedies in respect of which shall be exercised
pursuant to the Intercreditor Agreement.
SECTION 2.10. Payments. (a) The Borrower shall make each payment
hereunder and under the Notes and the Reserve Bond Notes not later than 10:00
a.m., New York time, on the day when due in Dollars to the Agent at its address
set forth in Section 9.2, in immediately available funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal (including reimbursement of Drawings), interest or fees ratably
(other than amounts payable for the account of the Agent or the Initial Bank
pursuant to Section 2.5(a), (b), (d) or (e) or payable pursuant to Section 9.4)
to the Banks and like funds relating to the payment of any other amount payable
to any Bank to such Bank, in each case to be applied in accordance with the
terms of this Agreement.
(b) Unless the Agent receives notice from the Borrower before
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date, and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due to such Bank. If and to the extent
that the Borrower has not so made such payment in full to the Agent, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date on which such Bank repays such amount to
the Agent (i) for the first three (3) days of non-repayment, at the Federal
Funds Rate and (ii) thereafter, at the Federal Funds Rate plus 3.0%.
SECTION 2.11. Computation of Interest and Fees. All computations of
interest and fees hereunder shall be made on the basis of a year of three
hundred sixty (360) days (or, in the case of interest on Adjusted Base Rate
Loans that are based on Prime Rate, three hundred sixty five (365) days or three
hundred sixty six (366) days, as the case may be) for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable. Each calculation and each determination
by the Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
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SECTION 2.12. Payments on Non-Business Days. Whenever any payment
hereunder or under any Note or Reserve Bond Note is stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be. If no due date
is specified for the payment of any amount payable by the Borrower hereunder,
such amount shall be due and payable not later than ten (10) Business Days after
receipt by the Borrower of written demand from the Agent for payment thereof.
SECTION 2.13. Sharing of Payments, Etc. If any Bank obtains any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of its Commitment or the Loans made by it (other than
pursuant to Section 9.4) in excess of its ratable share of such payments
obtained by all of the Banks, then such Bank shall be deemed to have received
such payment as agent for and on behalf of all the Banks and shall immediately
advise the Agent of the receipt of such funds and promptly transmit the amount
thereof to the Agent for prompt distribution among the Banks as provided for in
this Agreement and such funds transmitted to the Agent shall be credited as a
payment by the Borrower under this Agreement; provided, that such Bank so
transmitting funds to the Agent shall not be deemed to have received, and the
Borrower shall be deemed not to have made to such Bank (to the extent funds are
transmitted to the Agent) any payment transmitted to the Agent by such Bank
pursuant to this Section 2.13.
SECTION 2.14. Evidence of Debt. (a) The indebtedness of the Borrower
resulting from all Loans made by each Bank from time to time shall be evidenced
by an appropriate notation on the schedule, or a continuation thereof, to the
Debt Service Reserve Letter of Credit Promissory Note substantially in the form
of Exhibit B (each a "Note"), delivered by the Borrower to such Bank.
(b) The books and accounts of the Agent shall be conclusive
evidence, absent manifest error, of the amounts of all Drawings, Loans, fees,
interest and other amounts advanced, due, outstanding, payable or paid pursuant
to this Agreement or any Note.
SECTION 2.15. Increased Debt Service Reserve Letter of Credit Costs.
If, after the date hereof, any introduction of or change in any Law or in the
interpretation thereof by any Governmental Authority charged with the
administration thereof either (a) imposes, modifies or makes applicable any
reserve, special deposit or similar requirement against letters of credit issued
by, or assets held by, or deposits in or for the account of, or credit extended
by, the Agent or any Bank or (b) imposes on the Agent or any Bank any other
condition regarding this Agreement, the Agent, such Bank or the Debt Service
Reserve Letter of Credit, and the result of any event referred to in the
preceding clauses (a) or (b) is to increase the cost to the Agent or such Bank
of issuing or maintaining the Debt Service Reserve Letter of Credit, reduce the
amount of any payment receivable by the Agent or such Bank hereunder or reduce
the rate of return on any Bank's capital as a consequence of its obligations
hereunder below that which such Bank would have achieved but for such
circumstance, then, in each such case, upon demand by the Agent or such Bank,
the Borrower shall pay to the Agent or such Bank, from time to time as specified
thereby, additional amounts sufficient to compensate the Agent or such Bank for
such increased costs, reduction in payments receivable or reduction in rate of
return. A certificate as
15
to the amount of such increased cost, submitted to the Borrower by the Agent or
by any Bank through the Agent, shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.16. Capital Adequacy. If the Agent or any Bank reasonably
determines that compliance with any Law affects or would affect the amount of
capital required or expected to be maintained by the Agent or such Bank or any
corporation controlling the Agent or such Bank and that the amount of such
capital is increased by or based upon the existence of such Bank's Commitment or
the issuance of the Debt Service Reserve Letter of Credit or outstanding Loans,
then, upon demand by the Agent or such Bank, the Borrower shall pay to the Agent
or such Bank, from time to time as specified thereby, additional amounts
sufficient to compensate the Agent or such Bank in light of such circumstances,
to the extent that the Agent or such Bank reasonably determines such increase in
capital to be allocable to the existence of such Bank's Commitment or the
issuance of the Debt Service Reserve Letter of Credit or such Loans. A
certificate as to such amounts submitted to the Borrower by the Agent or by any
Bank through the Agent shall be conclusive and binding for all purposes, absent
manifest error.
SECTION 2.17. Taxes. (a) Payments by the Borrower to each of the Banks
under this Agreement and the Notes will be made free and clear of and without
deduction for Taxes, other than Taxes based on the net income of such Bank
(including franchise taxes imposed in lieu of net income taxes) imposed by (x)
the United States federal government, (y) the jurisdiction where such Bank is
organized or has its principal office or (z) the jurisdiction of the branch of
such Bank maintaining any Loan or the branch of the Agent through which it
renders its services as Agent ("Excluded Taxes"). If the Borrower is required by
law to deduct Taxes (other than Excluded Taxes) from such a payment, then the
sum payable under the instrument to which the payment relates will be increased
so that there is no diminution in the amount any Bank actually receives on
account of the deduction.
(b) The Borrower hereby indemnifies and holds harmless each
Bank from and against, and agrees to reimburse each Bank on an after-tax basis
(computed taking into account any deductions or other benefits available for
federal income tax purposes for the Bank if it is a United States taxpayer and
any deductions and benefits available for income tax purposes in any
jurisdiction in which such Bank is a taxpayer) on demand for, any and all Taxes
paid or incurred by such Bank in connection with the transactions contemplated
by this Agreement; provided, however, that the foregoing indemnity does not
cover Excluded Taxes. Reimbursement on an "after-tax basis" means on a basis
such that the Bank is made whole after taking into account income taxes that the
Bank will owe on the indemnity or reimbursement payment in any jurisdiction and
any related tax benefits, assuming the Bank is subject to income taxes at the
highest marginal rates. Nothing in this paragraph shall interfere with the right
of any Bank to arrange its tax affairs in whatever manner it thinks fit and, in
particular, no Bank is under any obligation to claim a deduction or other
benefit relating to these transactions ahead of any other claim, relief, credit,
deduction or other benefit to which it is entitled. The applicable Bank shall
promptly give written notice to the Borrower (but in no event later than sixty
(60) days) after such Bank has actual knowledge of the imposition of any Taxes
subject to indemnification hereunder; provided, however, that failure to give
such notice within such sixty (60) day period will not relieve the Borrower of
the obligation to indemnify such Bank in accordance with the terms hereof,
except to the extent of interest that would have been avoided had the notice
been given prior to the end of such sixty (60) day period.
16
(c) All payments made by the Borrower to each of the Banks
under this Agreement and the Notes will be made without setoff, counterclaim or
other defense.
(d) (i) The Borrower will provide evidence that all Taxes
imposed on payments under this Agreement, any Loan or the Notes, have been fully
paid to the appropriate authorities by delivering official receipts or notarized
copies or confirmations by the Disbursement Agent or the Trustee of payment
thereof to the Agent within thirty (30) days after payment. The Borrower will
compensate any Bank that has to pay any Taxes because the Borrower failed to
timely furnish such evidence; provided, that prior to paying such Taxes, such
Bank shall have given the Borrower notice of its intent to make such payment and
a reasonable opportunity to contest such Taxes as described in the following
paragraph.
(ii) If the Borrower so requests promptly in writing after
receipt of any notice under this Section 2.17, such Bank will contest in good
faith the Taxes at the Borrower's expense, keep the Borrower fully informed
about the progress of the contest, consult in good faith with the Borrower's
counsel regarding conduct of the contest, and not compromise or otherwise settle
the contest without the Borrower's consent (which shall not be unreasonably
withheld or delayed); provided that the Bank may in its sole discretion select
the forum for the contest and determine whether the contest will be by resisting
payment of the Taxes or by paying the Taxes and seeking a refund; provided,
further that the Bank will be under no obligation to contest unless (V) if the
Bank requests, the Borrower has provided the Bank an opinion of independent tax
counsel selected by the Borrower and reasonably acceptable to the Bank to the
effect that there is a reasonable basis for the contest, (W) the amount in
controversy is at least $75,000, (X) the Bank has received satisfactory
indemnification and security for any liability, loss, cost or expense arising
out of the contest (including, but not limited to, all reasonable legal and
accounting fees and expenses, penalties, interest and additions to tax), (Y) if
requested by the Bank, the Borrower has admitted in writing its duty to
indemnify the Bank for the Taxes if the contest is lost (but such admission
shall not preclude the Borrower from raising a defense to liability if a court
of competent jurisdiction has rendered a decision articulating the cause of such
Taxes, and the cause is not one for which the Borrower is responsible under this
Section 2.17), and (Z) if the contest is conducted in a manner that requires
paying all or part of the Taxes, the Borrower has paid the amount required.
(iii) If the Borrower so requests within ten (10) days of
notice to the Borrower of the imposition of any Taxes on payments to any of the
Banks of a type not generally imposed on United States or foreign lenders making
loans of the types contemplated hereunder, such Banks shall (consistent with
legal and regulatory restrictions) comply with Section 2.20 hereof.
(e) Each Bank (or Participant) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") agrees that it
will deliver to the Agent (or, in the case of a Participant, to the Bank from
which the related participation shall have been purchased) and the Borrower two
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI, or, in
the case of a Non-U.S. Lender claiming exemption from United States federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit F and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, United States
17
federal withholding tax on all payments made by the Borrower under this
Agreement and the other Credit Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes party to this Agreement (or, in
the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver such
forms before the expiration, obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the United States taxing authorities for such
purpose). Notwithstanding any other provision of this paragraph, (A) a Non-U.S.
Lender shall not be required to deliver any form pursuant to this paragraph that
such Non-U.S. Lender is not legally able to deliver, and (B) in the event that a
Non-U.S. Lender cannot legally deliver any form as of the date such Non-U.S.
Lender becomes a party to this Agreement, the Borrower shall be under no
obligation to pay any additional amount or indemnity pursuant to this Section
2.17 (or otherwise) with respect to any United States withholding taxes that are
in effect and that would apply to a payment under this Agreement or the Notes
made to such Non-U.S. Lender as of such date; provided, however, that this
clause (B) shall not apply to the extent such Non-U.S. Lender's assignor (or the
Bank from whom such participation was purchased) (if any) was entitled, at the
time of the assignment (or sale of participation), to receive additional amounts
or indemnity from the Borrower. The provisions of this Section 2.17(e) shall
apply to any successor holder of a Note. Each Bank that is a "U.S. Person" as
defined in Section 7701(a)(30) of the Code and is not a corporation or other
exempt recipient shall deliver to the Agent (or, in the case of a Participant,
to the Bank from which the related participation shall have been purchased) and
the Borrower two copies of United States Internal Revenue Service Form W-9 on or
before the date such Bank becomes a party to this Agreement and before the
expiration of any such form previously delivered by such Bank.
(f) Notwithstanding the foregoing, if (A)(i) any Non-U.S.
Lender has previously delivered a Form W-8ECI or a successor applicable form and
(ii) by virtue of any action taken or not taken voluntarily by such Non-U.S.
Lender, such Non U.S. Lender is not lawfully entitled to deliver a subsequent
Form W-8ECI or applicable successor form solely as a result of such Non-U.S.
Lender's failure to be engaged in the active conduct of a trade or business in
the United States or a determination that all amounts to be paid to such
Non-U.S. Lender hereunder are not effectively connected to such trade or
business or (B) any Non-U.S. Lender fails to comply with the requirements of
paragraph (e) of this Section when such Non-U.S. Lender is qualified to so
comply, the Borrower shall be under no obligation to compensate or indemnify
such Non-U.S. Lender under this Section 2.17 or otherwise with respect to any
Tax required to be paid or withheld under United States federal income tax law
that would not have been required to be paid or withheld had such Non-U.S.
Lender so complied.
(g) Notwithstanding anything contained in this Section 2.17,
the Borrower shall not be required to indemnify or reimburse any Bank who has
failed to make available to the Agent its portion of any Loan on the date
required to be made available to the Agent pursuant to this Agreement after the
Agent has made written demand upon such Bank for such payment for any additional
documentary stamp taxes or intangibles taxes incurred by such Bank solely as a
result of such failure.
18
SECTION 2.18. Change of Law. (a) Notwithstanding any other provision of
this Agreement, if any Regulatory Change, or compliance by any Bank with any
Regulatory Change, makes it unlawful or impossible for any Bank to make,
maintain or continue its proportionate interest in any Debt Service Reserve
Letter of Credit, then such Bank shall promptly give notice together with
evidence thereof to the Borrower and the Agent, and the Borrower shall pay
forthwith all amounts outstanding, accrued or payable under this Agreement to
such Bank and cause such Bank to be released from all obligations of such Bank
under this Agreement.
(b) A Bank shall (consistent with legal and regulatory
restrictions) designate a different lending office for the Loans (or commitments
therefor) or its participation in the Debt Service Reserve Letter of Credit
affected pursuant to this Section 2.18 before giving any notice to the Borrower
and the Agent pursuant to this Section 2.18 if such designation will avoid the
need for giving such notice and will not, in the sole opinion of such Bank, be
disadvantageous to such Bank, except that such Bank shall have no obligation to
designate a lending office located in the United States of America. If the
Borrower so requests within ten (10) days of receipt of the notice referred to
above (which notice is based on circumstances not generally applicable to United
States or foreign lenders making loans of the types contemplated hereunder),
such Bank shall (consistent with legal and regulatory restrictions) comply with
Section 2.20 hereof.
SECTION 2.19. Non-Availability. (a) If at any time Dollar deposits in
the principal amount of any Bank's proportionate interest in, or obligation
under, any LIBOR Rate Loan are not available to such Bank in the London
interbank market for the next Interest Period, such Bank shall so notify the
Agent, who shall so notify the Borrower, and the obligation of such affected
Bank to make or continue, or to convert Loans into LIBOR Rate Loans shall be
immediately suspended and during such suspension be converted into an obligation
to do the same with respect to Adjusted Base Rate Loans; provided, however, that
outstanding LIBOR Rate Loans shall be converted into Adjusted Base Rate Loans on
the last day of the then current Interest Period applicable to such Loans.
(b) If at any time the Interest Rate then in effect based on
the LIBOR Rate does not adequately and fairly reflect, in the reasonable
judgment of any Bank, the cost for such Bank of advancing or maintaining its
respective proportionate interest in any LIBOR Rate Loan during any Interest
Period, then such Bank shall notify the Agent, who shall so notify the Borrower,
and interest on such Bank's proportionate share of the Loans shall for any
subsequent Interest Period accrue at the Adjusted Base Rate.
(c) If the Borrower so requests after the suspension of a
Bank's obligation to make LIBOR Rate Loans under this Section 2.19 for at least
thirty (30) consecutive days on at least two (2) separate occasions based on
circumstances not generally applicable to United States or foreign lenders
making loans of the types contemplated hereunder, such Bank shall (consistent
with legal and regulatory restrictions) comply with Section 2.20 hereof.
SECTION 2.20. Assignments by Banks. If (i) a Bank is required to comply
with this Section 2.20 after a request from the Borrower pursuant to Sections
2.17, 2.18 or 2.19 or (ii) the Borrower requests that the provisions of this
Section 2.20 apply to a Bank within ten (10) days after it receives a notice
from the Agent that (A) such Bank has failed to make available to the Agent its
portion of any Loan on the date required to be made available to the Agent
pursuant to
19
this Agreement after the Agent has made written demand upon such Bank for such
payment or (B) such Bank has provided the Agent with notice that such Bank shall
not make available to the Agent such portion of any Loan required to be made
available to the Agent pursuant to this Agreement or (C) such Bank has failed to
reimburse the Agent pursuant to the terms of this Agreement, such Bank shall
assign, all or a part, as specified by the Borrower, of its proportionate share
of the Loans and its commitment to make Loans, to a replacement Bank (which may
be, but is not required to be, one of the other Banks) designated by the
Borrower; provided that any assignment or transfer made by a Bank to a
replacement Bank shall satisfy the following conditions: (i) the Borrower shall
promptly pay when due all reasonable fees and expenses which such Bank incurs in
connection with such transfer or assignment and (ii) any assignment of all or
part of the Loans or Obligations, shall be made without recourse, representation
or warranty, and the Borrower shall cause the replacement Bank to pay to the
Agent for the account of the assigning Bank in immediately available funds all
amounts outstanding or payable under this Agreement to each Bank assigning its
interest in the Loans.
SECTION 2.21. Reduction in Commitments/Loans. (a) The Borrower shall
have the right to refinance all Commitments and all of the outstanding Loans, if
any, and all of the outstanding Reserve Bonds, if any, in whole but not in part,
without premium or penalty upon at least ten (10) days' prior written notice to
the Agent; provided, however, that the Borrower agrees to indemnify each Bank
and hold each Bank harmless from any direct loss (but excluding any indirect,
consequential or incidental loss or damage), cost or out-of-pocket expense which
such Bank incurs as a result of a refinancing pursuant to this Section 2.21 of
any LIBOR Rate Loan on a date which is not the last day of an Interest Period
applicable thereto.
(b) Notwithstanding the foregoing, the Borrower may, by notice
to the Agent and the Initial Bank, reduce the aggregate Commitments of the Banks
hereunder in an amount equal to the difference between the Debt Service Reserve
Account Required Balance and the amount of the proceeds of the Tax-Exempt Bonds
deposited in the Tax-Exempt Debt Service Reserve Account, which reduction shall
be effected by a reduction in the Outstanding Amount of the Debt Service Reserve
Letter of Credit.
SECTION 2.22. Right of Set-off. The Borrower hereby authorizes each
Bank (in addition to, and without limitation of, any right of set-off, banker's
lien or counterclaim a Bank may otherwise have), upon the occurrence and during
the continuance of any Event of Default, at any time and from time to time,
without notice to the Borrower or any Person other than the Collateral Agent
(any such notice being hereby expressly waived by the Borrower to the extent it
may legally do so) to set off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held, and
other indebtedness at any time owing, by such Bank in any of its offices,
wherever located (whether such deposits or indebtedness be in Dollars or in any
other currency), to or for the credit or the account of the Borrower against any
and all of the Obligations and liabilities of the Borrower now or hereafter
existing under this Agreement.
SECTION 2.23. Minimum Amounts. (a) Anything in this Agreement to the
contrary notwithstanding, the aggregate principal amount of LIBOR Rate Loans
shall be in an amount at least equal to $3,000,000 or in multiples of $1,000,000
in excess thereof and, if any LIBOR Rate Loans would otherwise be in a lesser
principal amount for any period, such Loans shall bear
20
interest based on the Adjusted Base Rate during such period. Payments pursuant
to Sections 2.15, 2.16, 2.17 and 2.18 shall not be subject to such minimum
amount.
(b) Not more than six (6) LIBOR Rate Loans may be outstanding
at one time.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions Precedent to Issuance of Debt Service Reserve
Letter of Credit. The initial obligation of the Initial Bank to issue, and of
the Banks to participate in, the Debt Service Reserve Letter of Credit is
subject to the following conditions precedent:
(a) Agreements; Notes. The Banks shall have received the
following documents, each dated on the Closing Date, in form and
substance satisfactory to the Banks and in the number of originals or
copies reasonably required by the Banks:
(i) this Agreement and the Notes, each duly executed
by the Borrower;
(ii) the Reimbursement Agreement and the Working
Capital Facility, each duly executed by the
parties thereto; and
(iii) the Third Supplemental Indenture, the First
Supplemental Indenture, the First Amendment to
Amended and Restated Authority Loan Agreement,
the Disbursement Agreement (for the avoidance of
doubt, as amended and restated on or about the
date hereof), the First Amendment to
Intercreditor Agreement, and the First Amendment
to Assignment and Security Agreement, each duly
executed by the parties thereto; and
(iv) the First Amendment to Amended and Restated
Operation and Maintenance Agreement and the First
Amendment to Amended and Restated Management
Services Agreement, each as duly executed by the
parties thereto.
(b) Other Financing Documents and Project Agreements. The
Banks shall have received true and complete copies of all material
Financing Documents and Project Agreements (in each case that remain in
effect on the Closing Date), together with any amendments, supplements
and modifications to each thereof as of the Closing Date, each duly
executed by the parties thereto, certified by the Borrower as such on
the Closing Date, in form and substance satisfactory to the Agent and
in the number of copies reasonably required by the Agent.
(c) Full Force and Effect. All agreements referred to in
Section 3.1(a) and (b) shall be in full force and effect on the Closing
Date.
(d) Legal Opinions. The Banks shall have received written
opinions of (i) Xxxxxx & Xxxxxxx LLP, New York counsel to the Borrower,
(ii) Gunster, Yoakley & Xxxxxxx, P.A., Florida counsel to the Borrower,
and (iii) in-house counsel to the
21
Borrower, in each case dated the Closing Date and addressed to the
Agent and the Banks, as to such matters as the Agent or any Bank may
reasonably request.
(e) Evidence of Authorization. The Banks shall have received:
(i) copies, certified on the Closing Date, of the partnership action of
the Borrower authorizing the execution, delivery and performance by the
Borrower of this Agreement, the other Credit Documents, the
Reimbursement Agreement, the Working Capital Facility, the Disbursement
Agreement (for the avoidance of doubt, as amended and restated on or
about the date hereof), the First Amendment to Intercreditor Agreement,
the Third Supplemental Indenture, the First Supplemental Indenture, the
First Amendment to Amended and Restated Authority Loan Agreement, the
First Amendment to Assignment and Security Agreement, the First
Amendment to Amended and Restated Operation and Maintenance Agreement,
the First Amendment to Amended and Restated Management Services
Agreement and the other agreements to be executed by the Borrower
pursuant to this Article III, (ii) certificates, dated the Closing
Date, as to the incumbency and signature of each individual signing
this Agreement on behalf of the Borrower; (iii) a certified copy of the
partnership agreement of the Borrower; and (iv) evidence of the
existence and good standing of the Borrower in the State of its
organization and of the Borrower's qualification to do business in the
State of Florida.
(f) Financial Statements. The Banks shall have received: (i) a
copy of the most recent audited financial statements of the Borrower
and (ii) a copy of the most recent unaudited financial statements of
the Borrower, certified by an Authorized Representative thereof. Such
financial statements shall be satisfactory to the Banks, and no
material adverse change shall have occurred in the business, operations
or financial condition of the Borrower since the date of such financial
statements that could reasonably be expected to have a Material Adverse
Effect.
(g) Financial Projections. The Banks shall have received
detailed financial projections for the Project covering the period from
January 1, 2004 through the Final Maturity Date, including therein
projections of revenues, operating expenses, cash flow, debt service
and other related items for the Project, in form and substance
satisfactory to the Banks and the Independent Engineer and showing (i)
a minimum Total Debt Service Coverage Ratio for each year of at least
1.20 to 1.0 and (ii) an average Total Debt Service Coverage Ratio
during such period of at least 1.35 to 1.00, in each case, certified as
of the Closing Date by an Authorized Representative of the Borrower, as
being based on reasonable assumptions and prepared in good faith in
full consideration of all information known to such officer.
(h) Disbursement Agent. The Agent shall have received a
certificate of the Disbursement Agent as to the incumbency and specimen
signatures of the officers of the Disbursement Agent authorized to make
drawings, to execute and present certificates under the Debt Service
Reserve Letter of Credit, and otherwise to communicate with the Agent
with respect thereto.
(i) Fees and Expenses. The Borrower shall have paid all
accrued fees and expenses (as provided in Sections 2.5 and 9.4) of the
Agent and the Banks (including the
22
reasonable accrued fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP), to the extent that one or more statements for such fees and
expenses have been presented for payment, provided that no such
statement shall be required to be delivered in connection with any fee
payable on the Closing Date pursuant to Section 2.5(a).
(j) Conditions Precedent Under Other Facilities. The
conditions precedent contained in Section 3.1 of the Working Capital
Facility and Section 3.1 of the Reimbursement Agreement shall have been
satisfied.
(k) Tax Exempt Debt Service Reserve Account. The Tax Exempt
Debt Service Reserve Account shall have $12,501,000 on deposit therein
on the Closing Date and the Agent shall have received satisfactory
evidence thereof.
(l) Continuation of Title and Priority. The Collateral Agent
and the Agent shall have received from the relevant title companies a
continuation endorsement of the title policies which currently cover
the Mortgage, which title endorsement shall (i) insure that the
Mortgage secures all amounts payable under this Agreement and the other
Financing Documents and other Secured Obligations, and (ii) insure that
since the date of any previous such endorsement (or, if none, since the
effective date of said title insurance policies), there has been no
change in the state of title to the Project and that there are no Liens
(other than Permitted Liens) affecting the Project.
(m) Recordation; Lien Search. The Agent shall have received:
(i) satisfactory evidence that all filings,
recordings, registrations and other actions
necessary to create, perfect and maintain the
first priority security interest of the
Collateral Agent in the Collateral are in full
force and effect; and
(ii) the results of a recent lien search in each of
the jurisdictions where assets of the Borrower
are located, and such search shall reveal no
Liens on any assets of the Borrower except for
Liens in favor of the Collateral Agent pursuant
to the Security Documents and Permitted Liens.
(n) Insurance Coverage; Additional Insured. The Agent shall
have received and found satisfactory a certificate signed by the
Borrower's independent insurance broker which complies with Section
5.18 of the Principal Indenture. The Agent shall have received
satisfactory evidence that the Agent and the Banks are named as
additional insured on all applicable insurance policies.
(o) No Default, Event of Eminent Domain or Event of Loss. No
Default, Event of Default, Event of Eminent Domain or Event of Loss
shall have occurred and be continuing.
(p) Representations and Warranties. The Banks shall have
received an Officer's Certificate of the Borrower, dated the Closing
Date, stating that the representations and warranties of the Borrower
and each Affiliate thereof incorporated by reference in this
23
Agreement or contained in any Security Document are true and correct in
all material respects, except to the extent that such representations
and warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct on and
as of such earlier date.
(q) Termination of Original DSR LOC Reimbursement Agreement.
The Banks shall have received satisfactory evidence from the Borrower
that all commitments of the lenders that are parties to the Original
DSR LOC and Reimbursement Agreement to make extensions of credit or
loans thereunder have been terminated and no letters of credit or loans
remain outstanding thereunder.
(r) Engineering Advisor's Letter Report. The Banks shall have
received a letter report from the Engineering Advisor satisfactory to
the Banks with respect to fuel arrangements for the Project and any
other matter reasonably requested by the Agent or any Bank.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. The Borrower hereby makes
on the Closing Date for the benefit of the Agent and the Banks all of the
representations and warranties of the Borrower and the Company made in the
Principal Indenture (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such representations
and warranties are deemed made as of such earlier date), in the form of such
representations and warranties as they exist on the date of this Agreement and
as they may hereafter be amended from time to time, but only to the extent that
the incorporation of any such amendments into this Agreement has been consented
to in accordance with Section 9.1. Such representations and warranties are
incorporated herein by reference as if set forth at length in this Agreement;
provided that any reference to the Partnership shall be deemed to be a reference
to the Borrower; each reference to Project Agreements shall be deemed to include
all Financing Documents (including the Credit Documents); each reference to the
term "Securities" shall be deemed to include the Obligations; each reference to
the term "Indenture" shall be deemed to be a reference to this Agreement; the
reference to the phrase "purchase and ownership of Securities" on line 3 of
Section 3.6(b) of the Principal Indenture shall be deemed to refer to the
issuance of the Debt Service Reserve Letter of Credit or the making of Loans;
and each reference to the Trustee shall be deemed to be a reference to the Agent
and the Banks.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants. So long as any Commitment is in effect, the
Debt Service Reserve Letter of Credit is outstanding or the Obligations remain
unpaid, unless compliance has been waived in accordance with Section 9.1:
24
(a) Covenants under the Principal Indenture. All of the
covenants of the Borrower contained in Article V of the Principal
Indenture (other than Section 5.14(a) thereof), together with any
schedules referred to therein (in the form of such covenants and
schedules as they exist as of the date of this Agreement and as they
may hereafter be amended from time to time, but only to the extent that
the incorporation of any such amendments into this Agreement has been
consented to in accordance with Section 9.1), are hereby incorporated
and made applicable by reference as if set forth at length in this
Agreement; provided that any reference to the Partnership shall be
deemed to be a reference to the Borrower; each reference to Project
Agreements shall be deemed to include all Financing Documents
(including the Credit Documents); each reference to the term
"Securities" shall be deemed to include the Obligations; each reference
to the term "Indenture" (other than in Section 5.13 of the Principal
Indenture) shall be deemed to be a reference to this Agreement; each
reference to the term "Trustee" (other than in Sections 5.21 and 5.22
of the Principal Indenture) shall be deemed to be a reference to the
Agent; the phrase "the principal of and premium, if any, and interest
on, and all other amounts payable in respect of, the Securities of each
series in accordance with their terms and the terms of this Indenture
and of the related Series Supplemental Indenture" in Section 5.1 of the
Principal Indenture shall be deemed to refer to all Obligations; and
the Borrower shall observe and perform all of such incorporated
covenants.
(b) Termination or Amendment of Other Financing Documents. The
Borrower will not, and will not permit the Company to, terminate, amend
or otherwise modify any provision of the Indenture, the Tax Exempt
Indenture, the Authority Loan Agreement, the Intercreditor Agreement,
the Mortgage, the Security Agreement, the Reimbursement Agreement, the
Working Capital Facility or any Subordinated Loan Agreement if such
termination, amendment or other modification would, in the reasonable
opinion of the Required Banks, be expected to have a material adverse
effect on the rights and benefits of the Banks or the Agent.
(c) Cash Collateralization. The Borrower will provide for cash
collateralization of the Debt Service Reserve Letter of Credit as
provided for in Articles III and IV of the Disbursement Agreement and
will comply with its obligations in respect thereof (including, without
limitation, the obligation to provide the certificate set forth in
Section 4.3(a) of the Disbursement Agreement; provided, that the
conditions required to deliver such certificate shall have been
satisfied).
(d) Amendments to Contracts. The Borrower shall not terminate,
amend, replace or modify (other than immaterial amendments or
modifications as certified by the Borrower) any Project Contract (other
than the Power Purchase Agreement, the Energy Services Agreement, the
Coal Purchase Agreement (except the Xxxxxx Coal Contract) or any
replacement of any of the foregoing, with respect to which agreements
the proviso below in this paragraph (d) shall apply) as such Project
Contract is then in effect on the date of such proposed termination,
amendment, replacement or modification, unless (i) the Borrower
certifies that such termination, amendment, replacement or modification
is not reasonably expected to have a Material Adverse Effect and such
termination, amendment, replacement or modification is not reasonably
expected to materially increase the likelihood of the occurrence of a
future Material Adverse Effect and (ii) the
25
Independent Engineer does not within thirty (30) days of receipt of
such certificate disagree in writing with the certification provided
pursuant to clause (i); provided, that the Borrower shall not, without
the prior written consent of the Required Banks, agree to or acquiesce
in the cancellation, suspension, replacement or termination (other than
the normal expiration of an agreement in accordance with its terms) of
the Power Purchase Agreement, the Energy Services Agreement or the Coal
Purchase Agreement (except the Xxxxxx Coal Contract) or any material
amendment, supplement or modification of, or material consent or waiver
with respect to, any of the provisions of the agreements referred to in
this proviso (other than the Xxxxxx Coal Contract).
(e) Additional Information. In addition to the information
required to be provided to the Agent under Article V of the Principal
Indenture (as incorporated and made applicable in this Agreement by
reference), the Borrower shall furnish to the Agent the following:
(i) notice of the termination, material amendment,
replacement or material modification of any
material Project Contract or the execution and
delivery of any material Additional Contract (in
each case, together with a copy thereof if
requested by the Agent); and
(ii) a copy of each material notice, document, demand
or waiver delivered by or received by the
Borrower pursuant to any material Project
Contract.
(f) Additional Contracts. The Borrower will not enter into any
Additional Contract unless (i) the Borrower certifies that the
execution of such Additional Contract could not reasonably be expected
to have a Material Adverse Effect and (ii) the Independent Engineer
does not within thirty (30) days of receipt of such certificate
disagree in writing with the certification provided pursuant to clause
(i).
(g) Fuel Covenants.
(i) The Borrower shall, on the Fuel Supply Coverage
Test Date, perform the test described under
clause (i) of the definition of Fuel Supply
Coverage Event. The Borrower shall give to the
Agent and the Engineering Advisor written notice
of the results of such test, together with
calculations supporting such results, which
notice must be received by the Agent within
twenty (20) Business Days after the Fuel Supply
Coverage Test Date but in no event later than
five (5) Business Days prior to the Interest
Payment Date immediately following the Fuel
Supply Coverage Test Date.
(ii) The Borrower shall, ten (10) Business Days prior
to each Interest Payment Date, perform the
analyses and calculations described under clauses
(i) and (ii) of the definition of Indexation
Event. The Borrower shall give to the Agent
written notice of the results of such tests and
analyses, together with calculations supporting
such results,
26
which must be received by the Agent at least
three (3) Business Days prior to such Interest
Payment Date.
(h) Security Interest. The Borrower agrees that (i) the
Obligations constitute "Secured Obligations," the Banks are "Senior
Parties," and this Agreement constitutes a "Financing Document," each
as contemplated by and as defined in the Mortgage and the other
Security Documents, and (ii) the Mortgage and the Security Agreement
each secure the payment and performance of the Obligations.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Defaults and Remedies. If any one of the following events
(each an "Event of Default") shall occur and be continuing:
(a) any amount in respect of fees, costs or expenses due under
this Agreement shall not be paid in full within fifteen (15) days after
its due date;
(b) any amount due in respect of interest on any Loan shall
not be paid in full within fifteen (15) days after its due date;
(c) any amount due in respect of the principal or interest on
any Reserve Bond shall not be paid in full within fifteen (15) days
after its due date (taking into account the applicable amortization of
such Reserve Bond);
(d) any amount due in respect of principal of any Loan shall
not be paid to the Agent within fifteen (15) days after its due date as
provided in Section 2.7(a);
(e) any amount due pursuant to that certain letter agreement
referred to in Section 2.5(a) (other than any fee the payment of which
constitutes a condition precedent under Section 3.1(c) and shall be
paid on the Closing Date) shall not be paid in full within fifteen (15)
days after its due date;
(f) any representation or warranty made by or on behalf of the
Borrower in this Agreement (including by incorporation by reference),
or in any certificate furnished to the Agent or the Banks shall prove
to have been false or misleading in any respect as of the time made,
confirmed or furnished and the inaccuracy has had or is reasonably
expected to have a Material Adverse Effect and such misrepresentation
shall continue uncured for thirty (30) or more days from the discovery
thereof; provided that if the Borrower or the Company commences efforts
to cure the factual situation resulting in such misrepresentation
within such thirty (30) day period, the Borrower or the Company may
continue to effect such cure of the misrepresentation and such
misrepresentation shall not be deemed an Event of Default, for an
additional sixty (60) days so long as an Authorized Representative of
the Borrower or the Company, as the case may be, provides an Officers'
Certificate stating that no other Event of Default has occurred and is
continuing and the Borrower or the Company is diligently pursuing the
cure;
27
(g) either the Borrower or the Company shall fail to perform
or observe any covenant or agreement contained in Section 5.2
(Insurance) of the Principal Indenture as incorporated in Section
5.1(a) of this Agreement or in Section 5.1(g) of this Agreement;
(h) either the Borrower or the Company shall fail to perform
or observe any covenant or agreement contained in Sections 5.4
(Maintenance of Existence and Governmental Approvals), 5.9 (Compliance
with Laws), 5.10 (Prohibition on Fundamental Changes and Disposition of
Assets), 5.14 (Amendments to Contracts), 5.19 (Liens), 5.21
(Indebtedness) or 5.24 (Restricted Payments) of the Principal Indenture
as incorporated in Section 5.1(a) of this Agreement or in Section
5.1(b) of this Agreement, and such failure shall continue uncured for
thirty (30) or more days after the Borrower or the Company has actual
knowledge of such failure;
(i) either the Borrower or the Company shall fail to perform
or observe any of its covenants contained (including by incorporation
by reference) in any other provision of this Agreement (other than
those referred to in paragraphs (a), (b), (c), (d), (e), (f), (g) and
(h) above) and such failure shall continue uncured for thirty (30) or
more days after the Borrower or the Company has actual knowledge of
such failure; provided that if the Borrower or the Company commences
efforts to cure such default within such thirty (30) day period, the
Borrower or the Company may continue to effect such cure of the default
(and such default shall not be deemed an "Event of Default" hereunder)
for an additional ninety (90) days so long as an Authorized
Representative of the Borrower or the Company, as the case may be,
provides an Officers' Certificate stating that no other Event of
Default has occurred and is continuing and the Borrower or the Company
is diligently pursuing the cure;
(j) an acceleration of the principal and interest owing under
the Working Capital Facility shall be declared and the amount so
accelerated is not paid or such acceleration is not rescinded within
fifteen (15) days;
(k) an "Event of Default" under the Reimbursement Agreement
shall occur and be continuing until the earlier of the expiration of
thirty (30) days or an acceleration under the Reimbursement Agreement;
(l) an "Event of Default" under the Indenture shall occur and
be continuing until the earlier of the expiration of thirty (30) days
or an acceleration under the Indenture;
(m) an "Event of Default" under the Tax Exempt Indenture shall
occur and be continuing until the earlier of the expiration of thirty
(30) days or an acceleration under the Tax Exempt Indenture;
(n) the Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or substantially all of its
property, (ii) admit in writing its inability, or be generally unable,
to pay its debts as such debts become due, (iii) make a general
assignment for the benefit of its creditors, (iv) commence a voluntary
case under the Bankruptcy Code, (v) file a petition seeking to take
advantage of any law relating to bankruptcy, insolvency,
28
reorganization, winding-up, or composition or readjustment of debts,
(vi) fail to controvert in a timely and appropriate manner, or
acquiesce in writing, any petition filed against the Borrower in an
involuntary case under the Bankruptcy Code, or (vii) take any
partnership or other action for the purpose of effecting any of the
foregoing;
(o) a proceeding or case shall be commenced without the
application or consent of the Borrower in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution,
winding-up, or the composition or readjustment of debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like
of the Borrower under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or any order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of ninety
(90) or more consecutive days, or any order for relief against the
Borrower shall be entered in an involuntary case under the Bankruptcy
Code;
(p) any grant of a Lien contained in the Security Documents
shall cease to be effective to grant a perfected Lien to the Collateral
Agent on the Collateral described therein with the priority purported
to be created thereby and such cessation has had or could reasonably be
expected to have a Material Adverse Effect; provided, however, that the
Borrower shall have ten (10) days from actual knowledge thereof to cure
any such cessation;
(q) PG&E Enterprises and Cogentrix Eastern America, directly
or indirectly through one or more wholly-owned subsidiaries, shall fail
to continue to control the management and operations of the Borrower
and to maintain constituent general partnership interests in the
Borrower, provided, however, that failure to maintain such control
shall not constitute a default if the Borrower provides a letter from
each of S&P, Xxxxx'x, and Fitch (except that no such letter shall be
required from any such rating agency not then currently rating the
Securities issued under the Indenture) confirming that such failure
will not in and of itself result in (x) a downgrading of the rating on
the Securities to below Investment Grade if such agency is then rating
the Securities as Investment Grade or (y) any downgrading of the rating
on the Securities if the Securities are then rated as below Investment
Grade by such agency; or
(r) at any time during the term of the Securities, PG&E
Enterprises and Cogentrix Eastern America, directly or indirectly
through one or more wholly owned subsidiaries, shall fail to maintain
partnership interests representing at least 20% in the aggregate of the
partnership interests of the Borrower, provided that failure to
maintain such partnership interests shall not constitute a default if
the Borrower provides a letter from each of S&P, Xxxxx'x, and Fitch
(except that no such letter shall be required from any such rating
agency not then currently rating the Securities) confirming that such
failure will not in and of itself result in (x) a downgrading of the
rating on the Securities to below Investment Grade if such agency is
then rating the Securities as Investment Grade or (y) any downgrading
of the rating on the Securities if the Securities are then rated as
below Investment Grade by such agency;
29
then, and in any such event, the Agent shall at the request of the Required
Banks take one or more of the following actions: (i) by notice to the Borrower
and the Senior Secured Parties, declare the Commitments to be terminated,
whereupon the same shall forthwith terminate and after giving forty five (45)
days' written notice to the beneficiary of such outstanding Debt Service Reserve
Letter of Credit and the lapse of the time period required prior to termination
by such Debt Service Reserve Letter of Credit, terminate the Debt Service
Reserve Letter of Credit, or (ii) declare the Obligations, all interest thereon
and all other amounts payable under this Agreement and the Notes to be forthwith
due and payable, whereupon the Obligations, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower or (iii) terminate the ability of the Borrower to cause
reinstatement of the Outstanding Amount through the reimbursement of Drawings,
as contemplated by the terms hereof.
ARTICLE VII
CHARACTER OF OBLIGATIONS
SECTION 7.1. Obligations Absolute. The Obligations shall be absolute,
unconditional and irrevocable and shall not be affected or impaired under any
circumstances whatsoever, including the following circumstances:
(a) any lack of validity or enforceability of any provision of
any Project Agreement or Financing Document;
(b) any amendment or waiver of, or any consent to departure
from, any provision of any Project Agreement;
(c) the existence of any claim, setoff, defense or other right
that the Borrower may have at any time against the Trustee, any other
beneficiary of the Debt Service Reserve Letter of Credit (or any Person
for whom the Trustee or any such beneficiary may be acting), any Bank,
the Agent or any other Person, whether in connection with any Project
Agreement or, the transactions contemplated thereby or any unrelated
transaction;
(d) any statement or signature in any certificate or other
document presented under the Debt Service Reserve Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect, or any such statement being untrue or inaccurate in any
respect whatsoever;
(e) any exchange, release or nonperfection of any Collateral
or other collateral, or any release, amendment or waiver of or consent
to departure from any Project Agreement, or any guaranty, for any of
the Obligations;
(f) payment by a Bank under the Debt Service Reserve Letter of
Credit against presentation of a draft or certificate that does not
comply with the terms of the Debt Service Reserve Letter of Credit; and
30
(g) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
SECTION 7.2. Limited Liability of Agent and Banks. As among the
Borrower, the Agent and the Banks, the Borrower assumes all risks of the acts or
omissions of the beneficiaries of the Debt Service Reserve Letter of Credit with
respect to the use of the Debt Service Reserve Letter of Credit. Neither the
Agent nor any Bank nor any of their respective officers, directors, employees or
agents shall be liable or responsible for (a) the use that may be made of the
Debt Service Reserve Letter of Credit or any acts or omissions of any
beneficiaries of the Debt Service Reserve Letter of Credit in connection with
the Debt Service Reserve Letter of Credit; (b) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted in connection
with the Debt Service Reserve Letter of Credit or of any endorsement thereon,
even if such document or endorsement should prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (c) payment by the
Initial Bank against presentation of any document that does not comply with the
terms of the Debt Service Reserve Letter of Credit, including failure of any
document to bear any reference or adequate reference to the Debt Service Reserve
Letter of Credit; or (d) any other circumstance whatsoever in making, delaying
to make or failing to make payment under the Debt Service Reserve Letter of
Credit; provided, however, notwithstanding anything in this Agreement to the
contrary, that the Borrower shall have a claim against the Initial Bank, and the
Initial Bank shall be liable to the Borrower, to the extent of any direct, as
opposed to consequential, damages suffered by the Borrower that were the result
of the Initial Bank's willful misconduct or gross negligence in paying under the
Debt Service Reserve Letter of Credit or the Initial Bank's willful or grossly
negligent failure to pay under the Debt Service Reserve Letter of Credit after
the presentation to it by the beneficiary of a draft and certificate strictly
complying with the terms and conditions of the Debt Service Reserve Letter of
Credit (unless the Initial Bank in good faith believed itself (based upon an
opinion of counsel) to be prohibited by law or legal authority from making such
payment). In furtherance and not in limitation of the foregoing, the Initial
Bank may accept any document that appears on its face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
ARTICLE VIII
THE AGENT
SECTION 8.1. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Credit Documents (including
enforcement of and collection under any Credit Document or other Project
Agreement), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to any Credit Document or other Project Agreement or applicable law. In
performing its function and duties hereunder, the Agent shall act solely as the
agent of the Banks and does not assume
31
and shall not be deemed to have assumed any obligation towards or relationship
of agency or trust with or for the Borrower or any other party to any Project
Agreement. Prior to the Notice Date, each Bank shall give the Agent written
notice of such Bank's election to extend or not to extend the original or
extended Expiration Date of the Debt Service Reserve Letter of Credit for an
additional year pursuant to Section 2.2(b); provided, however, that failure of
any Bank to give the Agent such written notice shall be deemed an election not
to extend such Expiration Date.
SECTION 8.2. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Credit
Document or other Project Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent (a) may treat any Bank that has signed a Commitment
Transfer Supplement as the holder of the applicable portion of the Obligations;
(b) may consult with legal counsel (including counsel for the Borrower or any
Affiliate), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations made in or in
connection with any Credit Document or other Project Agreement; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Credit Document or other
Project Agreement on the part of the Borrower or any Affiliate or to inspect the
property (including the books and records) of the Borrower or any Affiliate
thereof; (e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Credit Document or other Project Agreement or any other instrument or document
furnished pursuant hereto or thereto; and (f) shall incur no liability under or
in respect of any Credit Document or other Project Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
facsimile or otherwise) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 8.3. Initial Bank and Agent and Their Respective Affiliates.
With respect to its Commitment and participation in the Debt Service Reserve
Letter of Credit, the Initial Bank shall have the same rights and powers under
this Agreement as any other Bank; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include the Initial Bank in its individual
capacity. The Initial Bank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any Affiliate thereof and any Person that may do
business with or own securities of the Borrower or any Affiliate thereof,
without any duty to account therefor to the Banks. Credit Lyonnais New York
Branch and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
the Borrower, any Affiliate thereof and any Person that may do business with or
own securities of the Borrower or any Affiliate thereof, all as if Credit
Lyonnais New York Branch were not the Agent and without any duty to account
therefor to the Banks.
32
SECTION 8.4. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance on the Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance on the Agent or any other Bank
and based on such documents and information as it deems appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 8.5. Indemnification. The Banks agree to indemnify the Agent
(to the extent not promptly reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the respective
principal amounts of the Obligations then held by each of them and/or the
respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever that may at
any time (including without limitation, at any time following the payment of any
Obligations or termination of this Agreement) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of any Credit
Document or other Project Agreement or any action taken or omitted by the Agent
under any Credit Document or other Project Agreement; provided, however, that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Borrower under Section 9.4, to the extent that the Agent is not reimbursed
for such costs and expenses by the Borrower.
SECTION 8.6. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause with the written approval of the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent with the consent of the Borrower, which shall
not be unreasonably withheld. If no successor Agent has been so appointed by the
Required Banks, and has accepted such appointment, within thirty (30) days after
the retiring Agent's giving of notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent with the consent of the Borrower (which shall
not be unreasonably withheld), which successor Agent shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least five hundred million
Dollars ($500,000,000). Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from any further
duties and obligations under the Credit Documents and the other Project
Agreements. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was agent under this
Agreement.
SECTION 8.7. Collateral. (a) Except as expressly provided herein, the
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in
33
respect of the Collateral. The Agent shall incur no liability as a result of any
private sale of the Collateral.
(b) The Banks hereby consent, and agree upon written request
by the Agent to execute and deliver such instruments and other documents as the
Agent may deem desirable to confirm such consent, to the release of the Liens on
the Collateral, including any release in connection with any sale, transfer or
other disposition of the Collateral or any part thereof, in accordance with the
Project Agreements.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any Note, or consent to any departure by the Borrower
therefrom, shall be effective unless in writing and signed or consented to (in
writing) by the Required Banks (and, in the case of amendments, the Borrower),
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed or consented to
(in writing) by all of the Banks do any of the following: (a) waive any of the
conditions specified in Article III; (b) increase the Commitments of the Banks
or subject the Banks to any additional obligations; (c) reduce the principal of,
or interest on, the Loans or any fees or other amounts payable hereunder; (d)
postpone any date fixed for (i) payment of principal of, or interest on, the
Loans, (ii) reimbursement of drawings under any of the Debt Service Reserve
Letter of Credit or (iii) payment of fees or other amounts payable hereunder;
(e) change the percentage of the Commitments or of the Loans outstanding, or the
number of Banks, required for the Banks or any of them to take any action
hereunder; or (f) amend this Section 9.1; and provided further, however, that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Persons required above to take such action, affect the rights or
duties of the Agent under this Agreement or any other Credit Document.
SECTION 9.2. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including by facsimile) and shall be
mailed, faxed or delivered as follows:
if to the Borrower by overnight delivery, to
Indiantown Cogeneration, L.P.
00000 Xxxxxxxxx Xxxxxx Xxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: General Manager
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
if to the Borrower by U.S. mail, to
Indiantown Cogeneration, L.P.
34
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: General Manager
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
National Energy & Gas Transmission, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
if to the Initial Bank, to:
BNP Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Project Finance and Utilities Department
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
BNP Paribas
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Letter of Credit Department
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
if to the Agent, to:
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Project Finance Portfolio Management
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
if to any Bank, to it at the address or facsimile number set forth opposite its
name on the attached Schedule 1.1B or in the Commitment Transfer Supplement by
which it became a party hereto; or, as to each party, to it at such other
address or facsimile number as designated by such party in a written notice to
the other parties. All such notices and communications shall be deemed received,
(a) if personally delivered, upon delivery, (b) if sent by first-class mail, on
the third
35
Business Day following deposit into the mails and (c) if sent by facsimile, upon
acknowledgment of receipt thereof by the recipient, except that notices and
communications to the Agent pursuant to Article II or VIII shall not be
effective until received by the Agent. Notices and other communications to the
Banks hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Agent; provided that the foregoing shall
not apply to notices pursuant to Article II or VIII unless otherwise agreed by
the Agent and the applicable Bank. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
SECTION 9.3. No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, and no single or partial exercise of any such right
shall preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
SECTION 9.4. Costs and Expenses. The Borrower agrees to pay within 15
days of receipt of an invoice with respect thereto (a) all reasonable costs and
expenses of the Agent and the Banks in connection with the preparation,
execution, delivery, syndication, administration, modification and amendment of
this Agreement, the Notes, the other Credit Documents and the other documents to
be delivered hereunder, including (i) the reasonable fees and out-of-pocket
expenses of counsel for the Agent and the Banks with respect thereto and with
respect to advising the Agent and the Banks as to their rights and
responsibilities, or the perfection, protection or reservation of rights or
interests, under this Agreement, the other Project Agreements and the other
documents to be delivered hereunder, and (ii) the reasonable fees and expenses
of any consultants, auditors or accountants engaged by the Agent with the
written consent (which shall not be unreasonably withheld) of the Borrower
pursuant hereto and (b) all reasonable costs and expenses of the Agent and the
Banks (including reasonable counsel fees and expenses of the Agent and the
Banks) in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the other Credit Documents, the
other Project Agreements and the other documents to be delivered hereunder,
whether in any action, suit or litigation, any bankruptcy, insolvency or similar
proceeding; provided, that all fees payable by the Borrower pursuant to Section
3.1(i) shall be paid on the Closing Date. In addition, the Borrower shall pay
any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of the
aforementioned documents, and the Borrower agrees to indemnify and hold the
Agent and the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay on the part of the Borrower in paying or
omission to pay any of the foregoing.
SECTION 9.5. Application of Moneys. If any sum paid or recovered in
respect of the Obligations is less than the amount then due, the Agent shall
apply that sum first to fees then due and owing, second to interest then due and
owing, third to principal then due and owing, and fourth to any other amount
then due and owing, in each case under this Agreement.
SECTION 9.6. Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to
36
the extent of such prohibition, unenforceability or nonauthorization without
invalidating the remaining provisions of this Agreement or affecting the
validity, enforceability or authorization of such provision in any other
jurisdiction.
SECTION 9.7. Non-Recourse Liability. Satisfaction of the Obligations
shall be had solely from the Collateral. The liability of the Partners with
respect to the Obligations is limited to any unpaid capital contributions
required by the Equity Contribution Agreement, and no recourse shall be had in
the event of any nonperformance by the Borrower of the Obligations to (a) any
assets or properties of the Partners other than their respective interests in
the Collateral and other than with respect to any unpaid capital contributions
required by the Equity Contribution Agreement or (b) any Partner or any
Affiliate of any Partner or the Borrower or any of the officers, directors,
employees, incorporators or stockholders of the Partners or any Affiliate of any
Partner or the Borrower, and no judgment for any deficiency upon the Obligations
shall be obtainable by the Banks or the Agent against any Partner or any
Affiliate of the Borrower or any Partner or any incorporator, stockholder,
officer, employee or director, past, present or future, of any Partner or of any
predecessor or successor of any Partner or any Affiliate of any Partner or the
Borrower.
SECTION 9.8. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Agent and the Banks and their
respective successors and assigns, except that the Borrower shall not have the
right to assign any of its rights and obligations hereunder without the prior
written consent of the Required Banks, and, except as provided in Section 9.9,
no Bank other than the Initial Bank shall have the right to assign any of its
rights and obligations hereunder.
SECTION 9.9. Assignments and Participations. (a) Any Bank may at any
time (with the consent of the Borrower, such consent not to be unreasonably
withheld or delayed, the consent of the Agent, such consent not to be
unreasonably withheld or delayed, and the consent of the Initial Bank) sell to
one or more banks or other entities (a "Purchasing Bank") all or any part of its
rights and obligations under this Agreement and the Notes (which, except in the
case of an assignment to a Person that, immediately before such assignment, was
a Bank, shall be equal to at least $2,000,000) pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Bank, such transferor Bank, the Agent
and the Initial Bank (and, in the case of a Purchasing Bank that is not then a
Bank or an Affiliate thereof, by the Borrower). Upon (x) such execution of such
Commitment Transfer Supplement, and (y) delivery of a copy thereof to the
Borrower and payment of the amount of its participation to the Agent or such
transferor Bank, such Purchasing Bank shall for all purposes be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank under
this Agreement, to the same extent as if it were an original party hereto with
the commitment percentage as set forth in such Commitment Transfer Supplement,
which shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of commitment percentages arising from the purchase by such
Purchasing Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Notes. Upon the consummation of any
transfer pursuant to this Section 9.9, the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if required, replacement
Notes are issued to such transferor Bank and new Notes or, as appropriate,
replacement Notes, are issued to such Purchasing Bank, in each case, in
principal amounts reflecting their Commitment.
37
(b) The Agent shall, on behalf of the Borrower, maintain the
Register for the recordation of the names and addresses of the Banks and the
Commitment and the principal amount of any Loans owing to each Bank from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, each Bank and the Agent shall treat each
Person whose name is recorded in the Register as the owner of the Loans for all
purposes of this Agreement. Upon its receipt of a duly completed Commitment
Transfer Supplement executed by the assigning Bank and the Purchasing Bank, the
Purchasing Bank's completed administrative questionnaire (unless the Purchasing
Bank shall already be a Bank hereunder), and the Purchasing Bank's payment of a
processing and recordation fee of $2,500, the Agent shall accept such Commitment
Transfer Supplement and record the information contained therein in the
Register. Notwithstanding anything to the contrary in this Agreement, any
assignment of any Loan shall be effective only upon appropriate entries with
respect thereto being made in the Register.
(c) Any Bank may, from time to time, sell or offer to sell
participating interests in any Loans owing to such Bank, any Notes held by such
Bank, any Commitment of such Bank or any other interests and obligations of such
Bank hereunder, to one or more banks or other entities (each, a "Participant"),
on such terms and conditions as may be determined by the selling Bank, without
the consent of or notice to the Borrower, and the grant of such participation
shall not relieve any Bank of its obligations, or impair the rights of any Bank,
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank shall remain solely responsible for the performance
of such Bank's obligations under this Agreement, such Bank shall remain the
holder of any such Notes for all purposes under this Agreement, the Borrower,
the Agent and the Initial Bank will continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement and such Bank shall retain the sole right and responsibility to
exercise the rights of such Bank, and enforce the obligations of the Borrower,
including, without limitation, the right to approve any amendment, modification,
supplement or waiver of any provision of any Credit Document and the right to
take action under Article VI hereof and such Bank shall not grant any such
Participant any voting rights or veto power over any such action by such Bank
under this Agreement (provided that such Bank may agree not to consent to any
modification, amendment or waiver of this Agreement, without the consent of the
Participant, that would alter the principal of or interest on the Loans,
postpone the date fixed for any payment of principal of or interest thereon,
release all or substantially all of the Collateral or extend the term of any
Commitment). No Participant shall have any rights under this Agreement to
receive payment of principal of or interest on any Loan except through a Bank
and as provided in this Section 9.9. The Borrower agrees that, upon the
occurrence and during the continuance of any Event of Default, each Participant
shall have the right of set-off in respect of its participating interest in
amounts owing under this Agreement and any Notes as set forth in Section 2.22
hereof to the same extent as if the amount of its participating interest was
owing directly to it as a Bank under this Agreement or any Notes. The Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 2.18 hereof with respect to its participation granted
hereunder; provided that no Participant shall be entitled to receive any greater
amount pursuant to such Sections than the Bank transferring such participation
would have been entitled to receive in respect of the amount of the
participation transferred to such Participant had no such transfer occurred.
38
(d) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.9, disclose to the Purchasing Bank or Participant or proposed Purchasing Bank
or Participant any information relating to the Borrower furnished to such Bank
by or on behalf of the Borrower; provided, however, that prior to any such
disclosure, the Person receiving such disclosure shall sign such confidentiality
agreements as the Borrower may reasonably request. Notwithstanding anything
herein to the contrary, any party to this Agreement (and any employee,
representative, or other agent of any party to this Agreement) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure. However, any such information
relating to the tax treatment or tax structure is required to be kept
confidential to the extent necessary to comply with any applicable federal or
state securities laws.
SECTION 9.10. Indemnification. The Borrower agrees to indemnify and
hold harmless the Agent and each Bank and each of their respective officers,
directors, employees, agents and affiliates from and against any and all claims,
damages, losses, liabilities, costs and expenses whatsoever that such
indemnified party may incur (or that may be claimed against such indemnified
party by any Person) by reason of (a) any untrue statement or alleged untrue
statement by the Borrower of any material fact concerning the Borrower or the
Collateral, or the omission or alleged omission to state any fact concerning the
Borrower or the Collateral necessary to make any such statement, in light of the
circumstances under which it was made, not misleading; (b) the issuance, sale or
delivery of the Securities and the Notes; (c) the use of the proceeds of the
Securities or any Drawing; (d) any reasonable action taken by such indemnified
party in protecting and enforcing the rights and remedies of the Agent and the
Banks under the Project Agreements; (e) subject to Section 7.2, the execution,
delivery or transfer of, or payment or failure to pay under, the Debt Service
Reserve Letter of Credit; (f) any claim of any Person with respect to any
finder's fee, brokerage commission or other similar sum due in connection with
any Project Agreement; or (g) any failure by the Borrower to comply with any
Environmental Requirement; provided, however, that the Borrower shall not be
required to indemnify the Initial Bank for any claims, damages, losses,
liabilities, costs or expenses to the extent caused by the Initial Bank's
willful misconduct or gross negligence in paying under the Debt Service Reserve
Letter of Credit or the Initial Bank's willful or grossly negligent failure to
pay under the Debt Service Reserve Letter of Credit after the presentation to it
by the Disbursement Agent of a draft and certificate strictly complying with the
terms and conditions of the Debt Service Reserve Letter of Credit (unless the
Initial Bank in good faith believed itself (based upon an opinion of counsel) to
be prohibited by law or legal authority from making such payment). The Borrower,
upon demand by any party indemnified or intended to be indemnified pursuant to
this Section 9.10 at any time, shall also reimburse such party for any
reasonable legal or other expenses incurred in connection with investigating or
defending against any of the foregoing. If any action, suit or proceeding
arising from any of the foregoing is brought against any party indemnified or
intended to be indemnified pursuant to this Section 9.10 (an "Indemnified
Party"), such Indemnified Party shall promptly notify the Borrower in writing,
enclosing a copy of all papers served, but the omission so to notify the
Borrower of any such action shall not relieve it of any liability that it may
have to any Indemnified Party otherwise than under this Section 9.10 unless and
to the extent such omission has materially prejudiced the Borrower's defense of
such action, suit or proceeding; provided, however, that the Borrower
39
shall not be liable for any settlement of any such action effected without the
Borrower's prior written consent. In case any such action shall be brought
against any Indemnified Party and it shall notify the Borrower of the
commencement thereof, the Borrower shall be entitled to participate in and, to
the extent that it shall wish, to assume the defense thereof with counsel
reasonably satisfactory to such Indemnified Party, and after notice from the
Borrower to such Indemnified Party of the Borrower's election so to assume the
defense thereof, the Borrower shall not be liable to such Indemnified Party for
any subsequent legal or other expenses attributable to such defense, except as
provided below, other than reasonable costs of investigation subsequently
incurred by such Indemnified Party in connection with the defense thereof at the
request of the Borrower or the Borrower's counsel. The Indemnified Party shall
have the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the employment of counsel by such Indemnified Party has been
authorized by the Borrower, (ii) the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest between the Borrower and the
Indemnified Party in the conduct of the defense of such action (in which case
the Borrower shall not have the right to direct the defense of such action on
behalf of the Indemnified Party) or (iii) the Borrower shall not in fact have
employed counsel reasonably satisfactory to the Indemnified Party to assume the
defense of such action.
SECTION 9.11. Governing Law. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF
THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
SECTION 9.12. Consent to Jurisdiction and Venue. Each of the parties
hereto irrevocably (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in any court of the
State of New York or any court of the United States of America located in the
State of New York, (b) consents, for itself and in respect of its property, to
the jurisdiction of each such court in any such suit, action or proceeding and
(c) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts and any claim that any such
suit, action or proceeding has been brought in an inconvenient forum. Each of
the parties 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 Section 9.12 shall
affect the right of any party hereto to serve legal process in any other manner
permitted by law.
SECTION 9.13. Headings. The section and subsection headings used herein
have been inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
SECTION 9.14. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
40
SECTION 9.15. Waiver of Jury Trial. THE BORROWER, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[signature page follows]
41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
INDIANTOWN COGENERATION, L.P.
By: /s/ F. XXXXXX XXXXXX
-----------------------------
Name: F. Xxxxxx Xxxxxx
Title: Vice President
Debt Service Reserve Letter of Credit and Reimbursement Agreement
CREDIT LYONNAIS NEW YORK BRANCH, as
Agent and as a Bank
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Debt Service Reserve Letter of Credit and Reimbursement Agreement
BNP PARIBAS, as Initial Bank
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ XXXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Debt Service Reserve Letter of Credit and Reimbursement Agreement
HSH NORDBANK, AG, NEW YORK BRANCH,
as a Bank
By: /s/ XXXX XXX XXXXX
--------------------------------
Name: Xxxx xxx Xxxxx
Title: Senior Vice President
By: /s/ XXXXXX X. XXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Debt Service Reserve Letter of Credit and Reimbursement Agreement
SCHEDULE 1.1A
COMMITMENTS
BANK COMMITMENT
---- ----------
Credit Lyonnais New York Branch $ 13,469,058.16
BNP Paribas $ 6,661,169.17
HSH Nordbank, AG, New York Branch $ 9,795,678.67
TOTAL COMMITMENTS $ 29,925,906.00
SCHEDULE 1.1B
NOTICES
INSTITUTION/
MAILING ADDRESS CONTACT
--------------- -------
Credit Lyonnais New York Branch Xxxxxxx Xxxxxx
1301 Avenue of the Americas Tel: (000) 000-0000
Xxx Xxxx, XX 00000 Fax: (000) 000-0000
Attention: Project Finance Portfolio xxxxxxx.xxxxxx@xxxxxxxxxx.xxx
Management
BNP Paribas Business:
000 Xxxxxxx Xxxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000 Tel: (000) 000-0000
Fax: (000) 000-0000/2555/2203
xxxxxx.xxxxx@xxxxxxxx.xxxxxxxxxx.xxx
Credit/Compliance:
Xxxxxxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxx.xxx@xxxxxxxx.xxxxxxxxxx.xxx
BNP Paribas Operations:
000 Xxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxxxx.xxxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
HSH Nordbank, AG, New York Branch Credit:
000 Xxxxxxx Xxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
xxxxx.xxxxx@xxx-xxxxxxxx.xxx
Operations:
Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxxx.xxxxx@xxx-xxxxxxxx.xxx
EXHIBIT A
Form of Debt Service Reserve Letter of Credit
BNP Paribas Letter of Credit No. [_________]
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Irrevocable Standby Credit
Attn: Letter of Credit Department
Date and Place of Issue: Date and Place of Expiry:
New York, NY BNP Paribas, New York, NY
October _, 2003 October _, 2010
Applicant:
Indiantown Cogeneration, L.P.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Beneficiary: Amount: Up to an aggregate of Twenty Nine
The Bank of New York, Million Nine Hundred Twenty Five Thousand
as Disbursement Agent Nine Hundred Six United States Dollars
Corporate Trust Division (US$29,925,906)
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Credit Available With:
BNP Paribas
By: Negotiation, Against Presentation of
the Documents Detailed Herein Drawn on
BNP Paribas
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of the
Applicant up to an aggregate amount of TWENTY NINE MILLION NINE HUNDRED TWENTY
FIVE THOUSAND NINE HUNDRED SIX UNITED STATES DOLLARS (US$29,925,906.00) (as
reduced or reinstated from time to time as set forth in this Letter of Credit,
the "Outstanding Amount") available against presentation of a dated drawing
request drawn on BNP Paribas, manually signed by an authorized officer of the
Beneficiary (who is identified as such) appropriately completed in the form of
Annex 1 hereto and sent by the Beneficiary's authorized officer.
The above drawing request and all communications with respect to this
Letter of Credit shall be in writing, addressed to us at BNP Paribas, 000 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX
A-1
10022, Attn: Letter of Credit Department, facsimile no. (000) 000-0000,
referencing this Letter of Credit No. [ ] and presented to us by delivery in
person or facsimile transmission at such address, provided that the original of
the above drawing request or such communications, as the case may be, shall be
sent to us at such address by overnight courier for receipt by us within two (2)
Business Days of the date of any such facsimile transmission.
If the drawing request is presented in compliance with the terms of
this Letter of Credit to us at such address by 12:00 noon New York City time on
any Business Day, payment will be made not later than 3:00 p.m. New York City
time on such day and if such drawing request is so presented to us after 12:00
noon New York City time on any Business Day, payment will be made by 12:00 noon
New York City time on the following Business Day. Payment under this Letter of
Credit shall be made in immediately available funds by wire transfer to such
account as may be designated by the Beneficiary in the applicable drawing
request.
As used in this Letter of Credit, "Business Day" means any day other
than a Saturday or a Sunday or other day on which banks in New York, New York,
or Jacksonville, Florida, are authorized or required to be closed.
This Letter of Credit shall expire on the then applicable Stated
Expiration Date or New Stated Expiration Date (as each such term is hereinafter
defined), as the case may be.
Notwithstanding the foregoing, we may at any time, subject to the
provisions of the Debt Service Reserve Letter of Credit and Reimbursement
Agreement dated as of October 10, 2003 among the Applicant, the Banks party
thereto from time to time and Credit Lyonnais New York Branch, as Agent (the
"Debt Service Reserve Letter of Credit and Reimbursement Agreement"), terminate
this Letter of Credit by giving the Beneficiary and The Bank of New York, (i) as
Trustee (in such capacity, the "Trustee") under the Indenture referred to in the
Debt Service Reserve Letter of Credit and Reimbursement Agreement and (ii) as
Tax Exempt Trustee (in such capacity, the "Tax Exempt Trustee") under the
Amended and Restated Indenture of Trust dated as of November 1, 1994 between
Xxxxxx County Industrial Development Authority and the Tax Exempt Trustee (as
supplemented from time to time, the "Tax Exempt Indenture"), written notice
thereof in the form of Annex 4 hereto by delivery in person or facsimile
transmission (with written confirmation by overnight courier for receipt by the
Beneficiary, the Trustee and the Tax Exempt Trustee within two (2) Business
Days) addressed to The Bank of New York, Corporate Trust Division, 00000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxx Xxxxxxxx, telephone
no. (000) 000-0000, facsimile no. (000) 000-0000, at least forty five (45) days
prior to termination, whereupon the Beneficiary is authorized to draw on us
prior to such termination the Outstanding Amount of this Letter of Credit by
presentation to us, in the manner and at the address specified in the fourth
preceding paragraph, of a drawing request appropriately completed in the form of
Annex 1 hereto and sent and signed by the Beneficiary's authorized officer.
This Letter of Credit is effective immediately. Unless notice that the
date of expiry set forth hereinabove (the "Stated Expiration Date") or, if
extended pursuant to Section 2.2(b) of the Debt Service Reserve Letter of Credit
and Reimbursement Agreement, the new expiration date (such date being referred
to as the "New Stated Expiration Date"), as the case may be, shall be extended
is given by BNP Paribas to the Beneficiary, the Trustee and the Tax Exempt
Trustee by
A-2
delivery in person or facsimile transmission (with written confirmation by
overnight courier for receipt by the Beneficiary, the Trustee and the Tax Exempt
Trustee within two (2) Business Days) addressed to The Bank of New York,
Corporate Trust Division, 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
Attn: Xxxxx Xxxxxxxx, telephone no. (000) 000-0000, facsimile no. (904)
645-1997, on or before the date that is four (4) years and six (6) months prior
to the Stated Expiration Date or any New Stated Expiration Date, as the case may
be, this Letter of Credit shall expire on the Stated Expiration Date or such New
Stated Expiration Date, as the case may be.
In the event that a drawing request fails to comply with the terms of
this Letter of Credit, we shall provide the Beneficiary prompt notice of same
stating the reasons therefor and shall upon your instructions hold any
non-conforming drawing request and other documents at your disposal or return
any non-conforming drawing request and other documents to the Beneficiary at the
address set forth above by delivery in person or facsimile transmission (with
originals thereof sent by overnight courier for receipt within two (2) Business
Days). Upon being notified that the drawing was not effected in compliance with
this Letter of Credit, the Beneficiary may attempt to correct such non-complying
drawing request in accordance with the terms of this Letter of Credit.
This Letter of Credit sets forth in full the terms of our undertaking
and this undertaking shall not in any way be modified, amended, limited or
amplified by reference to any document, instrument or agreement referred to
herein, except only defined terms used herein and the drawing requests and
certificates referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument, or agreement except
for such defined terms, drawing requests and certificates.
This Letter of Credit may be assigned upon presentation to us of a
signed transfer certificate in the form of Annex 5 accompanied by this Letter of
Credit, in which the Beneficiary irrevocably transfers to such transferee all of
its rights hereunder, whereupon we agree to either issue a substitute letter of
credit to such successor or endorse such transfer on the reverse of this Letter
of Credit.
Partial drawings under this Letter of Credit are allowed and each such
partial drawing shall reduce the amount thereafter available hereunder for
drawings under this Letter of Credit. This Letter of Credit shall be reinstated
as provided in Sections 2.2(e) and 2.7(c) of the Debt Service Reserve Letter of
Credit and Reimbursement Agreement and we shall so advise the Beneficiary in a
certificate in the form of Annex 6 hereto. The Outstanding Amount shall be
reduced as provided in Section 2.7(b) of the Debt Service Reserve Letter of
Credit and Reimbursement Agreement. In addition, the Outstanding Amount shall be
reduced as provided in Sections 2.2(c), 2.2(d), 2.2(e) and 2.2(g) of the Debt
Service Reserve Letter of Credit and Reimbursement Agreement to the extent that
we so advise the Beneficiary pursuant to a certificate in the form of Annex 7
hereto. The Outstanding Amount shall be reduced in accordance with Section
2.21(b) of the Debt Service Reserve Letter of Credit and Reimbursement Agreement
upon our receipt of and in accordance with a certificate in the Form of Annex 8
hereto manually signed by an officer of the Applicant (identified as such).
A-3
All banking charges, including any advising and negotiating bank
charges, are for the account of the Applicant.
All drawing requests under this Letter of Credit must bear the clause:
"Drawn under BNP Paribas Letter of Credit Number [ ] dated October _,
20__."
This Letter of Credit shall not be amended except with the written
concurrence of BNP Paribas, the Applicant and the Beneficiary.
We hereby engage with you that a drawing request drawn strictly in
compliance with the terms of this Letter of Credit and amendments thereto shall
meet with due honor upon presentation.
This Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits (1993 Revision in force as from 1st of January 1994),
International Chamber of Commerce Publication Number 500 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be a contract made under the
laws of the State of New York and shall, as to matters not governed by the
Uniform Customs, be governed by and construed in accordance with the laws of
such State.
We irrevocably agree with you that any legal action or proceeding with
respect to this Letter of Credit shall be brought in the courts of the State of
New York in the County of New York or of the United States of America in the
Southern District of New York. By signing this Letter of Credit, we irrevocably
submit to the jurisdiction of such courts solely for the purposes of this Letter
of Credit. We hereby waive, to the fullest extent permitted by law, any
objection we may now or hereafter have to the laying of venue in any such action
or proceeding in any such court.
BNP PARIBAS
_________________________________
Authorized signature
_________________________________
Authorized signature
A-4
ANNEX 1
"Drawn under BNP Paribas Letter of Credit Number [ ]
dated October _, 20__."
DRAWING REQUEST
[Date]
BNP Paribas
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Letter of Credit Department
Ladies and Gentlemen:
The undersigned hereby draws on BNP Paribas Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated October _,
20__, issued by you in favor of us. Any capitalized term used herein and not
defined herein shall have its respective meaning as set forth in the Letter of
Credit.
In connection with this drawing, we hereby certify that:
A) "This drawing in the amount of US$_________ is being made pursuant to
BNP Paribas Letter of Credit No. [ ] Irrevocable Standby Letter of
Credit issued to The Bank of New York pursuant to Section 3.14 of the
Amended and Restated Disbursement Agreement dated as of October 10,
2003 among Indiantown Cogeneration, L.P., Indiantown Cogeneration
Funding Corporation, The Bank of New York, as Tax Exempt Trustee, The
Bank of New York, as Trustee, Credit Lyonnais New York Branch, as LOC
Provider, Credit Lyonnais New York Branch, as Working Capital Provider,
Credit Lyonnais New York Branch, as Debt Service Reserve Letter of
Credit Provider, Deutsche Bank Trust Company Americas, as Collateral
Agent, Xxxxxx County Industrial Development Authority and The Bank of
New York, as Disbursement Agent (as the same may be amended,
supplemented or modified from time to time, the "Disbursement
Agreement")";
[Use one or more of the following forms of paragraph B, as applicable]
B) "After the transfer of monies on deposit in the Debt Service Reserve
Account to the Securities Account and the call on any Debt Service
Reserve Account Security on deposit in the Debt Service Reserve
Account, there are insufficient monies in the Securities Account on the
[Interest] [Principal] Payment Date occurring __________, ___ to pay
the [interest] [and] [principal] due on the Securities on such date
(each capitalized word being used as defined in the Indenture)";
and/or
A-5
B) "After the transfer of monies on deposit in the Tax Exempt Debt Service
Reserve Account, there are insufficient monies in the Tax Exempt Bond
Debt Service Fund on the [Interest] [Principal] Payment Date occurring
___________, ___ to pay the [interest] [and] [principal] due on the Tax
Exempt Bonds on such date (each capitalized word being used as defined
in the Indenture)";
or
B) "A Trigger Event under the Intercreditor Agreement has occurred and is
continuing and the Collateral Agent has delivered written notice to the
Disbursement Agent specifying that either (i) the written request of
the Required Senior Creditors specified in Section 4(a) of the
Intercreditor Agreement has been delivered to the Collateral Agent and
not rescinded or (ii) such Trigger Event was caused by a Bankruptcy
Event in respect of the Partnership or the Company (each capitalized
word being used as defined in the Indenture)";
or
B) "The long-term debt rating of BNP Paribas has fallen below A as
determined by Standard & Poor's Ratings Group or A2 as determined by
Xxxxx'x Investor Services, Inc."
or
B) "The current Stated Expiration Date or New Stated Expiration Date, as
the case may be, will occur within forty-five (45) days of the date
hereof and Indiantown Cogeneration, L.P. has failed to deliver a
replacement or renewal letter of credit or other security authorized by
the Disbursement Agreement or the Indenture and security is still
required under the terms of the Disbursement Agreement."
or
B) "You have delivered to us notice that the Letter of Credit will
terminate prior to its stated expiry date of [insert Stated Expiration
Date or New Stated Expiration Date, as applicable] and Indiantown
Cogeneration, L.P. has failed to deliver a replacement or renewal
letter of credit or other security authorized by the Disbursement
Agreement or the Indenture and security is still required under the
terms of the Disbursement Agreement."
or
B) "There are insufficient funds available pursuant to Section 3.10 of the
Disbursement Agreement to pay interest on loans made by BNP Paribas in
respect of drawings under BNP Paribas Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit and such interest is now due and
payable, and the drawing requested hereunder, together with all
drawings under the Letter of Credit in the current Fiscal Year (as
defined in the Indenture) do not exceed $5,000,000 in the aggregate."
C) "The amount requested to be drawn does not exceed the Outstanding
Amount"; and
A-6
D) "You are directed to make payment of the requested drawing to account
no. ______________ at _______________________________ [insert bank
name, address and account number]."
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this _____ day of _____________, ____.
THE BANK OF NEW YORK
By:______________________________________
Name:
Title:
A-7
[ANNEXES 2 AND 3 INTENTIONALLY OMITTED.]
X-0
XXXXX 0
XXXXXX XX XXXXXXXXXXX OF LETTER OF CREDIT
[Date]
The Bank of New York
Corporate Trust Division
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Ladies and Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ] Irrevocable
Standby Letter of Credit (the "Letter of Credit") dated October _, 20__, issued
by us in your favor.
This constitutes our notice to you pursuant to the Letter of Credit
that the Letter of Credit shall terminate on _________, ___ [insert a date which
is 45 or more days after the date of this notice of termination] (the
"Termination Date").
Pursuant to the terms of the Letter of Credit, you are authorized to
draw (pursuant to one or more drawings), prior to the Termination Date, on the
Letter of Credit in an aggregate amount that does not exceed the Outstanding
Amount (as defined in the Letter of Credit).
Very truly yours,
BNP PARIBAS
By_______________________________________
By_______________________________________
A-9
ANNEX 5
TRANSFER OF LETTER OF CREDIT
[Date]
BNP Paribas
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Letter of Credit Department
Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit dated October _, 20__, originally issued by
you in favor of The Bank of New York (the "Letter of Credit"). Any capitalized
term used herein and not defined shall have its respective meaning as set forth
in the Letter of Credit.
For value received, the undersigned, as beneficiary under the Letter of
Credit, hereby irrevocably transfers to _________ (the "Transferee") all rights
of the undersigned to draw under the Letter of Credit in its entirety.
The Transferee is the successor to the Beneficiary, as Disbursement
Agent under the Amended and Restated Disbursement Agreement dated as of October
10, 2003 among Indiantown Cogeneration, L.P., Indiantown Cogeneration Funding
Corporation, The Bank of New York, as Tax Exempt Trustee, The Bank of New York,
as Trustee, Credit Lyonnais New York Branch, as LOC Provider, Credit Lyonnais
New York Branch, as Working Capital Provider, Credit Lyonnais New York Branch,
as Debt Service Reserve Letter of Credit Provider, Deutsche Bank Trust Company
Americas, as Collateral Agent, Xxxxxx County Industrial Development Authority
and The Bank of New York, as Disbursement Agent (as the same may be amended,
supplemented or modified from time to time, the "Disbursement Agreement") and
all conditions to appointment of such successor set forth in the Disbursement
Agreement have been satisfied.
By this transfer, all rights of the undersigned, as beneficiary under
the Letter of Credit, are transferred to the Transferee, and the Transferee
shall have the sole rights with respect to the Letter of Credit relating to any
amendments thereof and any notices thereunder. All amendments to the Letter of
Credit are to be consented to by the Transferee without necessity of any consent
of or notice to the undersigned.
Simultaneously with the delivery of this notice to you, copies of this
notice are being transmitted to the Transferee.
The Letter of Credit is returned herewith, and we ask you to either
issue a substitute letter of credit for the benefit of the Transferee or endorse
the transfer on the reverse thereof, and forward it directly to the Transferee
with your customary notice of transfer.
A-10
Very truly yours,
THE BANK OF NEW YORK
By:______________________________________
Name:
Title:
X-00
XXXXX 0
XXXXXXXXXXX XX XXXXXXXXXXXXX XX XXXXXXXXXXX XXXXXX
[Date]
The Bank of New York
Corporate Trust Division
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Ladies and Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated October _,
20__, issued by us in your favor. Any capitalized term used herein and not
defined shall have its respective meaning as set forth in the Letter of Credit.
This constitutes our notice to you pursuant to the Letter of Credit
that:
[use one or more of the following paragraphs]
We have received repayment of a Loan in accordance with the provisions
of the Debt Service Reserve Letter of Credit and Reimbursement
Agreement in the amount of $_________, and, pursuant to Section 2.7(c)
of the Debt Service Reserve Letter of Credit and Reimbursement
Agreement, the Outstanding Amount is therefore increased by such amount
to $_________.
or
We have received payment of a Loan in accordance with the provisions of
the Debt Service Reserve Letter of Credit and Reimbursement Agreement
in the amount of $________. The Debt Service Reserve Account Required
Balance has been previously reduced (each capitalized term being used
as defined in the Trust Indenture dated as of November 1, 1994 among
Indiantown Cogeneration Funding Corporation, Indiantown Cogeneration,
L.P, and NationsBank of Florida, N.A., as Trustee (as the same may be
amended, supplemented or modified from time to time, the "Indenture")).
Accordingly, the Outstanding Amount is hereby increased by $_______ to
$________ to the extent that such increase shall not cause the
Outstanding Amount (when added to the aggregate balances in the Debt
Service Reserve Account and the Tax Exempt Debt Service Reserve Account
plus the amount of any Debt Service Reserve Account Security (each
capitalized term being used as defined in the Indenture)) to exceed the
Debt Service Reserve Account Required Balance.
A-12
Very truly yours,
BNP PARIBAS
By_______________________________________
By_______________________________________
X-00
XXXXX 0
XXXXXXXXXXX XX XXXXXXXXX XX XXXXXXXXXXX XXXXXX
[Date]
The Bank of New York
Corporate Trust Division
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Ladies and Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated October _,
20__, issued by us in your favor. Any capitalized term used herein and not
defined shall have its respective meaning as set forth in the Letter of Credit.
Reference is also made to that certain Amended and Restated Disbursement
Agreement dated as of October 10, 2003 among Indiantown Cogeneration, L.P.,
Indiantown Cogeneration Funding Corporation, The Bank of New York, as Tax Exempt
Trustee, The Bank of New York, as Trustee, Credit Lyonnais New York Branch, as
LOC Provider, Credit Lyonnais New York Branch, as Working Capital Provider,
Credit Lyonnais New York Branch, as Debt Service Reserve Letter of Credit
Provider, Deutsche Bank Trust Company Americas, as Collateral Agent, Xxxxxx
County Industrial Development Authority and The Bank of New York, as
Disbursement Agent (as the same may be amended, supplemented or modified from
time to time, the "Disbursement Agreement"), among, among others, us and you, in
your capacities as Trustee, Tax Exempt Trustee and Disbursement Agent.
This constitutes our notice to you pursuant to the Letter of Credit
that we have been advised by the Applicant that:
[use one or more of the following paragraphs]
The Letter of Credit has not been renewed pursuant to Section 2.2(b) of
the Debt Service Reserve Letter of Credit and Reimbursement Agreement
as provided in Section 2.2(c) thereof. Therefore, pursuant to such
Section 2.2(c), the Outstanding Amount is reduced by $_________, which
is the Debt Service Reserve LOC Credit Amount (as defined in the
Disbursement Agreement), to $___________.
or
An event specified in Section 2.2(d) of the Debt Service Reserve Letter
of Credit and Reimbursement Agreement has occurred and, accordingly,
the Outstanding Amount is reduced by $__________ to $__________.
A-14
or
The Debt Service Reserve Account Required Balance (as defined in the
Disbursement Agreement) has been reduced by the amount of $_________.
Accordingly, pursuant to Section 2.2(e) of the Debt Service Reserve
Letter of Credit and Reimbursement Agreement, the Outstanding Amount is
reduced by $________ to $________.
or
An event specified in Section 2.2(g) of the Debt Service Reserve Letter
of Credit and Reimbursement Agreement has occurred and, accordingly,
the Outstanding Amount is reduced by $__________ to $__________.
Very truly yours,
BNP PARIBAS
By_______________________________________
By_______________________________________
A-15
ANNEX 8
"Delivered Under BNP Paribas
Letter of Credit Number [ ] dated October _, 20__"
NOTICE OF REDUCTION OF OUTSTANDING AMOUNT
[Date]
BNP Paribas
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Letter of Credit Department
The Bank of New York
Corporate Trust Division
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Ladies and Gentlemen:
Reference is made to BNP Paribas Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit") dated October __,
20__, issued by BNP Paribas in favor of the Beneficiary. Any capitalized term
used herein and not defined shall have its respective meaning as set forth in
the Letter of Credit.
This constitutes our notice to you pursuant to the Letter of Credit
that the Outstanding Amount shall be permanently reduced by $________ to
$________, which reduction represents the difference between the Debt Service
Reserve Account Required Balance and the amount of the proceeds of the
Tax-Exempt Bonds deposited in the Tax-Exempt Debt Service Reserve Account (as
each such term is defined in the Indenture referred to in the Debt Service
Reserve Letter of Credit and Reimbursement Agreement) issued by the Applicant.
Pursuant to the terms of the Letter of Credit, the Beneficiary is
authorized to draw (pursuant to one or more drawings), prior to the Termination
Date, on the Letter of Credit in an aggregate amount that does not exceed the
Outstanding Amount (as defined in the Letter of Credit).
Very truly yours,
INDIANTOWN COGENERATION, L.P.
By_______________________________________
A-16
EXHIBIT B
DEBT SERVICE RESERVE LETTER OF CREDIT PROMISSORY NOTE
[$______________] New York, New York
October __, 2003
FOR VALUE RECEIVED, the undersigned, INDIANTOWN COGENERATION,
L.P., a Delaware limited partnership (the "Borrower"), hereby unconditionally
promises to pay to the order of [___________________] (the "Bank") the lesser of
(i) the principal sum of [______________ Dollars ($_________)] and (ii) the
aggregate unpaid principal amount of the Loans made by the Bank to the Borrower
under the Debt Service Reserve Letter of Credit Agreement referred to below, on
the dates and in the amounts specified therein.
The Borrower further promises to pay interest on the daily
unpaid principal amount hereof from time to time outstanding on the dates and at
the rates specified in the Debt Service Reserve Letter of Credit Agreement. This
Note is hereby expressly limited so that in no contingency or event, whether by
reason of acceleration of the maturity of any indebtedness evidenced hereby or
otherwise, shall the interest contracted for or charged or received by the Bank
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to the Bank in
excess of the maximum lawful amount, the interest payable to the Bank shall be
reduced to the maximum amount permitted under applicable law, and the amount of
interest for any subsequent period, to the extent less than that permitted by
applicable law, shall to that extent be increased by the amount of such
reduction.
Each holder hereof is irrevocably authorized to endorse on the
schedule attached hereto, or on a continuation thereof, the date each such
interest payment is due and the amount of each such interest payment determined
in accordance with the Debt Service Reserve Letter of Credit Agreement. Absent
manifest error, all such notations shall constitute prima facie evidence of the
accuracy of the information so recorded and be enforceable against the Borrower
with the same force and effect as if such amounts were each set forth in a
separate note executed by the Borrower.
All payments due hereunder shall be made without setoff,
counterclaim or deduction of any nature to Credit Lyonnais New York Branch, as
Agent, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, in lawful money of
the United States of America and in immediately available funds, or at such
other place and in such other manner as may be specified by the Agent pursuant
to the Debt Service Reserve Letter of Credit Agreement.
Each holder hereof is irrevocably authorized to endorse on the
schedule attached hereto, or on a continuation thereof, the date and amount of
each Loan made to the Borrower and each payment or prepayment of principal
thereof, provided that the failure of such holder to
B-1
make, or any error in making, any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Debt Service
Reserve Letter of Credit Agreement. Absent manifest error, all such notations
shall constitute prima facie evidence of the accuracy of the information so
recorded and be enforceable against the Borrower with the same force and effect
as if such amounts were each set forth in a separate note executed by the
Borrower.
This Note is the "Note" of the Borrower to the Bank referred
to in, evidences each Loan made by the Bank to the Borrower under, is subject to
the provisions of, and entitles its holder to the benefits of, the Debt Service
Reserve Letter of Credit and Reimbursement Agreement dated as of October 10,
2003 (the "Debt Service Reserve Letter of Credit Agreement") among the Borrower,
the Bank and the other banks parties thereto from time to time, and Credit
Lyonnais New York Branch, as agent for the Bank and such other banks, as the
same may be amended, supplemented or otherwise modified from time to time and to
which reference is hereby made for a more complete statement of the terms and
conditions under which each Loan evidenced hereby is to be made and repaid.
Capitalized terms in this Note that are not specifically defined herein shall
have the meanings ascribed to them in the Debt Service Reserve Letter of Credit
Agreement.
The Debt Service Reserve Letter of Credit Agreement provides
for, among other things, the acceleration of the maturity of the unpaid
principal amount hereof upon the occurrence of certain stated events and for
voluntary prepayments in certain circumstances and upon certain terms and
conditions. The obligations of the Borrower under the Debt Service Reserve
Letter of Credit Agreement and this Note are secured by, and the holder hereof
is entitled to the benefit of, the Security Documents.
In addition to any and all costs, fees and expenses for which
the Borrower is liable under the Debt Service Reserve Letter of Credit
Agreement, the Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees and disbursements, incurred in the collection and
enforcement hereof or any appeal of any judgment rendered hereon.
The Borrower hereby expressly waives diligence, presentment,
protest, demand, dishonor, nonpayment and notice of every kind to the fullest
extent permitted by applicable law. No failure or delay by any holder of this
Note to exercise any right or remedy under this Note or any other document or
instrument entered into pursuant to the Debt Service Reserve Letter of Credit
Agreement shall operate or be construed as a waiver or modification hereof or
thereof.
This Note shall be binding upon the successors and assigns of
the Borrower and shall inure to the Bank and its successors, endorsees and
assigns. If any term or provision of this Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof shall in no
way be affected thereby.
Recourse under this Note is limited in accordance with Section
9.7 of the Debt Service Reserve Letter of Credit Agreement, and the provisions
of said Section 9.7 are incorporated herein by reference.
B-2
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS
PROVISIONS THEREOF THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION.
The Borrower hereby expressly and irrevocably agrees and
consents that any suit, action or proceeding arising out of or related to this
Note may be instituted in any state or federal court (at Bank's option) sitting
in the County of New York, State of New York, and, by the execution and delivery
of this Note, the Borrower expressly waives any objection which it may have now
or hereafter to the venue or to the jurisdiction of any such suit, action or
proceeding, and irrevocably submits generally and unconditionally to the
jurisdiction of any such court in any such suit, action or proceeding.
All excise tax due on this Note has been paid by the Borrower
and proper stamps affixed to the Mortgage securing this Note.
INDIANTOWN COGENERATION, L.P.
By:_____________________________________
Name:________________________________
Title:_______________________________
B-3
SCHEDULE
Amount and Total Principal
Principal Date of Unpaid Date Interest Amount of
Amount of Principal Paid Principal Payment is Amount of Loans Notation
Date Made Loan or Prepaid Balance Due Interest Due Outstanding Made By
B-4
EXHIBIT C
[INTENTIONALLY OMITTED]
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EXHIBIT D
FORM OF COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth
in Item 1 of Schedule I hereto, among each Transferor Bank set forth in Item 2
of Schedule I hereto (each, a "Transferor Bank"), each Purchasing Bank set forth
in Item 3 of Schedule I hereto (each, a "Purchasing Bank"), BNP Paribas, as the
Initial Bank, and Credit Lyonnais New York Branch, as Agent under the Debt
Service Reserve Letter of Credit Agreement described below.
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is being executed
and delivered in accordance with Section 9.9 of the Debt Service Reserve Letter
of Credit and Reimbursement Agreement, dated as of October 10, 2003, by and
among (i) Indiantown Cogeneration, L.P., a Delaware limited partnership
("Borrower"), (ii) BNP Paribas ("Initial Bank") and the Banks parties thereto
from time to time (collectively, the "Banks"), and (iii) Credit Lyonnais New
York Branch, as agent for the Banks ("Agent") (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Debt Service Reserve Letter of Credit Agreement"; terms defined therein being
used herein as therein defined); and
WHEREAS, each Purchasing Bank (if it is not already a Bank
party to the Debt Service Reserve Letter of Credit Agreement) desires to become
a Bank party to the Debt Service Reserve Letter of Credit Agreement; and
WHEREAS, each Transferor Bank is selling and assigning to its
respective Purchasing Bank, certain rights, obligations and commitments under
the Debt Service Reserve Letter of Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of [ ] ([ ]) fully executed
originals of this Commitment Transfer Supplement, to each of which is attached a
fully completed Schedule I, Schedule II and Schedule III, and each of which has
been executed by each Transferor Bank, each Purchasing Bank and any other Person
required by the Debt Service Reserve Letter of Credit Agreement to execute this
Commitment Transfer Supplement, the Agent will transmit to the Borrower, each
Transferor Bank and each Purchasing Bank a Transfer Effective Notice,
substantially in the form of Schedule IV hereto (a "Transfer Effective Notice").
Such Transfer Effective Notice shall set forth, inter alia, the date on which
the transfer effected by this Commitment Transfer Supplement shall become
effective (the "Transfer Effective Date"), which date shall be the date hereof.
From and after the Transfer Effective Date, each Purchasing Bank shall be a Bank
party to the Debt Service Reserve Letter of Credit Agreement for all purposes
thereof.
D-1
2. Each Purchasing Bank shall pay to each of its respective
Transferor Banks an amount equal to the purchase price, as agreed between such
Transferor Bank and each such Purchasing Bank and set forth on Schedule II
hereto (the "Purchase Price"), of the portion being purchased (such Purchasing
Bank's "Purchased Percentage") by such Purchasing Bank of the outstanding
Commitments and Loans and other amounts owing to the respective Transferor Bank
under the Debt Service Reserve Letter of Credit Agreement and the Notes (the
"Outstanding Obligations"). Each Purchasing Bank shall pay the appropriate
Purchase Price to each of its respective Transferor Banks, in immediately
available funds, at or before 12:00 noon, local time of the appropriate
Transferor Bank, on the Transfer Effective Date. Effective upon the Transfer
Effective Date, each Transferor Bank hereby irrevocably sells, assigns and
transfers to each of its respective Purchasing Banks, without recourse,
representation or warranty other than as set forth in Section 8 hereof, and each
such Purchasing Bank hereby irrevocably purchases, takes and assumes from each
of its respective Transferor Banks, such Purchasing Bank's Purchased Percentage
of the Commitment, presently outstanding Loans and other amounts owing to each
such Transferor Bank under the Debt Service Reserve Letter of Credit Agreement
and the Notes, together with all instruments, documents and collateral security
pertaining thereto.
3. Each Transferor Bank has made arrangements with each of its
respective Purchasing Banks with respect to (a) the portion, if any, to be paid,
and the date or dates for payment, by such Transferor Bank to each of its
respective Purchasing Banks of any fees heretofore received by such Transferor
Bank pursuant to the Debt Service Reserve Letter of Credit Agreement prior to
the Transfer Effective Date and (b) the portion, if any, to be paid, and the
date or dates for payment, by each such Purchasing Bank to each Transferor Bank
of fees or interest received by each such Purchasing Bank pursuant to the Debt
Service Reserve Letter of Credit Agreement from and after the Transfer Effective
Date.
4. (a) All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of any
Transferor Bank pursuant to the Debt Service Reserve Letter of Credit Agreement
and the Notes shall, instead, be payable to or for the account of the
appropriate Transferor Banks and the appropriate Purchasing Banks, as the case
may be, in accordance with their respective interests as reflected in this
Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise
accrue for the account of any Transferor Bank from and after the Transfer
Effective Date pursuant to the Debt Service Reserve Letter of Credit Agreement
and the Notes shall, instead, accrue for the account of, and be payable to, the
appropriate Transferor Banks and the appropriate Purchasing Banks, as the case
may be, in accordance with their respective interests as reflected in this
Commitment Transfer Supplement. In the event that any amount of interest, fees,
or other amounts accruing prior to the Transfer Effective Date was included in
the Purchase Price paid by any Purchasing Bank, the appropriate Transferor Bank
and such Purchasing Bank will make appropriate arrangements for payment by such
Transferor Bank to such Purchasing Bank of such amount upon receipt thereof from
the Borrower.
5. On or prior to the Transfer Effective Date, each Transferor
Bank will deliver to the Agent its Note[s]. On or prior to the Transfer
Effective Date, if requested by any Transferor Bank or Purchasing Bank, the
Borrower will deliver to the Agent new Notes for such
D-2
Purchasing Bank or Transferor Bank, in each case in principal amounts
reflecting, in accordance with the Debt Service Reserve Letter of Credit
Agreement, their respective "Revised Commitment Percentage" or "New Commitment
Percentage", as the case may be and as set forth in Schedule III hereto, of the
Commitment or, as appropriate, their then outstanding shares of the Outstanding
Obligations (as adjusted pursuant to this Commitment Transfer Supplement).
Promptly after the Transfer Effective Date, the Agent will send to each
requesting Transferor Bank and Purchasing Bank its new Notes[s] with the
superseded Note[s] of each Transferor Bank attached to the new Note[s] (or if
more than one new Note[s], the superseded Note[s] attached to one of such new
Note[s] and copies thereof attached to all other new Note[s]).
6. Concurrently with the execution and delivery hereof, the
Transferor Banks will provide to each Purchasing Bank (if it is not already a
Bank party to the Debt Service Reserve Letter of Credit Agreement) copies of all
documents delivered to the Transferor Banks evidencing satisfaction of the
conditions precedent set forth in the Debt Service Reserve Letter of Credit
Agreement.
7. Each of the parties to this Commitment Transfer Supplement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, each Transferor Bank and each of its respective Purchasing Banks
confirm to and agree with each other, the Agent, the Initial Bank and the Banks
as follows: (a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, each such Transferor Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Debt Service Reserve Letter of
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Debt Service Reserve Letter of Credit
Agreement, the Notes or any other instrument or document furnished pursuant
thereto, (b) each such Transferor Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Debt Service Reserve Letter of Credit Agreement, the Notes
or any other instrument or document furnished pursuant hereto, (c) each such
Purchasing Bank confirms that it has received a copy of the Debt Service Reserve
Letter of Credit Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Commitment Transfer Supplement, (d) each such
Purchasing Bank will, independently and without reliance upon the Agent, its
respective Transferor Banks or any other Bank or the Initial Bank 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
the Debt Service Reserve Letter of Credit Agreement, (e) each such Purchasing
Bank appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Debt Service Reserve Letter of
Credit Agreement as are delegated to the Agent by the terms thereof together
with such powers as are reasonably incidental thereto and (f) each such
Purchasing Bank agrees that it will perform in accordance with their terms all
of the obligations which by
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the terms of the Debt Service Reserve Letter of Credit Agreement are required to
be performed by it as a Bank.
9. Schedule III hereto sets forth for each Transferor Bank and
each Purchasing Bank the revised Commitment, and/or Commitment Percentage, as
the case may be, of each Transferor Bank and each Purchasing Bank, as well as
certain administrative information with respect to each Purchasing Bank.
10. Notwithstanding anything to the contrary in this
Commitment Transfer Supplement, if the long-term debt rating of any Purchasing
Bank shall, at any time, be less than a rating of A or the equivalent thereof by
S&P or A2 or the equivalent thereof by Xxxxx'x, then the Initial Bank may, in
its sole and absolute discretion, purchase all or any part (as designated by the
Initial Bank) of such Purchasing Bank's participating interest hereunder (the
"Purchased Interests") (which, if in part, may be limited to the Purchasing
Bank's participating interest in the rights and obligations of the Initial Bank
under, and in connection with, one or more Debt Service Reserve Letters of
Credit, including, without limitation, the obligations to pay the Initial Bank
if it is not reimbursed by the Borrower in immediately available funds for any
drawings under such Debt Service Reserve Letter of Credit and to make certain
loans, if any, provided to be made under the Debt Service Reserve Letter of
Credit Agreement in the event of certain drawings under such Debt Service
Reserve Letter of Credit, all in accordance with the Debt Service Reserve Letter
of Credit Agreement) by providing such Purchasing Bank with at least two Banking
Days' prior notice of such purchase and making a payment to such Purchasing Bank
for all outstanding amounts owing to it hereunder or pursuant to the Debt
Service Reserve Letter of Credit Agreement in respect of the Purchased Interests
on the date of such purchase as set forth in such notice. Upon any such purchase
of all of a Purchasing Bank's participating interest hereunder, such Purchasing
Bank shall no longer have any rights or obligations as a Purchasing Bank
hereunder or as a Bank under the Debt Service Reserve Letter of Credit Agreement
or under any other instruments or documents furnished pursuant thereto. The
Initial Bank may, in its sole and absolute discretion, retain for its own
account and/or sell its interest in all or any portion of the Purchased
Interests.
11. THIS COMMITMENT TRANSFER SUPPLEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF
THAT MIGHT DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
12. This Commitment Transfer Supplement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
13. Execution of this Commitment Transfer Supplement by the
Agent and the Borrower as set forth below shall constitute any consent of such
Person required pursuant to Section 9.9 of the Debt Service Reserve Letter of
Credit Agreement.
D-4
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Transfer Supplement to be executed by their respective duly
authorized officers on Schedule I hereto as of the date set forth in Item 1 of
Schedule I hereto.
D-5
SCHEDULE I
TO COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND SIGNATURES
FOR COMMITMENT TRANSFER SUPPLEMENT
Re: Debt Service Reserve Letter of Credit and Reimbursement
Agreement, dated as of October 10, 2003, with
Indiantown Cogeneration, L.P., as Borrower.
Item 1 Date of Commitment [Insert date of
Transfer Supplement: Commitment Transfer
Supplement]
Item 2 Transferor Banks: [Insert names of
Transferor Banks]
Item 3 Purchasing Banks: [Insert names of
Purchasing Banks]
Item 4 Signatures of Parties to
Commitment Transfer
Supplement:
_______________________, as a
Transferor Bank
By: _____________________________
Name:
Title:
_______________________, as a
Purchasing Bank
By: _____________________________
Name:
Title:
D-6
SCHEDULE I
(Continued)
BNP Paribas, as Initial Bank
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
Credit Lyonnais New York Branch, as Agent
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
D-7
SCHEDULE I
(Continued)
CONSENTED TO AND ACKNOWLEDGED:
INDIANTOWN COGENERATION, L.P.
By: _____________________________
Name:
Title:
ACCEPTED FOR RECORDATION IN REGISTER:
CREDIT LYONNAIS NEW YORK BRANCH, as Agent
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
D-8
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
PURCHASE PRICES
Names of
Transferor Banks
Names of
Purchasing [Insert name of [Insert name of [Insert name of
Banks Transferor Bank] Transferor Bank] Transferor Bank]
----- --------------- --------------- ---------------
------------------------------------------------------------------------------------------------------------------
[Insert name of Purchasing Bank] $[Insert Purchase Price] $[Insert Purchase Price] $[Insert Purchase Price]
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
D-9
SCHEDULE III
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES FOR NOTICES,
COMMITMENT AMOUNTS, AND PROPORTIONATE SHARES
Names of Transferor Banks Revised Maximum Commitment
------------------------- --------------------------
[ ] $
[ ] $
Revised
Names of Transferor Banks Commitment Percentage
[ ] %
[ ] %
New Maximum
Names of Purchasing Banks Commitment
[ ] $
Commitment
Names of Purchasing Banks Percentage
[ ] %
D-10
SCHEDULE III
(Continued)
[NAME PURCHASING BANK(S)]
Address for Notices:
Attention:
Telephone:
Facsimile:
Clearing Account:
[Insert Acct. #]
Eurodollar Lending Office:
[Insert Address]
Domestic Lending Office:
[Insert Address]
D-11
SCHEDULE IV TO
COMMITMENT
TRANSFER
SUPPLEMENT
TRANSFER EFFECTIVE NOTICE
_______________, 20__
Transferor Banks: [ ]
Purchasing Banks: [ ]
Borrower: Indiantown Cogeneration, L.P.
The undersigned, as Agent under the Debt Service Reserve
Letter of Credit and Reimbursement Agreement, dated as of October 10, 2003 by
and among (i) Indiantown Cogeneration, L.P., a Delaware limited partnership
("Borrower"), (ii) the Banks parties thereto from time to time (collectively,
the "Banks"), and (iii) Credit Lyonnais New York Branch, as agent for the Banks
("Agent") (as from time to time amended, supplemented or otherwise modified in
accordance with the terms thereof, the "Debt Service Reserve Letter of Credit
Agreement") acknowledges receipt of [ ] ([ ]) copies of the Commitment Transfer
Supplement as described in Annex I hereto, each fully executed. Terms defined in
such Commitment Transfer Supplement are used herein as therein defined.
1. Pursuant to such Commitment Transfer Supplement, you are
advised that the Transfer Effective Date will be the date hereof.
2. Pursuant to such Commitment Transfer Supplement, each
Transferor Bank is required to deliver to the Agent on or before the Transfer
Effective Date its Note[s].
3. Pursuant to such Commitment Transfer Supplement, the
Borrower is required to deliver to the Agent on or before the Transfer Effective
Date the following Notes:
[Describe each new Note for Transferor Bank and Purchasing Bank as to principal
amount and payee.]
D-12
SCHEDULE IV
(Continued)
4. Pursuant to such Commitment Transfer Supplement, each
Purchasing Bank is required to pay its Purchase Price, in immediately available
funds, to the appropriate Transferor Bank at or before 12:00 noon, local time of
the appropriate Transferor Bank, on the Transfer Effective Date.
Very truly yours,
Credit Lyonnais New York Branch, as Agent
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
D-13
ANNEX I
INFORMATION FOR
COMMITMENT TRANSFER SUPPLEMENT
Re: Debt Service Reserve Letter of Credit and Reimbursement
Agreement, dated as of October 10, 2003, with Indiantown
Cogeneration, L.P., as Borrower
Item I Date of Commitment _______________, 20__
Transfer Supplement:
Item 2 Transferor Banks: [ ]
Item 3 Purchasing Banks: [ ]
D-14
EXHIBIT E
RESERVE BOND NOTE
$____________________ New York, New York
________ __, 20__
FOR VALUE RECEIVED, the undersigned, INDIANTOWN COGENERATION,
L.P., a Delaware limited partnership (the "Borrower"), hereby unconditionally
promises to pay to the order of [________________________] (the "Bank") the
principal sum of _______ Dollars ($ _______) in respect of Reserve Bonds
advanced by the Bank to the Borrower on the dates and in the amounts specified
in the Debt Service Reserve Letter of Credit Agreement referred to below.
The Borrower further promises to pay interest on the daily
unpaid principal amount hereof from time to time outstanding on the dates and at
the rates specified in the Debt Service Reserve Letter of Credit Agreement. This
Note is hereby expressly limited so that in no contingency or event, whether by
reason of acceleration of the maturity of any indebtedness evidenced hereby or
otherwise, shall the interest contracted for or charged or received by the Bank
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to the Bank in
excess of the maximum lawful amount, the interest payable to the Bank shall be
reduced to the maximum amount permitted under applicable law, and the amount of
interest for any subsequent period, to the extent less than that permitted by
applicable law, shall to that extent be increased by the amount of such
reduction.
Each holder hereof is irrevocably authorized to endorse on the
schedule attached hereto, or on a continuation thereof, the date each such
interest payment is due and the amount of each such interest payment determined
in accordance with the Debt Service Reserve Letter of Credit Agreement. Absent
manifest error, all such notations shall constitute prima facie evidence of the
accuracy of the information so recorded and be enforceable against the Borrower
with the same force and effect as if such amounts were each set forth in a
separate note executed by the Borrower.
All payments due hereunder shall be made without setoff,
counterclaim or deduction of any nature to Credit Lyonnais New York Branch, as
Agent, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, in lawful money of
the United States of America and in immediately available funds, or at such
other place and in such other manner as may be specified by the Agent pursuant
to the Debt Service Reserve Letter of Credit Agreement.
Each holder hereof is irrevocably authorized to endorse on the
schedule attached hereto, or on a continuation thereof, the date and amount of
each Reserve Bond made to the Borrower and each payment or prepayment of
principal thereof, provided that the failure of such holder to make, or any
error in making, any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Debt Service Reserve Letter
of Credit
E-1
Agreement. Absent manifest error, all such notations shall constitute prima
facie evidence of the accuracy of the information so recorded and be enforceable
against the Borrower with the same force and effect as if such amounts were each
set forth in a separate note executed by the Borrower.
This Note is the "Reserve Bond Note" of the Borrower to the
Bank referred to in, evidences each Reserve Bond made by the Bank to the
Borrower under, is subject to the provisions of, and entitles its holder to the
benefits of, the Debt Service Reserve Letter of Credit and Reimbursement
Agreement dated as of October 10, 2003 (the "Debt Service Reserve Letter of
Credit Agreement") among the Borrower, the Bank and the other banks parties
thereto from time to time, and Credit Lyonnais New York Branch, as agent for the
Bank and such other banks, as the same may be amended, supplemented or otherwise
modified from time to time and to which reference is hereby made for a more
complete statement of the terms and conditions under which each Reserve Bond
evidenced hereby is to be made and repaid. Capitalized terms in this Note that
are not specifically defined herein shall have the meanings ascribed to them in
the Debt Service Reserve Letter of Credit Agreement.
The Debt Service Reserve Letter of Credit Agreement provides
for, among other things, the acceleration of the maturity of the unpaid
principal amount hereof upon the occurrence of certain stated events and for
voluntary prepayments in certain circumstances and upon certain terms and
conditions. The obligations of the Borrower under the Debt Service Reserve
Letter of Credit Agreement and this Note are secured by, and the holder hereof
is entitled to the benefit of, the Security Documents.
In addition to any and all costs, fees and expenses for which
the Borrower is liable under the Debt Service Reserve Letter of Credit
Agreement, the Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees and disbursements, incurred in the collection and
enforcement hereof or any appeal of any judgment rendered hereon.
The Borrower hereby expressly waives diligence, presentment,
protest, demand, dishonor, nonpayment and notice of every kind to the fullest
extent permitted by applicable law. No failure or delay by any holder of this
Note to exercise any right or remedy under this Note or any other document or
instrument entered into pursuant to the Debt Service Reserve Letter of Credit
Agreement shall operate or be construed as a waiver or modification hereof or
thereof.
This Note shall be binding upon the successors and assigns of
the Borrower and shall inure to the Bank and its successors, endorsees and
assigns. If any term or provision of this Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof shall in no
way be affected thereby.
Recourse under this Note is limited in accordance with Section
9.7 of the Debt Service Reserve Letter of Credit Agreement, and the provisions
of said Section 9.7 are incorporated herein by reference.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK
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WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF THAT MIGHT DIRECT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
The Borrower hereby expressly and irrevocably agrees and
consents that any suit, action or proceeding arising out of or related to this
Note may be instituted in any state or federal court (at Bank's option) sitting
in the County of New York, State of New York, and, by the execution and delivery
of this Note, the Borrower expressly waives any objection which it may have now
or hereafter to the venue or to the jurisdiction of any such suit, action or
proceeding, and irrevocably submits generally and unconditionally to the
jurisdiction of any such court in any such suit, action or proceeding.
All excise tax due on this Note has been paid by the Borrower
and proper stamps affixed to the Mortgage securing this Note.
INDIANTOWN COGENERATION, L.P.
By: _________________________________
Name:____________________________
Title:___________________________
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SCHEDULE
Amount and Total Principal
Date of Unpaid Date Interest Amount of
Principal Amount Principal Paid Principal Payment is Amount of Reserve Bond Notation
Date Made of Reserve Bond or Prepaid Balance Due Interest Due Outstanding Made By
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EXHIBIT F
EXEMPTION CERTIFICATE
Reference is made to the Debt Service Reserve Letter of Credit
and Reimbursement Agreement dated as of October 10, 2003 among Indiantown
Cogeneration, L.P. (the "Borrower"), the Banks party thereto from time to time
and Credit Lyonnais New York Branch, as Agent (the "Debt Service Reserve Letter
of Credit and Reimbursement Agreement"). Capitalized terms used herein that are
not defined herein shall have the meanings ascribed to them in the Debt Service
Reserve Letter of Credit and Reimbursement Agreement.
______________________ (the "Non-U.S. Lender") is providing
this certificate pursuant to Section 2.17(e) of the Debt Service Reserve Letter
of Credit and Reimbursement Agreement. The Non-U.S. Lender hereby represents and
warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank
for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application
made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
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IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the date set forth below.
[NAME OF NON-U.S. LENDER]
By:________________________________
Name:___________________________
Title:__________________________
Date: ____________________
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