Exhibit 4.24
EXECUTION COPY
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DEBT SERVICE RESERVE LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated
November 10, 1999
among
Tenaska Georgia Partners, L.P.,
as Partnership
and
The Toronto-Dominion Bank
as the Issuing Bank
as a Bank and Agent
and
THE BANKS PARTY HERETO
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS 1
SECTION 1.1 DEFINITIONS................................................................................ 1
SECTION 1.2 CONSTRUCTION............................................................................... 6
ARTICLE II
DSR LETTER OF CREDIT............................................................................................. 7
SECTION 2.1 COMMITMENTS................................................................................ 7
SECTION 2.2 AMOUNT AND TERM OF DSR LETTER OF CREDIT.................................................... 7
SECTION 2.3 PARTICIPATION IN DSR LETTER OF CREDIT...................................................... 8
SECTION 2.4 9
(a) DRAWING AND REIMBURSEMENT............................................................ 9
SECTION 2.5 FEES....................................................................................... 9
SECTION 2.6 INTEREST.................................................................................. 10
(a) RATE................................................................................. 10
(b) METHOD OF ELECTING INTEREST RATES.................................................... 10
(c) FUNDING LOSSES....................................................................... 12
(d) BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR............................. 12
(e) MAXIMUM RATE......................................................................... 13
SECTION 2.7 REPAYMENT................................................................................. 13
SECTION 2.8 PREPAYMENTS............................................................................... 14
SECTION 2.9 SECURITY.................................................................................. 14
SECTION 2.10 PAYMENTS.................................................................................. 14
SECTION 2.12 PAYMENTS ON NON-BUSINESS DAYS............................................................. 15
SECTION 2.13 SHARING OF PAYMENTS, ETC.................................................................. 15
SECTION 2.14 EVIDENCE OF DEBT.......................................................................... 16
SECTION 2.15 INCREASED COSTS AND REDUCED RETURNS....................................................... 16
SECTION 2.16 CAPITAL ADEQUACY.......................................................................... 18
SECTION 2.17 TAXES..................................................................................... 18
SECTION 2.18 ILLEGALITY................................................................................ 20
SECTION 2.19 REDUCTION IN COMMITMENTS/REIMBURSEMENTS................................................... 21
SECTION 2.20 RIGHT OF SET-OFF.......................................................................... 21
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ARTICLE III
CONDITIONS PRECEDENT............................................................................................ 21
SECTION 3.1 CONDITIONS PRECEDENT TO CLOSING DATE...................................................... 21
SECTION 3.2 CONDITIONS PRECEDENT TO ISSUE DATE........................................................ 22
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................................................. 22
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF PARTNERSHIP............................................. 22
SECTION 4.2 REPRESENTATIONS AND WARRANTIES OF THE ISSUING BANK........................................ 22
ARTICLE V
COVENANTS 23
SECTION 5.1 COVENANTS................................................................................. 23
ARTICLE VI
DEFAULTS AND REMEDIES........................................................................................... 23
SECTION 6.1 EVENTS OF DEFAULT......................................................................... 23
SECTION 6.2 REMEDIES.................................................................................. 24
SECTION 6.3 COLLATERALIZATION UPON ACCELERATION OF THE BONDS.......................................... 24
ARTICLE VII
CHARACTER OF OBLIGATIONS........................................................................................ 25
SECTION 7.1 OBLIGATIONS ABSOLUTE...................................................................... 25
SECTION 7.2 LIMITED LIABILITY OF AGENT AND BANKS...................................................... 25
ARTICLE VIII
THE AGENT 26
SECTION 8.1 AUTHORIZATION AND ACTION.................................................................. 26
SECTION 8.2 AGENT'S RELIANCE, ETC..................................................................... 27
SECTION 8.3 THE AGENT, THE ISSUING BANK AND AFFILIATES................................................ 27
SECTION 8.4 BANK CREDIT DECISION...................................................................... 27
SECTION 8.5 INDEMNIFICATION........................................................................... 28
SECTION 8.6 SUCCESSOR AGENT........................................................................... 28
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SECTION 8.7 COLLATERAL................................................................................ 28
ARTICLE IX
MISCELLANEOUS................................................................................................... 29
SECTION 9.1 AMENDMENTS, ETC........................................................................... 29
SECTION 9.2 NOTICES, ETC.............................................................................. 29
SECTION 9.3 NO WAIVER, REMEDIES....................................................................... 30
SECTION 9.4 COSTS AND EXPENSES........................................................................ 30
SECTION 9.5 APPLICATION OF MONEY...................................................................... 30
SECTION 9.6 SEVERABILITY.............................................................................. 30
SECTION 9.7 NON-RECOURSE LIABILITY.................................................................... 31
SECTION 9.8 BINDING EFFECT............................................................................ 31
SECTION 9.9 ASSIGNMENTS AND PARTICIPATIONS............................................................ 31
SECTION 9.10 INDEMNIFICATION........................................................................... 33
SECTION 9.11 GOVERNING LAW; SUBMISSION OF JURISDICTION; VENUE; WAIVER OF JURY TRIAL.................... 34
SECTION 9.12 HEADINGS.................................................................................. 35
SECTION 9.13 EXECUTION IN COUNTERPARTS................................................................. 35
Exhibit A Form of DSR Letter of Credit
Exhibit B Form of Assignment and Acceptance
Exhibit C Amortization Schedule
Exhibit D Applicable Margin Table
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DEBT SERVICE RESERVE LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This DEBT SERVICE RESERVE LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT,
dated November 10, 1999 (this "AGREEMENT"), is entered into by and among (1)
TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership (the
"PARTNERSHIP"); (2) THE TORONTO-DOMINION BANK as the Issuing Bank (the "ISSUING
BANK"); (3) THE TORONTO-DOMINION BANK, in its individual capacity, together with
each other bank that becomes a party hereto pursuant to Section 9.9 (each,
including the Issuing Bank, a "BANK" and collectively, the "BANKS"); and (4) THE
TORONTO-DOMINION BANK, as agent for the Banks (in such capacity, together with
its successors in such capacity, the "AGENT").
WHEREAS, the Partnership is constructing and will lease a 936 MW
(nominal summer rating) natural gas-fired, simple-cycle electric generating
facility in Heard County, Georgia and related property and facilities (the
"Facility");
WHEREAS, the Partnership intends to finance the construction and
equipping of the Facility through an offering of Bonds (the "Bonds") under Rule
144A, the proceeds of which Bonds will be used to purchase Taxable Industrial
Development Revenue Bonds issued by the Development Authority of Heard County,
Georgia, a public corporation created and existing under the laws of the State
of Georgia (the "DAHC Bonds"), the net proceeds of which will be used to pay
Project Costs related to the Facility;
WHEREAS, the Partnership has duly authorized the creation and issuance
of the Bonds pursuant to the Indenture; and
WHEREAS, in order to provide assurances in respect of the Partnership's
satisfaction of its payment obligations under the Bonds and the Indenture, the
Partnership has requested that the Issuing Bank agree to issue and the Banks
participate in, and the Issuing Bank is willing to agree to issue and the Banks
are willing to participate in, the DSR Letter of Credit upon the terms and
conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. (a) Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to them in the Common
Agreement.
(b) The following terms are used in this Agreement with the
following respective meanings:
"ADJUSTED BASE RATE" means the higher of (i) the Federal Funds Rate
plus .50% and (ii) the Base Rate.
"AGENT" has the meaning set forth in the preamble to this Agreement.
"APPLICABLE MARGIN" means, at any time, the margin applicable at such
time, to Base Rate Loans or Eurodollar Rate Loans or the letter of credit fee
payable under Section 2.5(a), in each case as set forth on Exhibit D hereto.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance entered
into by a Bank and another Person, substantially in the form of Exhibit B.
"BANK" has the meaning set forth in the preamble of this Agreement.
"BASE RATE" means the variable rate of interest PER ANNUM officially
announced or published by the Agent from time to time as its "base rate," such
rate being set by the Agent as a general reference rate of interest, taking into
account such factors as the Agent may deem appropriate, it being understood that
many of the Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Agent may make various commercial or other loans at rates
of interest having no relationship to such rate. For purposes of this Agreement,
each change in the Base Rate shall be effective as of the opening of business on
the date announced as the effective date of the change in such "base rate."
"BASE RATE LOAN" means a DSR Loan, or portion thereof, bearing interest
at a rate determined with reference to the Adjusted Base Rate.
"BOND CONVERSION EVENT" means, in respect of a DSR LOC Loan, the
failure by the Partnership to have repaid (i) at least 50% of the original
amount of such DSR LOC Loan on the date 30 months after the making of such DSR
LOC Loan or (ii) the full amount of such DSR LOC Loan by the DSR LOC Loan
Required Payment Date.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for business in New York, New York, and with respect to all
notices and determinations in connection with, advances of, continuations of,
conversions from and to, and payments of principal and interest on, Eurodollar
Rate Loans, any day that is also a day for trading by and between banks in U.S.
dollar deposits in the London interbank Eurodollar market.
"CLOSING DATE" means the date on which the conditions precedent set
forth in Section 3.1 have been fulfilled.
"COMMITMENT" of a Bank at any time means (i) an amount equal to the
product of (A) the Maximum Stated Amount at such time, as the same may be
reduced from time to time in accordance with the provisions of this Agreement,
and (B) such Bank's Percentage Interest as set forth opposite the name of such
Bank on the signature pages hereof, or if one or more Assignments and
Acceptances shall have been entered into, as set forth in the register of the
Agent set forth for such purpose, or (ii) as the context may require, the
obligation of such Bank to make loans in an aggregate amount of principal at any
time outstanding not exceeding such amount.
"COMMITMENTS" means all of the Commitments.
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"COMMON AGREEMENT" means the Agreement as to Certain Undertakings,
Common Representations, Warranties, Covenants and other items dated as of
November 1, 1999 made by and among the Partnership, the Trustee, the DSR LOC
Agent, the PPA LOC Agent and the Collateral Agent.
"CREDIT DOCUMENTS" means this Agreement, the Security Documents, the
Collateral Agency Agreement and the DSR Letter of Credit.
"DEFAULT" means an event that with the giving of any required notice
and/or the lapse of any required time would constitute an Event of Default.
"DOLLARS" and "$" means freely transferable United States dollars.
"DRAWING" means a drawing under the DSR Letter of Credit.
"DSR BOND" has the meaning set forth in Section 2.7(g).
"DSR LETTER OF CREDIT" means a letter of credit in favor of the
Collateral Agent substantially in the form of Exhibit A, issued or to be issued
by the Issuing Bank.
"DSR LOAN" means any DSR LOC Loan, DSR Term Loan or DSR Bond, as
applicable.
"DSR LOC LOAN" means a loan made as a result of Drawing on the DSR
Letter of Credit which, is not made upon the occurrence of a Step-up Event.
"DSR LOC LOAN REQUIRED PAYMENT DATE" means, in respect of each DSR LOC
Loan, the earlier of (i) the date five years from the date such DSR LOC Loan is
made by the Banks pursuant to the terms of this Agreement and (b) the Final
Maturity Date.
"DSR TERM LOAN" means a loan made as a result of the occurrence of a
Step-up Event either to fund a Drawing made upon such occurrence or by way of
the conversion of then outstanding DSR LOC Loans.
"DSR TERM LOAN REQUIRED PAYMENT DATE" means, in respect of each DSR
Term Loan, the earlier of (i) the date ten years after such DSR Term Loan is
made by the Banks pursuant to the terms of this Agreement and (b) the Final
Maturity Date.
"EUROCURRENCY LIABILITIES" has the meaning set forth in Regulation D.
"EUROCURRENCY RESERVE PERIOD" has the meaning set forth in Section
2.15(b).
"EURODOLLAR RATE" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate PER ANNUM equal to the average (rounded upwards,
if necessary, to the nearest 1/100 of 1%) of the offered rates which appear on
the Dow Xxxxx Telerate page 3750, British Bankers Association Interest
Settlement Rates for deposits in Dollars (or such other system for the purpose
of displaying rates of leading reference banks in the London interbank market,
as designated by the Agent) as of 11:00 a.m. (London time) on the day two
Business Days prior to the first day of such Interest Period in an amount
approximately equal to the principal amount of
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the Eurodollar Rate Loan to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
"EURODOLLAR RATE LOAN" means a DSR Loan, or portion thereof, bearing
interest at a rate determined with reference to the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.1.
"EXCLUDED TAXES" has the meaning set forth in Section 2.17(a).
"EXPIRATION DATE" means seven years from the Closing Date.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
PER ANNUM equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"INDEMNIFIED PARTY" has the meaning set forth in Section 9.10.
"INTEREST PERIOD" means with respect to each Eurodollar Rate Loan, a
period commencing on the date specified in the applicable Notice of Interest
Rate Election and ending one, two, three, six or, with the consent of the Banks,
nine or twelve calendar months thereafter, as the Partnership may elect in the
applicable Notice of Interest Rate Election; PROVIDED, that:
(a) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(b) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month;
(c) no Interest Period shall be selected to be applicable to a
DSR Loan if such Interest Period ends after the next scheduled principal payment
date therefor pursuant to this Agreement unless, at the time of such selection,
there are outstanding Base Rate Loans and/or Eurodollar Rate Loans the Interest
Period(s) applicable to which, end on or before such scheduled payment date
which the Partnership reasonably determines are in an aggregate principal amount
at least equal to the amount of such next scheduled principal payment; and
(d) no Interest Period shall end after the latest Required
Payment Date.
"ISSUE DATE" means the Business Day on which the Issuing Bank shall
issue the DSR Letter of Credit in accordance with Section 2.2(a) and Section
3.2.
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"ISSUING BANK" has the meaning set forth in the preamble of this
Agreement.
"LOAN OBLIGATIONS" means the Drawings and the principal of all DSR
Loans (including but not limited to the Partnership's obligations in respect of
amounts not yet disbursed).
"MAXIMUM STATED AMOUNT" means at any time, the highest Stated Amount
Value at such time.
"MORTGAGE BASIS" means in respect of each DSR Term Loan, an
amortization schedule which, taking into account the interest rate applicable to
such DSR Term Loan determined in accordance with Section 2.7(e) and assuming
payments are made on Interest Payment Dates, results in levelized payment of the
principal of and interest on such DSR Term Loan to and including the DSR Term
Loan Required Payment Date applicable thereto.
"NON-RECOURSE PARTY" has the meaning specified in Section 9.7.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.6(b).
"OBLIGATIONS" means all of the Loan Obligations and any and all other
obligations of the Partnership to the Issuing Bank, the Banks or the Agent under
or in connection with the Credit Documents, whether for interest, fees,
expenses, indemnification or otherwise.
"PARTICIPANT" has the meaning set forth in Section 9.9(b).
"PARTNERSHIP" has the meaning set forth in the preamble of this
Agreement.
"PERCENTAGE INTEREST" means, for each Bank, the fraction, expressed as
a percentage, where the numerator is the Commitment of such Bank and the
denominator is the aggregate of all the Commitments held by all the Banks, as
set forth on the signature page opposite the name and signature of each
respective Bank or if applicable, in Schedule 1 to any Assignment and
Acceptance.
"PURCHASING BANK" has the meaning set forth in Section 9.9(a).
"QUARTERLY DATE" has the meaning set forth in Section 2.5(a)
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REGULATORY CHANGE" means, subsequent to the date of this Agreement,
any adoption or change in United States Federal, state or municipal or foreign
law or regulations (including Regulation D) or the adoption or change or making
of any application, interpretation, directive, request or guideline of or under
any United States Federal, state or municipal or foreign law or regulations by
any court, central bank or Governmental Authority.
"REQUIRED BANKS" means, at any time, Banks (one of which shall be the
Agent) owed at least 66 2/3% of the sum of Loan Obligations then outstanding
and/or the Commitments;
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PROVIDED, HOWEVER, that, if and so long as there are only two Banks, then
"Required Banks" shall mean both of such Banks.
"REQUIRED PAYMENT DATE" means in the case of any DSR LOC Loan, the
applicable DSR LOC Loan Required Payment Date, in the case of a DSR Term Loan,
the applicable DSR Term Loan Required Payment Date or in the case of any DSR
Bond, the Final Maturity Date.
"STATED AMOUNT" means the amount (not to exceed the Maximum Stated
Amount) available to be drawn under the DSR Letter of Credit as of each
Scheduled Payment Date, which amount shall equal the Stated Amount Value for
such date as in effect from time to time pursuant to the terms of this
Agreement.
"STATED AMOUNT VALUE" means, for any date, the Stated Amount Value for
such date set forth in Schedule 1 to the Letter of Credit and as adjusted from
time to time pursuant to Sections 2.2 and 2.7.
"STEP-UP EVENT" means (i) the failure of the DSR Letter of Credit to
have been extended or replaced at least 45 days prior to the stated expiration
date of such DSR Letter of Credit or (ii) if the credit rating of the Issuing
Bank is less than the Required Rating, the failure of the DSR Letter of Credit
to have been replaced within 45 days after the failure to satisfy the
requirements of the Required Rating with a replacement letter of credit issued
by an issuer that satisfies the requirements of the Required Rating and, in
either case, the Collateral Agent has made a Drawing on such DSR Letter of
Credit in an amount sufficient to fund the Debt Service Reserve Account up to
the Debt Service Reserve Required Balance.
"TAXES" means any and all present or future income, stamp, transfer,
turnover and other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and any and all interest, penalties, claims or
other liabilities arising under or relating thereto, including those imposed on
any of the Banks or on payments to be made to or received by any of them from
the Partnership hereunder.
"TERMINATION NOTICE" has the meaning set forth in Section 2.2(e).
SECTION 1.2 CONSTRUCTION. In this Agreement, unless expressly specified
to the contrary: the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible, visible form, but shall not
include electronic mail; the words "including," "includes" and "include" shall
be deemed to be followed by the words "without limitation;" references to
articles, sections (or subdivisions of sections), recitals, appendices,
exhibits, annexes or schedules are to those of this Agreement; references to
agreements and other instruments shall be deemed to include all amendments and
other modifications to such agreements and instruments, but only to the extent
such amendments and other modifications are not prohibited by the terms of this
Agreement; references to Persons include their respective permitted successors
and assigns and, in the case of Governmental Authorities, Persons
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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 GAAP as in
effect from time to time, on a basis consistent with the most recent audited
financial statements, if any, of the relevant Person delivered to the Agent, or
otherwise reasonably acceptable to the Agent.
ARTICLE II
DSR 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 DSR
Letter of Credit and, each Drawing thereunder in the Percentage Interest of such
Bank and in an aggregate amount not to exceed at any time such Bank's
Commitment; provided that the maximum total Commitment shall at no time exceed
$16 million.
SECTION 2.2 AMOUNT AND TERM DSR LETTER OF CREDIT. (a) Subject to the
terms and conditions contained in this Agreement:
(i) The Issuing Bank irrevocably agrees to issue the DSR
Letter of Credit on the Issue Date for the account of the Partnership
and in the Stated Amount equal to the Stated Amount Value set forth for
the Issue Date in Schedule 1 to the form of the DSR Letter of Credit
attached to this Agreement as Exhibit A (Schedule 1 shall be prepared
by the Partnership and submitted to the Issuing Bank no later than 3
Business Days prior to the Issue Date). Schedule 1 to the DSR Letter of
Credit when issued shall include a schedule of Stated Amount Values in
effect for the entire term of the DSR Letter of Credit.
(ii) (A) If the Debt Service Reserve Required Balance for
any period is reduced by a prepayment of the principal of the Bonds,
the Stated Amount Values for such period shall be correspondingly
reduced; provided that, if the Debt Service Reserve Required Balance
for a period is greater than $16,000,000 immediately prior to giving
effect to such reduction and is less than $16,000,000 after giving
effect to such reduction, then the Stated Amount Value for such period
shall be reduced only by an amount equal to the amount by which
$16,000,000 exceeds the Debt Service Reserve Required Balance for such
period after giving effect to such reduction.
(B) If the Debt Service Reserve Required Balance for any
period is increased by reason of the issuance of up to $9,000,000
principal amount of Additional Bonds, as defined in the Indenture, the
Stated Amount Value for such period shall be correspondingly increased,
provided that no such increase shall result in any Stated Amount Value
as set forth on Schedule 1 to the Letter of Credit being in excess of
$16,000,000.
(iii) Each of the Stated Amount Values set forth in
Schedule 1 to the DSR Letter of Credit as in effect from time to time
shall be reduced from time to time in
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accordance with the provisions of Section 2.2(c) and (a)(ii) and shall
be reduced and reinstated from time to time in accordance with Section
2.7(b) and (c).
(b) If a Step-up Event shall have occurred and the Collateral
Agent shall have made a Drawing in accordance with Section 2.4, the DSR Letter
of Credit shall thereupon terminate.
(c) If a Bond Conversion Event shall have occurred with
respect to any DSR LOC Loan, and the Agent, subject to the approval of the
Required Banks, elects to convert such DSR LOC Loan into a DSR Bond in
accordance with Section 2.7(g), each of the Stated Amount Values set forth in
Schedule 1 to the DSR Letter of Credit as then in effect shall be reduced by an
amount equal to the amount of the DSR LOC Loan so converted and the Maximum
Stated Amount correspondingly reduced.
(d) To the extent the Debt Service Reserve Required Balance
for any period is reduced by a prepayment of the principal of the Bonds at a
time when there are amounts on deposit in the Debt Service Reserve Account, then
the Stated Amount Value for each affected date, as set forth in Schedule 1 to
the DSR Letter of Credit, shall, notwithstanding any other provision of this
Agreement, including the provisions of Section 2.2(a)(ii), be reduced to an
amount equal to not less than the excess of (i) the Debt Service Reserve
Required Balance applicable to such affected date, over (ii) the amount on
deposit in the Debt Service Reserve Account on the date such prepayment is made.
(e) The Issuing Bank shall have the right, upon the occurrence
and during the continuance of an Event of Default, to deliver to the Collateral
Agent and the Trustee a notice in the form of Annex 2 to the DSR Letter of
Credit (a "TERMINATION NOTICE"), which notice shall be given at least sixty (60)
days prior to the date of termination referred to in such notice. After the
delivery by the Issuing Bank of a Termination Notice, the Stated Amount shall be
neither increased, nor reinstated upon payment of any DSR LOC Loans
notwithstanding any other provision of this Agreement to the contrary.
(f) The Agent shall, solely for informational purposes,
deliver to the Partnership a copy of any Termination Notice given to the
beneficiary under the DSR Letter of Credit; PROVIDED, HOWEVER, that the Banks'
ability to terminate the DSR Letter of Credit shall not be contingent upon the
Agent's delivery to the Partnership of such notice and that neither the Agent
nor the Banks shall incur any liability whatsoever as a result of the Agent's
failure to deliver such notice to the Partnership.
SECTION 2.3 PARTICIPATION IN DSR LETTER OF CREDIT. Simultaneously with
the issuance of the DSR Letter of Credit, the Issuing Bank shall be deemed to
have sold and transferred to each Bank, and each Bank shall be deemed to have
purchased and received from the Issuing Bank, in each case irrevocably and
without any further action by any party, an undivided interest and participation
in the DSR Letter of Credit, each Drawing and the other Loan Obligations in
respect thereof in an amount equal to such Bank's Percentage Interest therein.
The Agent shall promptly advise each Bank of any reduction in the Maximum Stated
Amount, change in the Stated Amount or Expiration Date in respect of the DSR
Letter of Credit or the cancellation or other termination of the DSR Letter of
Credit and any Drawing; PROVIDED,
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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 (a) DRAWING AND REIMBURSEMENT. The payment by the Issuing
Bank of a Drawing shall constitute the making by the Issuing Bank of a loan to
the Partnership in the amount of such payment. In the event that a Drawing is
not repaid by the Partnership by 10:00 a.m. (New York City time), on the day of
such Drawing, the Agent shall promptly notify each other Bank. Each such Bank
(including the Issuing Bank in its capacity as a Bank) shall, on the day of such
notification, make a DSR Loan (either a DSR LOC Loan or a DSR Term Loan) to the
Partnership, which shall be used to repay the applicable portion of the Issuing
Bank's loan with respect to such Drawing, in an amount equal to the amount of
such Bank's Percentage Interest in such Drawing, for application to repay the
Issuing Bank, and shall deliver to the Agent for the Issuing Bank's account, on
the day of such notification and in immediately available funds, the amount of
such DSR Loan. In the event that any Bank fails to make available to the Agent
for the account of the Issuing Bank the amount of such DSR Loan, the Issuing
Bank shall be entitled to recover such amount on demand from such Bank together
with interest thereon at the Federal Funds Rate and until such reimbursement is
made, the unreimbursed amount of the Issuing Bank's loan shall be deemed to be a
DSR Loan for all purposes of this Agreement.
(b) If a Step-up Event shall have occurred, the Collateral
Agent shall (i) make a Drawing on the DSR Letter of Credit in an amount equal to
the lesser of (A) the Stated Amount of the DSR Letter of Credit as in effect
immediately prior to such Drawing and (B) the positive difference between (x)
the Debt Service Reserve Required Balance and (y) amounts then on deposit in the
Debt Service Reserve Account (such Drawing shall be funded as a DSR Term Loan),
and (ii) deposit such amount in the Debt Service Reserve Account, and the DSR
Letter of Credit shall thereupon terminate.
SECTION 2.5 FEES. The Partnership shall pay the following fees to the
Agent for the respective accounts of the persons specified below:
(a) from and after the Issue Date for the respective accounts
of the Banks, a letter of credit fee equal to the product of (i) the average
daily Stated Amount and (ii) a per annum rate equal to the average daily
Applicable Margin, for Eurodollar Rate Loans, as in effect during the applicable
period, payable quarterly in arrears on the first Business Day of each February,
May, August and November (each such Business Day, a "QUARTERLY DATE") occurring
after the Closing Date calculated on the basis of a 360-day year for the actual
number of Days elapsed;
(b) from and including the Issue Date, for the account of the
Issuing Bank, a fronting fee equal to the product of (x) the average daily
Stated Amount and (y) 0.125% per annum payable quarterly in arrears on each
Quarterly Date occurring after the Issue Date calculated on the basis of a
360-day year for the actual number of Days elapsed;
(c) for the account of each Bank an annual commitment fee
payable quarterly in arrears on each Quarterly Date and calculated on the basis
of a 360 day year for the number of days elapsed in an amount equal to (i) from
and including the Closing Date to but excluding the Issue Date, 0.125% of the
average daily Commitment under this Agreement and (ii) from and
9
after the Issue Date, 0.375% of the positive difference between the average
daily Commitment under this Agreement and the average daily Stated Amount Value
for the applicable period; and
(d) such other fees specified in the fee letter among the
Partnership and the Agent.
SECTION 2.6 INTEREST. (a) RATE. The Partnership shall pay interest on
the unpaid principal amount of each DSR Loan for each day from the date such DSR
Loan is made until such principal amount has been paid in full as follows:
(i) BASE RATE LOANS. As to Base Rate Loans for each day
until due at a rate PER ANNUM equal to (x) the sum of the Adjusted Base
Rate plus (y) the Applicable Margin as in effect on such day, payable
monthly in arrears or the first Business Day of each month;
(ii) EURODOLLAR RATE LOANS. As to Eurodollar Rate Loans,
for each day until due at a rate PER ANNUM equal to the sum of (x) the
Eurodollar Rate plus (y) as in effect on such day, the Applicable
Margin, payable on the last day of the applicable Interest Period or,
if such Interest Period exceeds three months, at intervals of three
months from the first day of such Interest Period; and
(iii) DEFAULT INTEREST. Interest payments for each day on
any principal amounts that have not been paid when due shall be payable
at the Adjusted Base Rate plus the Applicable Margin as in effect on
such day plus 2%.
(b) METHOD OF ELECTING INTEREST RATES. (i) Each DSR Loan shall
constitute a Base Rate Loan unless the Partnership elects otherwise pursuant to
the following provisions of this Section 2.6(b).
(ii) Each DSR Loan shall constitute a Base Rate Loan or a
Eurodollar Rate Loan as the Partnership may elect in accordance with
this Section 2.6(b). If no such election is timely made with respect to
a DSR Loan, such DSR Loan shall constitute a Base Rate Loan in
accordance with Section 2.6(b)(i); provided that, in the case of DSR
Term Loans or DSR Bonds that arise on the occasion of a conversion from
DSR LOC Loans in accordance with Section 2.7(d) or 2.7(g), such DSR
Term Loans DSR Bonds shall be continued as the same type of DSR Loan
(i.e., Base Rate Loan or Eurodollar Loan), and if any such DSR LOC Loan
was a Eurodollar Loan, the then current Interest Period shall continue
after such conversion, until the end of such Interest Period, at which
time the provisions for election of Interest Periods contained in this
Section 2.6(b) shall apply. The Partnership may from time to time elect
to change or continue the interest rate borne by each DSR Loan, subject
to the conditions set forth below, as follows:
(A) with respect to DSR Loans that are Base
Rate Loans, the Partnership may elect to convert all or any
portion of such DSR Loans to Eurodollar Rate Loans as of any
Business Day; and
(B) with respect to DSR Loans that are
Eurodollar Rate Loans, the Partnership may elect to convert
all or any portion of such DSR Loans to Base
10
Rate Loans or elect to continue all or any portion of such DSR
Loans as Eurodollar Rate Loans for an additional Interest
Period, in each case effective on the last day of the then
current Interest Period applicable to such DSR Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Agent (1) in the case of a conversion to or continuation
of a Eurodollar Rate Loan, not later than 10:00 a.m. (New York City time) on the
third Business Day prior to the day on which such conversion or continuation is
to be effective or (2) in the case of a conversion to a Base Rate Loan, at any
time prior to the day on which such conversion is to be effective. Each Notice
of Interest Rate Election shall be in writing (including facsimile transmission)
or by voice, promptly confirmed in writing. A Notice of Interest Rate Election
may, if it so specifies, apply to only a portion of the aggregate principal
amount of the relevant DSR Loan.
(iii) Each Notice of Interest Rate Election shall specify:
(A) the DSR Loans (or portion thereof)
together with amount of each thereof to which such notice
applies;
(B) the date on which the conversion or
continuation selected in such notice is to be effective, which
shall comply with the applicable clause of subsection (ii)
above;
(C) if DSR Loans are to be converted, each
new type of DSR Loan together with amount thereof, and if such
new DSR Loans are Eurodollar Rate Loans, the duration of the
initial Interest Period applicable thereto; and
(D) if such DSR Loans are to be continued as
Eurodollar Rate Loans for additional Interest Periods, the
duration of such Interest Periods.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period. No conversion
into or continuation of a Eurodollar Rate Loans shall be permitted when a
Default or an Event of Default has occurred and is continuing, and if a Default
or an Event of Default has occurred and is continuing, each Eurodollar Rate Loan
shall automatically be converted into a Base Rate Loan on the last day of the
then current Interest Period applicable thereto.
(iv) A Notice of Interest Rate Election shall not be
revocable by the Partnership. If the Partnership fails to deliver a
timely Notice of Interest Rate Election to the Agent for any Eurodollar
Rate Loan, such DSR Loans shall be converted into Base Rate Loans on
the last day of the then current Interest Period applicable thereto.
(c) FUNDING LOSSES. If the Partnership makes any payment of principal
with respect to any Eurodollar Rate Loan or any Eurodollar Rate Loan is
converted to a Base Rate Loan on any day other than the last day of an Interest
Period applicable thereto, or if the Partnership fails to borrow, repay or
prepay any Eurodollar Rate Loan after notice has been given to the Agent in
accordance with the terms hereof, the Partnership shall reimburse the Agent, for
the ratable account of the Banks, within 30 days after demand for any resulting
loss or expense incurred by them, including any loss incurred in obtaining,
liquidating or employing
11
deposits from third parties. Without prejudice to the foregoing, the Partnership
shall indemnify the Agent and the Banks against any direct (as opposed to
consequential) loss or expense that the Agent or the Banks may sustain or incur
as a consequence of a failure by the Partnership in payment of principal of, or
interest on, any Eurodollar Rate Loan, or any part thereof, including any
interest, premium or penalty paid by the Agent or any Bank to lenders of funds
borrowed by it or deposited with it for the purpose of making or maintaining
such Eurodollar Rate Loan. A certificate as to the amount of any such loss or
expense in reasonable detail (specifying the basis of such loss or expense)
shall be promptly submitted by the Agent, or by any Bank through the Agent, to
the Partnership and shall be conclusive and binding as to the amount thereof,
absent manifest error.
(d) BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR:
If on or prior to the first day of any Interest Period for any Eurodollar Rate
Loan:
(i) the Agent or any Bank determines, in its reasonable
judgment, that deposits in Dollars (in the applicable amounts) are not
being offered to the Agent or such Bank in the relevant market for such
Interest Period, or
(ii) the Agent or such Bank, in its reasonable judgment,
shall determine that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Agent or such Bank of funding its Eurodollar
Rate Loans for such Interest Period,
the Agent, or such Bank through the Agent, shall forthwith give notice thereof
(which notice shall describe in reasonable detail the basis for such
determination) to the Partnership, whereupon until the Agent, or such Bank
through the Agent, notifies the Partnership that the circumstances giving rise
to such suspension no longer exist, (A) the obligations of the Agent or such
Bank to make or continue Eurodollar Rate Loans or to convert outstanding DSR
Loans into Eurodollar Rate Loans shall be suspended and (B) each outstanding
Eurodollar Rate Loan, or if a Bank only shall be affected, each Eurodollar Rate
Loan held by such Bank shall be converted into a Base Rate Loan on the last day
of the then current Interest Period applicable thereto.
(e) MAXIMUM RATE. This Agreement is hereby expressly limited
so that in no contingency or event, whether by reason of acceleration of the
maturity of any indebtedness hereunder or otherwise, shall the interest
contracted for or charged or received by the Banks exceed the maximum amount
permissible under Applicable Law. If, from any circumstance whatsoever, interest
would otherwise be payable to the Banks in excess of the maximum lawful amount,
the interest payable to the Banks shall be reduced to the maximum amount
permitted under Applicable Law, and the amount of interest for any subsequent
period, to the extent less than that permitted by Applicable Law, shall to that
extent be increased by the amount of such reduction.
SECTION 2.7 REPAYMENT. (a) The Partnership shall repay the principal
amount of each DSR LOC Loan in accordance with the provisions of Exhibit C
applicable to DSR LOC Loans. Each DSR LOC Loan shall mature and be due and
payable on the applicable DSR LOC Loan Required Payment Date.
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(b) The Issuing Bank shall reduce the Stated Amount by the
outstanding principal amount of each DSR LOC Loan.
(c) Subject to Sections 2.2 and 6.2, the Issuing Bank shall,
upon receipt of written notice from the Partnership, reinstate the Stated Amount
Values set forth in Schedule 1 to the DSR Letter of Credit to the extent of any
repayment or prepayment of the principal amount of any DSR LOC Loan; PROVIDED,
that such reinstatement shall not cause the Stated Amount to exceed the Maximum
Stated Amount as then in effect or (when added to the cash balance in the Debt
Service Reserve Account) to exceed the Debt Service Reserve Required Balance
(with interest calculated as provided for in Section 2.2(a)(i)) as then in
effect.
(d) Notwithstanding the foregoing provisions of this Section
2.7, if a Step-up Event shall have occurred, all outstanding DSR LOC Loans shall
be automatically converted into DSR Term Loans on the date the Collateral Agent
makes the Drawing pursuant to Section 2.4(b), and such DSR Term Loans shall for
purposes of this Agreement be treated as made when so converted.
(e) Each DSR Term Loan shall, in accordance with the
provisions of Exhibit C applicable to DSR Term Loans, (i) amortize and be
payable on successive Scheduled Payment Dates in amounts of principal and
interest computed on a Mortgage Basis, and (ii) finally mature and be due and
payable on the applicable DSR Term Loan Required Payment Date in the amount of
remaining principal thereof and accrued interest thereon. Payments of DSR Term
Loans shall not give rise to a reinstatement of the Stated Amount of the DSR
Letter of Credit.
(f) [reserved]
(g) If a Bond Conversion Event shall have occurred, then from
and after the date such Bond Conversion Event occurs, the Agent may, subject to
the approval of the Required Banks and upon 15 Business Days' prior written
notice to the Partnership and the other Senior Parties, convert any such DSR LOC
Loan into a substitute security (such converted DSR LOC Loan, a "DSR BOND"), the
interest and principal of which shall be payable at the same level of priority
as the Bonds. The Partnership shall pay the entire remaining principal amount of
such DSR Bond in accordance with Section 3.3 of the Collateral Agency Agreement.
(h) Each DSR Bond shall, in accordance with the provisions of
Exhibit C applicable to DSR Bonds, (x) amortize and be payable on successive
Scheduled Payment Dates in amounts of principal (proportionate in amount to the
amount of the Bonds being paid) and interest computed on the same amortization
schedule as the Bonds and (y) finally mature and be due and payable on the Final
Maturity Date in the amount of remaining principal thereof and interest accrued
thereon. Payments of DSR Bonds shall not give rise to a reinstatement of the
Stated Amount of the DSR Letter of Credit.
SECTION 2.8 PREPAYMENTS. The Partnership may, at any time and from time
to time on any Business Day, upon prior written notice to the Agent not later
than 11:00 a.m. (New York City time), at least one Business Day before the day
of any prepayment of the DSR LOC Loans, such notice stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Partnership shall, prepay without premium or penalty, except as provided
13
in Section 2.6(c), the outstanding principal amounts of the DSR LOC Loans in
whole or in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid. DSR Term Loans and DSR Bonds shall be prepaid
ratably with the Bonds in the event the Bonds are prepaid provided that in the
event that a LOC Sweep Notice shall have been given, the DSR Term Loans may be
prepaid in accordance with Section 3.3(c) of the Collateral Agency Agreement.
All prepayments made hereunder shall be applied by the Agent and the
Banks against the installments of principal amount of outstanding DSR Loans of a
particular class (i.e., DSR LOC Loans, DSR Term Loans or DSR Bonds), in inverse
order of maturity; such prepayments shall first be applied to the prepayment of
outstanding Base Rate Loans of a particular class (i.e., DSR LOC Loans, DSR Term
Loans or DSR Bonds) to the extent thereof and then to the prepayment of
outstanding Eurodollar Rate Loans of such class.
SECTION 2.9 SECURITY. The Obligations shall be secured by the Security
Documents, the rights and remedies in respect of which shall be exercised
pursuant to the Collateral Agency Agreement.
SECTION 2.10 PAYMENTS. (a) The Partnership shall make each payment
hereunder not later than 10:00 a.m. (New York City time), on the day when due to
the Agent at its address set forth in Section 9.2, in Dollars in immediately
available funds. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal (including reimbursement of
Drawings), interest or fees ratably (other than amounts payable for the account
of the Issuing Bank pursuant to Section 2.5(a), which shall be payable solely to
the Issuing Bank, or payable pursuant to Section 9.4) to the Banks and like
funds relating to the payment of any other amount payable to any Bank, to such
Bank, in each case to be applied in accordance with the terms of this Agreement.
The Agent may withhold from any interest payment to any Bank an amount equal to
any applicable withholding tax (including upon the failure of any Bank to
provide the forms or other documentation required under Section 2.17(f)).
(b) Unless the Agent receives notice from the Partnership
before the date on which any payment is due to the Banks hereunder that the
Partnership will not make such payment in full, the Agent may assume that the
Partnership has made such payment in full to the Agent on such date, and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due to such Bank. If
and to the extent that the Partnership has not so made such payment in full to
the Agent on the date on which such payment is due, each Bank agrees,
irrevocably and without qualification or exception, to repay to the Agent
forthwith on demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date on which such Bank repays such amount to the Agent, at the
Federal Funds Rate.
(c) All payments made by the Partnership to each of the Banks
and the Agent under this Agreement will be made without set-off, counterclaim or
other defense.
SECTION 2.11 COMPUTATION OF INTEREST AND FEES. All computations of
interest hereunder for Eurodollar Rate Loans shall be made on the basis of a
year of 360 days and for
14
Base Rate Loans shall be made on the basis of a year of 365/366 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest or fees are payable.
Each calculation and each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.12 PREPAYMENTS ON NON-BUSINESS DAYS. Whenever any payment
hereunder is stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
fees, as the case may be. If no due date is specified for the payment of any
amount payable by the Partnership hereunder, such amount shall be due and
payable not later than 10 Business Days after receipt by the Partnership of
written demand from the Agent for payment thereof.
SECTION 2.13 SHARING OF PAYMENTS, ETC. (a) Each Bank agrees that if, as
a result of the exercise of a right of set-off, banker's lien or counterclaim or
other similar right or the receipt of a secured claim it receives any payment in
respect of the DSR Loans or other Obligations hereunder it shall promptly notify
the Agent thereof (and the Agent shall promptly notify the other Banks). If, as
a result of such payment, such Bank receives a greater percentage of the
Obligations owed to it under this Agreement than the percentage received by any
other Bank, such Bank shall purchase a participation (which it shall be deemed
to have purchased simultaneously upon the receipt of such payment) in the
Obligations then held by such other Banks so that all such recoveries of
principal and interest with respect to all Obligations owed to each Bank shall
be pro rata on the basis of its respective amount of such Obligations owed to
all Banks; PROVIDED, that if all or part of such proportionately greater payment
received by such purchasing Bank is thereafter recovered by or on behalf of the
Partnership from such Bank, such purchase shall be rescinded and the purchase
price paid for such participation shall be returned to such Bank to the extent
of such recovery, but without interest.
(b) Each Bank which receives a secured claim as described in
subsection (a) above shall, to the extent practicable, exercise its rights in
respect of such secured claim in accordance with such subsection (a) and
otherwise in a manner consistent with the rights of the Banks entitled under
this Section 2.13 to share in the benefits of any recovery on such secured
claim.
(c) The Partnership expressly consents to the foregoing
arrangements and agrees that any holder of a participation in any Obligation so
purchased or otherwise acquired of which the Partnership has received notice may
exercise any and all rights of set-off, banker's lien or counterclaim with
respect to any and all monies owing by the Partnership to such holder as fully
as if such holder were a holder of such Obligation in the amount of the
participation held by such holder.
SECTION 2.14 EVIDENCE OF DEBT. (a) The indebtedness of the Partnership
resulting from all DSR Loans shall be evidenced by this Agreement.
(b) The books and accounts of the Agent shall be conclusive
evidence, absent manifest error, of the amounts of all Drawings, DSR Loans,
fees, interest and other amounts advanced, due, outstanding, payable or paid
pursuant to this Agreement.
15
SECTION 2.15 INCREASED COSTS AND REDUCED RETURNS. (a) If, on or after
the date hereof, the adoption of any Applicable Law, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Agent or any Bank with any request
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) shall subject the Agent or such Bank to any tax,
duty or other charge (other than routine examination fees or Taxes)
with respect to the Eurodollar Rate Loans or its obligation to make or
continue Eurodollar Rate Loans, or shall change the basis of taxation
of payments to the Agent or any Bank of the principal of or interest on
its Eurodollar Rate Loans or any other amounts due under this Agreement
in respect of its Eurodollar Rate Loans or its obligation to make or
continue DSR Loans or Eurodollar Rate Loans (except for changes in the
rate of tax on the net income of the Agent or such Bank imposed by the
federal, state or local jurisdiction in which the Agent's or such
Bank's principal executive office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including any such requirement
imposed by the Board of Governors of the Federal Reserve System, but
excluding with respect to any Eurodollar Rate Loan any such requirement
provided in Section 2.17(b), against assets of, deposits with or for
the account of, or credit extended by, the Agent or any Bank or shall
impose on the Agent or any Bank or on the London interbank market any
other condition affecting the Eurodollar Rate Loans or its obligation
to advance Eurodollar Rate Loans;
and the result of any of the foregoing is to increase the cost to the Agent or
such Bank of making or continuing any Eurodollar Rate Loan or to reduce the
amount of any sum received or receivable by the Agent or such Bank under this
Agreement with respect thereto by an amount deemed by the Agent or such Bank to
be material, then, the Agent, or such Bank through the Agent, shall deliver to
the Partnership as promptly as practicable a certificate setting forth in
reasonable detail the additional amounts that the Agent or such Bank, as the
case may be, determines will fully compensate it for such reduction, increased
cost or payment and the basis for the determination of such amount; PROVIDED,
that the Partnership shall not be obligated to compensate the Agent or any Bank
for the amount of such increased cost incurred with respect to a period of time
prior to the date which is 90 days before the date on which the Agent first
notifies the Partnership of a claim for such compensation or that an event had
occurred which will entitle the Agent or a Bank to such compensation. Any such
amount claimed by the Agent or any Bank shall, in the case of clause (i) above,
be net of applicable tax savings, if any, directly attributable thereto. Within
15 Business Days after demand by the Agent, the Partnership shall pay to the
Agent, for its account or for the account of the applicable Bank, as the case
may be, such additional amount shown as due on any such certificate, absent
manifest error.
(b) In the event that the Agent or any Bank shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding on all the parties hereto) at any time that the Agent or such Bank is
required to maintain reserves in respect of Eurocurrency Liabilities during any
period during which any DSR Loan owing to it bears interest based on the
Eurodollar Rate (each such period, for the Agent or such Bank, a "EUROCURRENCY
16
RESERVE PERIOD"), but only in respect of any period during which any reserve
shall actually be maintained by the Agent or such Bank for any Eurodollar Rate
Loan as a result of a reserve requirement applicable to it under Regulation D in
connection with Eurocurrency Liabilities, then the Agent, or such Bank through
the Agent, shall promptly give notice to the Partnership of such determination,
and the Partnership shall directly pay to the Agent, for its account or for the
account of the applicable Bank, as the case may be, additional interest on the
unpaid principal amount of such DSR Loan during such Eurocurrency Reserve Period
at a rate PER ANNUM which shall, during each monthly period applicable to such
DSR Loan, be the amount by which (x) the Eurodollar Rate for such monthly period
divided (and rounded upward to the next whole multiple of 1/100 of 1%) by a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including any marginal, emergency, supplemental, special or other
reserves) applicable to the Agent or such Bank in respect of Eurocurrency
Liabilities exceeds (y) the Eurodollar Rate for such monthly period. The Agent,
or such Bank through the Agent, shall furnish along with such notice a
certificate setting forth in reasonable detail the cost actually incurred to
maintain such reserves and the basis for the determination of such amount;
PROVIDED, that the Partnership shall not be obligated to compensate the Agent or
any Bank for the amount of such increased cost incurred with respect to a period
of time prior to the date which is 90 days before the date on which the Agent
first notifies the Partnership of a claim for such compensation or that an event
has occurred which will entitle the Agent or a Bank to such compensation.
Additional interest payable pursuant to the immediately preceding sentence shall
be paid by the Partnership at the time that it is otherwise required to pay
interest in respect of such DSR Loan, or, if later demanded by the Agent or any
Bank, promptly on demand. Each of the Agent and the Banks agrees that, if notice
is given to the Partnership of the existence of a Eurocurrency Reserve Period,
the Agent, or the applicable Bank through the Agent, shall promptly notify the
Partnership of any termination thereof, at which time the Partnership shall
cease to be obligated to pay additional interest to the Agent or such Bank
pursuant to the first sentence of this paragraph until such time, if any, as a
subsequent Eurocurrency Reserve Period shall occur.
(c) The Agent, and each Bank through the Agent, will promptly
notify the Partnership of any event of which it has knowledge, occurring after
the date hereof, which will entitle the Agent or such Bank to compensation
pursuant to this Section and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of the Agent or such Bank, be otherwise
disadvantageous to the Agent or such Bank.
SECTION 2.16 CAPITAL ADEQUACY. If the Agent or any Bank shall determine
that, after the date hereof, the adoption of any Applicable Law regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of the Agent or such Bank or
its holding company as a consequence of the Agent's or such Bank's obligations
hereunder to a level below that which the Agent or such Bank could have achieved
but for such adoption, change, request or directive (taking into consideration
its policies with respect to capital adequacy) by an amount deemed by the Agent
or such Bank to be material, then the Agent, or such Bank through the Agent,
shall deliver to the Partnership as promptly as practicable (but in no event
later than 120 days after the
17
Agent or such Bank has actual knowledge of such claim for capital adequacy) a
certificate setting forth in reasonable detail the amount being charged by the
Agent or such Bank and the basis for the determination of such amount. Within 15
Business Days after the delivery of such certificates by the Agent, the
Partnership shall pay to the Agent, for its account or for the account of the
applicable Bank, as the case may be, the amount shown as due on any such
certificate.
SECTION 2.17 TAXES. (a) Payments by the Partnership to the Agent and
the Banks under this Agreement will be made free and clear of and without
deduction for Taxes, other than Taxes based on the net income of the Agent or
any Bank (including franchise taxes imposed in lieu of net income taxes) imposed
by (i) the United States federal government, (ii) the jurisdiction where the
Agent or such Bank is organized or has its principal office or (iii) the
jurisdiction of the branch of such Bank maintaining any DSR Loan or the branch
of the Agent through which it renders its services as the Agent ("EXCLUDED
TAXES"). If the Partnership is required by law to deduct Taxes (other than
Excluded Taxes) from such a payment, then the sum payable under the instrument
to which the payment relates will be increased so that such deduction does not
result in a diminution in the amount the Agent or any Bank actually receives.
(b) To the extent permitted by law, without duplication of
amounts paid by the Partnership under Section 2.17(a), the Partnership hereby
indemnifies and holds harmless the Agent and each Bank from and against, and
agrees to reimburse the Agent and each Bank on an after-tax basis (computed
taking into account any deductions or other benefits available for federal
income tax purposes for the Agent or such Bank if it is a United States taxpayer
and any deductions and benefits available for income tax purposes in any
jurisdiction in which the Agent or such Bank is a taxpayer) on demand for, any
and all Taxes paid or incurred by the Agent or such Bank in connection with the
transactions contemplated by this Agreement; PROVIDED, HOWEVER, that the
foregoing indemnity does not cover Excluded Taxes. Reimbursement on an
"after-tax basis" means on a basis such that the Agent or such Bank is made
whole after taking into account income taxes that the Agent or such Bank will
owe on the indemnity or reimbursement payment in any jurisdiction and any
related tax benefits, assuming the Agent or such Bank is subject to income taxes
at the highest marginal rates. Nothing in this paragraph shall interfere with
the right of the Agent or any Bank to arrange its tax affairs in whatever manner
it thinks fit and, in particular, the Agent and the Banks are under no
obligation to claim a deduction or other benefit relating to these transactions
ahead of any other claim, relief, credit, deduction or other benefit to which it
is entitled. The Agent, or applicable Bank through the Agent, shall promptly
give written notice to the Partnership office (but in no event later than 60
days) the Agent or such Bank has actual knowledge of the imposition of any Taxes
subject to indemnification hereunder; PROVIDED, HOWEVER, that failure to give
such notice within such 60 day period will not relieve the Partnership of the
obligation to indemnify the Agent or such Bank in accordance with the terms
hereof, except to the extent of interest that would have been avoided had the
notice been given prior to the end of such 60-day period.
(c) The Partnership will provide evidence that all Taxes
imposed on payments under this Agreement or any DSR Loan have been fully paid to
the appropriate authorities by delivering official receipts or notarized copies
to the Agent within 15 Business Days after payment. The Partnership will
compensate the Agent or any Bank that has to pay any Taxes because the
Partnership failed to timely furnish such evidence; PROVIDED, that prior to
paying
18
such Taxes, the Agent, or such Bank through the Agent, shall have notified the
Partnership of its intent to make such payment.
(d) If the Partnership so requests promptly in writing after
receipt of any notice under Section 2.17 hereof, the Agent or applicable Bank
will contest in good faith the Taxes at the Partnership's expense, keep the
Partnership fully informed about the progress of the contest, consult in good
faith with the Partnership's counsel regarding conduct of the contest, and not
compromise or otherwise settle the contest without the Partnership's consent
(which shall not be unreasonably withheld or delayed); PROVIDED, that the Agent
or such Bank may in its sole discretion select the forum for the contest and
determine whether the contest will be by resisting payment of the Taxes or by
paying the Taxes and seeking a refund; PROVIDED, FURTHER that the Agent or such
Bank will be under no obligation to contest unless (A) if the Agent or such Bank
requests, the Partnership has provided the Agent or such Bank an opinion of
independent tax counsel selected by the Partnership and reasonably acceptable to
the Agent or such Bank to the effect that there is a reasonable basis for the
contest, (B) the amount in controversy is at least $75,000, (C) the Agent or
such Bank has received satisfactory indemnification and security for any
liability, loss, cost or expense arising out of the contest (including, but not
limited to, all reasonable legal and accounting fees and expenses, penalties,
interest and additions to tax), (D) if requested by the Agent or such Bank, the
Partnership has admitted in writing its duty to indemnify the Agent or such Bank
for the Taxes if the contest is lost (but such admission shall not preclude the
Partnership from raising a defense to liability if a court of competent
jurisdiction has rendered a decision articulating the cause of such Taxes, and
the cause is not one for which the Partnership is responsible under this Section
2.17), and (E) if the contest is conducted in a manner that requires paying all
or part of the Taxes, the Partnership has paid the amount required.
(e) If the Partnership so requests within 10 days of notice to
the Partnership of the imposition of any Taxes on payments to any of the Banks
of a type not generally imposed on United States or foreign lenders making
advances of the types contemplated hereunder, such Banks shall (consistent with
legal and regulatory restrictions) comply with Section 2.19 hereof.
(f) At such times as may be required by Applicable Law or as
the Agent or the Partnership may reasonably request, each Bank agrees that it
will deliver to the Agent and the Partnership duly completed forms of any
applicable jurisdiction or other documentation reasonably satisfactory to the
Agent and the Partnership that such Bank is entitled to receive payments under
this Agreement without deduction or withholding of income tax under the
Applicable Law of such jurisdiction. Each Bank further agrees to notify the
Agent and the Partnership of the occurrence of any event (including any change
in treaty, law or regulation) that would render such Bank unable to receive
payments hereunder without such deduction or withholding.
SECTION 2.18 ILLEGALITY. If, on or after the date of this Agreement,
the adoption of any Applicable Law, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Agent or any Bank with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency shall make it unlawful or impossible for the
Agent
19
or such Bank to make, continue or convert its Eurodollar Rate Loans, the Agent,
or such Bank through the Agent, shall so notify the Partnership, whereupon until
the Agent, or such Bank through the Agent, notifies the Partnership that the
circumstances giving rise to such suspension no longer exist, the obligation of
the Agent or such Bank to make or continue Eurodollar Rate or convert
outstanding DSR Loans into Eurodollar Rate Loans, shall be suspended. Before
giving any notice to the Partnership pursuant to this Section, the Agent or
applicable Bank shall designate a different lending office for the Eurodollar
Rate Loans if such designation will avoid the need for giving such notice and
will not, in the sole judgment of the Agent or such Bank, be otherwise
disadvantageous to the Agent or such Bank. If such notice is given, each
Eurodollar Rate Loan of the Agent or such Bank then outstanding shall either (i)
be converted to a Base Rate Loan on the last day of the then current Interest
Period applicable to such Eurodollar Rate Loan if the Agent or such Bank may
lawfully make or continue such DSR Loan to such day, or (ii) be immediately
converted to a Base Rate Loan if the Agent or such Bank shall determine that it
may not lawfully continue to make or continue such DSR Loan to such day;
PROVIDED, that the Partnership shall not be obligated to make any payment
pursuant to Section 2.6(c) as a result of such conversion. If the Partnership so
requests within 10 days of receipt of the notice referred to above, the
applicable Bank shall (consistent with legal and regulatory restrictions) comply
with Section 2.19 hereof.
SECTION 2.19 REDUCTION IN COMMITMENTS/REIMBURSEMENTS. The Partnership
shall have the right to refinance the Commitments and any outstanding DSR Loans,
if any, without premium or penalty, except as provided in Section 2.6(c), upon
at least 10 Business Days' prior written notice to the Agent.
SECTION 2.20 RIGHT OF SET-OFF. Subject to the terms and conditions of
the Collateral Agency Agreement, the Partnership hereby authorizes each Bank (in
addition to, and without limitation of, any right of set-off, banker's lien or
counterclaim a Bank may otherwise have), upon the occurrence and during the
continuance of any Event of Default, at any time and from time to time, without
notice to the Partnership or any Person other than the Collateral Agent (any
such notice being hereby expressly waived by the Partnership to the extent it
may legally do so) to set off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held, and
other indebtedness at any time owing, by such Bank in any of its offices,
wherever located (whether such deposits or indebtedness be in dollars or in any
other currency), to or for the credit or the account of the Partnership against
any and all of the Obligations and liabilities of the Partnership now or
hereafter existing under this Agreement, irrespective of whether or not such
Bank shall have made any demand hereunder or thereunder and although such
Obligations may be contingent or unmatured.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS PRECEDENT TO CLOSING DATE. The occurrence of the
Closing Date is subject to satisfaction or waiver of the following conditions
precedent:
(a) issuance of the bonds;
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(b) the Agent shall have received the following, each dated on
or before the Closing Date, in form and substance satisfactory to the Agent
(i) the Indenture, the Common Agreement and the
Collateral Agency Agreement each duly executed by the parties thereto;
(ii) this Agreement duly executed by the Partnership;
(iii) an original of each of the Security Documents, duly
executed by the parties thereto;
(iv) written opinions of counsel covering such matters as
the Agent may reasonably request; and
(v) evidence reasonably satisfactory to the Agent that
all actions necessary or appropriate in order to effectively establish,
create or perfect the Security Interest have been duly taken.
(c) receipt by the Issuing Bank of a copy of the report of the
Independent Engineer in form and substance reasonably satisfactory to the Agent;
(d) receipt by the Issuing Bank of a copy of the Market Study
in form and substance reasonably satisfactory to the Agent; and
(e) payment by the Partnership of all accrued fees and
expenses (as provided in Sections 2.5 and 9.4) of the Agent and the Banks
(including the reasonable accrued fees and disbursements of counsel to the Agent
and the Banks), to the extent that one or more statements for such fees and
expenses have been presented for payment.
SECTION 3.2 CONDITIONS PRECEDENT TO ISSUE DATE. The DSR Letter of
Credit shall be issued by the Issuing Bank and immediately thereafter shall be
available for drawing on June 1, 2002. The obligation of the Issuing Bank to
issue the DSR Letter of Credit shall be subject to no conditions other than the
occurrence of June 1, 2002.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF PARTNERSHIP. The
Partnership hereby makes for the benefit of the Agent and the Banks all of the
representations and warranties of the Partnership contained in Article IV of the
Common Agreement (which representations and warranties are incorporated by
reference herein as if fully set forth herein together with all related
definitions and which representations and warranties shall be true and correct
as of the date hereof and the Closing Date).
SECTION 4.2 REPRESENTATIONS AND WARRANTIES OF THE ISSUING BANK. The
Issuing Bank represents and warrants to the Partnership as of the Closing Date
that:
21
(a) The Issuing Bank is duly formed, validly existing and in
good standing under the laws of its jurisdiction of organization.
(b) The Issuing Bank has all necessary power and authority to
execute and deliver, and to perform its obligations under this Agreement, and
when issued, the DSR Letter of Credit.
(c) All action on the part of the Issuing Bank that is
required for the authorization, execution and delivery of, and performance by
the Issuing Bank of its obligations under this Agreement, and when issued, the
DSR Letter of Credit has been duly and effectively taken.
(d) This Agreement constitutes, and the DSR Letter of Credit
upon the issuance thereof will constitute, the legal, valid and binding
obligations of the Issuing Bank, enforceable against the Issuing Bank in
accordance with the respective terms thereof, except to the extent limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
liquidation, moratorium and other laws affecting creditors' rights generally, by
equitable principles (whether considered a proceeding in equity or at law).
ARTICLE V
COVENANTS
SECTION 5.1 COVENANTS. So long as any Commitment is in effect, the DSR
Letter of Credit is outstanding or the Obligations remain unpaid, the
Partnership shall observe and perform all of the covenants of the Partnership
contained in Article V of the Common Agreement (which covenants together with
all related definitions are incorporated herein by reference as if fully set
forth herein.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Each of the following shall constitute
an "Event of Default" under this Agreement so long as the same shall be
continuing:
(a) the Partnership shall fail to pay any amount of principal
due under this Agreement within 5 days after the due date thereof;
(b) the Partnership shall fail to pay any amount due (other
than amounts due pursuant to Section 6.1(a)) under this Agreement within 15 days
after the due date thereof; or
(c) an "Event of Default" under the Indenture shall have
occurred and be continuing.
SECTION 6.2 REMEDIES. Upon the occurrence and during the continuation
of an Event of Default, the Agent shall, at the request of the Required Banks,
take one or more of the
22
following actions: (i) after giving any required notice to the beneficiary of
the DSR Letter of Credit and the lapse of the time period required prior to
termination of the DSR Letter of Credit, terminate the DSR Letter of Credit in
accordance with Section 2.2(e), (ii) declare the Obligations, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, including but not limited to the amount of any and all DSR LOC
Loans which may be made upon a Drawing under the DSR Letter of Credit which
occurs after the date on which the Agent declares such amounts to be due and
payable, but prior to the effective date of a termination of the DSR Letter of
Credit in accordance with Section 2.2(e), whereupon the Obligations, all such
interest and all such amounts shall become and be immediately due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Partnership, (iii) terminate the ability of
the Partnership to cause reinstatement of the Stated Amount through the
reimbursement of Drawings, as contemplated by the terms hereof or (iv) terminate
the ability of the Partnership to continue DSR Loans, as or convert DSR Loans
to, Eurodollar Rate Loans; provided, that the Agent and the Banks shall not have
the right to exercise any other remedy otherwise available to the Agent or any
Bank except in accordance with the provisions of the Collateral Agency
Agreement.
SECTION 6.3 COLLATERALIZATION UPON ACCELERATION OF THE BONDS. In the
event that an Event of Default hereunder results from an "EVENT OF DEFAULT"
under the Indenture and the Trustee accelerates amounts due under the Indenture,
the DSR LOC Provider shall be entitled to require collateralization of the
Maximum Stated Amount by having the Collateral Agent deposit (in a separate
account to be held by the Collateral Agent), at the time that any amounts are
paid to the Trustee in respect of accelerated amounts due under the Indenture,
an amount equal to the amount that would have been disbursed to the Agent at
such time (based on pro rata payment requirements) if Drawings had been made to
the full extent of the Maximum Stated Amount ("DEEMED DSR LOC LOANS") and the
Deemed DSR LOC Loans had been accelerated at the same time as an acceleration
under the Indenture. Upon a Drawing on the DSR Letter of Credit, a portion of
the amount in the separate account equal to such Drawing's proportionate share
of the Maximum Stated Amount shall be transferred by the Collateral Agent to the
Agent for the account of the Banks. The Agent, the Issuing Bank and each Bank
agree that upon termination or expiration of the DSR Letter of Credit, the
Collateral Agent shall become entitled to all amounts in such separate
collateral account that have not been transferred pursuant to the previous
sentence (to the extent of such expiration or termination) for application in
accordance with the provisions of Section 3.18 of the Collateral Agency
Agreement.
ARTICLE VII
CHARACTER OF OBLIGATIONS
SECTION 7.1 OBLIGATIONS ABSOLUTE. The Obligations shall be absolute,
unconditional and irrevocable and shall not be affected or impaired under any
circumstances whatsoever, including the following circumstances:
(a) any lack of validity or enforceability of any provision of
any Project Document or Financing Document;
23
(b) any amendment or waiver of, or any consent to departure
from, any provision of any Project Document or Financing Document;
(c) the existence of any claim, set-off, defense or other
right that the Partnership may have at any time against the beneficiary of the
DSR Letter of Credit (or any Person for whom such beneficiary may be acting),
any Bank, the Agent or any other Person, whether in connection with any Project
Document or Financing Document, the transactions contemplated thereby or any
unrelated transaction;
(d) any statement or signature in any certificate or other
document presented under the DSR Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect, or any such statement being
untrue or inaccurate in any respect whatsoever;
(e) any exchange, release or nonperfection of any Collateral
or other collateral, or any release, amendment or waiver of or consent to
departure from any Project Document, Financing Document or any guaranty, for any
of the Obligations;
(f) payment by the Issuing Bank under the DSR Letter of Credit
against presentation of a draft or certificate that does not comply with the
terms of the DSR Letter of Credit; or
(g) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
SECTION 7.2 LIMITED LIABILITY OF AGENT AND BANKS. As among the
Partnership, the Agent and the Banks (including the Issuing Bank), the
Partnership assumes all risks of the acts or omissions of the beneficiaries of
the DSR Letter of Credit with respect to the use of the DSR Letter of Credit.
Neither the Agent nor any Bank nor any of their respective officers, directors,
employees or agents shall be liable or responsible for (i) the use that may be
made of the DSR Letter of Credit or any acts or omissions of any beneficiaries
of the DSR Letter of Credit in connection with the DSR Letter of Credit; (ii)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted in connection with the DSR 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;
(iii) payment by the Issuing Bank against presentation of any document that does
not comply with the terms of the DSR Letter of Credit, including failure of any
document to bear any reference or adequate reference to the DSR Letter of
Credit; or (iv) any other circumstance whatsoever in making, delaying to make or
failing to make payment under the DSR Letter of Credit; PROVIDED, HOWEVER, that
the Partnership shall have a claim against the Issuing Bank, and the Issuing
Bank shall be liable to the Partnership, to the extent of any direct, as opposed
to consequential, damages suffered by the Partnership that the Partnership
proves were the result of the Issuing Bank's willful misconduct or gross
negligence in paying under the DSR Letter of Credit or the Issuing Bank's
willful or grossly negligent failure to pay under the DSR 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 DSR Letter of Credit (unless the
Issuing Bank in good faith believed itself (based upon an opinion of counsel) to
be prohibited by law or legal authority from making such payment). In
furtherance and not in limitation of the foregoing, the Issuing Bank may accept
any
24
document that appears on its face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
ARTICLE VIII
THE AGENT
SECTION 8.1 AUTHORIZATION AND ACTION. (a) Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Credit Documents (including
enforcement of and collection under any Credit Document or other Project
Document), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks;
PROVIDED, HOWEVER, that the Agent shall not be required to take any action that,
in the Agent's sole judgment, exposes the Agent to personal liability or that is
contrary to any Credit Document or other Project Document or Applicable Law. In
performing its function and duties hereunder as Agent, the Agent shall act
solely as the agent of the Banks and in its capacity as Issuing Bank, the
Issuing Bank shall act solely as issuer of the DSR Letter of Credit, and does
not assume and shall not be deemed to have assumed in either such capacity any
obligation towards or relationship of agency or trust or other fiduciary
relationship with or for the Partnership or any other party to any Project
Document.
(b) Each Bank hereby authorizes the Agent in the name of and
on behalf of such Bank to sign such documents, take all such actions and perform
such obligations that the Agent deems necessary or appropriate to bind each of
the Banks under the Credit Documents and to create, perfect or maintain the
existence or perfected status of any security interest created pursuant to any
such Credit Documents.
SECTION 8.2 AGENT'S RELIANCE, ETC. Neither the Agent nor the Issuing
Bank nor any of its or their directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with any Credit Document or other Project Document, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent and the Issuing Bank (i) may treat any
Bank that has signed an Assignment and Acceptance as the holder of the
applicable portion of the Obligations; (ii) may consult with legal counsel
(including counsel for the Partnership or any Affiliate), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations made in or in connection with any
Credit Document or other Project Document; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Credit Document or other Project Document on the
part of the Partnership or any Affiliate or to inspect the property (including
the books and records) of the Partnership or
25
any Affiliate thereof; (v) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Credit Document or other Project Document or any other instrument or
document furnished pursuant hereto or thereto; and (vi) shall incur no liability
under or in respect of any Credit Document or other Project Document by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier or otherwise) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 8.3 THE AGENT, THE ISSUING BANK AND AFFILIATES. With respect to
its Commitment and participation in the DSR Letter of Credit, the Issuing Bank
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent or the Issuing Bank, as
the case may be; and the term "BANK" or "BANKS" shall, unless otherwise
expressly indicated, include the Agent and the Issuing Bank in their capacity as
a Bank (including the Issuing Bank in its capacity as such). The Agent and the
Issuing Bank and their Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind of business
with, the Partnership, any Affiliate thereof and any Person that may do business
with or own securities of the Partnership or any Affiliate thereof, all as if
the Agent and the Issuing Bank, respectively, were not the Agent and the Issuing
Bank and without any duty to account therefor to the Banks.
SECTION 8.4 BANK CREDIT DECISION. Each Bank agrees that it has,
independently and without reliance on the Agent, the Issuing Bank or any other
Bank and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also agrees that it will, independently and without reliance on the Agent,
the Issuing Bank or any other Bank and based on such documents and information
as it deems appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 8.5 INDEMNIFICATION. The Banks agree to indemnify the Agent and
the Issuing Bank (to the extent not promptly reimbursed by the Partnership and
without limiting the obligation of the Partnership to do so), on demand, ratably
according to such Bank's Percentage Interest, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever that may at
any time (including at any time following the payment of any Obligations or
termination of this Agreement) be imposed on, incurred by or asserted against
the Agent or the Issuing Bank in any way relating to or arising out of any
Credit Document or other Project Document or any action taken or omitted by the
Agent under any Credit Document or other Project Document; PROVIDED, HOWEVER,
that no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting solely from the Agent's gross negligence
or willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any costs and
expenses payable by the Partnership under Section 9.4, to the extent that the
Agent is not reimbursed for such costs and expenses by the Partnership.
SECTION 8.6 SUCCESSOR AGENT. The Agent may resign at any time by giving
30 days prior written notice thereof to the Banks and the Partnership and may be
removed at any time with or without cause with the written approval of the
Required Banks. Upon any such
26
resignation or removal, the Required Banks shall have the right to appoint a
successor Agent with the consent of the Partnership, which shall not be
unreasonably withheld. If no successor Agent has been so appointed by the
Required Banks, and has accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Banks' removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent with the consent of the Partnership (which shall not
be unreasonably withheld), which successor Agent shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Credit
Documents and the other Project Documents. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was agent under this Agreement.
SECTION 8.7 COLLATERAL. (a) Except as expressly provided herein, the
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in respect of the Collateral. The Agent shall
incur no liability as a result of any private sale of the Collateral.
(b) The Banks hereby consent, and agree upon written request
by the Agent to execute and deliver such instruments and other documents as the
Agent may deem desirable to confirm such consent, to the release of the Liens on
the Collateral, including any release in connection with any sale, transfer or
other disposition of the Collateral or any part thereof, in accordance with the
Project Documents.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENT, ETC. No amendment or waiver of any provision of
this Agreement or consent to any departure by the Partnership therefrom, shall
be effective unless in writing and signed or consented to (in writing) by the
Required Banks (and, in the case of amendments, the Partnership), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that (A) no amendment,
waiver or consent shall, unless in writing and signed or consented to (in
writing) by all of the Banks do any of the following: (i) waive any of the
conditions specified in Article 3; (ii) increase the Commitments of the Banks,
extend the term of any Commitment or subject the Banks to any additional
obligations; (iii) reduce the principal of, or interest on, the DSR Loans or any
fees or other amounts payable hereunder; (iv) postpone any date fixed for (a)
payment of principal of, or interest on, any DSR Loans (b) reimbursement of
drawings under the DSR Letter of Credit or (c) payment of fees or other amounts
payable hereunder; (v) change the percentage of the Commitments or the number of
Banks, required for the Banks or any of them to take any action hereunder; or
(vi) amend this Section 9.1; (B) no amendment, waiver or consent shall, unless
in writing or consented to (in writing) by the Issuing Bank, affect the rights
and obligations of the Issuing Bank hereunder; (C) no amendment, waiver or
consent shall, unless in
27
writing and signed by the Agent in addition to the Persons required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any other Credit Document; and (D) any provision that is a part of this
Agreement as a result of an incorporation by reference to the Common Agreement
shall be amended or waived as provided in Section 9.1 of the Collateral Agency
Agreement.
SECTION 9.2 NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing (including by telecopier and shall be mailed,
telecopied or delivered, if to the Partnership, to it at Tenaska Georgia
Partners, L.P., 0000 X. 000xx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000-0000,
Attention: Xxxxxxx X. Xxxxxx, telephone 000-000-0000, telecopier 000-000-0000;
if to any Bank other than the Issuing Bank, to it at the address or telecopier
number set forth below its name in the Assignment and Acceptance by which it
became a party hereto; if to the Agent or the Issuing Bank, to it at The
Toronto-Dominion Bank, 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, Attention: Xxxx
Xxxxx; telephone 000-000-0000, telecopier 000-000-0000, or, as to each party, to
it at such other address or telecopier number as designated by such party in a
written notice to the other parties. All such notices and communications shall
be deemed received, (i) if personally delivered, upon delivery, (ii) if sent by
first-class mail, on the third Business Day following deposit into the mails and
(iii) if sent by telecopier, upon acknowledgment of receipt thereof by the
intended recipient, except that notices and communications to the Agent pursuant
to Article 2 or 8 shall not be effective until received by the Agent.
SECTION 9.3 NO WAIVER, REMEDIES. No failure on the part of any Bank
(including the Issuing Bank) or the Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, and no single
or partial exercise of any such right shall preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
SECTION 9.4 COSTS AND EXPENSES. The Partnership agrees to pay on demand
(i) all reasonable costs and expenses of the Agent and the Banks (including the
Issuing Bank) in connection with the preparation, execution, delivery,
syndication, administration, modification and amendment of this Agreement, the
other Credit Documents, and the other documents to be delivered hereunder,
including (a) the reasonable fees and out-of-pocket expenses of counsel for the
Agent and the Banks with respect thereto and with respect to advising the Agent
and the Banks as to their rights and responsibilities, or the perfection,
protection or reservation of rights or interests, under this Agreement, the
other Credit Documents, the other Project Documents and the other documents to
be delivered hereunder, (b) the reasonable fees and expenses of any consultants,
auditors or accountants engaged by the Agent with the written consent (which
shall not be unreasonably withheld) of the Partnership pursuant hereto, and (ii)
all reasonable costs and expenses of the Agent and the Banks (including the
Issuing Bank) (including reasonable counsel fees and expenses of the Agent and
the Banks) in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the other Credit Documents,
the other Project Documents and the other documents to be delivered hereunder,
whether in any action, suit or litigation, bankruptcy, insolvency or similar
proceeding. In addition, the Partnership shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of the aforementioned documents, and
the Partnership agrees to indemnify and hold the Agent and the
28
Banks (including the Issuing Bank) harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay any of the foregoing.
SECTION 9.5 APPLICATION OF MONEY. If any sum paid or recovered in
respect of the Obligations is less than the amount then due, the Agent may apply
that sum to principal, interest, fees or any other amount due under this
Agreement in such proportions and order and generally in such manner as the
Agent shall reasonably determine.
SECTION 9.6 SEVERABILITY. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
SECTION 9.7 NON-RECOURSE LIABILITY. Satisfaction of the Obligations
shall be had solely from the Collateral. Notwithstanding any provision to the
contrary in the Transaction Documents, there shall be no recourse against any
Affiliates, partners, stockholders, officers, directors, representatives or
employees of the Partnership, other than the Partnership (each a "NON-RECOURSE
PARTY"), for any payment due hereunder or under any other Financing Document or
Security Document from the Partnership or for the performance of any obligation
of such Non-Recourse Party, or breach of any representation or warranty made by
such Non-Recourse Party hereunder or thereunder. The sole recourse of the Agent
and the Banks hereunder or under any other Transaction Document or for the
performance of any obligation of the Partnership, or breach of any
representation or warranty made hereunder or thereunder by the Partnership,
shall be against the Partnership and its assets, it being expressly understood
by the Senior Parties that such obligations of the Partnership are obligations
solely of the Partnership and that no such personal liability shall attach to,
or be incurred by any Non-Recourse Party; PROVIDED, that nothing contained in
this Section 9.7 shall (i) impair in respect of the Partnership the validity of
any Credit Document, as applicable, prevent the taking of any action permitted
by law against the Partnership or any of its Affiliates, or in any way affect or
impair the rights of the Agent and the Banks to take any action permitted by
law, in either case to realize upon the Collateral, (ii) be deemed to release
the Partnership or any of its Affiliates, or any past, present or future
shareholder, partner, officer, employee, director or agent of any thereof, from
liability for its fraudulent actions, fraudulent misrepresentations, gross
negligence or willful misconduct or (iii) limit or affect the obligations and
liabilities of any Non-Recourse Party in accordance with the terms of any other
Transaction Document creating such obligations and liabilities to which such
Non-Recourse Party is a party.
SECTION 9.8 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Partnership, the Agent and the Banks and their
respective successors and assigns, except that the Partnership shall not have
the right to assign any of its rights and obligations hereunder without the
prior written consent of the Required Banks, and, except as
29
provided in Section 9.9, no Bank other than the Issuing Bank shall have the
right to assign any of its rights and obligations hereunder.
SECTION 9.9 ASSIGNMENTS AND PARTICIPATIONS. (a) Any Bank may at any
time (with the consent of the Partnership, such consent not to be unreasonably
withheld or delayed, the consent of the Agent, such consent not to be
unreasonably withheld or delayed, and the consent of the Issuing Bank) sell to
one or more banks or other entities whose long-term unsecured debt is rated at
least "A" or the equivalent by S&P and Xxxxx'x (a "PURCHASING BANK") all or any
part of its rights and obligations under this Agreement (which, except in the
case of an assignment to a Person that, immediately before such assignment, was
a Bank), shall be in an amount equal to not less than 33 1/3% of the Maximum
Stated Amount pursuant to an Assignment and Acceptance, executed by such
Purchasing Bank, such transferor Bank, the Agent and the Issuing Bank (and, in
the case of a Purchasing Bank that is not then a Bank or an Affiliate thereof,
by the Partnership). Upon (i) such execution of such Assignment and Acceptance
and (ii) delivery of a copy thereof to the Partnership and payment of the amount
of its participation to the Agent or such transferor Bank, such Purchasing Bank
shall for all purposes be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank under this Agreement, to the same extent as if
it were an original party hereto with the Percentage Interest as set forth in
such Assignment and Acceptance, which shall be deemed to amend this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Percentage Interests arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement.
(b) Any Bank may, from time to time, sell or offer to sell
participating interests in any DSR Loans owing to 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 Partnership, and the grant of such participation shall not relieve
any Bank of its obligations, or impair the rights of any Bank, hereunder. In the
event of any such sale by a Bank of a participating interest to a Participant,
such Bank shall remain solely responsible for the performance of such Bank's
obligations under this Agreement, the Partnership, the Agent and the Issuing
Bank will continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement and such Bank shall
retain the sole right and responsibility to exercise the rights of such Bank,
and enforce the obligations of the Partnership, including the right to, subject
to Section 9.1, approve any amendment, modification, supplement or waiver of any
provision of any Credit Document and the right to take action under Article 6
hereof, subject to Section 9.1, and such Bank shall not grant any such
Participant any voting rights or veto power over any such action by such Bank
under this Agreement. No Participant shall have any rights under this Agreement
to receive payment of principal, interest or any other amount payable hereunder
except through a Bank and as provided in this Section 9.9. The Partnership
agrees that, upon the occurrence and during the continuance of any Event of
Default, each Participant shall have the right of set-off in respect of its
participating interest in amounts owing under this Agreement as set forth in
Section 2.20 hereof to the same extent as if the amount of its participating
interest was owing directly to it as a Bank under this Agreement. The
Partnership also agrees that each Participant shall be entitled to the benefits
of Sections 2.15, 2.16, 2.17 and 2.18 hereof with respect to its participation
granted hereunder; PROVIDED, that no Participant shall be entitled to receive
any greater amount pursuant
31
to such Sections than the Bank transferring such participation would have been
entitled to receive in respect of the amount of the participation transferred to
such Participant had no such transfer occurred.
(c) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.9, disclose to the Purchasing Bank or Participant or proposed Purchasing Bank
or Participant any information relating to the Partnership furnished to such
Bank by or on behalf of the Partnership; provided, however, that prior to any
such disclosure, the Person receiving such disclosure shall sign such
confidentiality agreements as the Partnership may reasonably request.
SECTION 9.10 INDEMNIFICATION. The Partnership agrees to indemnify, on
demand, and hold harmless the Agent and each Bank (including the Issuing Bank)
and each of their respective officers, directors, employees, agents and
affiliates from and against any and all claims, damages, losses, liabilities,
costs and expenses whatsoever that such indemnified party may incur (or that may
be claimed against such indemnified party by any Person) by reason of (i) any
untrue statement or alleged untrue statement of any material fact concerning the
Partnership or the Collateral, or the omission or alleged omission to state any
fact concerning the Partnership or the Collateral necessary to make any such
statement, in light of the circumstances under which it was made, not
misleading; (ii) the issuance, sale or delivery of the Senior Debt; (iii) the
use of the proceeds of the Senior Debt or any Drawing; (iv) any reasonable
action taken by such indemnified party in protecting and enforcing the rights
and remedies of the Agent and the Banks under the Project Documents; (v) subject
to Section 7.2, the execution, delivery or transfer of, or payment or failure to
pay under, the DSR Letter of Credit; (vi) any claim of any Person with respect
to any finder's fee, brokerage commission or other similar sum due in connection
with any Project Document; or (vii) any failure by the Partnership to comply
with any Environmental Laws; PROVIDED, HOWEVER, that the Partnership shall not
be required to indemnify the Issuing Bank for any claims, damages, losses,
liabilities, costs or expenses to the extent caused by the Issuing Bank's
willful misconduct or gross negligence in paying under the DSR Letter of Credit
or the Issuing Bank's willful or grossly negligent failure to pay under the DSR
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 DSR Letter
of Credit (unless the Issuing Bank in good faith believed itself (based upon an
opinion of counsel) to be prohibited by law or legal authority from making such
payment). The Partnership, upon demand by any party indemnified or intended to
be indemnified pursuant to this Section 9.10 at any time, shall also reimburse
such party for any reasonable legal or other expenses incurred in connection
with investigating or defending against any of the foregoing. If any action,
suit or proceeding arising from any of the foregoing is brought against any
party indemnified or intended to be indemnified pursuant to this Section 9.10
(an "INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify the
Partnership in writing, enclosing a copy of all papers served, but the omission
so to notify the Partnership of any such action shall not relieve it of any
liability that it may have to any Indemnified Party otherwise than under this
Section 9.10; PROVIDED, HOWEVER, that the Partnership shall not be liable for
any settlement of any such action effected without the Partnership's prior
written consent. In case any such action shall be brought against any
Indemnified Party and it shall notify the Partnership of the commencement
thereof, the Partnership shall be entitled to participate in and,
31
to the extent that it shall wish, to assume the defense thereof with counsel
reasonably satisfactory to such Indemnified Party, and after notice from the
Partnership to such Indemnified Party of the Partnership's election so to assume
the defense thereof, the Partnership shall not be liable to such Indemnified
Party for any subsequent legal or other expenses attributable to such defense,
except as provided below, other than reasonable costs of investigation
subsequently incurred by such Indemnified Party in connection with the defense
thereof. The Indemnified Party shall have the right to employ its own counsel in
any such action, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the employment of counsel by such
Indemnified Party has been authorized by the Partnership, (ii) the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Partnership and the Indemnified Party in the conduct of the defense
of such action (in which case the Partnership shall not have the right to direct
the defense of such action on behalf of the Indemnified Party) or counsel for
the Partnership shall have declined to represent the Indemnified Party in light
of a potential conflict of interest or (iii) the Partnership shall not in fact
have employed counsel reasonably satisfactory to the Indemnified Party to assume
the defense of such action.
SECTION 9.11 GOVERNING LAW; SUBMISSION OF JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES UNDER THIS
AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ANY LEGAL ACTION OR PROCEEDING AGAINST THE PARTNERSHIP WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX
XX XXX XXXX IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
PARTNERSHIP HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. THE PARTNERSHIP HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND
EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 000 XXXXXX
XXXXXX, 00XX XXXXX, XXX XXXX, XX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT
WITH RESPECT TO ANY ACTION OR PROCEEDING IN NEW YORK TO RECEIVE ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING AND
AGREES THAT THE FAILURE OF SUCH AGENT TO GIVE ANY ADVICE OF ANY SUCH SERVICE OF
PROCESS TO THE PARTNERSHIP SHALL NOT IMPAIR OR AFFECT THE VALIDITY OF SUCH
SERVICE OR OF ANY CLAIM BASED THEREON. IF FOR ANY REASON SUCH DESIGNEE,
APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE PARTNERSHIP
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE
TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT. THE
PARTNERSHIP FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
PARTNERSHIP AT ITS ADDRESS
33
SET FORTH IN SECTION 9.2, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING.
(b) THE PARTNERSHIP HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN SECTION 9.11(a) ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THIS AGREEMENT OR THE CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 9.12 HEADINGS. The section and subsection headings used herein
have been inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
SECTION 9.13 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
TENASKA GEORGIA PARTNERS, L.P.,
by Tenaska Georgia, Inc.,
its Managing General Partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
PERCENTAGE INTEREST
___________________ THE TORONTO-DOMINION BANK,
as Agent, the Issuing Bank and as a Bank
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager Credit
EXHIBIT A
FORM OF DEBT SERVICE RESERVE LETTER OF CREDIT
The Toronto-Dominion Bank Letter of Credit No. [__________]
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Irrevocable Standby Credit
Date and Place of Issue: Date and Place of Expiry:
New York, New York The Toronto-Dominion Bank,
[__________] New York, New York
[seven years from Closing Date], as
the same may be extended from time
to time in accordance with the terms
hereof
Applicant:
Tenaska Georgia Partners, L.P.
Amount: Up to an aggregate of
[__________] United States Dollars
(US$ [________])
Beneficiary:
The Chase Manhattan Bank, as Collateral Agent Credit Available With:
Capital Markets Fiduciary Services The Toronto-Dominion Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx By: Negotiation, Against Presentation of the
Xxx Xxxx, XX 00000 Documents Detailed Herein Drawn on
Attn: Xxxxxxx X. Xxxxxxx The Toronto-Dominion Bank
International & Project Finance Service Delivery
Ladies and Gentlemen:
We irrevocably authorize you to draw on us for the account of the
Applicant up to an aggregate amount of [ ] UNITED STATES DOLLARS (US$ )]
[to be revised in accordance with Section 2.2(a)(i) prior to issuance] or, on
any day, such other amount as shall be specified for such day on Schedule 1
attached to this Letter of Credit (as reinstated from time to time as set forth
in this Letter of Credit, the "STATED AMOUNT") available against presentation
of a dated drawing request drawn on The Toronto-Dominion Bank, manually signed
by an authorized officer of the Beneficiary (who is identified as such)
appropriately completed in the form of Annex 1 hereto.
The above drawing request and all communications with respect to this
Letter of Credit shall be in writing, addressed to us at The Toronto-Dominion
Bank, 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, Attention: Xxxx Xxxxx; telephone
000-000-0000, telecopier 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.
1
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 no later than 3:00 p.m. New York City
time on such Business 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 no
later than 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 on which
commercial banks located in New York, New York are not required or authorized to
remain 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 November 10, 1999, among the Applicant, the
Issuing Bank and the other Banks party thereto and the Issuing Bank, as Agent
(the "REIMBURSEMENT AGREEMENT"), terminate this Letter of Credit by giving the
Beneficiary and The Chase Manhattan Bank, as Trustee (in such capacity, the
"TRUSTEE") under the Indenture referred to in the Reimbursement Agreement,
written notice thereof in the form of Annex 2 hereto by delivery in person or
facsimile transmission (with written confirmation by overnight courier for
receipt by the Beneficiary and the Trustee within two (2) Business Days)
addressed to in the case of the Beneficiary, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxx, International &
Project Finance Service Delivery, telephone no. (000) 000-0000, telecopier no.
(000) 000-0000, and in the case of the Trustee, 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxx, International &
Project Finance Service Delivery, telephone no. (000) 000-0000, telecopier no.
(000) 000-0000, at least sixty (60) days prior to termination whereupon the
Beneficiary is authorized to draw on us prior to such termination the Stated
Amount of this Letter of Credit by presentation to us, in the manner and at the
address specified in the third preceding paragraph, of a drawing request
appropriately completed in the form of Annex 1 hereto and signed by the
Beneficiary's authorized officer.
This Letter of Credit is effective immediately upon and after June 1,
2002. Unless terminated earlier in accordance with the provisions hereof, the
date of expiry set forth hereinabove (the "STATED EXPIRATION DATE") may be
extended for a period of one or more years at the option of the Agent effective
upon the Stated Expiration Date (each expiration date of any extension being
referred to as the "NEW STATED EXPIRATION DATE") upon notice of such extension
given by [the Issuing Bank], to the Beneficiary, the Collateral Agent and the
Trustee by delivery in person or facsimile transmission (with written
confirmation by overnight courier for receipt by the Beneficiary, the Collateral
Agent and the Trustee within two (2) Business Days) addressed to in the case of
the Beneficiary, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxxxxx X. Xxxxxxx, International & Project Finance Service Delivery,
and in the case of the Trustee, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxx, International & Project Finance
Service Delivery on or before the date that is forty-five (45) days prior to the
Stated Expiration Date or any such New Stated Expiration Date which notice of
extension shall have attached to it a revised Schedule 1, to be attached to
2
this Letter of Credit, setting forth the Stated Amount Values (as defined in the
Reimbursement Agreement) for each day of the term of this Letter of Credit
(including any reductions effected pursuant to a Certificate in the form of
Annex 5, but not including any reductions or reinstatements effected pursuant to
a Certificate in the form of Annex 4) for the period from and including the
effective date of the extension, to and including the New Stated Expiration
Date.
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 3 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 Section 2.7(c) of the Reimbursement Agreement and we shall so
advise the Beneficiary in a certificate in the form of Annex 4 hereto. The
Stated Amount shall be reduced as provided in Section 2.7(b) of the
Reimbursement Agreement. In addition, the Stated Amount Values in Schedule 1 to
this Letter of Credit shall be reduced as provided in Section 2.2(c) of the
Reimbursement Agreement to the extent that we so advise the Beneficiary pursuant
to a certificate in the form of Annex 5 hereto.
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 [the Issuing Bank], Letter of Credit No. [ ]
dated __________ __, 20 ."
3
This Letter of Credit shall not be amended except with the
written concurrence of The Toronto-Dominion Bank, 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 International Standby Practices
(ISP98). 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
International Standby Practices (ISP98), 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.
THE TORONTO-DOMINION BANK,
By:
-----------------------
Authorized Signature
4
ANNEX 1
DRAWING REQUEST
[Date]
"Drawn under [the Issuing Bank],
Letter of Credit No. [ ] Irrevocable Standby Letter of Credit
dated __________ __, 200_."
[The Issuing Bank]
[Address]
[Address]
Attn:___________________
Ladies and Gentlemen:
The undersigned hereby draws on [the Issuing Bank], Letter of Credit
No. [ ] Irrevocable Standby Letter of Credit (the "LETTER OF CREDIT"), dated
__________ __, 200_, 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 [the
Issuing Bank], Letter of Credit No. [ ] Irrevocable Standby Letter of Credit
issued to The Chase Manhattan Bank pursuant to Section 3.6 of the Collateral
Agency and Intercreditor Agreement, dated as of November 1, 1999, by and among
the Partnership, The Chase Manhattan Bank, as Trustee, Collateral Agent and
Depositary Bank, and The Toronto-Dominion Bank, as DSR LOC Agent, and PPA LOC
Agent (as the same may be amended, supplemented or modified from time to time,
the "COLLATERAL AGENCY AGREEMENT")"; and
(B) "The date of this Drawing is June 1, 2002 or later"; and
[Use one or more of the following forms of paragraph C, as applicable]
[(C) "After application of funds from the Debt Service Reserve Account, there
are insufficient monies in the Bond Payment Account, on the Scheduled Payment
Date occurring ________20__ to pay the [interest] [and] [principal] due on the
Bonds on such date (each capitalized term being used as defined in the Common
Agreement)";]
or
[(C) "The long-term debt rating of [the Issuing Bank] has fallen below "A-" as
determined by Standard & Poor's and "A3" as determined by Xxxxx'x (the "Required
Rating"), and the
5
Partnership has failed within 45 days to deliver a replacement letter of credit
from a financial institution which meets the Required Rating";]
or
[(C) "You have delivered to us notice that the Letter of Credit will not be
extended or replaced upon its stated expiry date of [insert Stated Expiration
Date or New Stated Expiration Date, as applicable] and the Partnership has
failed to deliver no later than 45 days prior to such stated expiry date a
replacement letter of credit from a financial institution with a long-term debt
rating of "A-" as determined by Standard & Poor's and "A3" as determined by
Xxxxx'x (each capitalized term being used as defined in the Common Agreement)";]
or
["(C) "There are insufficient funds available pursuant to Section 3.3(b) of the
Collateral Agency Agreement to repay interest now due and payable on any DSR LOC
Loans made by [the Issuing Bank], in respect of drawings under the [the Issuing
Bank], Letter of Credit No. [ ] Irrevocable Standby Letter of Credit (each
capitalized term being used as defined in the Collateral Agency Agreement)"];
or
[(C) "A Trigger Event has occurred and is continuing and the written request of
the Required Senior Parties has been delivered to the Collateral Agent and not
been rescinded (each capitalized term being used as defined in the Collateral
Agency Agreement)";]
and
(D) "The amount requested to be drawn does not exceed the Stated Amount"; and
(E) "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 _______________, 20__ .
THE CHASE MANHATTAN BANK, as
COLLATERAL AGENT
By:
----------------------------------
Name:
Title:
6
ANNEX 2
NOTICE OF TERMINATION OF LETTER OF CREDIT
[Date]
The Chase Manhattan Bank, as Trustee
Capital Markets Fiduciary Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
The Chase Manhattan Bank, as Collateral Agent
Capital Markets Fiduciary Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Ladies and Gentlemen:
Reference is made to [the Issuing Bank], Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "LETTER OF CREDIT"), dated __________
__, 20__, issued by us in favor of The Chase Manhattan Bank.
This constitutes our notice to you pursuant to the Letter of Credit
that the Letter of Credit shall terminate on ___________, 20__ [insert a date
which is [ ] 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 Stated Amount
(as defined in the Letter of Credit).
Very truly yours,
[THE ISSUING BANK]
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
7
ANNEX 3
TRANSFER OF LETTER OF CREDIT
[Date]
"Delivered under [the Issuing Bank],
Letter of Credit No. [ ]
dated __________ __, 20__."
[The Issuing Bank]
[Address]
Attn: __________________
Gentlemen:
Reference is made to [the Issuing Bank], Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit, dated __________ __, 200_, originally
issued by you in favor of The Chase Manhattan Bank (the "LETTER OF CREDIT"). Any
capitalized terms used, but not defined, herein 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 their entirety.
The Transferee is the successor to the Beneficiary, under the
Collateral Agency Agreement, dated as of November 1, 1999, by and among the
Partnership, The Chase Manhattan Bank, as Trustee, Collateral Agent and
Depositary Bank, and [ ], as DSR LOC Provider, and PPA LOC Provider (as the
same may be amended, supplemented or modified from time to time, the
"COLLATERAL AGENCY AGREEMENT") and all conditions to appointment of such
successor set forth in the Collateral Agency 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.
8
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.
Very truly yours,
THE CHASE MANHATTAN BANK, AS
COLLATERAL AGENT
By:
----------------------------------
Name:
Title:
9
ANNEX 4
CERTIFICATE OF REINSTATEMENT OF STATED AMOUNT
[Date]
The Chase Manhattan Bank, as Collateral Agent
Capital Markets Fiduciary Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Ladies and Gentlemen:
Reference is made to [the Issuing Bank], Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "LETTER OF CREDIT"), dated __________
__, 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 Collateral Agency and Intercreditor
Agreement, dated as of November 1, 1999, by and among the Partnership, The Chase
Manhattan Bank, as Trustee, Collateral Agent and Depositary Bank, and [ ], as
DSR LOC Provider, and PPA LOC Provider (as the same may be amended, supplemented
or modified from time to time, the "COLLATERAL AGENCY AGREEMENT").
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 DSR LOC Loan in accordance with the
provisions of the Reimbursement Agreement in the amount of $_________, and,
pursuant to Section 2.7(c) of the Reimbursement Agreement, the Stated Amount is
therefore increased by such amount to $___________.
or
We have received payment of a DSR LOC Loan in accordance with the
provisions of the Reimbursement Agreement in the amount of $____________. The
Debt Service Reserve Required Balance (as defined in the Common Agreement) has
been previously reduced. Accordingly, the Stated Amount is hereby increased by
$___________ to $__________ to the extent that such increase shall not cause the
Stated Amount (when added to the balance in the
10
Debt Service Reserve Account (as defined in the Common Agreement)) to exceed the
Debt Service Reserve Required Balance.
Very truly yours,
[The Issuing Bank]
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
11
ANNEX 5
CERTIFICATE OF REDUCTION/INCREASE OF STATED AMOUNT VALUE
[Date]
The Chase Manhattan Bank, as Collateral Agent
Capital Markets Fiduciary Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Ladies and Gentlemen:
Reference is made to [the Issuing Bank], Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "LETTER OF CREDIT"), dated __________
__, 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 Collateral Agency and Intercreditor
Agreement, dated as of November 1, 1999, by and among the Partnership, The Chase
Manhattan Bank, as Trustee, and Depositary Bank, and [ ], as DSR LOC
Provider, and PPA LOC Provider (as the same may be amended, supplemented or
modified from time to time, the "COLLATERAL AGENCY AGREEMENT").
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]
An event specified in Section 2.2(c) of the Reimbursement Agreement has
occurred and, accordingly, each of the Stated Amount Values specified in
Schedule 1 attached to this Letter of Credit is reduced by $______ [insert
amount of DSR LOC Loan being converted into DSR Bond].
OR
The Debt Service Reserve Required Balance (as defined in the Common
Agreement) for each period covered by the Letter of Credit has been
reduced/increased as set forth in the attached Addendum 1. Accordingly, pursuant
to Section 2.2(a)(ii) of the Reimbursement Agreement, each of the Stated Amount
Values specified in Schedule 1 attached to the Letter of Credit is
reduced/increased correspondingly.
12
Attached hereto is a revised Schedule 1, to be attached to the Letter
of Credit, modifying the Stated Amount Values in accordance with this
Certificate.
Very truly yours,
[The Issuing Bank]
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
13
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________, 20__
Reference is made to the Debt Service Reserve Letter of Credit and
Reimbursement Agreement, dated as of [ ] (the "REIMBURSEMENT AGREEMENT"),
among Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"PARTNERSHIP"), the Issuing Bank (as defined in the Reimbursement Agreement),
the Banks (as defined in the Reimbursement Agreement) and the Issuing Bank, as
Agent for the Banks (the "Agent"). Terms defined in the Reimbursement Agreement
are used herein with the same meaning.
_________________ (the "ASSIGNOR") and ___________________ (the
"ASSIGNEE") agree as follows:
(1) The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the percentage interest
specified on Schedule 1 hereto in and to all of the Assignor's rights and
obligations under the Reimbursement Agreement as of the date hereof (after
giving effect to any other assignments thereof made before the date hereof,
whether or not such assignments have become effective, but without giving effect
to any other assignments thereof also made on the date hereof), including,
without limitation, such Percentage Interest in the Assignor's Commitment, each
of the DSR Loans owing to the Assignor and the DSR Letter of Credit. The
Assignee shall pay to the Assignor, at or before 12:00 noon, local time of the
Assignor, on the Effective Date (as defined below), the purchase price therefor
in an amount equal to the Percentage Interest of each of the DSR Loans owing to
the Assignor, as reflected on Schedule 1 hereto, in immediately available funds.
(2) The Assignor (a) represents and warrants that as of the date hereof
its Commitment, each of the DSR Loans owing to it and its participation in the
DSR Letter of Credit (after giving effect to any other assignments of the
foregoing made before the date hereof, whether or not such assignments have
become effective, but without giving effect to any other such assignments also
made on the date hereof) are in the respective dollar amounts specified therefor
on Schedule 1 hereto; (b) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (c) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any of the Credit
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any of the Credit Documents or any other instrument or
document furnished pursuant thereto; and (d) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Partnership or the performance or observance by the Partnership or any other
Person of any of its obligations under any of the Credit Documents or any other
instrument or document furnished pursuant thereto.
(3) The Assignee (a) confirms that it has received copies of the Credit
Documents and such other documents and information as it has deemed appropriate
to make its own credit
1
analysis and decision to enter into this Assignment and Acceptance, including
such documents evidencing satisfaction of the conditions precedent set forth in
the Reimbursement Agreement; (b) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Bank (including the Issuing
Bank) and based on such documents and information as it may deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Reimbursement Agreement; (c) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Documents as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; (d) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Reimbursement Agreement are required to be performed by it as a Bank; and
(e) specifies as its address for notices the address set forth beneath its name
on Schedule 1 hereto.
(4) Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance and
recording by the Agent in the Register maintained by the Agent for such purpose.
The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Agent, unless otherwise specified on Schedule 1 hereto
(the "EFFECTIVE DATE").
(5) Upon such acceptance and recording by the Agent, as of the
Effective Date (a) the Assignee shall be a party to the Reimbursement Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Bank thereunder and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Reimbursement Agreement.
(6) Upon such acceptance and recording by the Agent, from and after the
Effective Date the Agent shall make all payments under the Reimbursement
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and the Assignee shall make all appropriate
adjustments directly between themselves in respect of payments of principal,
interest and/or fees under the Reimbursement Agreement for periods before the
Effective Date.
(7) Each of the Assignor and the Assignee agrees that at any time and
from time to time upon the written request of the other party, it will execute
and deliver such further documents and do such further acts and things as the
other party may reasonably request in order to effect the purposes of this
Assignment and Acceptance.
(8) THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES UNDER THIS
ASSIGNMENT AND ACCEPTANCE SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(9) This Assignment and Acceptance is executed by the parties on
Schedule 1 hereto and may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document. Execution of this Assignment and Acceptance by the Agent and
the Partnership on Schedule 1 hereto shall constitute any consent of such Person
required pursuant to Section 9.9 of the Reimbursement Agreement.
2
Schedule 1 to
Assignment and Acceptance
Section 1.
Percentage of Assignor interest
in Drawings, Commitments, and
DSR Loans to be assigned: _______%
Section 2.
Immediately prior to Effective Date:
Assignor's Commitment: $_______
DSR Loans owing to Assignor:
DSR LOC Loan $_______
DSR Term Loan $_______
DSR Bond $_______
Assignor's participation in DSR Letter
of Credit: $_______
Assignor's Percentage Interest (as defined
in the Reimbursement Agreement) _______%
Section 3.
Upon Effective Date:
Assignor's Commitment: $_______
Assignor's Percentage Interest: _______%
Assignee's Commitment: $_______
Assignee's Percentage Interest: _______%
Section 4.
Effective Date: ____________________
3
[ASSIGNOR]
By:
----------------------------------
Name:
Title:
[ADDRESS FOR NOTICES]
Consented to on this _____ day of
__________, 20__:
[ ],
as Agent and the Issuing Bank
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Consented to on this _____ day of
__________, 20__:
TENASKA GEORGIA PARTNERS, L.P.,
by Tenaska Georgia, Inc.,
its Managing General Partner
By:
--------------------------------
Name:
Title:
4
EXHIBIT C
AMORTIZATION SCHEDULE
The principal amount of each DSR LOC Loan shall be due and payable in
semi-annual installments on consecutive Scheduled Payment Dates, commencing on
the first such Scheduled Payment Date to occur after such DSR LOC Loan is made,
and shall in any event be due and payable, to the extent not previously paid on
the applicable DSR LOC Loan Required Payment Date. The Partnership shall pay
interest on any DSR LOC Loan or such Scheduled Payment Date and on the DSR LOC
Loan Required Payment Date out of cash available in the Revenue Account at the
same level in the flow of funds as interest on other Senior Debt and shall repay
the principal amount, if any, of DSR LOC Loans on such Scheduled Payment Dates
and on the DSR LOC Loan Required Payment Date out of 100% of the cash available
in the Revenue Account after payment of Debt Service on all Senior Debt other
than principal of DSR LOC Loans.
The principal amount of each DSR Term Loan shall be due and payable in
semi annual installments on consecutive Scheduled Payment Dates, commencing on
the first such Scheduled Payment Date to occur after such DSR Term Loan is made,
and maturing in full on the applicable DSR Term Loan Required Payment Date. The
amount of principal payable on each such Scheduled Payment Date shall be equal
to the amount of the principal component only of an amortization schedule based
on the foregoing payment schedule and a final maturity date being the earlier of
(x) ten (10) years after the date on which such DSR Term Loan is made and (y)
the Final Maturity Date, and assuming (i) a fixed per annum interest rate equal
to the interest rate (whether determined with reference to the Adjusted Base
Rate or the Eurodollar Rate) applicable to such DSR Term Loan on such date and
(ii) mortgage style payments of principal and interest.
The principal amount of each DSR Bond shall be due and payable in
semi-annual installments on consecutive Scheduled Payment Dates, commencing on
the first Scheduled Payment Date to occur after such DSR Bond is issued, and
maturing in full on the Final Maturity Date. Each DSR Bond shall be amortized on
the same amortization schedule and in an amount on each Scheduled Payment Date
that bears the same proportion to the original principal amount of the required
payment of principal on the Bonds bears to the remaining unpaid principal amount
of the Bonds outstanding on the date of such conversion. Interest on and
principal of any DSR Bond will be paid, respectively, at the same levels as
interest on and principal of the Bonds.
1
EXHIBIT D
-------------------------- ------------------------- ------------------------- -------------------------
BBB-/Baa3 or above+ BB+/Ba1+ BB/Ba2 or below+
-------------------------- ------------------------- ------------------------- -------------------------
Eurodollar Base Rate Eurodollar Base Rate Eurodollar Base Rate
Rate Loans Loans Rate Loans Loans Rate Loans Loans
and LOC and LOC and LOC
fees fees fees
-------------------------- ------------ ------------ ------------ ------------ ------------ ------------
Year 1-4 175.0 bps 175.0 bps 187.5 bps 187.5 bps 237.5 bps 237.5 bps
-------------------------- ------------ ------------ ------------ ------------ ------------ ------------
Year 5-7 200.0 bps 200.0 bps 212.5 bps 212.5 bps 262.5 bps 262.5 bps
-------------------------- ------------ ------------ ------------ ------------ ------------ ------------
--------
+ In the event of a split rating, the lower rating will be used.
1
