Exhibit 10.69
FACILITY C CREDIT AGREEMENT
Dated as of April 1, 1999
SOUTHERN ENERGY, INC., a Delaware corporation (the "Borrower"), the bank
(the "Initial Lender") listed on the signature pages hereof, the Issuing Banks
(as hereinafter defined) from time to time party hereto and CITIBANK, N.A.
("Citibank"), as agent (the "Agent") for the Lenders (as hereinafter defined)
and the Issuing Banks, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person (other than an individual), any other
Person (other than an individual) that, directly or indirectly through one or
more intermediaries, Controls, is Controlled by or is under common Control with
such Person.
"Affiliate Subordinated Debt" has the meaning specified in Schedule II
hereto.
"Agent" has the meaning set forth in the introductory paragraph hereto.
"Agent's Account" means the account of the Agent maintained by the Agent at
Citibank with its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account
No. 00000000, Attention: Xxxxx Xxxxxxx, re SEI Facility C Credit Agreement.
"Agent's Notice" has the meaning specified in Section 2.17(c).
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a Competitive Bid Advance, the office of such Lender notified by
such Lender to the Agent as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Credit Rating in effect on such date as set forth
below:
--------------------------- ------------------------------ ------------------------------
Credit Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurodollar Rate Advances
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Xxxxx 0
X-/X0 or above 0% .375%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Xxxxx 0
XXXx/Xxx0 0% .475%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Xxxxx 0
BBB/Baa2 0% .575%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Xxxxx 0
XXX-/Xxx0 0% .975%
--------------------------- ------------------------------ ------------------------------
--------------------------- ------------------------------ ------------------------------
Level 5
BB+/Ba1 or below 0% 1.675%
--------------------------- ------------------------------ ------------------------------
provided, however, that on each date on which the aggregate of the unpaid
"Advances" under the Facility Credit Agreements and the Available Amount of the
Letters of Credit exceeds 33-1/3% of the aggregate of the "Commitments" under
the Facility A Credit Agreement and the Facility B Credit Agreement and the
Revolving Credit Commitments, the Applicable Margin for Eurodollar Rate Advances
shall be increased for such date by a percentage per annum determined by
reference to the Credit Rating in effect on such date as set forth below:
-------------------------------- -----------------------------
Credit Rating Increase in Applicable
S&P/Xxxxx'x Margin for Eurodollar
Rate Advances
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Xxxxx 0
X-/X0 or above .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Xxxxx 0
XXXx/Xxx0 .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
BBB/Baa2 .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Xxxxx 0
XXX-/Xxx0 .250%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 5
BB+/Ba1 or below .500%
-------------------------------- -----------------------------
"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Credit Rating in effect on such date as set forth
below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Xxxxx 0
X-/X0 or above .125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Xxxxx 0
XXXx/Xxx0 .150%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
BBB/Baa2 .175%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Xxxxx 0
XXX-/Xxx0 .225%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 5
BB+/Ba1 or below .325%
-------------------------------- -----------------------------
"Assets" with respect to any Person means all or any part of its business,
property and assets, wherever situated.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and one or more Eligible Assignees, and accepted by the Agent, in
substantially the form of Exhibit C-1-A hereto (in the case of an assignment and
acceptance not entered into to effect the General Syndication) or C-1-B hereto
(in the case of an assignment and acceptance entered into to effect the General
Syndication).
"Available Amount" of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New York, New
York, from time to time, as Citibank's base rate; and
(b) .5% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrower" has the meaning set forth in the introductory paragraph hereto.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means any day other than a Saturday, Sunday or any day on
which banks are not required or authorized by law to close in New York City and,
if the applicable Business Day relates to any Eurodollar Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank market.
"Cash Available for Corporate Debt Service" for a particular period means
(a) EBITDA with reference to the Borrower's consolidated financial statements;
plus (b) cash received (net of transaction costs and expenses) during such
period by the Borrower and its consolidated Subsidiaries from asset sales or
other dispositions not required to prepay debt; plus (c) cash received by the
Borrower from The Southern Company in the form of equity contributions or
Subordinated Debt, which cash is received during such period or during (i) the
60 days after the end of any such period which ends at the end of the first,
second or third fiscal quarter of the Borrower or (ii) the 120 days after the
end of any such period which ends at the end of the fourth fiscal quarter of the
Borrower.
"Citibank" has the meaning set forth in the introductory paragraph hereto.
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Competitive Bid Advance" means an advance by a Lender to the Borrower as
part of a Competitive Bid Borrowing resulting from the competitive bidding
procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such borrowing has been accepted under
the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information concerning the
Borrower or its Affiliates which is non-public, confidential or
proprietary in nature, or any information that is marked or designated
confidential by or on behalf of the Borrower, which is furnished to any
Lender by the Borrower or any of its Affiliates directly or through the
Agent or the Lead Arranger in connection with this Agreement or the
transactions contemplated hereby (at any time on, before or after the
date hereof), together with all analyses, compilations or other
materials prepared by such Lender or its respective directors,
officers, employees, agents, auditors, attorneys, consultants or
advisors (collectively, "Representatives") which contain or otherwise
reflect such information.
"Consolidated Net Worth" means the aggregate of the capital
stock and other equity accounts (including, without limitation,
retained earnings and paid in capital) of the Borrower.
"Control" (including the terms "Controlling", "Controlled by"
and "under common Control with") of a Person (other than an individual)
means the power to direct or to cause the direction of the management
and policies of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Advances of
the other Type pursuant to Section 2.08 or 2.09.
"Corporate Interest" means, for any period, the aggregate of
the Borrower's accrued obligations during such period to pay interest
on Recourse Debt and Non-Affiliate Subordinated Debt.
"Credit Rating" means, as of any date, the highest credit
rating that has been most recently established in writing by either S&P
or Xxxxx'x, as the case may be, for the Borrower or for any class of
non-credit-enhanced long-term senior unsecured debt issued by the
Borrower. For purposes of the foregoing, (a) if only one of S&P and
Xxxxx'x shall have in effect a Credit Rating, the Applicable Margin,
any change in the Applicable Margin pursuant to the proviso in the
definition of such term and the Applicable Percentage shall be
determined by reference to the available rating; (b) if neither S&P nor
Xxxxx'x shall have in effect a Credit Rating, the Applicable Margin,
any such change and the Applicable Percentage will be set in accordance
with Level 5 under the table or tables contained in the definition of
"Applicable Margin" or "Applicable Percentage", as the case may be; (c)
if the ratings established by S&P and Xxxxx'x shall fall within
different levels, the Applicable Margin, any such change and the
Applicable Percentage shall be based upon the higher rating; (d) if any
rating established by S&P or Xxxxx'x shall be changed, such change
shall be effective as of the date on which such change is notified in
writing to the Company, or is announced publicly, by the rating agency
making such change; and (e) if S&P or Xxxxx'x shall change the basis on
which ratings are established, each reference to the Credit Rating
announced by S&P or Xxxxx'x, as the case may be, shall refer to the
then equivalent rating by S&P or Xxxxx'x, as the case may be.
"Debt" means, for any Person, any obligations of such Person
for or in respect of (a) moneys borrowed or raised (whether or not for
cash) by whatever means (including acceptances, deposits, discounting,
letters of credit, factoring (other than on a non-recourse basis),
finance leases, hire purchase, conditional sale or other form of title
retention agreement, sale-and-lease back, sale and repurchase and any
other form of financing which is recognized in such Person's financial
statements as being in the nature of a borrowing (excluding, for the
avoidance of doubt, share capital, share premium account and any
capital prepayment reserve), (b) the deferred purchase price of Assets
or services (other than goods and services obtained on normal
commercial terms in the ordinary course of business or operations) and
(c) guarantees by such Person of obligations which constitute Debt of
another Person under clause (a) or (b) above.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Drawing Documents" in respect of a Letter of Credit means the
draft, certificates and other documents required by such Letter of
Credit to be presented as a condition of payment of such draft under
such Letter of Credit.
"EBITDA" for a particular period means with reference to the
Borrower's consolidated financial statements (a) income from continuing
operations before income taxes and minority interest; plus (b)
depreciation and amortization; plus (c) Corporate Interest; plus (d)
losses attributable to minority interest; minus (e) income attributable
to minority interest; minus (f) cash income taxes paid, adjusted, if
appropriate, to reflect any minority investors' pro rata share of cash
income taxes paid (including cash payments to Affiliates of the
Borrower related to corporate tax sharing arrangements); plus (g) cash
income taxes received, adjusted, if appropriate, to reflect any
minority investors' pro rata share of cash income taxes received
(including cash tax refunds and cash payments from Affiliates of the
Borrower related to corporate tax sharing arrangements). "EBITDA" shall
not include the effect of (i) gains or losses on sales or dispositions
of assets and (ii) non-recurring items to the extent they do not affect
cash.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof; (iv) a savings and loan association or
savings bank organized under the laws of the United States, or any
State thereof; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, so long as such bank is acting through a branch or agency
located in the country in which it is organized or another country that
is described in this clause (v); (vi) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (vii) the central bank of any country that
is a member of the Organization for Economic Cooperation and
Development; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee;
provided further that the entities listed in items (iii)-(vii) above
shall have a short-term credit rating of at least "Prime-2" (or the
then equivalent grade) by Xxxxx'x or "A-2" (or the then equivalent
grade) by S&P, or, if no short-term credit rating is available, a
long-term credit rating of at least Baa2 (or the then equivalent grade)
by Xxxxx'x or BBB (or the then equivalent grade) by S&P; provided
further that if any entity listed in item (vii) above shall have no
short-term or long-term credit rating, the relevant credit rating shall
be the short-term or long-term credit rating of the country of which
such entity is the central bank.
"Eligible Securities" means (a) readily marketable securities
issued or guaranteed by the government of the United States of America
or any agency thereof having a maturity at the time of issuance not
exceeding one year, (b) commercial paper rated at least A-1 by S&P or
P-1 by Xxxxx'x, in each case having a maturity at the time of issuance
not exceeding one year, and (c) certificates of deposit of or time
deposits with any commercial bank, the long-term debt of which has been
assigned a rating of at least BBB by S&P or Baa2 by Xxxxx'x and which
is a Lender and is organized and existing under the laws of the United
States of America or any state thereof or the District of Columbia.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing, an interest rate
per annum equal to the rate per annum (rounded to the nearest 1/10,000 of 1% per
annum) appearing on the Dow Xxxxx Markets Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period or, if for
any reason such rate is not available, the average (rounded to the nearest
1/10,000 of 1% per annum) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at approximately
11:00 A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period. If the Dow Xxxxx Markets
Telerate Page 3750 (or any successor page) is unavailable the Eurodollar Rate
for any Interest Period for each Eurodollar Rate Advance comprising part of the
same Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(ii).
"Events of Default" has the meaning specified in Section 6.01.
"Extension of Credit" means a Borrowing or the issuance or renewal of a
Letter of Credit.
"Facility A Credit Agreement" means the Facility A Credit Agreement dated
as of the date hereof among the Borrower, the initial lenders named therein and
Citibank, as agent.
"Facility B Credit Agreement" means the Facility B Credit Agreement dated
as of the date hereof among the Borrower, the initial lenders named therein and
Citibank, as agent.
"Facility Credit Agreements" means this Credit Agreement, the Facility A
Credit Agreement and the Facility B Credit Agreement.
"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.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"General Syndication" means the syndication by the Lead Arranger of the
Initial Lender's Revolving Credit Commitment.
"Information Memorandum" means the information memorandum dated March 22,
1999 used by the Lead Arranger in connection with the General Syndication.
"Initial Lender" has the meaning set forth in the introductory paragraph
hereto.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Revolving Credit Borrowing and for each LIBO Rate Advance comprising
part of the same Competitive Bid Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or LIBO Rate Advance or the date of the Conversion
of any Base Rate Advance into such Eurodollar Rate Advance and ending on the
last day of the period selected by the Borrower pursuant to the provisions below
(in the case of a Eurodollar Rate Advance) or, subject to the provisions below,
pursuant to the relevant Notice of Competitive Bid Borrowing (in the case of a
Competitive Bid Advance) and, thereafter with respect to each Eurodollar Rate
Advance or Competitive Bid Advance, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day
of the period selected by the Borrower pursuant to the provisions below (in the
case of a Eurodollar Rate Advance) or, subject to the provisions below, pursuant
to the relevant Notice of Competitive Bid Borrowing (in the case of a
Competitive Bid Advance). The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing
shall be of the same duration;
(iii)whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to
occur on the next succeeding Business Day; provided,
however, that if such extension would cause the last
day of such Interest Period to occur in the next
following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day;
and
(iv) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is
no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number
of months equal to the number of months in such
Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
"Issuing Bank" means any commercial bank approved as an Issuing Bank by the
Agent (such approval not to be unreasonably withheld or delayed), which
commercial bank has entered into a written agreement with the Borrower (an
"Issuing Bank Agreement") (i) pursuant to which such commercial bank becomes a
party to this Agreement as an Issuing Bank and agrees to perform in accordance
with their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as an Issuing Bank and (ii) which sets forth its
initial Letter of Credit Commitment. An Issuing Bank may, but need not, be a
Lender.
"Issuing Bank Agreement" has the meaning specified in the definition of
"Issuing Bank".
"Issuing Bank's Notice" has the meaning specified in Section 2.17(c).
"Law" means any constitution, decree, judgment, legislation, order,
ordinance, regulation, statute, treaty or other legislative measure having the
force of law (and "lawful" and "unlawful" shall be construed accordingly).
"Lead Arranger" means Xxxxxxx Xxxxx Xxxxxx Inc.
"Lenders" means the Initial Lender and each Person that shall become a
party hereto pursuant to Section 8.07(a).
"Letter of Credit" has the meaning specified in Section 2.17(a).
"Letter of Credit Advance" has the meaning specified in
Section 2.17(c).
"Letter of Credit Advance Date" has the meaning specified in Section
2.17(c).
"Letter of Credit Agreement" has the meaning specified in Section 2.17(b).
"Letter of Credit Collateral" has the meaning specified in Section 6.02(b).
"Letter of Credit Collateral Account" has the meaning specified in Section
6.02(a).
"Letter of Credit Commitment" means, at any time, with respect to an
Issuing Bank, the amount of its Letter of Credit Commitment as set forth in its
Issuing Bank Agreement, as such amount may be increased at or prior to such time
as notified to the Agent by the Borrower and as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum (rounded to the nearest 1/10,000 of 1% per
annum) appearing on the Dow Xxxxx Markets Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period or, if for
any reason such rate is not available, the average (rounded to the nearest
1/10,000 of 1% per annum) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to the amount that would be the Reference Banks'
respective ratable shares of such Borrowing if such Borrowing were to be a
Revolving Credit Borrowing to be outstanding during such Interest Period and for
a period equal to such Interest Period. If the Dow Xxxxx Markets Telerate Page
3750 (or any successor page) is unavailable, the LIBO Rate for any Interest
Period for each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance bearing interest based
on the LIBO Rate.
"Lien" means any mortgage, pledge, lien, hypothecation, security interest
or other charge, encumbrance or other arrangement in the nature of a security
interest in property to secure the payment or performance of Debt; provided,
however, that the term "Lien" shall not include any easements, rights-of-way,
zoning restrictions, leases, subleases, licenses, sublicenses, other
restrictions on the use of property, defects in title to property or other
similar encumbrances.
"Loan Documents" means this Agreement, the Notes and each Letter of Credit
Agreement, as each may be amended, supplemented or otherwise modified from time
to time.
"Material Adverse Effect" means a material adverse change in, or material
adverse effect on, the financial condition, operations, business or properties
of the Borrower which would have a material adverse effect on the ability of the
Borrower to pay amounts owed by it from time to time hereunder.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Non-Affiliate Subordinated Debt" has the meaning specified in Schedule II
hereto.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(a).
"Notice of Issuance" has the meaning specified in Section 2.17(b).
"Notice of Renewal" has the meaning specified in Section 2.17(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Termination" has the meaning specified in Section 2.17(a).
"Other Taxes" has the meaning specified in Section 2.14.
"Person" means any individual, company, corporation, firm, partnership,
joint venture, undertaking, association, organization, trust, state or agency of
a state (in each case, whether or not having separate legal personality).
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the aggregate of the Revolving Credit Commitments at
such time.
"Project Finance Debt" means Debt (not exceeding the cost of the
acquisition, construction or creation of the relevant Asset or project) incurred
or existing in connection with the financing or refinancing of any Asset or
project, the repayment of which Debt is to be made from the revenues arising out
of, or other proceeds of realization from, the acquired or created Asset or
project, with recourse to those revenues and proceeds and Assets forming the
subject matter of such Asset or project (including, without limitation,
insurance, contracts and shares or other rights of ownership in the entity(ies)
which own the relevant Assets or project) and other Assets ancillary thereto but
without substantial recourse to any other Asset or otherwise to Borrower;
provided that substantial recourse shall not be deemed to exist by reason of
normal and customary sponsor support arrangements.
"Recourse Capital" means the sum of (a) Consolidated Net Worth and (b) Debt
of the Borrower.
"Recourse Debt" means all Debt of the Borrower other than Subordinated
Debt.
"Reference Banks" means Bank of America National Trust & Savings
Association, Barclays Bank PLC, The Chase Manhattan Bank, Citibank and Credit
Suisse First Boston, in each case so long as such Bank is a Lender.
"Register" has the meaning specified in Section 8.07(d).
"Representatives" has the meaning specified in the definition of
"Confidential Information".
"Required Lenders" means at any time Lenders owed at least a majority of
the then aggregate unpaid principal amount of the Revolving Credit Advances
owing to Lenders, or, if no such principal amount is then outstanding, Lenders
having at least a majority of the aggregate amount of the Revolving Credit
Commitments.
"Revolving Credit Advance" means an advance by a Lender to the Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders pursuant
to Section 2.01.
"Revolving Credit Commitment" has the meaning specified in Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Subordinated Debt" means Affiliate Subordinated Debt and Non-Affiliate
Subordinated Debt.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the Voting Stock, (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one of more of
its Subsidiaries or by one or more of such Person's other Subsidiaries.
"Taxes" has the meaning specified in Section 2.14.
"Termination Date" means the earlier of April 1, 2004 and the date of
termination in whole of the Revolving Credit Commitments pursuant to Section
2.05 or 6.01.
"Unused Revolving Credit Commitment" means, with respect to any Lender at
any time, (a) such Lender's Revolving Credit Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all Revolving Credit Advances
made by such Lender, in each case in its capacity as a Lender and not as an
Issuing Bank, and outstanding at such time, (ii) such Lender's Pro Rata Share of
the aggregate amount of the Competitive Bid Reductions at such time and (iii)
such Lender's Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (B) to the extent not included in
clause (b)(i) of this definition, the aggregate principal amount at such time of
all Revolving Credit Advances deemed made by the Issuing Banks pursuant to
Section 2.17(c)(i) by virtue of payments under Letters of Credit issued by them
to the extent the Lenders have not made available to the Agent their payments in
respect of their purchases of their Pro Rata Shares thereof pursuant to Section
2.17(c)(2).
"U.S. Tax Law Change" has the meaning specified in Section 2.14.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person (other than an individual), the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
SECTION 1.02. Computation of Time Periods . In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied by the Borrower at the
relevant time ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Advances . Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit
Advances to the Borrower from time to time on any Business Day during the period
from the Effective Date until the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount set forth opposite such Lender's name
on Schedule I hereto or, if such Lender has entered into any Assignment and
Acceptance, set forth for such Lender in the Register maintained by the Agent
pursuant to Section 8.07(d), as such amount may be reduced pursuant to Section
2.05 (such Lender's "Revolving Credit Commitment"); provided that the aggregate
amount of the Revolving Credit Commitments of the Lenders shall be deemed used
from time to time to the extent of the aggregate amount of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Revolving Credit Commitments shall be allocated among the Lenders ratably
according to their respective Revolving Credit Commitments (such deemed use of
the aggregate amount of the Revolving Credit Commitments being a "Competitive
Bid Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Revolving Credit Commitments.
The Borrower may make more than one Revolving Credit Borrowing or Competitive
Bid Borrowing on the same day and may make Revolving Credit Borrowings and
Competitive Bid Borrowings on the same day. Within the limits of each Lender's
Revolving Credit Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances . (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or not later than 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed immediately by
telecopier in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Revolving Credit Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 11:00 A.M. (New York City time) on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such Lender's ratable
portion of such Revolving Credit Borrowing; provided, however, that if a Notice
of Revolving Credit Borrowing in respect of a proposed Revolving Credit
Borrowing consisting of Base Rate Advances is given on the date of such
Revolving Credit Borrowing, the Lenders shall so make available their ratable
portions of such Revolving Credit Borrowing before 3:00 P.M. (New York City
time) on such date. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower at the Agent's address referred to in Section
8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, the
Borrower may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08(e).
(c) The Borrower shall indemnify each Lender against any actual and
documented loss (excluding any loss of profit and/or margin), cost or expense
reasonably incurred by such Lender as a result of (i) the revocation by the
Borrower of (x) any Notice of Revolving Credit Borrowing for a Revolving Credit
Borrowing that such Notice of Revolving Credit Borrowing specifies is to be
comprised of Eurodollar Rate Advances or (y) any notice given by the Borrower
pursuant to Section 2.09 of the Conversion of Base Rate Advances to Eurodollar
Rate Advances and (ii) any failure to fulfill on or before the date specified in
a Notice of Revolving Credit Borrowing for a Revolving Credit Borrowing that
such Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurodollar Rate Advances the applicable conditions set forth in Article III,
including, without limitation in each such case, any loss (excluding loss of
profit and/or margin), cost or expense reasonably incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Revolving Credit Advance to be made by such Lender as part of such
Revolving Credit Borrowing or as a result of such Conversion when such Revolving
Credit Advance, as a result of such revocation or failure, is not made on the
date specified therefor in the relevant Notice of Revolving Credit Borrowing or
when such Base Rate Advances, as a result of such revocation, are not converted
to Eurodollar Rate Advances, but excluding, however, any such losses, costs and
expenses resulting from any such revocation or failure which has occurred more
than 60 days prior to demand being made to the Borrower by such Lender for
indemnification. The payment of such indemnity to a Lender shall be made within
30 days of a demand by such Lender complying with Section 8.04(d).
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Revolving Credit Borrowing that such Lender will not make available
to the Agent such Lender's ratable portion of such Revolving Credit Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit Borrowing in accordance with Section
2.02(a) and the Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may make one or more Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing
under this Section by delivering to the Agent, by
telecopier, a notice of a Competitive Bid Borrowing (a
"Notice of Competitive Bid Borrowing"), in
substantially the form of Exhibit B-2 hereto,
specifying therein the requested (t) date of such
proposed Competitive Bid Borrowing, (u) aggregate
amount of such proposed Competitive Bid Borrowing, (v)
in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, the Interest Period or Periods
therefor, (w) the maturity date for repayment of the
Competitive Bid Advances to be made as part of such
Competitive Bid Borrowing (which maturity date may not
be earlier than, in the case of each LIBO Rate Advance
to be made as part of such Competitive Bid Borrowing,
the date occurring one month after the date of such
Competitive Bid Borrowing or, in all cases, later than
the Termination Date), (x) interest payment date or
dates relating thereto, (y) whether the Borrower agrees
not to reduce pursuant to Section 2.05 the aggregate of
the Commitments at any time on or prior to the maturity
date of the Competitive Bid Advances to be made as part
of such Competitive Bid Borrowing to an amount that is
less than the aggregate principal amount of the
Competitive Bid Advances outstanding at such time and
(z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 11:00 A.M.
(New York City time) (A) at least one Business Day
prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice
of Competitive Bid Borrowing that the rates of interest
to be offered by the Lenders shall be fixed rates per
annum (the Competitive Bid Advances comprising any such
Competitive Bid Borrowing being referred to herein as
"Fixed Rate Advances") and (B) at least four Business
Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice
of Competitive Bid Borrowing that the Competitive Bid
Advances comprising such Competitive Bid Borrowing
shall be LIBO Rate Advances. The Agent shall give to
each Lender by telecopier prompt notice of each Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent (which shall give prompt notice
thereof to the Borrower), (A) before 9:30 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and (B)
before 10:00 A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive Bid Advance which
such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts of such proposed Competitive
Bid may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if Citibank in
its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so
notify the Agent before the time by which such offer would have had to
have been made, and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii)The Borrower shall, in turn, (A) before 10:30 A.M.
(New York City time) on the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances and (B)
before 11:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances either:
(x) cancel such Competitive Bid Borrowing by giving the Agent notice to
that effect, or
(y) accept one or more of the offers made by any Lender or Lenders pursuant
to paragraph (ii) above, in its sole discretion, by giving notice to the Agent
of the amount of each Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect. The Borrower shall accept the offers made by any Lender
or Lenders to make Competitive Bid Advances in order of the lowest to the
highest rates of interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the amount that each such
Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such
Competitive Bid Borrowing is cancelled pursuant to
paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y)
above, the Agent shall in turn promptly notify (A) each
Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer
or offers made by such Lender pursuant to paragraph
(ii) above have been accepted by the Borrower, (B) each
Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Advance to be made by such
Lender as part of such Competitive Bid Borrowing, and
(C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents
appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 11:00 A.M. (New York City time)
on the date of such Competitive Bid Borrowing specified
in the notice received from the Agent pursuant to
clause (A) of the preceding sentence or any later time
when such Lender shall have received notice from the
Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable
Lending Office to the Agent at its address referred to
in Section 8.02, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such
funds, the Agent will make such funds available to the
Borrower at the location specified by the Borrower in
its Notice of Competitive Bid Borrowing. Promptly after
each Competitive Bid Borrowing the Agent will notify
each Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and
the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) Unless otherwise specified by the Borrower in the related
Notice of Competitive Bid Borrowing, the Borrower shall indemnify each
Lender against any actual and documented loss (excluding any loss of
profit and/or margin), cost or expense reasonably incurred by such
Lender as a result of (i) the revocation by the Borrower of its
acceptance of any offer made by such Lender pursuant to paragraph
(iii)(y) above or (ii) any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding any
loss of profit and/or margin), cost or expense reasonably incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be made
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such revocation or failure, is
not made on such date, but excluding, however, any such losses, costs
and expenses resulting from any such revocation or failure which has
occurred more than 60 days prior to demand being made to the Borrower
by such Lender for indemnification. The payment of such indemnity to a
Lender shall be made within 30 days of a demand by such Lender
complying with Section 8.04(d).
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first
sentence of Section 2.03(a).
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03; provided that, subject to Section 2.01, a Competitive Bid
Borrowing shall not be made within three Business Days of the date of any other
Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i) and provided
in the Competitive Bid Note evidencing such Competitive Bid Advance), the then
unpaid principal amount of such Competitive Bid Advance. The Borrower shall have
no right to prepay any principal amount of any Competitive Bid Advance unless,
and then only on the terms, specified by the Borrower for such Competitive Bid
Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to Section 2.03(a)(ii), payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i), as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Unless otherwise specified by the
Borrower in the related Notice of Competitive Bid Borrowing, upon the occurrence
and during the continuance of an Event of Default under Section 6.01(a), the
Borrower shall pay interest on the amount of unpaid principal of and interest on
each Competitive Bid Advance owing to a Lender, payable in arrears on the date
or dates interest is payable thereon, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Competitive
Bid Advance under the terms of the Competitive Bid Note evidencing such
Competitive Bid Advance.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay a non-refundable fee of $3,500 to the Agent for its own
account.
SECTION 2.04. Fees. The Borrower shall pay to the Agent for
the account of each Lender a facility fee on the aggregate amount of such
Lender's Commitment from the date hereof in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date at a rate per annum equal to the Applicable Percentage in effect from time
to time, payable in arrears on the last day of each March, June, September and
December commencing June 30, 1999, and on the Termination Date.
(b) Available Amount Fees. The Borrower shall pay to the Agent
for the account of each Lender a fee on such Lender's Pro Rata Share of the
average daily aggregate Available Amount of all Letters of Credit outstanding
from time to time at a rate per annum equal to the Applicable Margin in effect
from time to time for Eurodollar Rate Advances, payable in arrears on the last
day of each March, June, September and December, commencing June 30, 1999, and
on the Termination Date.
SECTION 2.05. Termination or Reduction of the Commitments. The
Borrower shall have the right, (i) upon at least three Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the respective Revolving Credit Commitments of the Lenders and (ii) upon
notice on any Business Day to the Agent and an Issuing Bank, to terminate in
whole or in part the Letter of Credit Commitment of such Issuing Bank; provided
that each partial reduction of the Revolving Credit Commitments shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof; provided further that the aggregate amount of the Revolving Credit
Commitments of the Lenders shall not be reduced to an amount that is less than
the sum of the aggregate principal amount of the Competitive Bid Advances then
outstanding and the aggregate of the then Available Amounts of all Letters of
Credit.
SECTION 2.06. Repayment of the Revolving Credit Advances . The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding.
SECTION 2.07. Interest on the Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable in
arrears on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Borrower shall pay
interest on (i) the unpaid principal amount of each Revolving Credit Advance and
Competitive Bid Advance owing to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder or under any Note that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full, payable
in arrears on the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent, at its request, timely information for the
purpose of determining each Eurodollar Rate and LIBO Rate. If any one or more of
the Reference Banks shall not furnish such timely information to the Agent for
the purpose of determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii)
or for a LIBO Rate Advance.
(b) If (i) the Agent is unable for any reason to determine the
Eurodollar Rate for any Interest Period, (ii) if applicable, fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurodollar Rate for any Interest Period pursuant to Section 2.08(a) or (iii) the
Required Lenders notify the Agent by 12:00 noon (London time) two Business Days
prior to the first day of any Interest Period that the Required Lenders were
unable to obtain, at approximately 11:00 A.M. (London time) on such Business Day
and at the applicable Eurodollar Rate, U.S. dollar deposits for a period equal
to such Interest Period and in amounts substantially equal to such Required
Lenders' respective Eurodollar Rate Advances comprising part of the Revolving
Credit Borrowing to be outstanding during such Interest Period, the Agent shall
promptly notify the Borrower and the Lenders of such event, whereupon:
(A) within five Business Days of receipt of such notification,
the Agent and the Borrower shall enter into good faith negotiations for
a period of 15 days (or such shorter period as is required to agree to
the alternative basis referred to in this clause (A)) with a view to
agreeing on an alternative basis for determining the rate of interest
applicable to such Eurodollar Rate Advances;
(B) any alternative basis agreed under clause (A) above with
the approval of the Required Lenders and any interest rate determined
pursuant thereto will be binding on all the parties hereto and will be
retroactive to, and take effect from, the first day of the applicable
Interest Period;
(C) if no alternative basis is agreed under clause (A) above
within the 15-day period there specified, the Agent, upon instructions
of the Required Lenders, shall, on behalf of each of the Lenders, set
forth an alternative basis for determining the rate of interest
applicable to such Eurodollar Rate Advances on or before the last day
of the Interest Period to which the notification relates or, if
earlier, within ten days after the expiration of the 15-day period set
forth in clause (A) above. Each Lender shall certify to the Agent and
to the Borrower such Lender's actual cost of funds for funding its
applicable Eurodollar Rate Advances, and the Required Lenders shall
certify to the Agent and the Borrower in reasonable detail the
alternative basis for determining the rate of interest to be applicable
to such Eurodollar Rate Advances and such interest rate as so
determined;
(D) any interest rate determined pursuant to clause (C) above
shall not, in any event, exceed (x) the Required Lenders' reasonable
determination of the cost to the Lenders, as certified by them pursuant
to clause (C) above, of funding their applicable Eurodollar Rate
Advances plus (y) the Applicable Margin;
(E) each alternative basis so certified and each interest rate
determined pursuant thereto shall be binding on the Borrower and the
Lenders and shall be retroactive to, and take effect from, the first
day of the applicable Interest Period; and
(F) so long as any alternative basis referred to above is in
force, the Agent, in consultation with the Borrower and the Required
Lenders, shall from time to time, but not less frequently than monthly,
review whether or not the circumstances referred to in this Section
2.08(b) still prevail with a view to returning to the normal provisions
of this Agreement in relation to the method of determining interest as
soon as practicably possible.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
then on the last day of the then existing Interest Period therefor the longest
Interest Period not longer than three months that the Borrower could have
selected for such Eurodollar Rate Advances in accordance with such provisions
shall be applicable to such Eurodollar Rate Advances or, if the Borrower could
not have selected any Interest Period for such Eurodollar Rate Advances in
accordance with such provisions, such Eurodollar Rate Advances will
automatically, on such last day, Convert into Base Rate Advances, and the Agent
shall promptly notify the Borrower and the Lenders thereof.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default (i) each Eurodollar Rate Advance and LIBO Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Eurodollar Rate Advances into, Eurodollar Rate Advances shall be
suspended until all Events of Default have been cured or waived.
SECTION 2.09. Optional Conversion of the Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Revolving Credit Advance.
SECTION 2.10. Optional Prepayments of the Revolving Credit
Advances. The Borrower may, upon at least three Business Days' notice (in the
case of Eurodollar Rate Advances) or one Business Day's notice (in the case of
Base Rate Advances) to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. The Borrower agrees to
indemnify each Lender for its actual and documented increased costs that are the
result of a change of Law or in the official interpretation thereof or
compliance with any guideline or request from any central bank or other
governmental authority having jurisdiction over such Lender (whether or not
having the force of law) adopted or made (i) in the case of the Initial Lender,
after the date of this Agreement, (ii) in the case of any other Lender, after
the date such Lender shall have become a party to this Agreement by executing
and delivering an Assignment and Acceptance, and (iii) in the case of a Lender
which has a Competitive Bid Advance outstanding, after the date of such Lender's
offer with respect to such Competitive Bid Advance pursuant to Section 2.03,
which costs are reasonably incurred by such Lender and are the result of (x)
such Lender agreeing to make or making, funding or maintaining Eurodollar Rate
Advances or, unless otherwise specified by the Borrower in the related Notice of
Competitive Bid Borrowing, LIBO Rate Advances or (y) any increase in the amount
of capital required to be maintained by such Lender or any corporation
controlling such Lender, based upon the existence of such Lender's commitment to
lend hereunder and other commitments of this type, to the extent that such
Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder). The foregoing
indemnity shall not apply to (A) any such change of Law or interpretation or any
adoption or making of any such guideline or request that is anticipated on the
applicable date set forth above, (B) any period or periods ending more than 120
days prior to demand for indemnification being made or (C) any such increased
costs resulting from (a) Taxes or Other Taxes (as to which Section 2.14 shall
govern) or (b) changes in the basis of taxation of overall net income or overall
gross income by the United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its Applicable Lending Office
or any political subdivision thereof). The Borrower shall from time to time,
within 30 days following demand by such Lender complying with Section 8.04(d)
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased costs.
SECTION 2.12. Illegality. If as a result of a change in Law or
in the official interpretation thereof (i) in the case of the Initial Lender,
after the date of this Agreement, (ii) in the case of any other Lender, after
the date such Lender shall have become a party to this Agreement by executing
and delivering an Assignment and Acceptance, and (iii) in the case of a Lender
which has a Competitive Bid Advance outstanding, after the date of such Lender's
offer with respect to such Competitive Bid Advance pursuant to Section 2.03, it
shall have become unlawful, or if after the applicable date set forth above any
central bank or other governmental authority having jurisdiction over such
Lender asserts that it is unlawful, for such Lender to (i) allow all or part of
its commitment to make Eurodollar Rate Advances to remain outstanding or (ii)
make, fund or allow to remain outstanding all or part of its Eurodollar Rate
Advances, such Lender may notify the Borrower and the Agent thereof in
reasonable detail (together with supporting documentation) of such event,
whereupon:
(x) such Lender's Revolving Credit Commitment shall be
suspended and, 45 days following such notification, shall be canceled
if such unlawfulness shall then be continuing; and
(y) the Borrower will prepay such Lender's Advances at the
time or times and to the extent necessary to avoid such unlawfulness,
together with unpaid accrued interest thereon, unpaid accrued fees and
any other amounts due and payable to such Lender, unless, in either
case, prior thereto, the Borrower shall have given notice to such
Lender that the Borrower will require such Lender to assign and
transfer all of its interests in this Agreement pursuant to Section
8.07(b) and shall have caused such Lender to have so assigned and
transferred such interests.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent at the
Agent's Account in same day funds. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.02(c),
2.03, 2.04, 2.11, 2.14 or 8.04) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the
Revolving Credit Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate, the LIBO Rate
or the Federal Funds Rate and of facility fees shall be made by the Agent on the
basis of a year of 360 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 facility fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances or
LIBO Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day. Any such extension or
reduction of time shall be included in the computation of payment of interest or
facility fee, as the case may be.
(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.13, without
deduction for any Taxes or Other Taxes (each as defined below).
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
pursuant to this Agreement or any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Lender and the Agent, taxes imposed
on its income, net worth or gross receipts and franchise or similar taxes
imposed on it by a jurisdiction under the laws of which such Lender or the Agent
(as the case may be) is organized or in which its principal executive office is
located or any political subdivision thereof or, in the case of each Lender, in
which its Applicable Lending Office is located or any political subdivision
thereof and (ii) in the case of each Lender any United States withholding tax
imposed on such payments except to the extent that such Lender is subject to
United States withholding tax by reason of a U.S. Tax Law Change.
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
"U.S. Tax Law Change" means with respect to any Lender the occurrence (x)
in the case of the Initial Lender, after the date of this Agreement, (y) in the
case of any other Lender, after the date such Lender shall have become a party
to this Agreement by executing and delivering an Assignment and Acceptance, and
(z) in the case of a Lender that has a Competitive Bid Advance outstanding,
after the date of such Lender's offer with respect to such Competitive Bid
Advance pursuant to Section 2.03, of the adoption of any applicable United
States federal law or regulation relating to taxation, or any change therein or
in the official interpretation thereof, or the entry into force, modification or
revocation of any income tax convention or treaty to which the United States is
a party.
If the Borrower shall be required by Law to deduct any Taxes or Other Taxes
from or in respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof.
(b) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of actual and documented Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.14) paid by such Lender or the Agent (as the case may be)
as the result of any U.S. Tax Law Change and any actual and documented liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto paid by such Lender or the Agent (as the case may be), but excluding,
however, any Taxes or Other Taxes so paid by such Lender or the Agent more than
120 days prior to demand being made to the Borrower by such Lender or the Agent
for indemnification. The payment of such indemnity shall be made within 30 days
from the date such Lender or the Agent (as the case may be) makes written demand
therefor complying with Section 8.04(d).
(c) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of the Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of any other
Lender, and from time to time thereafter as requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two completed and duly
executed original Internal Revenue Service forms 1001, 4224 or W-8BEN, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, or other documentation reasonably requested by the Borrower or the
Agent, certifying that such Lender is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the
Notes. If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form. If any form or document referred to in this subsection (c) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001, 4224 or W-8BEN, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Borrower and shall not
be obligated to include in such form or document such confidential information.
(d) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form or document (or information required by such
form or document) described in Section 2.14(c) (other than if such failure is
due to a U.S. Tax Law Change), such Lender shall not be entitled to payments
without deduction and indemnification under Section 2.14(a) or (b) with respect
to any Taxes or Other Taxes which would not have been payable had such form or
document (or information required thereby) been so provided; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form or document (or information required thereby) required hereunder,
the Borrower shall take such reasonable steps as the Lender shall request to
assist the Lender to recover such Taxes (it being understood, however, that the
Borrower shall have no liability to such Lender in respect of such Taxes).
(e) If the Borrower is required to indemnify or pay additional amounts to
or for the account of any Lender pursuant to this Section 2.14, then such Lender
will take such action (including changing the jurisdiction of its Applicable
Lending Office) as in the reasonable judgment of such Lender (i) will eliminate
or reduce any such additional payment which may thereafter accrue and (ii) is
not otherwise commercially unreasonable.
(f) Each Lender and the Agent shall use its reasonable efforts to obtain in
a timely fashion any refund, deduction or credit of any Taxes and Other Taxes
paid or reimbursed by the Borrower pursuant to this Section 2.14. If any Lender
or the Agent receives a benefit in the nature of a refund, deduction or credit
(including a refund in the form of a deduction from or credit against taxes that
are otherwise payable by the Lender or the Agent) of any Taxes or Other Taxes
with respect to which the Borrower has made a payment under Section 2.14(a) or
(b), such Lender or the Agent (as the case may be) agrees to reimburse the
Borrower to the extent of the benefit of such refund, deduction or credit
promptly after the Agent or such Lender reasonably determines that such refund,
deduction or credit has become final; provided, however, that nothing contained
in this paragraph (f) shall require any Lender or the Agent (as the case may be)
to make available its tax returns (or any other information relating to its
taxes which it deems to be confidential) or to attempt to obtain any such
refund, deduction or credit, which attempt would be inconsistent with any
reporting position otherwise taken by the Agent or such Lender on its applicable
tax returns.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.04, 2.11, 2.14 or 8.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available for general corporate purposes of the Borrower.
SECTION 2.17. Letters of Credit. (a) The Letter of Credit Facility. Each
Issuing Bank severally agrees, on the terms and conditions hereinafter set
forth, to issue letters of credit (the "Letters of Credit") for the account of
the Borrower from time to time on any Business Day during the period from the
date hereof until 10 days before the Termination Date (i) in an aggregate
Available Amount for all Letters of Credit issued by such Issuing Bank not to
exceed at any time such Issuing Bank's Letter of Credit Commitment (or such
greater amount as such Issuing Bank shall agree) and (ii) in an Available Amount
for each such Letter of Credit not to exceed an amount equal to the Unused
Revolving Credit Commitments of the Lenders at such time. No Letter of Credit
shall have an expiration date (including all rights of the Borrower or the
beneficiary to require renewal) later than the earlier of (A) 10 days before the
Termination Date and (B) (i) one year after the date of issuance thereof (but
such Letter of Credit may by its terms be automatically renewable at any time
upon notice (a "Notice of Renewal") given to the Issuing Bank that issued such
Letter of Credit and the Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit but in any event at least three Business Days
prior to the date of the proposed renewal of such Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless such
Issuing Bank has notified the Borrower (with a copy to the Agent) on or prior to
the date for notice of termination set forth in such Letter of Credit but in any
event at least 30 Business Days prior to the date of automatic renewal of its
election not to renew such Letter of Credit (a "Notice of Termination")) or (ii)
more than one year after the date of issuance thereof, provided (x) such Letter
of Credit shall effectively provide that the Agent may, upon the written
direction of the Required Banks, require, on at least three Business Days'
written notice to the relevant Issuing Bank and the beneficiary of such Letter
of Credit, that the Available Amount thereof be drawn upon the occurrence and
during the continuance of an Event of Default specified in Section 6.01(f) and
(y) the Agent shall have been furnished a copy of such Letter of Credit and the
addresses of such Issuing Bank and beneficiary at which the foregoing notice may
be given; provided that the terms of each Letter of Credit that is automatically
renewable annually may (x) require the Issuing Bank that issued such Letter of
Credit to give the beneficiary named in such Letter of Credit notice of any
Notice of Termination and (y) permit such beneficiary, upon receipt of such
notice, to draw under such Letter of Credit prior to the date such Letter of
Credit otherwise would have been automatically renewed, provided further that
the terms of any such Letter of Credit shall not permit the expiration date
(after giving effect to any renewal) of such Letter of Credit in any event to be
extended to a date after the date referred to in clause (A) above. If either a
Notice of Renewal is not given by the Borrower or a Notice of Termination is
given by the relevant Issuing Bank pursuant to the immediately preceding
sentence with respect to a Letter of Credit described in clause (B)(i) above,
such Letter of Credit shall provide that it shall expire on the date on which it
otherwise would have been automatically renewed.
(b) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the second
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the relevant Issuing Bank or by such later time or
date as may be agreed by the Borrower and such Issuing Bank. Such Issuing Bank
shall give prompt notice thereof to the Agent, which shall in turn give prompt
notice thereof to the Lenders, by telecopier. Each such notice by the Borrower
of issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telephone, confirmed immediately by telecopier, specifying therein the requested
(A) date of such issuance (which shall be a Business Day), (B) Available Amount
of such Letter of Credit, (C) expiration date of such Letter of Credit, (D) name
and address of the beneficiary of such Letter of Credit and (E) form of such
Letter of Credit, and shall be accompanied by such application and agreement for
letter of credit, if any, as the Borrower and such Issuing Bank may agree for
use in connection with such requested Letter of Credit (in each case, a "Letter
of Credit Agreement"). If the requested form of such Letter of Credit is
reasonably acceptable to such Issuing Bank and otherwise complies or is
consistent with the requirements of this Section, such Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section
8.02 or as otherwise agreed with the Borrower in connection with such issuance.
(c) Drawing and Reimbursement. (i) Each payment by an Issuing Bank of a
draft included in Drawing Documents presented to it under a Letter of Credit
shall be deemed to be a Revolving Credit Advance made by it and is referred to
herein as a "Letter of Credit Advance".
(ii) Each Issuing Bank shall give to the Borrower and the Agent a notice of
its receipt of Drawing Documents and a further notice (an "Issuing Bank's
Notice") promptly after such Issuing Bank determines to make a Letter of Credit
Advance of (A) the amount of such Letter of Credit Advance and (B) the Business
Day (the "Letter of Credit Advance Date") on which the Issuing Bank will make
such Letter of Credit Advance. Upon receipt by the Agent of an Issuing Bank's
Notice, the Agent shall give to the Lenders a notice (an "Agent's Notice")
specifying (w) the Letter of Credit Advance Date on which the Lenders shall
purchase their respective Pro Rata Shares of such Letter of Credit Advance as
provided below, (x) in accordance with clauses (iii) and (iv) below, whether
such Letter of Credit Advance shall constitute a Eurodollar Rate Advance or a
Base Rate Advance and, if a Eurodollar Rate Advance, the Interest Period
therefor and (y) the amount specified in such Issuing Bank's Notice as the
amount of such Letter of Credit Advance. Each Lender shall purchase from such
Issuing Bank such Lender's Pro Rata Share of such Letter of Credit Advance as of
such Letter of Credit Advance Date by making available for the account of its
Applicable Lending Office to the Agent for the account of such Issuing Bank, by
deposit to the Agent's Account, in same day funds, an amount equal to such
Lenders' Pro Rata Share of the amount of such Letter of Credit Advance, and such
Issuing Bank shall be deemed to have sold and assigned to each Lender such
Lender's Pro Rata Share of such Letter of Credit Advance as of such Letter of
Credit Advance Date. Promptly after receipt of such funds, the Agent shall
transfer them to such Issuing Bank. The Borrower hereby agrees to each such sale
and assignment. The Agent shall record each such sale and assignment in the
Register. Each Lender agrees to pay for its Pro Rata Share of a Letter of Credit
Advance on the related Letter of Credit Advance Date, provided that if an
Agent's Notice specifies that such payment is to be made on the date such
Agent's Notice is given and such Agent's Notice is given after 11:00 A.M. (New
York City time) on such date, each Lender shall make such payment by 10:00 A.M.
(New York City time) on the first Business Day following such Letter of Credit
Advance Date. Upon any such assignment by an Issuing Bank to any Lender of a
portion of a Letter of Credit Advance, such Issuing Bank represents and warrants
to such other Lender that such Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or the Borrower. If and to the
extent that any Lender shall not have so made its Pro Rata Share of the amount
of such Letter of Credit Advance available to the Agent on such Letter of Credit
Advance Date, such Lender agrees to pay to the Agent forthwith on demand and for
the account of such Issuing Bank such amount together with interest thereon, for
each day from such Letter of Credit Advance Date until the date such amount is
paid to the Agent, at the Federal Funds Rate.
(iii) (x) If an Issuing Bank gives to the Borrower and the Agent an Issuing
Bank's Notice and the Borrower specifies by notice to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the related Letter of Credit Advance (a) that such Letter of Credit Advance
shall be a Eurodollar Rate Advance and (b) the Interest Period therefor, such
Letter of Credit Advance shall, subject to clause (iv) below, be a Eurodollar
Rate Advance having such Interest Period and the Agent shall so specify in the
related Agent's Notice.
(y) If the Borrower shall specify in accordance with the preceding clause
(x) that a Letter of Credit Advance shall be a Eurodollar Rate Advance but shall
not specify in accordance with the preceding clause (x) the Interest Period
therefor, the Borrower, subject to clause (iv) below, shall be deemed to have
specified in accordance with the preceding clause (x) the longest Interest
Period not longer than three months that the Borrower could have selected for
the related Eurodollar Rate Advance in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.01.
(iv) If an Issuing Bank gives to the Borrower and the Agent an Issuing
Bank's Notice and (x) thereafter the Borrower does not specify by notice to the
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the related Letter of Credit Advance that such Letter of
Credit Advance shall be a Eurodollar Rate Advance or (y) the period between the
date of the related Letter of Credit Advance and the Termination Date is less
than one month, such Letter of Credit Advance will be a Base Rate Advance and
the Agent shall so specify in the related Agent's Notice.
(d) The Borrower's obligations hereunder and under the Notes shall not be
affected by any circumstance or happening (i) related to or arising out of any
Letter of Credit, Letter of Credit Agreement, Drawing Document or any
transaction contemplated thereby or (ii) related to any Issuing Bank or any
beneficiary or transferee of any Letter of Credit, including, without
limitation, the following:
(v) the existence of any claim, set-off, defense or other right that the
Borrower may have against any beneficiary or transferee of any Letter of Credit
or any Issuing Bank, whether in connection with a Letter of Credit, the related
Letter of Credit Agreement or otherwise;
(w) any statement or any other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(x) payment by any Issuing Bank under a Letter of Credit against
presentation of Drawing Documents that do not comply with the terms of such
Letter of Credit; or
(y) any exchange, release or non-perfection of any Letter of Credit
Collateral; provided that none of these provisions of this Section 2.17(d) shall
impair any claim, set-off, defense or other right that the Borrower may have
against a beneficiary or transferee of a Letter of Credit or an Issuing Bank.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND EXTENSIONS OF CREDIT
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) The Borrower shall have notified each Lender and the Agent in writing
as to the proposed Effective Date.
(b) The Borrower shall have paid all accrued fees and expenses of the Agent
and the Lenders (including the accrued fees and expenses of counsel to the
Agent) that are then due and payable.
(c) On the Effective Date, the representations and warranties contained in
Section 4.01 shall be correct as though made on and as of the Effective Date,
and the Agent shall have received for the account of each Lender a certificate
to such effect signed by a duly authorized officer of the Borrower.
(d) The Agent shall have received on or before the Effective Date the
following, each dated such day and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes to the Lenders,
respectively.
(ii) Certified copies of the certificate of incorporation
and the bylaws of the Borrower.
(iii)Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and
the Notes, and of all documents evidencing other
necessary corporate action and governmental approvals,
if any, with respect to this Agreement and the Notes.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized
to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(v) An opinion of Xxxxxxxx Xxxxxxx LLP, counsel for the
Borrower, substantially in the form of Exhibit D
hereto.
(vi) An opinion of Shearman & Sterling, counsel for the
Agent, in substantially the form of Exhibit E hereto.
SECTION 3.02. Condition Precedent to Each Extension of Credit. The
obligation of each Lender or Issuing Bank to make an Extension of Credit shall
be subject to the condition precedent that the Effective Date shall have
occurred and, except with respect to Revolving Credit Advances made by the
Lenders under the circumstances contemplated by Section 2.17(c), that on the
date of such Extension of Credit the representations and warranties contained in
Section 4.01 (except those contained in Sections 4.01(h) and (j)) shall be
correct on and as of the date of such Extension of Credit, before and after
giving effect to such Extension of Credit and to the application of the proceeds
therefrom, as though made on and as of such date (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing under Section 2.02 or of the applicable Letter of
Credit under Section 2.17(b) shall constitute a representation and warranty made
herein by the Borrower to such effect).
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) Organization. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Power and Authority. The Borrower has the corporate power to execute,
deliver and perform its obligations under this Agreement and the Notes and to
take all action necessary to consummate the transactions contemplated by this
Agreement and the Notes.
(c) Due Authorization. The execution, delivery and performance by the
Borrower of this Agreement and the Notes have been duly authorized by all
necessary corporate action and do not (i) contravene its certificate of
incorporation or bylaws or (ii) conflict with or contravene any Law to which it
is subject which would have a Material Adverse Effect.
(d) Governmental Approval. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority is required for the
due execution, delivery and performance by the Borrower of this Agreement and
the Notes, except for those which have been duly obtained or made and are in
full force and effect.
(e) Binding and Enforceable. This Agreement and the Notes constitute the
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with their terms, subject to laws affecting the
enforcement of creditors' rights generally and to general principles of equity.
(f) No Violation. The execution, delivery and performance by the Borrower
of this Agreement and the Notes do not violate, in a manner which would have a
Material Adverse Effect, any agreement binding on it.
(g) No Default. No Default or Event of Default has occurred and is
continuing under this Agreement, other than any Default or Event of Default
which has been waived.
(h) Litigation. No litigation, arbitration or administrative proceeding is
currently pending or, to the Borrower's knowledge, threatened against it (i) to
restrain the entry by the Borrower into, the enforcement of, or exercise of, any
rights by the Lenders or the Agent under, or the performance or compliance by
the Borrower with any obligations under, this Agreement and the Notes, or (ii)
which has had or would reasonably be expected to have a Material Adverse Effect.
(i) Financial Condition. The consolidated balance sheet of the Borrower and
its consolidated subsidiaries as at December 31, 1998 and the related
consolidated statements of income, retained earnings and cash flow for the
fiscal year then ended, heretofore furnished to the Lenders, fairly present in
all material respects the consolidated financial condition of the Borrower and
its consolidated subsidiaries as at said date and the consolidated results of
their operations for said fiscal year, in accordance with GAAP.
(j) Material Adverse Change. There has been no material adverse change in
the business, condition (financial or otherwise) or results of operations of the
Borrower since December 31, 1998.
(k) Accuracy of Information. To the Borrower's knowledge (i) the
Information Memorandum (other than projections included therein) was complete
and correct in all material respects at the date thereof and (ii) all financial
projections contained in the Information Memorandum were prepared in good faith
and based upon assumptions which management of the Borrower believed to be not
unreasonable (it being understood that (w) such projections are subject to
significant uncertainties and contingencies, many of which are beyond the
Borrower's control, (x) no assurance can be given that the projections will be
realized and (y) no representation or warranty can be made as to the accuracy of
such projections).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Covenants of the Borrower. So long as any Advance shall
remain unpaid, any Lender shall have any Revolving Credit Commitment hereunder,
any Issuing Bank shall have a Letter of Credit Commitment hereunder or there
shall remain any Available Amount under any Letter of Credit, the Borrower will:
(a) Ratio of Cash Available for Corporate Debt Service to Corporate
Interest. At the end of each fiscal quarter (including the fourth fiscal
quarter) of the Borrower for which financial statements have most recently been
delivered to the Agent by the Borrower pursuant to Section 5.01(f) or (g), cause
the ratio of Cash Available for Corporate Debt Service to Corporate Interest to
be at least 1.5:1.0, calculated for the period comprised of the four fiscal
quarters ending on the date of such financial statements and with effect from
the date of such delivery of such financial statements.
(b) Ratio of Recourse Debt to Recourse Capital. At the end of each fiscal
quarter (including the fourth fiscal quarter) of the Borrower for which
financial statements have most recently been delivered to the Agent by the
Borrower pursuant to Section 5.01(f) or (g), cause the ratio of Recourse Debt to
Recourse Capital to be not more than .55:1.00, calculated as of the date of such
financial statements and with effect from the date of such delivery of such
financial statements.
(c) Liens. Not create or have outstanding any Lien on or over its non-cash
Assets to secure the payment of Debt except for:
(i) Liens arising solely by operation of law or by order of
a court or tribunal or other governmental authority (or
by an agreement of similar effect);
(ii) Liens arising in the ordinary course of business or
operations, in respect of overdue amounts which either
(A) have not been overdue for more than 30 days or (B)
are being contested in good faith;
(iii)Liens created for the sole purpose of refinancing all
of the Advances;
(iv) Liens arising out of title retention or like provisions
in relation to the acquisition of goods or equipment
acquired in the ordinary course of business or
operations;
(v) Liens created or arising on ownership interests and
documents evidencing ownership interests in (i) a
Person which is the primary obligor in respect of
Project Finance Debt or (ii) a Person substantially all
the Assets of which consist of ownership interests and
documents evidencing ownership interests in (x) a
Person described in the preceding clause (i) or (y)
another Person described in this clause (ii), which
Liens secure such Project Finance Debt;
(vi) Liens on deposits to secure, or any Lien otherwise
securing, the performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, surety bonds, appeal bonds, performance
bonds and other obligations of a like nature incurred
in the ordinary course of business;
(vii)Liens securing reimbursement obligations under letters
of credit, guarantees and other forms of credit
enhancement given in the ordinary course of business;
(viii) Liens created arising over any Asset which is
acquired, constructed or created by the Borrower, but
only if (x) such Lien secures only principal amounts
(not exceeding the cost of such acquisition,
construction or creation) raised for the purposes of
such acquisition, construction or creation, together
with any costs, expenses, interest and fees incurred in
relation thereto or a guarantee given in respect
thereof, (y) such Lien is created or arises on or
before 90 days after the completion of such
acquisition, construction or creation and (z) such Lien
is confined solely to the property so acquired,
constructed or created;
(ix) Liens (x) outstanding on or over any Asset acquired
after the date hereof, (y) in existence at the date of
such acquisition and (z) where the Borrower does not
take any step to increase the principal amount secured
thereby from that so secured and outstanding at the
time of such acquisition (other than in the case of
Liens for a fluctuating balance facility, by way of
utilization of that facility within the limits
applicable thereto at the time of acquisition);
(x) Liens constituted by a right of set off or rights over
a margin call account or any form of cash collateral or
any similar arrangement for obligations incurred in
respect of any currency, commodity or interest rate
swap, option, forward rate, or futures contracts or any
other arrangement for the hedging or management of
risks entered into on commercial terms;
(xi) Liens in favor of a plaintiff or defendant in any
action before a court or tribunal as security for costs
or expenses where such action is being prosecuted or
defended in the bona fide interest of the Borrower;
(xii)Liens described in any of sub-paragraphs (iv) through
(x) above or (xiii) through (xv) below and renewed or
extended upon the renewal or extension or refinancing
or replacement of the indebtedness secured thereby,
provided that there is no increase in the principal
amount of the indebtedness secured thereby over the
principal, capital or nominal amount thereof
outstanding immediately prior to such refinancing;
(xiii)Liens existing on the date hereof;
(xiv)Liens on the property of a Person existing at the time
such Person is merged into or consolidated with the
Borrower and not incurred in contemplation with such
merger or consolidation; and
(xv) Liens created or outstanding on or over Assets of the
Borrower provided that the aggregate outstanding
principal, capital or nominal amount secured by all
Liens created or outstanding under this clause (xv) on
or over Assets of the Borrower shall not at any time
exceed 15% of the Borrower's Consolidated Net Worth.
(d) Compliance with Law. Comply with the requirements of the Laws
applicable to the Borrower in the conduct of its business, where failure to do
so would reasonably be expected to have a Material Adverse Effect.
(e) Maintenance of Existence. Preserve and maintain its legal existence as
a corporation, except that the Borrower may be merged or consolidated with or
into another corporation if the continuing or surviving corporation is the
Borrower or expressly assumes all of the obligations of the Borrower under this
Agreement and the Notes and if immediately before the consummation of such
transaction there is no Default or Event of Default and such consummation shall
not result in a Default or Event of Default.
(f) Annual Financial Statements, Etc. Within 120 days after the end of each
fiscal year of the Borrower (beginning with the first fiscal year ending after
the date hereof), deliver to the Agent copies for the Lenders of its
consolidated financial statements as of the end of and for such fiscal year duly
certified by the independent accountants of the Borrower. Such financial
statements shall be prepared in accordance with GAAP and shall be accompanied by
certificates of the chief financial officer, the treasurer or the comptroller of
the Borrower as to compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate compliance with
Sections 5.01(a) and (b).
(g) Interim Financial Statements, Etc. Within 60 days after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower
(beginning with the first such fiscal quarter to end after the date hereof),
deliver to the Agent copies for the Lenders of its unaudited consolidated
financial statements as of the end of and for such fiscal quarter duly certified
(subject to year-end adjustments) by the chief financial officer, the treasurer
or the comptroller of the Borrower as having been prepared in accordance with
GAAP. Such financial statements shall be accompanied by certificates of the
chief financial officer, the treasurer or the comptroller of the Borrower as to
compliance with the terms of this Agreement and setting forth in reasonable
detail the calculations necessary to demonstrate compliance with Sections
5.01(a) and (b).
(h) Other Information. Deliver to the Agent as soon as reasonably
practicable such other information relating to the then existing financial
condition of the Borrower and its consolidated Subsidiaries as the Agent may
from time to time reasonably request except such information the disclosure of
which is prohibited by Law.
(i) Notice of Default. Promptly, and in any event within 10 Business Days,
notify the Agent of the occurrence of any Default or Event of Default of which
the chief financial officer, treasurer or comptroller of the Borrower has
knowledge.
(j) Incurrence of Recourse Debt, Etc. Not (i) incur any Recourse Debt
(other than Recourse Debt the proceeds of which are applied to the concurrent
repayment of Recourse Debt), (ii) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of capital stock of the Borrower or (iii)
purchase, redeem or otherwise acquire for value any shares of any class of
capital stock of the Borrower or any warrants, rights or options to acquire any
such shares, now or hereafter outstanding except that the Borrower may (x)
declare and make any dividend payment or other distribution payable in common
stock of the Borrower, (y) purchase, redeem or otherwise acquire shares of its
common stock or warrants, rights or options to acquire any such shares with the
proceeds received from the substantially concurrent contribution to the
Borrower's capital or issue of new shares of the Borrower's common stock and (z)
take any action specified in clause (i), (ii), or (iii) above if, at the end of
the fiscal quarter (including the fourth fiscal quarter) of the Borrower for
which financial statements have most recently been delivered to the Agent by the
Borrower pursuant to Section 5.01(f) or (g) on or preceding the date on which
the Borrower takes such action, the ratio of Cash Available for Corporate Debt
Service to Corporate Interest was at least 2.0:1.0, calculated for the period
comprised of the four fiscal quarters ending on the date of such financial
statements and with effect from the date of such delivery of such financial
statements.
(k) Inspection Rights, Etc. Permit the Agent or any other Lender or any
agents or representatives thereof to examine and make copies of and abstracts
from records and books of, and visit the properties of, the Borrower to discuss
the affairs, finances and accounts of the Borrower with any of its officers or
directors and with its independent certified public accountants from time to
time during normal business hours upon reasonable notice. The Lenders and the
Agent agree that the Agent shall coordinate and consolidate visits by Lenders
and their agents and representatives (including the examination of records and
books and the making of copies and abstracts of records and books) at mutually
convenient times and in such a manner so as to minimize the disruption to the
operations of the Borrower and to the costs associated with such visits.
(l) Granting of Benefits under Certain Circumstances. If in connection with
obtaining a waiver or a curative amendment of a "default" or an "event of
default" under a document under which any Debt of the Borrower in a principal or
notional amount equal to or in excess of $50,000,000 is outstanding or which
evidences any such Debt any creditor in respect of such Debt will obtain any
benefit (including collateral security, a guarantee or other third-party support
and improved financial terms), the Borrower will offer to the Lenders the same
benefit (including ratable collateral security and guarantees and third-party
support and comparably improved terms) and, upon the acceptance by the Required
Lenders of such offer, will cause such benefit to be made available to the
Lenders concurrently with making such benefit available, and on substantially
the same terms as it is made available, to such other creditor.
(m) Notice of Change of Credit Rating. Promptly after the Borrower is
notified thereof in writing by S&P or Xxxxx'x or the Borrower becomes aware of
the public announcement thereof by S&P or Xxxxx'x, notify the Agent of any
change in the Credit Rating by S&P or Xxxxx'x, as the case may be.
(n) Notice of Issuance and Increase of Letter of Credit Commitments. Notify
the Agent promptly upon the issuance of a Letter of Credit Commitment and any
increase thereof.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Payments. The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance or any payment of fees or other amounts payable under
this Agreement within five Business Days after the same becomes due and payable;
or
(b) Representations and Warranties. Any representation or warranty made by
the Borrower herein shall prove to have been materially incorrect when made and,
if such representation or warranty is susceptible of cure, it shall not have
been cured within 10 days after written notice thereof has been given by the
Agent to the Borrower (or such longer period as the Required Lenders may
permit); or
(c) Covenants. The Borrower shall fail to perform or comply with any
material term, covenant or agreement contained in this Agreement on its part to
be performed or observed and such failure shall remain unremedied for 30 days
after written notice thereof has been given by the Agent to the Borrower (or
such longer period as the Required Lenders may permit); or
(d) Cross-default. The Borrower shall fail to pay any principal of, or
premium or interest on, any Debt of the Borrower that is outstanding in a
principal or notional amount equal to or in excess of $50,000,000 (but excluding
Debt outstanding under this Agreement and Subordinated Debt of the Borrower if
the relevant payment is prohibited by the terms thereof) when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under the agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or any such Debt shall be declared due and payable, or be
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the scheduled maturity thereof by reason of default; or
(e) Judgment. Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower and there shall be any period
of 60 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(f) Bankruptcy, Etc. The Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the U.S. Bankruptcy Code (as now or hereafter in effect) or
any similar law of any applicable jurisdiction, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, or (v) fail
to controvert in a timely and appropriate manner, or acquiesce in writing to,
any petition filed against it in an involuntary case under the U.S. Bankruptcy
Code or any similar law of any applicable jurisdiction; or a proceeding or case
shall be commenced, without the application or consent of the Borrower, in any
court of competent jurisdiction, seeking (x) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts, (y)
the appointment of a trustee, receiver, custodian, liquidator or the like of the
Borrower or of all or any substantial part of its assets, or (z) similar relief
in respect of the Borrower under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue unstayed and in effect for a period of 90 or
more days; or
(g) Change of Control. The Borrower ceases to be Controlled, directly or
indirectly, by The Southern Company; then, and in any such event, the Agent (i)
shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the obligation of each Lender to make Advances
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Advances and the Notes, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances and the Notes, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances and the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
Any Default or Event of Default which has been waived in the manner
required by the applicable provisions of this Agreement shall not be considered
to be continuing from and after the time as of which such waiver has become
effective.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Event of Default.
(a) If an Event of Default shall have occurred and be continuing at any time
when there shall be any Available Amount under any Letter of Credit, then the
Agent shall, upon the request of the Required Lenders, whether in addition to
the taking by the Agent of any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, pay to the Agent for its benefit and the ratable benefit of the
Lenders in same day funds at the Agent's office designated in such demand, for
deposit in a special cash collateral account (the "Letter of Credit Collateral
Account") to be maintained in the name of the Borrower and under the sole
dominion and control of the Agent for the benefit of the Agent and the ratable
benefit of the Lenders at such place as shall be agreed by the Borrower and the
Agent (or, if not so agreed, as designated by the Agent), an amount equal to the
amount of the aggregate of the Available Amounts under all Letters of Credit.
(b) The Borrower hereby pledges and assigns to the Agent for its benefit
and the ratable benefit of the Lenders, and grants to the Agent for its benefit
and the ratable benefit of the Lenders a lien on and a security interest in, the
following collateral (the "Letter of Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash
deposited therein, and all certificates and
instruments, if any, from time to time representing or
evidencing the Letter of Credit Collateral Account;
(ii) all Eligible Securities from time to time held by the
Agent and all certificates and instruments from time to
time representing or evidencing Eligible Securities;
(iii)all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or
otherwise possessed by the Agent for or on behalf of
the Borrower in substitution for or in respect of any
or all of the then existing Letter of Credit
Collateral;
(iv) all interest, dividends, cash, instruments and other
property from time to time received, receivable or
otherwise distributed in respect of or in exchange for
any or all of the then existing Letter of Credit
Collateral; and
(v) to the extent not covered by clauses (i) through (iv)
above, all proceeds of any or all of the foregoing
Letter of Credit Collateral.
The lien and security interest granted hereby secures the payment of all
obligations of the Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) Neither the Borrower nor any Person claiming or acting on behalf of or
through the Borrower shall have any right to withdraw any of the funds held in
the Letter of Credit Collateral Account, except as provided in Section 6.02(g).
The Borrower shall take such action as the Agent may deem necessary or desirable
to create a perfected security interest in favor of the Agent on behalf of
itself and the Lenders in any Eligible Securities. The Agent will endeavor to
invest amounts on deposit in the Letter of Credit Collateral Account in such
Eligible Securities as the Agent shall select. All such amounts that are not
invested or reinvested in Eligible Securities as provided above shall be
deposited and held in cash in the Letter of Credit Collateral Account under the
sole dominion and control of the Agent.
(d) The Borrower agrees that it will not (i) sell or otherwise dispose of
any interest in the Letter of Credit Collateral or (ii) create or permit to
exist any Lien upon or with respect to any of the Letter of Credit Collateral,
except for the security interest created by this Section.
(e) (i) The Agent may exercise in respect of the Letter of Credit
Collateral Account, in addition to the other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code in effect in the State of
New York at that time, and the Agent may, without notice except as specified
below, sell the Letter of Credit Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Agent's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as the
Agent may deem commercially reasonable. The Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to the
Borrower of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The Agent
shall not be obligated to make any sale of Letter of Credit Collateral or any
part thereof, regardless of notice of sale having been given. The Agent may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(ii) Any cash held in the Letter of Credit Collateral
Account, and all cash proceeds received by the Agent in
respect of any sale of, collection from or other
realization upon all or any part of the Letter of
Credit Collateral Account may, in the discretion of the
Agent, then or at any time thereafter be applied (after
payment of any amounts payable pursuant to Section
8.04) in whole or in part by the Agent for the ratable
benefit of the Lenders first, in payment of Revolving
Credit Advances made in respect of drawings under
Letters of Credit and second, if no such Revolving
Credit Advances remain unpaid and there is no Available
Amount under a Letter of Credit, in payment of all or
any part of the obligations of the Borrower under any
of the Loan Documents in such order as the Agent may
elect.
(f) The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Letter of Credit Collateral if the Letter of
Credit Collateral is accorded treatment substantially equal to that which the
Agent accords its own property, it being understood that the Agent shall not
have any responsibility or liability (i) for ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Eligible Securities, whether or not the Agent has or is deemed
to have knowledge of such matters, (ii) for taking any necessary steps to
preserve rights against any parties with respect to the Letter of Credit
Collateral, (iii) for the collection of any proceeds from Eligible Securities,
(iv) by reason of any invalidity, lack of value or uncollectability of any of
the payments received by the Agent from obligors with respect to Eligible
Securities, (v) for any loss resulting from investments made pursuant to Section
6.02(c), except to the extent such loss was attributable to the Agent's gross
negligence or wilful misconduct in complying with Section 6.02(c), or (vi) any
failure by the Agent to make any investment pursuant to Section 6.02(c).
(g) Any surplus of the funds held in the Letter of Credit Collateral
Account and remaining after payment in full of all of the obligations of the
Borrower under this Agreement and under any other Loan Document after the
Termination Date shall be paid to the Borrower or to whosoever may be lawfully
entitled to receive such surplus.
(h) If all Events of Default have been cured or waived in the manner
required by the applicable provisions of this Agreement, the provisions of this
Section 6.02 shall automatically terminate with respect to such Events of
Default upon such cure or waiver, and the Agent shall thereupon promptly return
to the Borrower all Letter of Credit Collateral then held by theAgent.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender and Issuing Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Revolving Credit Notes), 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 Lenders, and such instructions shall be
binding upon all Lenders and Issuing Banks and all holders of Notes; provided,
however, that the Agent shall not be required to take any action that exposes
the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender and Issuing Bank prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
payee of any Revolving Credit Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Revolving Credit Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal
counsel (including counsel for the Borrower), 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 Lender or Issuing Bank and shall not be responsible to any Lender or Issuing
Bank for any statements, warranties or representations (whether written or oral)
made in or in connection with this Agreement; (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 this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender or Issuing Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Revolving Credit
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from, and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with, or
own securities of, the Borrower or any such Subsidiary, all as if Citibank were
not the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender and Issuing Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender or Issuing Bank and based on the financial statements referred
to in Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and Issuing Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender or Issuing
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent and
each Issuing Bank (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit Notes then
held by each of them (or if no Revolving Credit Notes are at the time
outstanding or if any Revolving Credit Notes are held by Persons that are not
Lenders, ratably according to the respective amounts of their Revolving Credit
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Agent or such Issuing Bank in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent or
such Issuing Bank under this Agreement (collectively, the "Indemnified Costs");
provided that no Lender shall be liable for any portion of the Indemnified Costs
resulting from (i) the Agent's or such Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
the Agent, any Lender or a third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Borrower shall have the right to appoint a successor Agent, subject
to the approval of the Required Lenders, such approval not to be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Borrower and approved by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent subject
to the approval of the Borrower and the Required Lenders, such approval not to
be unreasonably withheld or delayed, which 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 the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Revolving Credit Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by or on behalf of the Borrower and the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by or on behalf
of the Borrower and all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Revolving Credit
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Revolving Credit Notes or any fees
or other amounts payable hereunder, (e) change the percentage of the Revolving
Credit Commitments or of the aggregate unpaid principal amount of the Revolving
Credit Notes, or the number of Lenders, that shall be required for the Lenders
or any of them to take any action hereunder or (f) amend this Section 8.01; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by or on behalf of the Agent or an Issuing Bank in addition to the
Persons required above to take such action, affect the rights or duties of the
Agent or such Issuing Bank, as the case may be, under this Agreement or any
Revolving Credit Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier communication) and
mailed, telecopied, or delivered, if to the Borrower, at its address at 000
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Treasurer,
with a copy to Manager, Loan Administration, facsimile: 000-000-0000; if to the
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx
00000, Attention: Bank Loan Syndication Department, telephone: 000-000-0000,
facsimile: 000-000-0000; or, as to the Borrower or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent. All
such notices and communications shall, when mailed or telecopied, be effective
when deposited in the mails or telecopied, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart hereof or of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender,
Issuing Bank or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses, Etc. (a) The Borrower agrees to pay, upon
demand and presentation to the Borrower of a statement of account,
all reasonable and documented third-party out-of-pocket costs and expenses of
the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under
this Agreement. The Borrower further agrees to pay, upon demand and presentation
to the Borrower of a statement of account, all reasonable and documented
third-party out-of-pocket costs and expenses of the Agent and the Lenders, if
any (including, without limitation, reasonable fees and expenses of counsel), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and the Lenders in connection with the enforcement of
rights under this Section 8.04(a), provided, that the Borrower shall be required
to pay the reasonable fees and expenses of only one counsel selected by the
Indemnified Parties as contemplated by the proviso to Section 8.04(b)(iii).
(b) (i) The Borrower agrees to indemnify each of the Agent, the Lenders,
the Issuing Banks and their respective officers, directors, employees and agents
(each, an "Indemnified Party") from, and hold each of them harmless against, any
and all losses, liabilities, claims, damages or expenses incurred by any of them
as a result of, or arising out of, any investigation, litigation or proceeding
(whether or not any of the Indemnified Parties is a party thereto) related to
the entering into of this Agreement, the issuance of the Notes, the Letters of
Credit and the actual or proposed use of the proceeds of the Advances and of the
Letters of Credit and the consummation of any matter contemplated by this
Agreement, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding; provided that the Borrower shall not be responsible for any
such losses, liabilities, claims, damages or expenses of any Indemnified Party
to the extent incurred by reason of gross negligence or willful misconduct on
the part of such Indemnified Party.
(ii) The Borrower shall be entitled to participate in any
action or proceeding of which it has been notified by
any Indemnified Party except any action or proceeding
brought by or for the benefit of the Borrower or any
Subsidiary of the Borrower against an Indemnified
Party.
(iii)Promptly after receipt by an Indemnified Party of
written notice of any loss, liability, claim, damage or
expense in respect of which indemnity may be sought by
it hereunder, such Indemnified Party will, if a claim
is to be made against the Borrower, notify the Borrower
thereof in writing, but the omission so to notify the
Borrower will not relieve the Borrower from (i) any
liability under this Section which it may have to such
Indemnified Party except to the extent the Borrower was
prejudiced by such omission or (ii) any liability other
than under this Section. Thereafter, the Indemnified
Party and the Borrower shall consult, to the extent
appropriate, with a view to minimizing the cost to the
Borrower of its obligations hereunder. In case any
Indemnified Party receives written notice of any
liability, loss, claim, damage or expense in respect of
which indemnity may be sought by it hereunder and it
notifies the Borrower thereof, the Borrower will be
entitled to participate therein, and to the extent that
it may elect by written notice delivered to the
Indemnified Party promptly after receiving the
aforesaid notice from the Indemnified Party, to assume
the defense thereof with counsel reasonably
satisfactory to the Indemnified Parties (and, if the
Agent or one or more Lenders are the Indemnified
Parties, the Agent and such Lenders shall be entitled
jointly to direct the conduct of their defense);
provided, however, that if the parties against which
any loss, claim, damage, expense or liability arises
include both an Indemnified Party and the Borrower and
such Indemnified Party shall have reasonably concluded
that (i) there may be legal defenses available to it or
other Indemnified Parties which are different from or
additional to those available to the Borrower or any
Subsidiary of the Borrower and may conflict therewith
or (ii) if any liability, loss, claim, damage or
expense arises out of actions brought by or for the
benefit of the Borrower or any Subsidiary of the
Borrower, the Indemnified Parties collectively shall
have the right to select one separate counsel to assume
such legal defenses and otherwise to participate in the
defense of such loss, claim, damage or liability on
behalf of the Indemnified Parties. Upon receipt by the
Indemnified Party of notice from the Borrower of its
election to assume the defense of such liability, loss,
claim, damage or expense and approval by the
Indemnified Party of counsel, the Borrower shall not be
liable to the Indemnified Party for any legal or other
expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof unless (i) the
Indemnified Party shall have employed such counsel in
connection with the assumption of legal defenses in
accordance with the proviso to the next preceding
sentence, (ii) the Borrower shall not have employed and
continued to employ counsel reasonably satisfactory to
the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of
commencement of the action or (iii) the Borrower shall
have authorized in writing the employment of separate
counsel for the Indemnified Party at the expense of the
Borrower. At the Borrower's request, an Indemnified
Party will settle, compromise or consent to the entry
of any order adjudicating or otherwise disposing of any
loss, claim, damage or liability for which the Borrower
is liable hereunder if such settlement, compromise or
consent to entry of any order (A) includes a provision
unconditionally releasing each Indemnified Party from
and holding each Indemnified Party harmless against all
liability in respect of claims by any releasing party
relating to or arising out of this Agreement, the Notes
and the matters contemplated herein, (B) does not
require any admission or acknowledgment of culpability
or wrongdoing by such Indemnified Party and (C) does
not involve performance by, or the payment of money
damages by, such Indemnified Party. The Borrower shall
not be liable for any settlement, compromise or consent
to the entry of any order adjudicating or otherwise
disposing of any loss, claim, damage or liability
effected without its consent.
(c) The Borrower agrees to indemnify each Lender for its actual and
documented losses (excluding any loss of profit and/or margin), costs and
expenses reasonably incurred by it resulting from any payment or prepayment of
principal of, or Conversion of, any Eurodollar Rate Advance or, unless otherwise
specified by the Borrower in the related Notice of Competitive Bid Borrowing,
LIBO Rate Advance under this Agreement or the Notes, which payment or prepayment
is made on a day other than the last day of the relevant Interest Period, or,
unless otherwise specified by the Borrower in the related Notice of Competitive
Bid Borrowing, from any payment or prepayment of principal of a Fixed Rate
Advance other than on the scheduled maturity date of such payment, excluding,
however, any such losses, costs and expenses resulting from a payment or
prepayment made more than 60 days prior to demand being made to the Borrower by
such Lender for indemnification. The payment of such indemnity to a Lender shall
be made within 30 days of a demand by such Lender complying with Section
8.04(d).
(d) Any demand by a Lender for payment under Section 2.02(c), 2.03(a)(vi),
2.11, 2.14, 8.04(b) or 8.04(c) or under any other indemnity made by the Borrower
under this Agreement shall be made in writing to the Borrower (with a copy to
the Agent) and shall be accompanied by a certificate of an officer of the Agent
or the relevant Lender, as may be appropriate, setting forth in reasonable
detail the calculation of the amount demanded.
(e) To the extent permitted by law, if any Lender notifies the Borrower
that additional amounts will be due under Section 2.11 or that any of the events
outlined in Section 2.12 have occurred, such Lender will change its Applicable
Lending Office if as a result thereof such increased costs would not be required
to be so paid or it would not be illegal for such Lender to make, fund or
maintain its Eurodollar Rate Advances, and provided such Lender determines that
such change is not commercially unreasonable. The Borrower will reimburse such
Lender for all reasonable expenses it may incur as a result of complying with
this Section 8.04(e).
(f) If any circumstances arise which result, or such Lender becomes aware
of any circumstances which might result, in the Borrower having to make such
compensation or indemnification or in it becoming illegal for such Lender to
make, fund or maintain such Lender's Eurodollar Rate Advances, such Lender will
promptly notify the Borrower thereof and, in consultation with the Borrower,
such Lender shall take all such steps, if any, as it determines are reasonable
and the Borrower determines are acceptable to mitigate the effect of those
circumstances.
(g) Without prejudice to the survival of any other agreement of the
Borrower or of the Lenders hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and 8.04 and the obligations of the
Lenders contained in Sections 2.14, 8.04, 8.07(g) and 8.08 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes.
(h) The Borrower shall pay to the Agent for the account each
Lender and to the Agent and the Lead Arranger for their own respective
accounts
such fees as may from time to time be agreed between the Borrower and the Agent
or the Borrower and the Lead Arranger.
SECTION 8.05. Right of Set-off. Upon declaration by the Agent that the
Advances and the Notes are due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by
such Lender to, or for the credit or the account of, the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Notes held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been executed
by the Borrower and the Agent and when the Agent shall have been notified by the
Initial Lender that such Initial Lender has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent and each Lender
and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to
(i) one or more Eligible Assignees with the approval of the Agent and, in the
case of any Eligible Assignee not listed in clause (i) of the definition of
"Eligible Assignee", the Borrower (such approval not to be unreasonably withheld
or delayed) and (ii) one or more other entities with the approval of the
Borrower and the Agent, all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Revolving
Credit Commitment, the Revolving Credit Advances owing to it and the Revolving
Credit Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement, (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Revolving Credit Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall be $10,000,000 or a larger
integral multiple of $1,000,000 and (iii) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register and, if the relevant Eligible Assignee is not listed in clause (i) of
the definition of "Eligible Assignee", to the Borrower for its acceptance, an
appropriate Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment and, in the case of an Assignment and Acceptance not
entered into to effect the General Syndication, a processing and recordation fee
of $3,000. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(other than under Sections 2.14(f), 8.07(g) and 8.08) (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) If any Lender shall make a demand under Section 8.04(d) for payment in
respect of a claim under Section 2.11 or shall give a notice under Section 2.12
of any unlawfulness or assertion of unlawfulness contemplated by such Section or
any demand shall be made or any amount shall be payable with respect to any
Lender under Section 2.14, the Borrower may, by written notice given to such
Lender within 45 days of the making by such Lender of such demand or the giving
by such Lender of such notice, require by written notice to such Lender that
such Lender assign, by executing and delivering an Acceptance and Assignment
within 15 days of the giving by the Borrower of such notice but on at least
three Business Days' notice to one or more Persons in accordance with Section
8.07(a) such Lender's Revolving Credit Commitment and its Advances against
payment to such Lender in immediately available funds of the principal amount of
such Advances, all interest accrued thereon to the date of payment, all fees
accrued by such Lender to the date of payment, any amounts payable to such
Lender under Section 8.04(c) and all other amounts payable hereunder to such
Lender.
(c) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee or
that it is an entity that has been approved by the Borrower and the Agent under
Section 8.07(a); (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(d) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee or
that it is an entity that has been approved by the Borrower and the Agent under
Section 8.07(a), together with any Revolving Credit Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) promptly give notice and a copy thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Agent in exchange for the
surrendered Revolving Credit Note a new Revolving Credit Note to such Eligible
Assignee or other entity in an amount equal to the Revolving Credit Commitment
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Revolving Credit Commitment hereunder, a new Revolving
Credit Note to the assigning Lender in an amount equal to the Revolving Credit
Commitment retained by it hereunder. Such new Revolving Credit Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Revolving Credit Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(f) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Revolving Credit Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation. Each Lender selling participations shall provide prompt notice to
the Borrower and the Agent of such participations and the purchasers of such
participations.
(g) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any
Confidential Information; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall have executed
and delivered to such Lender and to the Borrower a duly authorized
confidentiality agreement substantially in the form of Exhibit C-2.
(h) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 8.08. Confidentiality. (a) Neither the Agent, the Lead Arranger nor
any Lender shall, without the prior written consent of the Borrower, (i)
disclose the Confidential Information to any Person except as permitted by
Section 8.07(g) or this Section 8.08 or (ii) use, either directly or indirectly,
any of the Confidential Information except in concert with the Borrower and in
connection with this Agreement and the transactions contemplated hereby.
(b) The Agent and each Lender may disclose the Confidential Information (i)
to their respective Representatives who need to know the Confidential
Information for the purpose of administering this Agreement and the transactions
contemplated hereby or for the discharge of their duties, who are informed by
the Agent or such Lender of the confidential nature of the Confidential
Information, and who agree to be bound by the terms and conditions of this
Agreement to the same extent as the Agent or such Lender and (ii) to any party
hereto.
(c) Each of the Agent and each Lender agrees that, without the Borrower's
prior written consent, it shall not disclose to any person (except as otherwise
expressly permitted herein) the fact that the Confidential Information has been
made available or any of the terms, conditions or other facts with respect to
the Confidential Information.
(d) The provisions contained in this Section 8.08 shall be inoperative as
to any portion of the Confidential Information that (i) is or becomes generally
available to the public on a nonconfidential basis through no fault or action by
the Agent, the Lead Arranger, any Lender or their respective Representatives, or
(ii) is or becomes available to the Agent, the Lead Arranger or any Lender on a
nonconfidential basis from a source other than the Borrower, its Affiliates or
Representatives or the Agent or the Lead Arranger or their Representatives,
which source, to the best knowledge of the Agent, the Lead Arranger or any
Lender, as may be appropriate, is not prohibited from disclosing such
Confidential Information to the Agent, the Lead Arranger or such Lender by a
contractual, legal or fiduciary obligation to the Borrower, the Agent, the Lead
Arranger or any Lender.
(e) The Agent and each Lender may disclose the Confidential Information at
the request of any regulatory or supervisory authority having jurisdiction over
it or to the extent necessary for purposes of enforcing this Agreement.
(f) In the event that the Agent or any Lender becomes legally compelled to
disclose any of the Confidential Information otherwise than as contemplated by
Section 8.08(e), the Agent or such Lender shall provide the Borrower with notice
of such event promptly upon its obtaining knowledge thereof (provided that it is
not otherwise prohibited by Law from giving such notice) so that the Borrower
may seek a protective order or other appropriate remedy. In the event that such
protective order or other remedy is not obtained, the Agent or such Lender shall
furnish only that portion of the Confidential Information that it is legally
required to furnish and shall cooperate with the Borrower's counsel to enable
the Borrower to obtain a protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information.
(g) In the event of any breach of this Section 8.08, the Borrower shall be
entitled to equitable relief (including injunction and specific performance) in
addition to all other remedies available to it at law or in equity.
(h) Neither the Agent nor any Lender shall make any public announcement,
advertisement, statement or communication regarding the Borrower, its Affiliates
or this Agreement or the transactions contemplated hereby without the prior
written consent of the Borrower.
(i) The obligations of the Agent and each Lender under this Section 8.08
shall survive the termination or expiration of this Agreement.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. 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.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court, New York County, United States
District Court for the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the Agent and the
Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
The Borrower
SOUTHERN ENERGY, INC.
By /s/ Xxxxxxx X. Xxxxx III
---------------------------------
Name: Xxxxxxx X.Xxxxx III
Title: Vice President
The Agent
CITIBANK, N.A. as Agent
By /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
The Initial Lender
CITIBANK, N.A.
By /s/ Xxxxxx X. Xxxx
---------------------------
Name:Xxxxxx X. Xxxx
Title: Managing Director
SCHEDULE I
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Revolving Credit Domestic Eurodollar
Initial Lender Commitment Lending Office Lending Office
Citibank, N.A. $350,000,000 Xxx Xxxxx Xxx
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
SCHEDULE II
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
TERMS OF SUBORDINATION
Terms defined in the Credit Agreements referred to below are used in these
Terms of Subordination with their defined meanings except as otherwise defined
herein.
I. SUBORDINATION TERMS OF AFFILIATE SUBORDINATED DEBT.
SECTION 1. "Affiliate Subordinated Debt" Defined. "Affiliate Subordinated
Debt" means, for purposes of these Terms of Subordination (this "Agreement"),
[describe the specific Affiliate Subordinated Debt that is being subordinated
hereby--to include all amounts payable in connection therewith], which
constitutes Debt of the Borrower originally issued to a Person that is an
Affiliate of the Borrower and which is subordinated on the terms set forth
below. Debt of the Borrower payable to any entity that is formed by the Borrower
or an Affiliate of the Borrower for the purpose of issuing securities in the
public or capital markets, or in a private placement, shall not constitute
"Affiliate Subordinated Debt" for all purposes hereof.
SECTION 2. Agreement to Subordinate. The holder hereof (the "Subordinated
Creditor") and the Borrower each agree that the Affiliate Subordinated Debt is
and shall be subordinate, to the extent and in the manner hereinafter set forth,
to the prior payment in full of all obligations of the Borrower now or hereafter
existing under the Facility A, Facility B and Facility C Credit Agreements, each
dated as of April 1, 1999, as from time to time in effect (the "Credit
Agreements"), among the Borrower, the financial institution(s) party thereto and
Citibank, N.A., as Agent for such financial institution(s), and the Notes issued
pursuant thereto, whether for principal, interest (including, without
limitation, interest, as provided in the Notes, accruing after the filing of a
petition initiating any proceeding referred to in Section 3(a), whether or not
such interest accrues after the filing of such petition for purposes of the
Federal Bankruptcy code or is an allowed claim in such proceeding), fees,
expenses or otherwise (such obligations of the Borrower under the Credit
Agreements being the "Obligations"). For the purposes of this Agreement, the
Obligations shall not be deemed to have been paid in full until the Termination
Date under each Credit Agreement shall have elapsed and unless the Lenders shall
have received payment of the Obligations in full in cash.
SECTION 3. Events of Subordination. (a) In the event of any dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Borrower or its debts, whether voluntary or
involuntary, in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or other similar case or proceeding under any Federal or
State bankruptcy or similar law or upon an assignment for the benefit of
creditors or any other marshaling of the assets and liabilities of the Borrower
or otherwise, the Lenders shall be entitled to receive payment in full of the
Obligations before the Subordinated Creditor is entitled to receive any payment
of all or any of the Affiliate Subordinated Debt, and any payment or
distribution of any kind (whether in cash, property or securities) that
otherwise would be payable or deliverable upon or with respect to the Affiliate
Subordinated Debt in any such case, proceeding, assignment or marshaling
(including any payment that may be payable by reason of any other Debt of the
Borrower being subordinated to payment of the Affiliate Subordinated Debt) shall
be paid or delivered directly to Citibank, N.A., as Agent under the Credit
Agreements, for the account of the Lenders for application (in the case of cash)
to, or as collateral (in the case of non-cash property or securities) for, the
payment or prepayment of the Obligations until the Obligations shall have been
paid in full.
(b) In the event that (i) any Default or Event of Default described in
Section 6.01(a) of a Credit Agreement shall have occurred and be continuing,
(ii) any Event of Default (other than as referred to in the preceding clause
(i)) shall have occurred and be continuing or (iii) any judicial proceeding
shall be pending with respect to any Event of Default, then no payment
(including any payment that may be payable by reason of any other Debt of the
Borrower being subordinated to payment of the Affiliate Subordinated Debt) or
distribution of any kind, whether in cash, property or securities, shall be made
by or on behalf of the Borrower for or on account of any Affiliate Subordinated
Debt, and the Subordinated Creditor shall not take or receive from the Borrower,
directly or indirectly, in cash or other property or by set-off in any other
manner, including, without limitation, from or by way of collateral, payment of
all or any of the Affiliate Subordinated Debt until the Obligations shall have
been paid in full.
(c) No payment (including any payment that may be payable by reason of any
other Debt of the Borrower being subordinated to the payment of the Affiliate
Subordinated Debt) or distribution of any kind, whether in cash, property or
securities, shall be made by or on behalf of the Borrower for or on account of
any Affiliate Subordinated Debt, and the Subordinated Creditor shall not take or
receive from the Borrower, directly or indirectly, in cash, property or
securities or by set-off or in any other manner, including, without limitation,
from or by way of collateral, payment of all or any of the Affiliate
Subordinated Debt at any time unless at the end of the fiscal quarter (including
the fourth fiscal quarter) of the Borrower for which financial statements have
most recently been delivered to the Agent by the Borrower pursuant to Sections
5.01(f) or (g) of the Credit Agreements on or preceding the date on which the
Borrower takes such action, the ratio of Cash Available for Corporate Debt
Service to Corporate Interest was at least 2.0:1.0, calculated for the period
comprised of the four fiscal quarters ending on the date of such financial
statements and with effect from the date of delivery of such financial
statements.
SECTION 4. In Furtherance of Subordination. The Subordinated Creditor
agrees as follows:
(a) If any proceeding referred to in Section 3(a) above is commenced by or
against the Borrower,
(i) Citibank, N.A., as Agent for the Lenders, is hereby
irrevocably authorized and empowered (in its own name
or in the name of the Subordinated Creditor or
otherwise), but shall have no obligation, to demand,
xxx for, collect and receive every payment or
distribution referred to in Section 3(a) and give
acquittance therefor and to file claims and proofs of
claim and take such other action (including, without
limitation, voting the Affiliate Subordinated Debt or
enforcing any security interest or other lien securing
payment of the Affiliate Subordinated Debt) as it may
deem necessary or advisable for the exercise or
enforcement of any of the rights or interests of the
Agent or the Lenders hereunder; and
(ii) the Subordinated Creditor shall duly and promptly take
such reasonable action as Citibank, N.A., as Agent for
the Lenders, may request (A) to permit Citibank, N.A.,
as Agent for the Lenders, to collect the Subordinated
Debt for the account of the Lenders and to file
appropriate claims or proofs of claim in respect of the
Subordinated Debt, (B) to execute and deliver to
Citibank, N.A., as Agent for the Lenders, such
documents as Citibank, N.A., as Agent for the Lenders,
may reasonably request in order to enable Citibank,
N.A., as Agent for the Lenders, to enforce any and all
claims with respect to, and any security interests and
other liens securing payment of, the Subordinated Debt,
and (C) to collect and receive any and all payments or
distributions which may be payable or deliverable upon
or with respect to the Subordinated Debt.
(b) All payments or distributions upon or with respect to the Affiliate
Subordinated Debt which are received by the Subordinated Creditor contrary to
the provisions of this Agreement shall be received in trust for the benefit of
the Lenders, shall be segregated from other funds and property held by the
Subordinated Creditor and shall be forthwith paid over to Citibank, N.A., as
Agent for the Lenders, for the account of the Lenders, in the same form as so
received (with any necessary indorsement) to be applied (in the case of cash)
to, or held as collateral (in the case of non-cash property or securities) for,
the payment or prepayment of the Obligations in accordance with the terms of the
Credit Agreements.
(c) Citibank, N.A., as Agent for the Lenders, is hereby authorized to seek
specific performance of this Agreement, whether or not the Borrower shall have
complied with any of the provisions hereof applicable to it, at any time when
the Subordinated Creditor shall have failed to comply with any of the provisions
of this Agreement applicable to it.
SECTION 5. No Commencement of Any Proceeding. The Subordinated Creditor
agrees that, so long as the Obligations shall not have been paid in full in
cash, the Subordinated Creditor will not xxx for payment of all or any of the
Affiliate Subordinated Debt, or commence, or join with any creditor other than
the Lenders, Citibank, N.A., as Agent for the Lenders, and such creditors for
the benefit of which these subordination provisions have been extended in
accordance with Section 10, in commencing any proceeding referred to in Section
3(a); provided, however, that the foregoing provisions shall not prevent the
Subordinated Creditor from commencing and prosecuting to judgment any action
necessary to enforce such Affiliate Subordinated Debt during the period
commencing one year prior to the expiration of the limitation period governing
such Affiliate Subordinated Debt under any applicable statute of limitations.
SECTION 6. Rights of Subrogation. The Subordinated Creditor agrees that no
payment or distribution to Citibank, N.A., as Agent for the Lenders, or to the
Lenders, pursuant to the provisions of this Agreement shall entitle the
Subordinated Creditor to exercise any right of subrogation in respect thereof
until the Obligations shall have been paid in full. From and after the payment
in full of the Obligations, the Subordinated Creditor shall be subrogated to all
rights of the Agent and the Lenders to receive any further payments or
distributions applicable to the Obligations until the Affiliate Subordinated
Debt shall have been paid in full, in addition to all other rights of
subrogation that the Subordinated Creditor may have. For purposes of any such
subrogation, no payments or distributions on the Obligations pursuant to this
Agreement shall, as between the Borrower, its creditors other than the Lenders,
and the Subordinated Creditor, be deemed to be a payment by the Borrower to or
on account of the Obligations, and no payments or distributions to the
Subordinated Creditor of assets by virtue of the subrogation herein provided for
shall, as between the Borrower, its creditors other than the Lenders, and the
Subordinated Creditor, be deemed to be a payment to or on account of the
Affiliate Subordinated Debt. The provisions of this Agreement are and are
intended solely for the purpose of defining the relative rights of the
Subordinated Creditor, on the one hand, and the Lenders and the Agent for the
benefit of the Lenders, on the other hand, and nothing contained in this
Agreement is intended to or shall impair the obligation of the Borrower, which
is unconditional and absolute, to pay the principal of (and premium, if any) and
interest on the Affiliate Subordinated Debt as and when the same shall become
due and payable in accordance with its terms, or, except as provided in Section
10 below, to affect the relative rights of the Subordinated Creditor and the
creditors of the Borrower other than the Lenders, nor shall anything herein
prevent the Subordinated Creditors from exercising all remedies otherwise
permitted by applicable law upon default under the Affiliate Subordinated Debt,
subject to the rights, if any, under this Agreement, of the Lenders and the
Agent, for the benefit of the Lenders, in respect of cash, property or
securities of the Borrower otherwise payable or delivered to the Subordinated
Creditor upon the exercise of any such remedy.
SECTION 7. Agreements in Respect of Affiliate Subordinated Debt. The
Subordinated Creditor will not sell, assign, pledge, encumber or otherwise
dispose of any of the Affiliate Subordinated Debt unless such sale, assignment,
pledge, encumbrance or disposition (i) is to a person or entity other than the
Borrower and (ii) is made expressly subject to this Agreement.
SECTION 8. Obligations Hereunder Not Affected. All rights and interest of
Citibank, N.A., as Agent for the Lenders, and the Lenders hereunder, and all
agreements and obligations of the Subordinated Creditor and the Borrower under
this Agreement, shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of a Credit
Agreement, a Note or any other agreement or instrument
relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to
any departure from a Credit Agreement or a Note,
including, without limitation, any increase in the
Obligations resulting from the extension of additional
credit to the Borrower or otherwise;
(iii)any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment
or waiver of or consent to departure from any guaranty,
for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any
manner of sale or other disposition of any collateral
for all or any of the Obligations or any other assets
of the Borrower or any of its subsidiaries;
(v) any change, restructuring or termination of the
corporate structure or existence of the Borrower; or
(vi) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, the Borrower
or a subordinated creditor.
This Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by Citibank, N.A., as Agent for the Lenders, or any
Lender upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
SECTION 9. Waiver. The Subordinated Creditor and the Borrower each hereby
waives promptness, diligence, notice of acceptance and any other
notice with respect to any of the Obligations and this Agreement and any
requirement that Citibank, N.A., as Agent for the Lenders, or any Lender
protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against the Borrower or
any other person or entity or any collateral.
SECTION 10. Extension of Subordination. The Borrower and the Subordinated
Creditor shall not subordinate the Affiliate Subordinated Debt for the benefit
of any one or more other creditors of the Borrower, now or hereafter existing,
upon any terms other than those set forth in this Agreement. The Borrower and
the Subordinated Creditor shall have the right to subordinate the Affiliate
Subordinated Debt for the benefit of any one or more other creditors of the
Borrower, now or hereafter existing, upon the same terms as are set forth in
this Agreement.
II. SUBORDINATION TERMS OF NON-AFFILIATE SUBORDINATED DEBT.
SECTION 1. "Non-Affiliate Subordinated Debt" Defined. "Non-Affiliate
Subordinated Debt" means, for purposes of these Terms of Subordination (this
"Agreement"), [describe the specific Non-Affiliate Subordinated Debt that is
being subordinated herein -- to include all amounts payable in connection
therewith] which constitutes (i) Debt of the Borrower owed to a Person that is
not an Affiliate of the Borrower and which is subordinated on the terms set
forth below or (ii) Debt of the Borrower payable to any entity that is formed by
the Borrower or an Affiliate of the Borrower for the purpose of issuing
securities in the public or capital markets, or in a private placement, and
which is subordinated on the terms set forth below.
SECTION 2. Agreement to Subordinate. The holders hereof (the "Subordinated
Creditor") and the Borrower each agree that the Non-Affiliate Subordinated Debt
is and shall be subordinate, to the extent and in the manner hereinafter set
forth, to the prior payment in full of all obligations of the Borrower now or
hereafter existing under the Facility A, Facility B and Facility C Credit
Agreements, each dated as of April 1, 1999, as from time to time in effect (the
"Credit Agreements"), among the Borrower, the financial institutions party
thereto and Citibank, N.A., as Agent for such financial institutions, and the
Notes issued pursuant thereto, whether for principal, interest (including,
without limitation, interest, as provided in the Notes, accruing after the
filing of a petition initiating any proceeding referred to in Section 3(a),
whether or not such interest accrues after the filing of such petition for
purposes of the Federal Bankruptcy Code or is an allowed claim in such
proceeding), fees, expenses or otherwise (such obligations of the Borrower being
the "Obligations"). For the purposes of this Agreement, the Obligations shall
not be deemed to have been paid in full until the Termination Date under each
Credit Agreement shall have elapsed and unless the Lenders shall have received
payment of the Obligations in full in cash.
SECTION 3. Events of Subordination. (a) In the event of any dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Borrower or its debts, whether voluntary or
involuntary, in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or other similar case or proceeding under any Federal or
State bankruptcy or similar law or upon an assignment for the benefit of
creditors or any other marshaling of the assets and liabilities of the Borrower,
the Lenders shall be entitled to receive payment in full of the Obligations
before the Subordinated Creditor is entitled to receive any payment of all or
any of the Non-Affiliate Subordinated Debt, and any payment or distribution of
any kind (whether in cash, property or securities) that otherwise would be
payable or deliverable upon or with respect to the Non-Affiliate Subordinated
Debt in any such case, proceeding, assignment or marshaling (including any
payment that may be payable by reason of any other Debt of the Borrower being
subordinated to payment of the Non-Affiliate Subordinated Debt) shall be paid or
delivered directly to Citibank, N.A., as Agent under the Credit Agreements for
the account of the Lenders, for application (in the case of cash) to, or as
collateral (in the case of non-cash property or securities) for, the payment or
prepayment of the Obligations until the Obligations shall have been paid in
full. For purposes of this Section "property or securities" of the Borrower
shall not be deemed to include shares of stock of the Borrower as reorganized or
readjusted, or securities of the Borrower or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated to the Obligations at least to the extent provided in this Section
to the payment of all Obligations that may at the time be outstanding, provided,
however, that (i) the Obligations are assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the Lenders under the Credit Agreements are not, without their consent, altered
by such reorganization or readjustment.
(b) Upon the maturity of the Obligations, whether by acceleration or otherwise,
no payment (including any payment that may be payable by reason of any other
Debt of the Borrower being subordinated to the Non-Affiliate Subordinated Debt)
shall be made by or on behalf of the Borrower for or on account of any
Non-Affiliate Subordinated Debt, and the Subordinated Creditor shall not take or
receive from the Borrower, directly or indirectly, in cash or other property or
by set-off or in any other manner, including, without limitation, from or by way
of collateral, payment of all or any of the Non-Affiliate Subordinated Debt
until the Obligations shall have been paid in full.
(c) In the event that, notwithstanding the foregoing, the Borrower shall make
any payment to the Subordinated Creditor prohibited by the foregoing provisions
of this Section 3, then in such event such payment shall be held in trust and
paid over and delivered forthwith to the Agent, for the benefit of the Lenders,
for application to the Obligations.
SECTION 4. Trust Monies Not Subordinated. Notwithstanding
anything contained in this Agreement to the contrary, funds (other than funds
paid in violation of the provisions of this Agreement) held in trust by a
trustee for the Subordinated Creditor for the payment of the principal of,
premium, if any, and interest on the Non-Affiliate Subordinated Debt shall not
be subordinated to the prior payment of any Obligations or subject to the
restrictions set forth in this Agreement, and no holder of the Non-Affiliate
Subordinated Debt nor such trustee shall be obligated to pay over such amount to
the Borrower, the Lenders or the Agent, for the benefit of the Lenders, or any
other designated representative of the Lenders, or any other creditor of the
Borrower.
SECTION 5. Payment Permitted if No Default. Nothing contained in this Agreement
shall prevent the Borrower, at any time except during the pendency of any
proceeding referred to in Section 3(a) hereof or under the conditions described
in Section 3(b) hereof, from making payments owing to the Subordinated Creditor.
Further, nothing in this Agreement shall have any effect on the right of the
Subordinated Creditor or its representatives to accelerate the maturity of the
Non-Affiliate Subordinated Debt upon the occurrence of an event of default
thereunder or to exercise any or all of its remedies against the Borrower
permitted by applicable law in respect of the Non-Affiliate Subordinated Debt,
but, in that event, no payment may be made in violation of the provisions of
this Agreement.
SECTION 6. Obligations Hereunder Not Affected. (a) No right of the Lenders
or the Agent, for the benefit of the Lenders, to enforce the subordination
provisions provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Borrower or by any act
or any failure to act, in good faith, by the Agent or any such Lender, or by any
noncompliance by the Borrower with the terms, provisions and covenants of this
Agreement.
(b) Without in any way limiting the generality of the foregoing paragraph,
the Lenders and the Agent may, at any time and from time to
time, without the consent of or notice to the Subordinated Creditor, without
incurring responsibility to the Subordinated Creditor and without impairing or
releasing the subordination provided in this Agreement or the obligations
hereunder of the Subordinated Creditor to the Lenders, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, the Obligations, or otherwise amend or modify
in any manner the Credit Agreements or the Notes; (ii) permit the Borrower to
borrow, repay and then reborrow any or all of the Obligations; (iii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing the Obligations; (iv) release any Person liable in any manner
for the collection of Obligations; (v) exercise or refrain from exercising any
rights against the Borrower and any other Person; or (vi) apply any sums
received by them to the Obligations.
SECTION 7. Provisions Solely to Define Relative Rights. The provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the Subordinated Creditor on the one hand and the Lenders on
the other hand. Nothing contained in this Agreement is intended to or shall (a)
impair, as among the Borrower, its creditors other than the Lenders and the
Subordinated Creditor, the obligation of the Borrower, which is absolute and
unconditional (and which, subject to the rights under this Agreement, is
intended to rank equally with all other general obligations of the Borrower), to
pay to the Subordinated Creditor the principal of, premium, if any, and interest
on the Non-Affiliate Subordinated Debt as and when the same shall become due and
payable in accordance with its terms; or (b) affect the relative rights against
the Borrower, the Subordinated Creditor and creditors of the Borrower other than
the Subordinated Creditor; or (c) prevent the Subordinated Creditor from
exercising all remedies otherwise permitted by applicable law with respect to
the Non-Affiliate Subordinated Debt upon default, subject to the rights, if any,
under this Agreement of the Lenders and the Agent, for the benefit of the
Lenders.
SECTION 8. Rights of Subrogation. The Subordinated Creditor agrees that no
payment or distribution to Citibank, N.A., as Agent for the Lenders, or to the
Lenders, pursuant to the provisions of this Agreement shall entitle the
Subordinated Creditor to exercise any right of subrogation in respect thereof
until the Obligations shall have been paid in full. For purposes of such
subrogation, no payments or distributions on the Obligations pursuant to this
Agreement shall, as between the Borrower, its creditors other than the Lenders,
and the Subordinated Creditor, be deemed to be a payment by the Borrower to or
on account of the Obligations, and no payments or distributions to the
Subordinated Creditor of assets by virtue of the subrogation herein provided for
shall, as between the Borrower, its creditors other than the Lenders, and the
Subordinated Creditor, be deemed to be a payment to or on account of the
Non-Affiliate Subordinated Debt.
SECTION 9. Extension of Subordination. The Borrower and the Subordinated
Creditor shall not subordinate the Non-Affiliate Subordinated Debt for the
benefit of any one or more other creditors of the Borrower, now or hereafter
existing upon any terms other than those set forth in this Agreement. The
Borrower and the Subordinated Creditor shall have the right to subordinate the
Non-Affiliate Subordinated Debt for the benefit of any one or more other
creditors of the Borrower, now or hereafter existing, upon the same terms as are
set forth in this Agreement. xxx
EXHIBIT A-1
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, SOUTHERN ENERGY, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Facility C Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Revolving Credit Commitment in figures] or, if less, the aggregate principal
amount of the Revolving Credit Advances made by the Lender to the Borrower
pursuant to the Facility C Credit Agreement dated as of April 1, 1999 among the
Borrower, the Lender and certain other financial institutions parties thereto
and Citibank, N.A., as Agent for the Lender and such other financial
institutions (as amended or modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined) outstanding on
the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in same day funds. Each Revolving Credit Advance owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
debt of the Borrower resulting from each such Revolving Credit Advance being
evidenced by this Promissory Note, and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
SOUTHERN ENERGY, INC.
By
-------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
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EXHIBIT A-2
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF COMPETITIVE BID NOTE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, SOUTHERN ENERGY, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Facility C Credit Agreement dated as of April
1, 1999 among the Borrower, the Lender and certain other financial institutions
parties thereto, and Citibank, N.A., as Agent for the Lender and such other
financial institutions (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)), on
________, _____, the principal amount of U.S.$____________.
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of ____
days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, for the account of the Lender at
the office of the Agent, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in same
day funds.
This Promissory Note is one of the Competitive Bid Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
SOUTHERN ENERGY, INC.
By
-------------------------
Title:
EXHIBIT B-1
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, SOUTHERN ENERGY, INC., refers to the Facility C Credit
Agreement, dated as of April 1, 1999 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain financial institutions parties thereto
and Citibank, N.A., as Agent for said financial institutions, and hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________, ____.
(ii) The Type of Revolving Credit Advances comprising the
Proposed Revolving Credit Borrowing is [Base Rate
Advances] [Eurodollar Rate Advances].
(iii)The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv)The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit
Borrowing is __________ month[s].]
* The undersigned hereby certifies that on the date hereof and on the date
of the Proposed Revolving Credit Borrowing the representations and warranties
contained in Section 4.01 of the Credit Agreement (except those contained in
Sections 4.01(h) and (j)) are or will be, as the case may be, correct, before
and after giving effect to the Proposed Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date.
Very truly yours,
SOUTHERN ENERGY, INC.
By
-------------------------
Title:
EXHIBIT B-2
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
Attention: _____________________________
Ladies and Gentlemen:
The undersigned, Southern Energy, Inc., refers to the Facility C Credit
Agreement, dated as of April 1, 1999 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain financial institutions parties thereto
and Citibank, N.A., as Agent for said financial institutions, and hereby gives
you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that
the undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing________________________
(C) Interest Period(s) ________________________
(D) Maturity Date ________________________
(E) Interest Rate Basis ________________________
(F) Interest Payment Date(s) ________________________
(G) Prepayment Provisions ________________________
(H) ________________________ ________________________
The undersigned hereby certifies that on the date hereof and on the date of
the Proposed Competitive Bid Borrowing the representations and warranties
contained in Section 4.01 (except those contained in Sections 4.01(h) and (j))
of the Credit Agreement are or will be, as the case may be, correct, before and
after giving effect to the Proposed Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
and the aggregate amount of the Proposed Competitive Bid Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is equal to or
less than the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing
is to be made available to it in accordance with Section 2.03(a)(v) of the
Credit Agreement.
Very truly yours,
SOUTHERN ENERGY, INC.
By
-----------------------------
Title:
EXHIBIT C-1-A
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
(Not for General Syndication)
Reference is made to the Facility C Credit Agreement dated as of April 1,
1999 (as amended or modified from time to time, the "Credit Agreement") among
SOUTHERN ENERGY, INC., a Delaware corporation (the "Borrower"), certain
financial institutions parties thereto and Citibank, N.A., as agent for said
financial institutions (the "Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Revolving Credit Commitment
and the amount of the Revolving Credit Advances owing to the Assignee will be as
set forth on Schedule 1 hereto.
2. The Assignor (i) 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; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note held by the Assignor and requests
that the Agent exchange such Revolving Credit Note for a new Revolving Credit
Note payable to the Assignee in an amount equal to the Revolving Credit
Commitment assumed by the Assignee pursuant hereto or new Revolving Credit Notes
payable to the Assignee in an amount equal to the Revolving Credit Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Revolving Credit Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee or that it is an
entity that has been approved by the Borrower and the Agent under Section
8.07(a) of the Credit Agreement; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations (other than under Sections 2.14(f), 8.07(g) and
8.08) still under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Revolving Credit Commitment: $_______________
Aggregate outstanding principal amount of Revolving
Credit Advances assigned: $_______________
Principal amount of Revolving Credit Note payable to Assignee:
$_______________
Principal amount of Revolving Credit Note payable to Assignor:
$_______________
Effective Date*: _______________, ____
[NAME OF ASSIGNOR], as Assignor
By
-------------------------
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By
-------------------------
Title:
Domestic Lending Office: [Address]
Eurodollar Lending Office: [Address]
Accepted this __________ day of _______________, _____
CITIBANK, N.A., as Agent
By
------------------------------
Title:
*Agreed this ___________ day of _______________, _____
SOUTHERN ENERGY, INC.
By
------------------------------
Title:
EXHIBIT C-1-B
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FACILITY C CREDIT AGREEMENT
MASTER ASSIGNMENT AND ACCEPTANCE
(For General Syndication)
Dated as of________ ,_____ 1999
Reference is made to the Facility C Credit Agreement dated as of April 1,
1999 (as amended or modified from time to time, the "Credit Agreement") among
SOUTHERN ENERGY, INC., a Delaware corporation (the "Borrower"), the financial
institution party thereto and CITIBANK, N.A., as agent for said financial
institution (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignees" listed on the signature pages hereof
agree as follows:
1. The Assignor hereby sells and assigns to each Assignee, and each
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights (including each Revolving Credit Advance) and obligations
under the Credit Agreement equal to the Percentage Interest Assigned specified
on Schedule 1 hereto opposite the name of such Assignee. After giving effect to
all sales and assignments effected hereby, the Assignor's and each Assignee's
Revolving Credit Commitment and the amount of the Revolving Credit Note payable,
and of the Revolving Credit Advances owing, to the Assignor and each Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) 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; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto.
3. The Assignor has delivered the Revolving Credit Note held by it to the
Agent and requests that the Agent deliver it to the Borrower in exchange for new
Revolving Credit Notes payable to the Assignor and the Assignees in the amounts
specified on Schedule 1 hereto. The Agent agrees to do so and the Borrower
agrees to execute and deliver to the Agent on the Effective Date referred to
below such new Revolving Credit Notes in exchange for the Revolving Credit Note
delivered to the Agent by the Assignor.
4. Each Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee or that it is an
entity that has been approved by the Borrower and the Agent under Section
8.07(a) of the Credit Agreement; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
5. As of the Effective Date (i) each Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Master Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Master Assignment and Acceptance,
relinquish its rights and be released from its obligations (other than under
Sections 2.14(f), 8.07(g) and 8.08) under the Credit Agreement.
6. From and after the Effective Date, the Agent shall make all payments
under the Credit Agreement and the Revolving Credit Notes in respect of the
interests assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the Assignees.
The Assignor and the Assignees shall make all appropriate adjustments in
payments under the Credit Agreement and the Revolving Credit Notes for periods
prior to the Effective Date directly between themselves.
7. This Master Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Master Assignment and Acceptance 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. Delivery of a signature
page hereof by telecopier shall be effective as delivery of a manually executed
signature page hereof.
9. This Master Assignment and Acceptance shall be effective as of , 1999 (
the "Effective Date"). _________________ ___________________
IN WITNESS WHEREOF, the Assignor and the Assignees have caused this Master
Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified above.
The Assignor
CITIBANK, N.A.
By
------------------------
Title:
The Assignees
[NAME]
By
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Title:
By
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Title:
ACCEPTED AND AGREED
SOUTHERN ENERGY, INC.
By
----------------------------
Title:
CITIBANK, N.A.,
as Agent
By ----------------------------
Title:
Schedule 1
to
Master Assignment and Acceptance
Post-Sale
Revolving
Percentage Credit Post-Sale
Interest Commitment Revolving
Assigned and Revolving Credit
Credit Note Advances
Name of Assignor
Citibank, N.A. N/A $ $
---------- ----
[NAME] N/A $ $
---------- ----
Name of Assignee
[NAME] % $ $
-- ---------- ----
[NAME] % $ $
-- ---------- ----
EXHIBIT C-2
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
CONFIDENTIALITY AGREEMENT
Memorandum To: Proposed Assignee or Participant
From: Lender
Date: [___________]
Subject: $1,300,000,000 Senior Credit Facilities for Southern Energy, Inc.
In connection with your possible interest in becoming a Lender or
participant in the $1,300,000,000 Senior Credit Facilities (the "Facilities")
for Southern Energy, Inc. ("Southern Energy" or the "Company"), you will receive
certain information which is non-public, confidential or proprietary in nature.
That information and any other information concerning the Company and its
affiliates or the Facilities furnished to you by the Company and its affiliates,
Xxxxxxx Xxxxx Xxxxxx Inc. (the "Lead Arranger"), Citibank, N.A. (the "Agent") or
any Lender in connection with the Facilities (at any time on, before or after
the date of this Confidentiality Agreement (the "Agreement")), together with
analyses, compilations or other materials prepared by you or your directors,
officers, employees, agents, auditors, attorneys, consultants or advisors
(collectively, "Representatives") which contain or otherwise reflect such
information or your review of or interest in the Facilities is hereinafter
referred to as the "Information". In consideration of your receipt of the
Information, you agree that:
1. You will not, without the prior written consent of the Company, use,
either directly or indirectly, any of the Information except in concert with the
Company or in connection with the Facilities.
2. You agree to reveal the Information only to your Representatives who
need to know the Information for the purpose of evaluating the Facilities, who
are informed by you of the confidential nature of the Information, and who agree
to be bound by the terms and conditions of this Agreement. You agree to be
responsible for any breach of this Agreement by any of your Representatives.
3. Without the Company's prior written consent, you shall not disclose to
any person (except as otherwise expressly permitted herein) the fact that the
Information has been made available, or any of the terms, conditions or other
facts with respect to the Facilities.
4. This Agreement shall be inoperative as to any portion of the Information
that (i) is or becomes generally available to the public on a nonconfidential
basis through no fault or action by you or your Representatives, or (ii) is or
becomes available to you on a nonconfidential basis from a source other than the
Company or its affiliates, the Lead Arranger, the Agent or any Lender or their
Representatives, which source, to the best of your knowledge, is not prohibited
from disclosing such Information to you by a contractual, legal or fiduciary
obligation to the Company, the Lead Arranger, the Agent or any Lender.
5. You may disclose the Information at the request of any regulatory or
supervisory authority having jurisdiction over you.
6. In the event that you become legally compelled to disclose any of the
Information or the existence of the Facilities, you shall provide the Company
with notice of such event promptly upon your obtaining knowledge thereof
(provided that you are not otherwise prohibited by law from giving such notice)
so that the Company may seek a protective order or other appropriate remedy. In
the event that such protective order or other remedy is not obtained, you shall
furnish only that portion of the Information that is legally required and shall
cooperate with the Company's counsel to enable either the Company to obtain a
protective order or other reliable assurance that confidential treatment will be
accorded the Information.
7. In the event that discussions with you concerning the Facilities are
discontinued, you shall redeliver to the Company the copies of the Information
that were furnished to you by or on behalf of the Company and represent to the
Company that you have destroyed all other copies thereof. All of your
obligations hereunder and all of the Company's rights and remedies hereunder
shall survive any return or destruction of the Information.
8. You acknowledge that disclosure of the Information in violation of the
terms of this Agreement could have serious consequences, and agree that, in the
event of any breach by you or your Representatives of this Agreement, the
Company may be entitled to equitable relief (including injunction and specific
performance) in addition to all other remedies available to it at law or in
equity.
9. You will not make any public announcement, advertisement, statement or
communication regarding the Company, its affiliates or the Facilities without
the prior written consent of the Company.
10. This Agreement shall be governed in all respects, whether as to
validity, construction, capacity, performance or otherwise, by and under the
laws of the State of New York.
11. All provisions of this Agreement are severable, and the
unenforceability or invalidity of any of the provisions of this Agreement shall
not affect the validity or enforceability of the remaining provisions of this
Agreement.
12. No waiver of any provision of this Agreement, or of a breach hereof,
shall be effective unless it is in writing, signed by the party waiving the
provision, or the breach hereof. No waiver of a breach of this Agreement
(whether express or implied) shall constitute a waiver of a subsequent breach
hereof.
13. The Company is a party to and an intended beneficiary of this
Agreement.
If you are prepared to accept the Information on this basis, please sign
and return this Confidentiality Agreement to us and to the Company at 000
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Treasurer.
By:
--------------------------------------------
Name:
Title:
Institution:
EXHIBIT D
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE BORROWER
________, 1999
To the financial institution party to
the Credit Agreement
referred to below and to
Citibank, N.A., as
Agent for such financial institution
Ladies and Gentlemen:
We have acted as counsel to Southern Energy, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, in connection
with the Facility C Credit Agreement, dated as of April 1, 1999 (the "Credit
Agreement") among the Company and each of you. This opinion letter is rendered
to you pursuant to Section 3.01(d)(v) of the Credit Agreement. Unless otherwise
defined herein, capitalized terms used herein shall have the respective meanings
assigned to such terms in the Credit Agreement.
In the capacity described above, we have examined originals or copies of
each of the Credit Agreement and the Revolving Credit Note issued on the date
hereof (collectively, the "Loan Documents"):
We have also been furnished with, and with your consent have relied upon,
certificates of officers of the Company with respect to factual matters. In
addition, we have obtained and relied upon such certificates and assurances from
public officials as we have deemed necessary. In our examination, we have
assumed the genuineness of all signatures, the legal capacity of all natural
persons executing documents, the authenticity of all documents submitted to us
as originals and the conformity to authentic original documents of all documents
submitted to us as copies.
We have made such legal and factual inquiries for the purpose of rendering
this opinion as we have deemed necessary (except where a statement is qualified
as to knowledge or awareness in which case we have made such limited inquiry as
is indicated below). The partners of the firm that are rendering this opinion
are admitted to practice in the State of Georgia only, and we are rendering
opinions as indicated herein only to the effect of the federal laws of the
United States of America, the internal laws of the State of Georgia and the
General Corporation Law of the State of Delaware; however, we express no opinion
with respect to the applicability or the effect of federal laws of the United
States of America governing health, safety or the environment, and we express no
opinion as to the effect of the laws of any other jurisdiction or municipal law
or the laws of any local agencies within any state, including, without
limitation, Georgia.
Whenever a statement herein is qualified by "to our knowledge" or a similar
phrase, it means, among other things, that those attorneys in the firm who have
devoted substantive attention to the transaction described herein do not have
current actual knowledge of the inaccuracy of such statement. However, except as
otherwise expressly indicated, we have not undertaken any independent
investigation to determine the accuracy of such statement, and no inference that
we have any knowledge of any matters pertaining to such statement should be
drawn from our representation of the Company. No actual or constructive
knowledge of any attorneys in the firm shall be imputed to the firm as to any of
the matters set forth herein. Without limiting the generality of the foregoing,
we have not made any examination of any accounting, financial or economic
matters, and express no opinion with respect thereto or with respect to the
ability of any party to perform under any documents. All assumptions made by us
herein have been made, with your approval, without any investigation or
verification by us.
In rendering the opinions set forth herein, no opinion is expressed
regarding compliance with the laws relating to interest or usury, or the
Securities Exchange Act of 1934, as amended, or the Georgia Securities Act of
1973, as amended, or the effect of the failure to comply therewith.
On the basis of the foregoing, and in reliance thereon, and subject to the
limitations, qualifications, assumptions, exceptions and other matters set forth
herein, we are of the opinion, as of the date hereof, that:
1. The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware, with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business.
2. Each of the Loan Documents has been duly authorized, executed and
delivered by the Company.
3. The execution and delivery by the Company of the Loan Documents do not,
as of the date hereof, (a) violate the Certificate of Incorporation or By-Laws
of the Company, (b) result in a material breach or violation of any of the terms
and provisions of, or constitute a default under, any material published
statute, rule or regulation of any court, regulatory body, administrative
agency, government or governmental body of the United States or the State of
Georgia, applicable to the Company, (c) to our knowledge, constitute a default
under any material written agreement of the Company or result in the creation of
any Lien (other than in favor of the Lenders) upon the property of the Company,
or (d) require any authorization, approval, consent or other action by, or
notice to or filing with, any governmental authority or regulatory body of the
United States or of the State of Georgia other than those that have been
obtained or made.
We assume for purposes of this opinion that: all parties (other than the
Company) to the documents and agreements discussed herein are duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of organization; all such parties to the documents and agreements
discussed herein have the requisite power and authority to execute and deliver
the documents and agreements discussed herein and to perform their respective
obligations under the documents and agreements discussed herein to which they
are a party; and the agreements and documents discussed herein to which any such
party is a party have been duly authorized, executed and delivered by such party
and constitute its legal, valid and binding obligations, enforceable against it
in accordance with their terms. We have also assumed that the term "material
written agreements" used in paragraph 3 above means any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other similar
financing agreement or instrument by which the Company is bound or to which any
of the properties or assets of the Company are subject of which we are aware;
guarantees are specifically excluded from the term "material written agreements"
as used in paragraph 3 above. We express no opinion as to compliance by any
parties other than the Company to the documents and agreements discussed herein
with any state or federal laws or regulations applicable to the subject
transactions because of the nature of their business.
The opinions expressed herein represent the judgment of this law firm as to
certain legal matters, but they are not guarantees or warranties and should not
be construed as such. Further, the opinions expressed above are given only as of
the date hereof, and we do not assume (and we shall not have) any duty or
obligation to update such opinions.
A copy of this opinion letter may be delivered by you to any Person that
becomes a Lender in accordance with the provisions of the Credit Agreement. Any
such Lender may rely on the opinions expressed above as if this opinion letter
were addressed and delivered to such Lender on the date hereof.
This opinion letter is provided to you for your exclusive use solely in
connection with the matters contemplated by the Loan Documents. Except as
expressly set forth in the immediately preceding paragraph, this opinion may not
be relied upon by you for any other purpose, or furnished to, quoted or relied
upon by any other person, firm or corporation for any purpose, without our prior
written consent in each instance.
Very truly yours,
EXHIBIT E
SOUTHERN ENERGY, INC.
FACILITY C CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE AGENT
______ __, 1999
To the financial institution party to
the Credit Agreement
referred to below and to
Citibank, N.A., as
Agent for such financial institution
Southern Energy, Inc.
Facility C Credit Agreement
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., as Agent (the
"Agent"), in connection with the Facility C Credit Agreement, dated as of April
1, 1999 (the "Credit Agreement") among Southern Energy, Inc. (the "Borrower"), a
Delaware corporation, and each of you. This opinion is being delivered to you
pursuant to Section 3.01(d)(vi) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
In that connection, we have examined executed originals or copies certified
or otherwise identified to our satisfaction of each of the following (the "Loan
Documents"):
(1) the Credit Agreement; and
(2) the Revolving Credit Note issued on the date hereof.
In our examination of the Loan Documents, we have assumed, without
independent investigation, (a) the due execution and delivery of each Loan
Document by each of the parties thereto, (b) the authenticity of all documents
submitted to us as originals, (c) the genuineness of all signatures and the
legal capacity of all natural persons and (d) the conformity to the originals of
all documents submitted to us as copies and the authenticity of all originals of
such copies.
With your permission, in rendering the opinion set forth below, we have
also assumed, without independent investigation, that (a) each the parties to
the Loan Documents (the "Loan Parties") is a corporation, partnership or other
entity duly organized and validly existing under the laws of the jurisdiction of
its organization, (b) each Loan Party has full power and authority (corporate,
partnership and otherwise) to execute, deliver and perform the Loan Documents to
which it is a party, (c) the execution, delivery and performance by each Loan
Party of the Loan Documents to which it is a party have been duly authorized by
all necessary action (corporate, partnership or otherwise) and do not (i)
contravene the certificate of incorporation, bylaws, general partnership
agreement or other constituent documents of any of such Loan Party, (ii) except
with respect to Generally Applicable Law (as defined below and as to which we
make no assumption), violate any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to such Loan Party, or
(iii) conflict with or result in the breach of any document or instrument
binding on any such Loan Party, (d) except with respect to Generally Applicable
Law (as to which we make no assumption), no authorization, approval, consent or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due execution,
delivery or performance by any Loan Party of the Loan Documents to which it is a
party, or, if any such authorization, approval, consent, action, notice or
filing is required thereof, it has been duly obtained or made and is in full
force and effect, and (e) the Lenders, the Agent and the Issuing Banks will
perform and exercise their rights under the Loan Documents to which they are a
party reasonably and in good faith and will act reasonably and in good faith in
taking action, exercising discretion and making determinations thereunder. As
used in the preceding sentence, "Generally Applicable Law" means federal law of
the United States of America and the law of the State of New York and any rule
or regulation promulgated thereunder or pursuant thereto applicable to the
execution, delivery or performance of the Loan Documents and which are generally
applicable to the execution, delivery or performance of documents with terms and
provisions of the type contained in the Loan Documents; provided, however, that
Generally Applicable Law shall not include any law, rule or regulation which is
applicable to the execution, delivery or performance of any Loan Document by any
Loan Party thereto because of the specific nature of the assets or business of
such Loan Party or any of its affiliates.
Based upon the foregoing we advise you that, in our opinion:
1. The Credit Agreement constitutes the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms.
2. The Revolving Credit Note issued on the date hereof constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
Our opinions above are subject to the following qualifications:
(a) Our opinions expressed above are subject to the effect of general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law). Such principles of equity are of general
application, and in applying such principles a court, among other things, might
not allow a creditor to accelerate the maturity of a debt upon the occurrence of
a default deemed immaterial or might decline to order the Borrower to perform
covenants. Such principles applied by a court might include a requirement that
the creditors act with reasonableness and good faith. Such a requirement might
be applied, for example, to the provisions of the Credit Agreement purporting to
authorize conclusive determinations by the Agent or any Lender.
(b) Our opinions expressed above are also subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar law
affecting creditors' rights generally and to possible judicial action giving
effect to governmental actions affecting creditors' rights.
(c) We express no opinion as to any provisions of the Credit Agreement
insofar as it provides that (i) any Person purchasing a participation from any
Lender pursuant thereto may exercise set-off or similar rights with respect to
such participation or that any Lender or any other Person may exercise set-off
or similar rights other than in accordance with law or (ii) any party thereto
shall make payments without set-off, defense or counterclaim.
(d) The ability of one party to any of the Loan Documents to bring a
dispute against any other party to any of the Loan Documents in a Federal court
of the United States sitting in the Borough of Manhattan, City of New York is
subject to the applicable requirements of subject matter and diversity
jurisdiction.
(e) With respect to any provision of the Credit Agreement that provides
that the obligations thereunder of any Loan Party shall be absolute and
unconditional irrespective of any changes to, or amendments of, any other Loan
Documents to which such Loan Party has not consented, such provision may be
enforceable only to the extent that such changes or amendments were not so
material as to constitute a new contract among the parties.
(f) We express no opinion as to the effect of any public policy
considerations or court decisions which may limit the rights of any party to
obtain indemnification under the Credit Agreement or as to the effect of any
provision of the Credit Agreement relating to indemnification or exculpation in
connection with willful, reckless or criminal acts or gross negligence of the
indemnified or exculpated Person.
(g) The enforceability of any provision of the Credit Agreement to the
effect that terms may not be waived or modified except in writing may be limited
under certain circumstances.
(h) We express no opinion as to any waiver of subject-matter jurisdiction
in respect of, or any right based on improper venue or forum non conveniens in
any proceeding in, the Federal courts of the United States.
Our opinions expressed above are limited to the law of the State of New
York and the Federal law of the United States, and we do not express any opinion
herein concerning any other law. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Lender may be located or wherein
enforcement of any Loan Document may be sought that limits the rates of interest
legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to any Person
that becomes a Lender in accordance with the provisions of the Credit Agreement.
Any such Lender may rely on the opinion expressed above as if this opinion
letter were addressed and delivered to such Lender on the date hereof.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other Lender that is permitted
to rely on the opinion expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind, including any change
of law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any Lender relying on this opinion letter at any time after the
date hereof should seek advice of its counsel as to the proper application of
this opinion letter at such time.
Very truly yours,
JAM/NS/KP/CC
CONFORMED COPY
U.S. $450,000,000
FACILITY C CREDIT AGREEMENT
Dated as of April 1, 1999
Among
SOUTHERN ENERGY, INC.
as Borrower
and
THE INITIAL LENDER NAMED HEREIN
as Initial Lender
and
CITIBANK, N.A.
as Agent
---------------------
XXXXXXX XXXXX XXXXXX INC.
Lead Arranger
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.02. Computation of Time Periods 12
---------------------------
SECTION 1.03. Accounting Terms 12
----------------
ARTICLE II
SECTION 2.01. The Revolving Credit Advances 12
-----------------------------
SECTION 2.02. Making the Revolving Credit Advances 12
------------------------------------
SECTION 2.03. The Competitive Bid Advances 12
----------------------------
SECTION 2.04. Fees 21
----
SECTION 2.05. Termination or Reduction of the Commitments 21
-------------------------------------------
SECTION 2.06. Repayment of the Revolving Credit Advances 21
------------------------------------------
SECTION 2.07. Interest on the Revolving Credit Advances 21
-----------------------------------------
SECTION 2.08. Interest Rate Determination 21
---------------------------
SECTION 2.09. Optional Conversion of the Revolving Credit Advances 21
----------------------------------------------------
SECTION 2.10. Optional Prepayments of the Revolving Credit Advances 21
-----------------------------------------------------
SECTION 2.11. Increased Costs 21
---------------
SECTION 2.12. Illegality 21
----------
SECTION 2.13. Payments and Computations 21
-------------------------
SECTION 2.14. Taxes 21
-----
SECTION 2.15. Sharing of Payments, Etc. 21
------------------------
SECTION 2.16. Use of Proceeds 21
---------------
SECTION 2.17. Letters of Credit 21
-----------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 24
-----------------------------------------------------
SECTION 3.02. Condition Precedent to Each Extension of Credit 24
-----------------------------------------------
SECTION 3.03. Determinations Under Section 3.01 24
---------------------------------
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 26
ARTICLE V
SECTION 5.01. Covenants of the Borrower 26
-------------------------
ARTICLE VI
SECTION 6.01. Events of Default 29
-----------------
SECTION 6.02. Actions in Respect of the Letters of Credit upon Event of Default 31
ARTICLE VII
SECTION 7.01. Authorization and Action 32
------------------------
SECTION 7.02. Agent's Reliance, Etc. 32
---------------------
SECTION 7.03. Citibank and Affiliates 33
-----------------------
SECTION 7.04. Lender Credit Decision 33
----------------------
SECTION 7.05. Indemnification 33
---------------
SECTION 7.06. Successor Agent 33
---------------
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 34
---------------
SECTION 8.02. Notices, Etc. 34
------------
SECTION 8.03. No Waiver; Remedies 34
-------------------
SECTION 8.04. Costs and Expenses, Etc. 34
------------------------
SECTION 8.05. Right of Set-off 36
----------------
SECTION 8.06. Binding Effect 36
--------------
SECTION 8.07. Assignments and Participations 37
------------------------------
SECTION 8.08. Confidentiality 40
---------------
SECTION 8.09. Governing Law 40
-------------
SECTION 8.10. Execution in Counterparts 40
-------------------------
SECTION 8.11. Jurisdiction, Etc. 40
-----------------
SECTION 8.12. Waiver of Jury Trial 40
--------------------
Schedules
Schedule I - List of Applicable Lending Offices
Schedule II - Terms of Subordination
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C-1-A - Form of Assignment and Acceptance not for General
Syndication
Exhibit C-1-B - Form of Assignment and Acceptance for General Syndication
Exhibit C-2 - Form of Confidentiality Agreement
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Opinion of Counsel for the Agent
* Omit paragraph if Notice of Borrowing is given by the Agent pursuant
to Section 2.17(c).
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
* Include if Borrower's consent is required.
