Contract
EXHIBIT
99.4
EXECUTION
COPY
SECOND
OMNIBUS RESTRUCTURING AGREEMENT
Among
LAKE
ROAD GENERATING COMPANY, L.P.,
LAKE
ROAD TRUST LTD.,
WILMINGTON
TRUST COMPANY,
in
its individual capacity and as trustee,
THE
LENDERS,
THE
INTEREST HEDGE PARTIES,
CITIBANK,
N.A.,
as
Administrative Agent,
CITIBANK,
N.A.,
as
Security Agent,
CITIBANK,
N.A.,
as
Working Capital L/C Issuer,
SOCIETE
GENERALE,
as
DSR/RCE L/C Issuer,
THE
PRIORITY LENDERS,
CITIBANK,
N.A.,
as
Priority Agent,
and
PG&E
NATIONAL ENERGY GROUP, INC.
____________________________
Dated
as of December 4, 2002
____________________________
TABLE
OF CONTENTS
Page
Section 1.
Definitions 2
Section 2. Participation
Agreement 6
Section 3. Tranche A Loan
Agreement 12
Section 4. Tranche B Loan
Agreement 13
Section 5. Company Credit and Reimbursement
Agreement 14
Section 6. Security Deposit
Agreement 16
Section 7. Collateral Agency and Intercreditor
Agreement 26
Section 8. Mandatory
Prepayments 27
Section 9. Optional
Prepayments 28
Section 10. Roll-Up
Loans 28
Section 11. Certain Agreements of the Creditors and
Parties 29
11.01 Subordination
of Liens Securing
Primed
Obligations to Liens Securing
Priority
Obligations and Certain Related
Bankruptcy
Provisions 29
11.02 Subordination
of Liens Securing Residual
Obligations
to Liens Securing Roll-Up
Obligations
and Certain Related
Bankruptcy
Provisions 36
11.03 Amendments
to Operative
Documents 43
11.04 Enforcement;
Forbearance; Reservation
of
Rights 43
11.05 Priority
Credit Agreement;
Authorization 44
11.06 DIP
Facility 45
11.07 Further
Assurances with respect
to Recharacterization 45
11.08 No
Bankruptcy Proceedings,
Etc 46
11.09 Further
Agreements of
NEG 46
11.10 Further
Acknowledgment by the
Company 46
11.11 Accession 47
11.12 Action
by Priority
Lenders 47
11.13 Structural
Guaranty 48
11.14 NEG
Guarantee 49
11.15 Reservation
of Lease Rights by
Owner 49
11.16 Working
Capital
L/C 50
Section 12. Interest on Settlement Amounts; Roll-Up
Loans;
Residual
Loans 50
Section 13. Certain Agreements and Confirmations
Regarding
Termination
and
Acceleration 51
13.01 Company
Credit and Reimbursement
Agreement 52
13.02 Interest
Hedge
Contracts 52
13.03 Acceleration
of Obligations; Termination of
Commitments 52
13.04 Liability of
Trustee 52
13.05 DSR
L/C 52
Section 14. Conditions
Precedent 53
Section 15. Further Representations and
Warranties 55
Section 16.
Miscellaneous 55
16.01
Notices 55
16.02
Counterparts 55
16.03
Amendments 56
16.05 GOVERNING
LAW 56
16.06
Severability 56
16.07 Further
Assurances 56
16.08 Successors
and
Assigns 56
16.09 No Waiver;
Cumulative
Remedies 56
16.10
Conflicts 56
16.12 RELEASE OF
CLAIMS 57
16.13
Lease 57
16.14
Survival 58
SCHEDULE I - Priority Commitments; Roll-Up Loans;
Residual Loans
EXHIBIT A - Form of Priority Credit
Agreement
EXHIBIT B - Form of Proposed DIP Facility
Agreement
EXHIBIT C - Notice Information
THIS
SECOND OMNIBUS RESTRUCTURING AGREEMENT (this "Agreement") dated as
of December 4, 2002, is entered into among LAKE ROAD GENERATING
COMPANY, L.P., a Delaware limited partnership (the "Company"); LAKE
ROAD TRUST LTD., a Delaware statutory trust (the "Owner"),
WILMINGTON TRUST COMPANY, in its individual capacity (the "Trust
Company") and as trustee of the Owner (the "Trustee"); the LENDERS
and INTEREST HEDGE PARTIES; SOCIETE GENERALE, as issuer of the DSR
L/C and the RCE L/C under the Company Credit and Reimbursement
Agreement (as defined below); CITIBANK, N.A., as issuer of the
Working Capital L/Cs under the Company Credit and Reimbursement
Agreement (as defined below); CITIBANK, N.A., as administrative
agent for the Lenders (in such capacity, the "Administrative
Agent"); CITIBANK, N.A., as security agent for the Creditors (in
such capacity, the "Security Agent"); the PRIORITY LENDERS;
CITIBANK, N.A., as agent for the Priority Lenders (in such
capacity, the "Priority Agent"); and PG&E NATIONAL ENERGY
GROUP, INC. ("NEG"), a Delaware corporation.
WHEREAS,
the Company, the Owner, the Trust Company, the Trustee, the Lenders
party thereto, the Administrative Agent and the Security Agent are
parties to the Participation Agreement, dated as of August 28, 1999
(as amended, the "Participation Agreement");
WHEREAS,
the Owner, the Tranche A Lenders party thereto and the
Administrative Agent are parties to the Tranche A Loan Agreement,
dated as of August 28, 1999 (as amended, the "Tranche A Loan
Agreement");
WHEREAS,
the Owner, the Tranche B Lenders party thereto and the
Administrative Agent are parties to the Tranche B Loan Agreement,
dated as of August 28, 1999 (as amended, the "Tranche B Loan
Agreement");
WHEREAS,
the Company, Citibank, N.A., as the Working Capital L/C Issuer, the
Working Capital Lenders party thereto, Soci‚t‚
G‚n‚rale, as the DSR/RCE L/C Issuer, the L/C Banks
party thereto and the Administrative Agent are parties to the
Company Credit and Reimbursement Agreement, dated as of August 28,
1999 (as amended, the "Company Credit and Reimbursement
Agreement");
WHEREAS,
the Company, the Owner, the Trustee, the Trust Company, the Lenders
party thereto, the Administrative Agent and the Security Agent are
parties to the Collateral Agency and Intercreditor Agreement, dated
as of August 28, 1999 (as amended, the "Collateral Agency and
Intercreditor Agreement");
WHEREAS,
the Company, the Owner, the Administrative Agent and the Security
Agent are parties to the Security Deposit Agreement, dated as of
August 28, 1999 (as amended, the "Security Deposit
Agreement");
WHEREAS,
pursuant to the Participation Agreement and the other Operative
Documents, the Company and the other parties thereto agreed, among
other things, to the terms and conditions of the construction and
lease financing of the Project;
WHEREAS,
(i) an Incipient NEG Downgrade Event with respect to NEG occurred
on August 5, 2002, and pursuant to Section 5.1(w) of the
Participation Agreement, the Company became obligated to pay or
cause to be paid to the Security Agent all Scheduled Debt Service
as such amounts became due and payable and (ii) the Company has
advised the Security Agent and the Lenders that it will no longer
comply with such payment obligation (and the Lenders have reserved
all rights with respect thereto);
WHEREAS,
additional funding is required to pay for general working capital
needs, certain debt service and to finance draws on letters of
credit issued to support gas supply and transportation arrangements
and power sales arrangements;
WHEREAS,
the Company has, in light of existing Defaults and Events of
Default, requested (i) certain amendments, consents and waivers
with respect to the Participation Agreement and certain other
Operative Documents and (ii) new financing to fund payments for
Operating Costs and certain debt service obligations; and
WHEREAS,
the Priority Lenders have agreed to provide financing to fund
Operating Costs and general working capital needs, and the existing
Creditors have agreed to amend the Participation Agreement and
certain other Operative Documents in connection with such new
financing, including the amendment of certain intercreditor
provisions.
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
Section
1. Definitions.
1.01
Except as otherwise defined in this Agreement, terms defined in
Annex A to the Participation Agreement are used herein (including
in the recitals hereto) as defined therein (and the principles of
interpretation set forth in Annex A to the Participation Agreement
shall apply to such terms). The following terms used herein
shall have the following respective meanings:
"75%
Priority Lenders" means, at any time, Priority Lenders holding at
least in excess of 75% of the aggregate amount of the Priority
Commitments outstanding at such time (or, in the case of Priority
Commitments that have expired or been terminated, the sum of the
aggregate principal amount of the Priority Loans made under such
Priority Commitments and outstanding at such time).
"Case"
means, with respect to a Debtor, a case commenced under chapter 11
of the Bankruptcy Code where such Person is the debtor and
debtor-in-possession.
"Collateral
Proceeds" has the meaning set forth in Section 11.01(f) of this
Agreement.
"Court"
means the United States Bankruptcy Court having jurisdiction over
the Case from time to time.
"Cover"
means, with respect to any letter of credit, cash collateral with
respect to the related Letter of Credit Liabilities. The term
"Cover" used as a verb shall have a correlative meaning.
"Creditor-Provided
DIP Facility" has the meaning set forth in Section 11.06(a) of this
Agreement.
"Debtor"
means the Company or the Owner.
"DIP
Facility" has the meaning set forth in Section 11.06(a) of this
Agreement.
"DIP
Lenders" has the meaning set forth in Section 11.06(a) of this
Agreement.
"Effective
Date" has the meaning set forth in Section 14 of this
Agreement.
"Excluded
Collateral" means the right of the Company to receive payments of
(i) Buydown Damages and (ii) other buydown amounts received with
respect to performance related liquidated damages.
"Existing
Obligations" means the Tranche A Loans, the Tranche B Loans, the
L/C Reimbursement Loans, the Working Capital Loans (and, without
duplication, the Working Capital L/C Reimbursement Obligations) and
the Settlement Amounts existing on the Effective Date, after giving
effect to the capitalization of unpaid amounts with respect to such
Tranche A Loans, Tranche B Loans, L/C Reimbursement Loans, Working
Capital Loans (and, without duplication, Working Capital L/C
Reimbursement Obligations) and Settlement Amounts as provided for
in Section 2.8 of the Tranche A Loan Agreement, Section 2.8 of the
Tranche B Loan Agreement, Section 2.10 of the Company Credit and
Reimbursement Agreement and Section 12 of this Agreement.
"Interest
Reserve Schedule" has the meaning set forth in Section 1.1 of the
Security Deposit Agreement.
"Letter
of Credit Liabilities" means, at any time in respect of any letter
of credit, the sum, computed without duplication, of the following:
(a) the undrawn stated amount of such letter of credit plus (b) the
aggregate unpaid principal amount of all reimbursement obligations
of the Company at such time due and payable in respect of all
drawings made under such letter of credit.
"NEG
Demand Amount" has the meaning set forth in Section 11.14 of this
Agreement.
"NEG
Restructuring" has the meaning set forth in Section 11.12(b) of
this Agreement.
"Non-Participating
Creditors" has the meaning set forth in Section 11.06(a) of this
Agreement.
"Primed
Creditors" means, collectively, Roll-Up Holders and Residual
Holders in their capacities as such.
"Primed
Obligation Deficiency" means the amount of any claims of the Primed
Creditors in respect of the Primed Obligations which are determined
to constitute an unsecured claim (or equivalent) in a
Proceeding.
"Primed
Obligations" means Roll-Up Obligations and Residual
Obligations.
"Priority
Borrowing Notice" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Priority
Collateral" means all Collateral other than Excluded
Collateral.
"Priority
Credit Facility" means the financing provided pursuant to the
Priority Credit Agreement.
"Priority
Obligation Deficiency" means the amount of any claims of the
Priority Lenders in respect of the Priority Obligations which are
determined to constitute an unsecured claim (or equivalent) in a
Proceeding.
"Proceeding"
means, with respect to the Company or any other Debtor, any case,
proceeding or other action by or against under any existing or
future law of any jurisdiction, relating to bankruptcy, insolvency,
reorganization, agreement, adjustment, winding-up, liquidation,
dissolution, composition, or other relief with respect to it or its
debts, or the appointment of a receiver, trustee, custodian, or
other similar official for it or for all or any substantial part of
its assets, or a general assignment for the benefit of its
creditors.
"Proposed
DIP Facility Agreement" has the meaning set forth in Section
11.06(a) of this Agreement.
"Required
Roll-Up Holders" means, at any time, Roll-Up Holders holding at
least in excess of 50% of the aggregate principal amount of the
Roll-Up Loans outstanding at such time.
"Residual
Holder Agent" means the Administrative Agent acting for the benefit
of the Residual Holders (or a sub- agent of
the Administrative Agent acting for the benefit of the Residual
Holders appointed in accordance with Section 2.2 of the Collateral
Agency and Intercreditor Agreement for purposes of Section 11.02 of
this Agreement).
"Residual
Holders" means holders of Residual Obligations in their respective
capacities as such.
"Residual
Loans" means Tranche A Loans, Tranche B Loans, L/C Reimbursement
Loans, Working Capital Loans (and, without duplication, Working
Capital L/C Reimbursement Obligations) and Settlement Amounts that,
as of the date of
determination,
have not been subject to the "roll-up" provision of Section 10 of
this Agreement. The Residual Loans held by each Priority
Lender or other Creditor as of the Effective Date are set forth in
the column entitled "Current Residual Loans" on Schedule I to this
Agreement on the Effective Date and shall, from time to time after
the Effective Date, be set forth on Schedule I to this Agreement as
updated in accordance with Section 10 of this Agreement.
"Residual
Obligations" means, at any time, all indebtedness, financial
liabilities and obligations of the Company and the Owner, of
whatsoever nature and howsoever evidenced (including, but not
limited to, principal, interest, fees, reimbursement obligations,
penalties, indemnities and legal and other expenses, whether due
after acceleration or otherwise) to the Creditors pursuant to the
Operative Documents and arising under or in connection with the
Residual Loans.
"Roll-Up
Collateral" means all Collateral, subject to the provisions of
Section 11.01 of this Agreement.
"Roll-Up
Collateral Proceeds" has the meaning set forth in Section 11.02(f)
of this Agreement.
"Roll-Up
Holder Agent" means the Administrative Agent acting for the benefit
of the Roll-Up Holders (or a sub- agent of
the Administrative Agent acting for the benefit of the Roll-Up
Holders appointed in accordance with Section 2.2 of the Collateral
Agency and Intercreditor Agreement for purposes of Section 11.02 of
this Agreement).
"Roll-Up
Holders" means holders of Roll-Up Obligations in their respective
capacities as such.
"Roll-Up
Loans" means Tranche A Loans, Tranche B Loans, L/C Reimbursement
Loans, Working Capital Loans (and, without duplication, Working
Capital L/C Reimbursement Obligations) and Settlement Amounts that,
as of the date of determination, have been designated as or have
become Roll- Up Loans in accordance with
Section 10 of this Agreement. The Roll-Up Loans held by each
Priority Lender as of the Effective Date are set forth in the
column entitled "Current Roll-Up Loans" on Schedule I to this
Agreement on the Effective Date and shall, from time to time after
the Effective Date, be set forth on Schedule I to this Agreement as
updated in accordance with Section 10 of this Agreement.
"Roll-Up
Obligation Deficiency" means the amount of any claims of the
Roll-Up Holders in respect of the Roll-Up Obligations which are
determined to constitute an unsecured claim (or equivalent) in a
Proceeding.
"Roll-Up
Obligations" means, at any time, all indebtedness, financial
liabilities and obligations of the Company and the Owner, of
whatsoever nature and howsoever evidenced (including, but not
limited to, principal, interest, fees, reimbursement obligations,
penalties, indemnities and legal and other expenses, whether due
after acceleration or otherwise) to the Creditors pursuant to the
Operative Documents and arising under or in connection with the
Roll-Up Loans.
"Roll-Up
Turnover Property" has the meaning set forth in Section 11.02(l) of
this Agreement.
"Settlement
Amounts" means the Tranche A Settlement Amounts and the Tranche B
Settlement Amounts.
"Structural
Guaranty Demand Amount" has the meaning set forth in Section 11.13
of this Agreement.
"Super-Majority
Priority Lenders" means, at any time, Priority Lenders holding at
least in excess of 66 2/3% of the aggregate principal amount of the
Priority Commitments outstanding at such time (or, in the case of
Priority Commitments that have expired or been terminated, the sum
of the aggregate principal amount of the Priority Loans made under
such Priority Commitments and outstanding at such time).
"Tranche
A Settlement Amounts" means, collectively, all of the Owner's and
Company's payment obligations under each Tranche A Interest Hedge
Contract on the Effective Date, after giving effect to the
termination thereof.
"Tranche
B Settlement Amounts" means, collectively, all of the Owner's and
Company's payment obligations under each Tranche B Interest Hedge
Contract on the Effective Date, after giving effect to the
termination thereof.
"Turnover
Property" has the meaning set forth in Section 11.01(l) of this
Agreement.
1.02
Principles of Interpretation. In addition to the Rules of
Usage set forth in Annex A to the Participation Agreement which
automatically apply to this Agreement mutatis mutandis, any
reference in the Operative Documents, Project Documents or Security
Documents to any provision which has been amended by this
Agreement, shall be deemed to be a reference to such provision as
amended hereby.
Section
2. Participation Agreement. The Participation Agreement
is hereby amended as follows:
2.01
Section 6.5(a)(ii) of the Participation Agreement is hereby deleted
and replaced, in its entirety, with the following section:
"(ii)
Remaining Proceeds of the NEG Guarantee or a Substitute Credit
Support Instrument. The proceeds of the NEG Guarantee or a
Substitute Credit Support Instrument remaining after payment of all
amounts due in respect of the Tranche A Loans shall be applied by
the Security Agent to prepay the Tranche B Loans and the Settlement
Amounts on a pro rata basis; provided that (i) with respect to
prepayments to be made to a Tranche B Lender, prepayments shall be
applied (x) ratably to such Tranche B Lender on the basis of the
aggregate principal amount of Tranche B Loans held by such Tranche
B Lender (without regard as to whether, at the time of payment,
such Tranche B Loans constitute Residual Loans or Roll-Up Loans)
and (y) with respect to such Tranche B Lender, such prepayment is
to be applied first to such Tranche B Lender's Residual Loans
consisting of Tranche B Loans and thereafter to such Tranche B
Lender's Roll-Up Loans consisting of Tranche B Loans and (ii) with
respect to prepayments to be made to an Interest Hedge Party,
payments shall be applied (x) ratably to such Interest Hedge Party
on the basis of the aggregate principal amount of Settlement
Amounts held by such Interest Hedge Party (without regard as to
whether, at the time of prepayment, such Settlement Amounts
constitute Residual Loans or Roll-Up Loans) and (y) with respect to
such Interest Hedge Party, such prepayment is to be applied first
to such Interest Hedge Party's Residual Loans consisting of
Settlement Amounts and thereafter to such Interest Hedge Party's
Roll-Up Loans consisting of Settlement Amounts."
2.02
Section 7.1 of the Participation Agreement is amended by inserting
a new clause (t) as follows:
"(t)
Post-Effective Event of Default. The Priority Agent shall
have notified the Administrative Agent, in writing, that a
Post-Effective Event of Default shall have occurred and be
continuing."
2.03
Section 10.3 of the Participation Agreement is hereby amended as
follows:
(a)
Clause (d) is deleted and replaced, in its entirety by the
following clause:
"(d)
to the arrangers, the Agents and the Priority Agent, all fees
specified in the Fee Letters at the time and in the manner required
by the Fee Letters (or, in the case of the Priority Agent, all fees
referenced in Section 2.15 of the Priority Credit
Agreement);"
(b)
Clause (f) is amended by deleting the phrase "other than principal
and interest on the Loans," and replacing it with the phrase "other
than principal and interest on the Loans and Priority
Loans,".
2.04
The first sentence of Section 10.7 of the Participation Agreement
is amended as follows:
(a)
Part (a) of the proviso is amended by deleting and replacing the
phrase "the Investors" with the phrase "the Priority Agent, the
Priority Lenders".
(b)
Part (c) of the proviso is amended by deleting and replacing the
phrase "any Investor" with the phrase "the Priority Agent, any
Priority Lender".
2.05
Section 12.2 of the Participation Agreement is hereby amended by
inserting after the contact information for the DSR/RCE L/C Issuer,
the following additional contact information:
"If to
the Priority Agent:
Citibank,
N.A.
Xxx
Xxxxx Xxx, Xxxxx 000
Xxx
Xxxxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxx
with a
copy to:
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxx, Vice President
If to
the Priority L/C Issuer:
Citibank,
N.A.
Xxx
Xxxxx Xxx, Xxxxx 000
Xxx
Xxxxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxx
with a
copy to:
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxx, Vice President"
2.06
The following new defined terms are hereby inserted into Annex A of
the Participation Agreement in the appropriate alphabetical
order:
"Additional
Project Contract" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Available
Priority Commitment" has the meaning set forth in Section 1.1 of
the Priority Credit Agreement.
"Cash
Collateralization Accounts" means the Priority L/C Account and the
Priority Commitment Account.
"Cover
Amount" means the outstanding unpaid amount of the Cover
Obligation.
"Cover
Obligation" has the meaning set forth in Section 11.16 of this
Agreement.
"DIP
Lenders" has the meaning set forth in Section 1.01 of the Second
Omnibus Restructuring Agreement.
"Effective
Date" has the meaning set forth in Section 1.01 of the Second
Omnibus Restructuring Agreement.
"Interest
Date" has the meaning set forth in Section 1.1 of the Priority
Credit Agreement.
"Liquidation
Waterfall" means the cash waterfall set forth in Section 5.13(c) of
the Security Deposit Agreement.
"Post-Effective
Event of Default" has the meaning set forth in the Section 1.1 of
the Priority Credit Agreement.
"Priority
Agent" has the meaning set forth in the preamble to the Priority
Credit Agreement.
"Priority
Commitment Account" has the meaning set forth in Section 1.1 of the
Security Deposit Agreement.
"Priority
Commitment Period" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Priority
Commitments" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Priority
Credit Agreement" means the Priority Credit and Reimbursement
Agreement dated as of December 4, 2002, among the Company, the
Owner, Citibank, N.A., as Priority L/C Issuer, the Priority Lenders
party thereto, the Administrative Agent and Citibank, N.A., as
Priority Agent thereunder.
"Priority
L/C" has the meaning set forth in Section 1.1 of the Priority
Credit Agreement.
"Priority
L/C Account" has the meaning set forth in Section 1.1 of the
Security Deposit Agreement.
"Priority
L/C Issuer" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Priority
L/C Reimbursement Obligations" has the meaning set forth in Section
1.1 of the Priority Credit Agreement.
"Priority
Lenders" means the lenders party to the Priority Credit Agreement
as "Priority Lenders".
"Priority
Loans" has the meaning set forth in Section 1.1 of the Priority
Credit Agreement.
"Priority
Maturity Date" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Priority
Notes" has the meaning set forth in Section 1.1 of the Priority
Credit Agreement.
"Priority
Obligations" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Priority
Scheduled Debt Service" has the meaning set forth in Section 1.1 of
the Priority Credit Agreement.
"Proposed
DIP Facility Agreement" has the meaning set forth in Section 1.01
of the Second Omnibus Restructuring Agreement.
"Required
Priority Lenders" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
"Residual
Loans" has the meaning set forth in Section 1.01 of the Second
Omnibus Restructuring Agreement.
"Revenue
Account Waterfall" means the cash waterfall set forth in Section
5.1 of the Security Deposit Agreement.
"Roll-Up
Loans" has the meaning set forth in Section 1.01 of the Second
Omnibus Restructuring Agreement.
"Second
Omnibus Restructuring Agreement" means the Second Omnibus
Restructuring Agreement dated as of December 4, 2002, among the
Company, the Owner, the Trustee, the Trust Company, each Tranche A
Lender, each Tranche B Lender, each Interest Hedge Party, the
DSR/RCE L/C Issuer, the Working Capital L/C Issuer, the
Administrative Agent, the Security Agent, the Priority Lenders,
Citibank, N.A., as Priority Agent and NEG.
"Settlement
Amounts" has the meaning set forth in Section 1.01 of the Second
Omnibus Restructuring Agreement.
"Tranche
A Settlement Amounts" has the meaning set forth in Section 1.01 of
the Second Omnibus Restructuring Agreement.
"Tranche
B Settlement Amounts" has the meaning set forth in Section 1.01 of
the Second Omnibus Restructuring Agreement.
"Waterfall
Commencement Date" has the meaning set forth in Section 1.1 of the
Priority Credit Agreement.
2.07
Annex A of the Participation Agreement is hereby further amended as
follows:
(i)
The definition of "Applicable Margin" is deleted and replaced, in
its entirety, with the following definition:
"Applicable
Margin" means 5.50%.
(ii)
The definition of "Imposition" is amended by deleting the phrase
"Lender Holder or Investor" in clause (iii) thereof and replacing
such phrase with "Lender or Priority Lender".
(iii)
The title of the definition "Lender and Investor Obligations" is
hereby amended to read "Lender Obligations".
(iv)
The definition of "Operating Costs" is deleted and replaced, in its
entirety, with the following definition:
"Operating
Costs" means, for any period, cash amounts incurred and paid by the
Company or the Owner for the operation and maintenance of the
Project or any portion thereof, including premiums for insurance
policies, fuel supply and fuel transportation costs, costs of
obtaining any other materials, supplies or services for the
Project, utilities, costs of maintaining, renewing and amending
Governmental Actions, franchise, licensing, property, real estate,
sales and excise taxes (excluding federal or state income taxes),
general and administrative expenses, employee salaries, wages and
other employment-related costs, business management and
administrative services fees, costs required to be paid by the
Company or the Owner under any Operative Document (other than
Priority Scheduled Debt Service, Scheduled Debt Service and other
amounts due to the Lenders and Interest Hedge Parties in respect of
the Loans or Interest Hedge Obligations) or Project Contract (other
than Project Costs), legal and other transaction costs, expenses
and fees incurred by the Creditors or at their direction with
marketing the Project for sale, and all other fees payable to the
Priority Lenders (other than amounts included in Priority Scheduled
Debt Service), necessary capital expenditures and all other fees
and expenses necessary for the continued operation and maintenance
of the Project and the conduct of the business of the
Company.
(v)
The definition of "Operative Documents" is amended by (A) deleting
the word "and" at the end of line (xix), (B) replacing the period
at the end of line (xx) with a semicolon and (C) inserting at the
end thereof, the following new lines: "(xxi) the Priority Credit
Agreement; and (xxii) the Second Omnibus Restructuring
Agreement."
(vi)
The definition of "Project Budget" is amended by inserting the
phrase "and the Priority Credit Agreement." at the end
thereof.
(vii) The
definition of "Project Contracts" is amended by (A) deleting the
word "and" at the end of line (xvii), (B) replacing the period at
the end of line (xviii) with "; and" and (C) inserting at the end
thereof, the following new line: "(xix) any Additional
Project Contract approved by Required Priority Lenders."
2.08
Schedule I to the Participation Agreement is hereby amended as
follows:
(a)
The section entitled "Financing Terms" is hereby deleted.
(b) The section entitled "Notices" is
hereby deleted and replaced, in its entirety, with the notice
information set forth on Exhibit C to this Agreement.
Section
3. Tranche A Loan Agreement. The Tranche A Loan
Agreement is hereby amended as follows:
3.01
Clause (e) of Section 2.8 of the Tranche A Loan Agreement is hereby
deleted and replaced, in its entirety, with the following clauses
(e), (f) and (g):
"(e)
On the Effective Date, accrued but unpaid interest on existing
Tranche A Loans (and all other amounts due and owing (other than
principal) with respect to the Tranche A Loans) will be payable in
accordance with Section 5.2(c) of the Security Deposit
Agreement.
(f)
From and after the Effective Date, with respect to Tranche A Loans
that constitute Roll-Up Loans, interest will accrue monthly in
arrears and shall be payable on each Interest Date; provided that
(A) to the extent that the sum of (i) cash flow available under the
Revenue Account Waterfall and (ii) interest paid in respect of such
Tranche A Loans from amounts on deposit in the Interest Reserve
Account is insufficient (or cash is otherwise unavailable pursuant
to the terms of the Security Deposit Agreement) to pay in full such
interest due on such Interest Date, the portion of such interest
that is not paid shall, on such Interest Date, be capitalized and
added to the principal amount outstanding of Tranche A Loans that
constitute Roll-Up Loans and (B) each payment of Tranche A Loans
that constitute Roll-Up Loans shall be accompanied by accrued
interest to the date of such payment on such amount.
(g)
From and after the Effective Date, with respect to Tranche A Loans
that constitute Residual Loans, interest will accrue monthly in
arrears and shall be payable on each Interest Date; provided that
(A) to the extent that the sum of (i) cash flow available under the
Revenue Account Waterfall and (ii) interest paid in respect of such
Tranche A Loans from amounts on deposit in the Interest Reserve
Account is insufficient (or cash is otherwise unavailable pursuant
to the terms of the Security Deposit Agreement) to pay in full such
interest due on such Interest Date, the portion of such interest
that is not paid shall, on such Interest Date, be capitalized and
added to the principal amount outstanding of Tranche A Loans that
constitute Residual Loans and (B) each payment of Tranche A Loans
that constitute Residual Loans shall be
accompanied by accrued interest to the date of
such payment on such amount."
3.02
The second sentence of Section 2.11(a) of the Tranche A Loan
Agreement is hereby amended by inserting, at the end thereof, the
following proviso:
";
provided that (i) any payment made on account of principal of and
interest on Roll-Up Loans which are Tranche A Loans shall be made
pro rata according to the respective outstanding principal amounts
of the Tranche A Loans which constitute Roll-Up Loans then held by
the Tranche A Lenders and (ii) any payment made on account of
principal of and interest on Residual Loans which are Tranche A
Loans shall be made pro rata according to the respective
outstanding principal amounts of the Tranche A Loans which
constitute Residual Loans then held by the Tranche A
Lenders."
Section
4. Tranche B Loan Agreement. The Tranche B Loan
Agreement is hereby amended as follows:
4.01
Clause (d) of Section 2.8 of the Tranche B Loan Agreement is hereby
deleted and replaced, in its entirety, with the following clauses
(d), (e) and (f):
"(d)
On the Effective Date, accrued but unpaid interest on existing
Tranche B Loans (and all other amounts due and owing with respect
to the Tranche B Loans) will be payable in accordance with Section
5.2(c) of the Security Deposit Agreement.
(e)
From and after the Effective Date, with respect to Tranche B Loans
that constitute Roll-Up Loans, interest will accrue monthly in
arrears and shall be payable on each Interest Date; provided that
(A) to the extent that the sum of (i) cash flow available under the
Revenue Account Waterfall and (ii) interest paid in respect of such
Tranche B Loans from amounts on deposit in the Interest Reserve
Account is insufficient (or cash is otherwise unavailable pursuant
to the terms of the Security Deposit Agreement) to pay in full such
interest due on such Interest Date, the portion of such interest
that is not paid shall, on such Interest Date, be capitalized and
added to the principal amount outstanding of Tranche B Loans that
constitute Roll-Up Loans and (B) each payment of Tranche B Loans
that constitute Roll-Up Loans shall be accompanied by accrued
interest to the date of such payment on such amount.
(f)
From and after the Effective Date, with respect to Tranche B Loans
that constitute Residual Loans, interest will accrue monthly in
arrears and shall be payable on each Interest Date; provided that
(A) to the extent that the sum of (i) cash flow available under the
Revenue Account Waterfall and (ii) interest paid in respect of such
Tranche B Loans from amounts on deposit in the Interest Reserve
Account is insufficient (or cash is otherwise unavailable pursuant
to the terms of the Security Deposit Agreement) to pay in full such
interest due on such Interest Date, the portion of such interest
that is not paid shall, on such Interest Date, be capitalized and
added to the principal amount outstanding of Tranche B Loans that
constitute Residual Loans and (B) each payment of Tranche B Loans
that constitute Residual Loans shall be accompanied by accrued
interest to the date of such payment on such amount."
4.02
The second sentence of Section 2.11(a) of the Tranche B Loan
Agreement is hereby amended by inserting, at the end thereof, the
following proviso:
";
provided that (i) any payment made on account of principal of and
interest on Roll-Up Loans which are Tranche B Loans shall be made
pro rata according to the respective outstanding principal amounts
of the Tranche B Loans which constitute Roll-Up Loans then held by
the Tranche B Lenders and (ii) any payment made on account of
principal of and interest on Residual Loans which are Tranche B
Loans shall be made pro rata according to the respective
outstanding principal amounts of the Tranche B Loans which
constitute Residual Loans then held by the Tranche B
Lenders."
Section
5. Company Credit and Reimbursement Agreement. The
Company Credit and Reimbursement Agreement is hereby amended as
follows:
5.01
Clause (d) of Section 2.10 of the Company Credit and Reimbursement
Agreement is hereby deleted and replaced, in its entirety, with the
following clauses (d), (e) and (f):
"(d)
On the Effective Date, accrued but unpaid interest on existing L/C
Reimbursement Loans and Working Capital Loans (and, without
duplication, Working Capital L/C Reimbursement Obligations) and all
other amounts due and owing (other than principal) with respect to
such Loans and obligations will be payable in accordance with
Section 5.2(c) of the Security Deposit Agreement.
(e)
From and after the Effective Date, with respect to L/C
Reimbursement Loans and Working Capital Loans that constitute
Roll-Up Loans, interest will accrue monthly in arrears and shall be
payable on each Interest Date; provided that (A) to the extent that
the sum of (i) cash flow available under the Revenue Account
Waterfall and (ii) interest paid in respect of such L/C
Reimbursement Loans and/or Working Capital Loans from amounts on
deposit in the Interest Reserve Account is insufficient (or cash is
otherwise unavailable pursuant to the terms of the Security Deposit
Agreement) to pay in full such interest due on such Interest Date,
the portion of such interest that is not paid shall, on such
Interest Date, be capitalized and added to the principal amount
outstanding of L/C Reimbursement Loans or Working Capital Loans
that constitute Roll-Up Loans, as the case may be and (B) each
payment of L/C Reimbursement Loans or Working Capital Loans that
constitute Roll-Up Loans, as the case may be shall be accompanied
by accrued interest to the date of such payment on such
amount.
(f)
From and after the Effective Date, with respect to L/C
Reimbursement Loans or Working Capital Loans that constitute
Residual Loans, interest will accrue monthly in arrears and shall
be payable on each Interest Date; provided that (A) to the extent
that the sum of (i) cash flow available under the Revenue Account
Waterfall and (ii) interest paid in respect of such L/C
Reimbursement Loans and/or Working Capital Loans from amounts on
deposit in the Interest Reserve Account is insufficient (or cash is
otherwise unavailable pursuant to the terms of the Security Deposit
Agreement) to pay in full such interest due on such Interest Date,
the portion of such interest that is not paid shall, on such
Interest Date, be capitalized and added to the principal amount
outstanding of L/C Reimbursement Loans and Working Capital Loans
that constitute Residual Loans, as the case may be and (B) each
payment of L/C Reimbursement Loans and Working Capital Loans that
constitute Residual Loans, as the case may be shall be accompanied
by accrued interest to the date of such payment on such
amount."
5.02
The second sentence of Section 2.13(a) of the Company Credit and
Reimbursement Agreement is hereby amended by inserting, at the end
thereof, the following proviso:
";
provided that (i) any payment made on account of principal of and
interest on Roll-Up Loans which are L/C Reimbursement Loans and
Working Capital Loans, as the case may be, shall be made pro rata
according to the respective outstanding principal amounts of the
L/C Reimbursement Loans and Working Capital Loans that constitute
Roll-Up Loans then held by the L/C Banks and Working Capital
Lenders respectively and (ii) any payment made on account of
principal of and interest on Residual Loans which are L/C
Reimbursement Loans and Working Capital Loans, as the case may be,
shall be made pro rata according to the respective outstanding
principal amounts of the L/C Reimbursement Loans and Working
Capital Loans that constitute Residual Loans then held by the L/C
Banks and Working Capital Lenders respectively."
Section
6. Security Deposit Agreement.
6.01
The following defined terms are hereby inserted into Section 1.1 of
the Security Deposit Agreement in the appropriate alphabetical
order:
"Interest
Reserve Account" means the L/C Reimbursement Interest Accrual
Account.
"Interest
Reserve Account Deposit" has the meaning set forth in Section
5.2(c)(i) of this Agreement.
"Interest
Reserve Creditor" means any Lender, Interest Hedge Party, DSR/RCE
L/C Issuer and Working Capital L/C Issuer.
"Interest
Reserve Schedule" has the meaning set forth in Section 5.2(c)(ii)
of this Agreement.
"Current
Interest Reserve Obligations" means, as of each Interest Date,
unpaid interest on the Pre-Existing Obligations that has accrued at
a rate equal to the ABR plus the Applicable Margin applicable to
each such Pre-Existing Obligation in effect immediately prior to
the Effective Date; provided that unpaid interest on Pre-Existing
Obligations that constitute Settlement Amounts shall have been
deemed to accrue at a rate equal to the ABR plus the Applicable
Margin applicable to Tranche B Loans in effect immediately prior to
the Effective Date; provided further that for purposes of
calculating interest above, interest shall accrue only on the
Pre-Existing Obligations and not on any amount which has been
capitalized thereon in accordance with Section 2.8 of the Tranche A
Loan Agreement, Section 2.8 of the Tranche B Loan Agreement,
Section 2.10 of the Company Credit and Reimbursement Agreement or
Section 12 of the Second Omnibus Restructuring Agreement,
respectively.
"Pre-Existing
Obligations" means Tranche A Loans, Tranche B Loans, Working
Capital Loans, L/C Reimbursement Loans, Working Capital L/C
Reimbursement Obligations, DSR L/C Reimbursement Obligations,
Interest Hedge Obligations and all other obligations owing to the
Creditors immediately prior to the Effective Date.
"Priority
L/C Account" means the L/C Reimbursement Principal Accrual
Account.
"Priority
Commitment Account" means the Working Capital Principal Accrual
Account.
"Required
L/C Deposit Amount" means, on any Interest Date, an amount equal to
the excess of (a) the total aggregate undrawn face amount of all
Priority L/Cs outstanding on such Interest Date over (b) the amount
on deposit in the Priority L/C Account on such Interest Date after
giving effect to any transfers (i) into such account on such date
pursuant to Section 5.2(b)(i) of this Agreement and (ii) from such
account on such date pursuant to Section 5.2(a)(iii) of this
Agreement.
"Required
Commitment Deposit Amount" means, on any Interest Date, an amount
equal to the excess of (a) the total aggregate amount of Priority
Commitments over (b) the sum of (i) the aggregate undrawn face
amount of all Priority L/Cs plus (ii) the amount then on deposit in
the Priority Commitment Account after giving effect to any
transfers (A) from such account on such date pursuant to Section
5.2(b)(i) of this Agreement and (B) into such account on such date
pursuant to Section 5.2(a)(iii) of this Agreement.
The
"Series" of a Pre-Existing Obligation refers to whether such
obligation is owed in respect of a Tranche A Loan, Tranche B Loan,
Working Capital Loan, Working Capital L/C Reimbursement Obligation,
L/C Reimbursement Loan, Tranche A Settlement Amount or Tranche B
Settlement Amount.
"Supplemental
Request Letter" has the meaning set forth in Section 5.13(a) of
this Agreement.
"Working
Capital L/C Account" means the Working Capital Principal Accrual
Account.
6.02
Section 2.1 of the Security Deposit Agreement is hereby amended by
inserting the following proviso after the second sentence of such
section:
";
provided, that the Security Agent shall hold and safeguard the Cash
Collateralization Accounts (and the cash, cash equivalents,
instruments, investments and other securities on deposit therein)
during the term of this Agreement and shall treat the cash, cash
equivalents, instruments, investments and other securities in the
Cash Collateralization Accounts as pledged by the Company and the
Owner (to the extent of their respective rights and interests
therein) to the Security Agent for the exclusive benefit of the
Priority Lenders and the Priority Agent, to be held by the Security
Agent in trust for the Priority Lenders and the Priority Agent in
accordance with the provisions hereof and of the other Security
Documents."
6.03
Section 4.2(d) of the Security Deposit Agreement is hereby amended
by adding "and Priority Loans" immediately following the term
"Working Capital Loans".
6.04
Section 5.1 of the Security Deposit Agreement is hereby deleted and
replaced, in its entirety, with the following section:
"SECTION
5.1 Revenue Account. After the Effective Date, the
Security Agent shall, on each Interest Date, transfer from the
Revenue Account the following amounts in the following order of
priority:
first,
to the Persons specified in the related Request Letter delivered in
connection with such Interest Date, (i) the amounts specified in
the related Request Letter to be the amount of Operating Costs then
due and payable or payable prior to the next Interest Date and (ii)
the bonuses payable to the EPC Contractor (but only to the extent
such bonuses do not constitute Project Costs) then due and payable
or payable prior to the next Interest Date;
second,
(i) to the Security Agent, the amount of any unpaid fees, costs,
indemnities and expenses then due and payable to it as Security
Agent, (ii) to the Administrative Agent, the amount of any unpaid
fees, costs, indemnities and expenses then due and payable to it as
Administrative Agent, (iii) to the Trust Company, the amount of any
unpaid fees, costs, indemnities and expenses then due and payable
to it as Trustee and (iv) to the Priority Agent, the amount of any
unpaid fees, costs, indemnities and expenses then due and payable
to it as Priority Agent;
third,
to the Priority Agent for the account of the Priority Lenders (i)
an amount equal to the amount of all interest on the Priority Loans
and Priority L/C Reimbursement Obligations which is then due and
payable and (ii) an amount equal to the amount of all fees, costs,
expenses, indemnities and other amounts then due and payable under,
or in respect of, the Priority Credit Agreement;
fourth,
(i) first, to the Priority Agent for the account of the Priority
L/C Issuer, an amount equal to the aggregate amount of all Priority
L/C Reimbursement Obligations then due and payable for the payment
thereof and (ii) second, to the Priority Agent for the account of
the Priority Lenders, an amount equal to the aggregate outstanding
principal amount of all Priority Loans for the prepayment thereof
(or, in the event that such Interest Date is the Priority Maturity
Date, the payment thereof);
fifth,
(i) first, into the Priority L/C Account, an amount equal to the
then-applicable Required L/C Deposit Amount and (ii) second, into
the Priority Commitment Account, an amount equal to the
then- applicable Required Commitment
Deposit Amount;
sixth,
to the Administrative Agent for the account of the Priority Lenders
holding Roll-Up Loans, an amount equal to the amount of all
interest on the Roll- Up Loans which is
then due and payable;
seventh,
to the Administrative Agent for the account of the Priority Lenders
holding Roll-Up Loans, an amount equal to the aggregate outstanding
principal amount of all Roll-Up Loans for the payment
thereof;
eighth,
(A) to the Administrative Agent (i) for the account of the Tranche
B Lenders, an amount equal to the sum of (x) interest on the
Tranche B Loans that are Residual Loans which is then due and
payable and (y) all fees, costs, expenses, indemnities and other
amounts (other than principal) then payable to such Tranche B
Lenders on account of all Tranche B Loans, (ii) for the account of
the Tranche B Interest Hedge Contract Parties, an amount equal to
the amount of all interest on and outstanding principal of the
Tranche B Settlement Amounts that are Residual Loans, (iii) for the
account of the Tranche A Interest Hedge Contract Parties, an amount
equal to the interest on the Tranche A Settlement Amounts that are
Residual Loans which is then due and payable to such Tranche A
Interest Hedge Contract Parties, (iv) for the account of the L/C
Banks, an amount equal to the sum of (x) interest on the L/C
Reimbursement Loans that are Residual Loans which is then due and
payable and (y) all fees, costs, expenses, indemnities and other
amounts (other than principal) then payable to such L/C Banks on
account of all L/C Reimbursement Loans and (v) for the account of
the Working Capital Lenders, an amount equal to the sum of (x)
interest on the Working Capital Loans (and, without duplication,
the Working Capital L/C Reimbursement Obligations) that are
Residual Loans which is then due and payable and (y) all fees,
costs, expenses, indemnities and other amounts (other than
principal) then payable to such Working Capital Lenders on account
of all Working Capital Loans and (B) into the Working Capital L/C
Account, an amount equal to the Cover Amount;
ninth,
to the Administrative Agent (i) for the account of the Tranche B
Lenders, an amount equal to the aggregate outstanding principal
amount of the Tranche B Loans that are Residual Loans for the
payment thereof, (ii) for the account of the Tranche A Interest
Hedge Contract Parties, an amount equal to the aggregate
outstanding principal amount of the Tranche A Settlement Amounts
that are Residual Loans owed to such Tranche A Interest Hedge
Contract Parties for the payment thereof, (iii) for the account of
the L/C Banks, an amount equal to the aggregate outstanding
principal amount of the L/C Reimbursement Loans that are Residual
Loans for the payment thereof and (iv) for the account of the
Working Capital Lenders, an amount equal to the aggregate
outstanding principal amount of the Working Capital Loans that are
Residual Loans (and, without duplication, the Working Capital L/C
Reimbursement Obligations) for the payment thereof;
tenth,
so long as the Distribution Conditions are satisfied on such
Interest Date (other than the condition that requires that the
Tranche A Loans have been paid in full), to the Administrative
Agent for the account of the Tranche A Lenders, an amount equal to
the sum of (i) the interest on the Tranche A Loans that are
Residual Loans which is then due and payable plus (ii) all fees,
costs, expenses, indemnities and other amounts (other than
principal) then payable to such Tranche A Lenders on account of all
Tranche A Loans;
eleventh,
so long as the Distribution Conditions are satisfied on such
Interest Date (other than the condition that requires that the
Tranche A Loans have been paid in full), to the Administrative
Agent for the account of the Tranche A Lenders, an amount equal to
the aggregate outstanding principal amount of the Tranche A Loans
that are Residual Loans for the payment thereof; and
twelfth,
to each Creditor, any fee, cost, expense, indemnity or other amount
payable to such Creditor on such date pursuant to the Operative
Documents (other than on account of amounts identified in clauses
first through eleventh above)
In the
event any amounts contemplated by clause first above are due and
payable on any date which is not an Interest Date, the Security
Agent shall make transfers on account of such amounts in accordance
with Section 5.13(a) of this Agreement.
In the
event any amounts contemplated by clause second above are due and
payable on any date which is not an Interest Date, the Security
Agent shall make the transfers contemplated by clause second as
directed in writing by the Administrative Agent from the Revenue
Account on such date.
To the
extent that there shall be insufficient funds in the Revenue
Account to pay the Priority L/C Reimbursement Obligations when due
on any Interest Date as provided in this Section 5.1, the Security
Agent shall make such transfers with funds withdrawn from the
Priority L/C Account as provided in Section 5.2(a)(i) of this
Agreement.
Any
amount not transferred to another Account on any date shall be
retained in the Revenue Account pending further application
pursuant to this Agreement."
6.05
Section 5.2 of the Security Deposit Agreement is hereby deleted and
replaced, in its entirety, with the following section:
"SECTION
5.2. Other Accounts.
(a)
Priority L/C Account.
(i)
On any Interest Date, if the cash on deposit in the Revenue Account
is insufficient to pay, in full, all Priority L/C Reimbursement
Obligations then due and unpaid in accordance with the Revenue
Account Waterfall, then the Security Agent shall, in accordance
with a direction issued by the Priority Agent, transfer funds on
deposit in the Priority L/C Account (if any) to the Priority Agent
for the account of the Priority L/C Issuer in an amount equal to
the lesser of (A) the amount of such deficiency and (B) the amount
then on deposit in the Priority L/C Account.
(ii)
In the event that payment of a Priority L/C Reimbursement
Obligation is due on any date other than an Interest Date and the
conditions to the borrowing of Priority Loans set out in Section
4.2 of the Priority Credit Agreement have not been satisfied or
waived as of such due date, then the Security Agent shall, in
accordance with a direction issued by the Priority Agent, transfer
funds on deposit in the Priority L/C Account (if any) to the
Priority Agent for the account of the Priority L/C Issuer in an
amount equal to the lesser of (A) the Priority L/C Reimbursement
Obligation that is then due and (B) the amount then on deposit in
such account.
(iii)
If, on any date, the aggregate amount on deposit in the Priority
L/C Account exceeds the aggregate undrawn face amount of all
Priority L/Cs then outstanding, the Security Agent shall, in
accordance with a direction issued by the Priority Agent, transfer
from the Priority L/C Account to the Priority Commitment Account an
amount equal to such excess.
(iv) Notwithstanding any provision in the Operative Documents
(but subject to this Section 5.2(a)(iv)), the Security Agent shall
not transfer funds on deposit in the Priority L/C Account to make
any payments under the Liquidation Waterfall, and the provisions of
this Section 5.2(a) shall remain in effect until the expiry of all
Priority L/Cs and the payment in full of all Priority L/C
Reimbursement Obligations.
(b)
Priority Commitment Account.
(i)
If, on any date prior to the end of the Priority Commitment Period,
the Priority Agent notifies the Security Agent that the amount on
deposit in the Priority Commitment Account exceeds the sum of (A)
the Available Priority Commitments as of such date plus (B) the
aggregate outstanding principal amount of Priority Loans as of such
date, then the Security Agent, acting at the direction of the
Priority Agent, shall transfer such excess from the Priority
Commitment Account to the Priority L/C Account.
(ii)
On the earlier to occur of (A) the date on which the Priority Loans
are accelerated and (B) the Priority Maturity Date, the Security
Agent, acting at the direction of the Priority Agent, shall
transfer to the Priority Agent from the Priority Commitment Account
an amount equal to the lesser of (1) the total aggregate amount
then on deposit in the Priority Commitment Account and (2) the
aggregate principal amount of Priority Loans then due and payable
together with all accrued interest, fees, expenses, indemnities and
other amounts due in respect thereof. To the extent that,
after giving effect to the transfer contemplated by this Section
5.2(b)(ii) there shall remain any amount on deposit in the Priority
Commitment Account, the Security Agent shall transfer such amount
to the Revenue Account for application in accordance with the terms
of Section 5.1 of this Agreement.
(iii)
In the event that the Security Agent receives (A) a Notice of
Action specifying that action be taken pursuant to Section 5.13(c)
of this Agreement or (B) written notice from the Administrative
Agent that the Lease has been terminated pursuant to Section 12.1
or 13.5 of the Lease (other than, in the event that, in connection
with any such termination of the Lease, the Company has assumed all
of the Owner's obligations in respect of the Tranche B Loans
pursuant to Section 6.4 of the Participation Agreement), the
Security Agent shall, prior to making any transfers under Section
5.13(c) of this Agreement, transfer to the Priority Agent from the
Priority Commitment Account for the payment of Priority Loans
together with all accrued interest, fees, expenses, indemnities and
other amounts due in respect thereof an amount equal to the lesser
of (1) the total aggregate amount then on deposit in the Priority
Commitment Account and (2) the aggregate principal amount of
Priority Loans then due and payable together with all accrued
interest, fees, expenses, indemnities and other amounts due in
respect thereof. To the extent that, after giving effect to
the transfer contemplated by this Section 5.2(b)(iii) there shall
remain any amount on deposit in the Priority Commitment Account,
the Security Agent shall transfer such amount to the Revenue
Account for application in accordance with the terms of Section
5.13(c) of this Agreement.
(iv)
Notwithstanding any provision in the Operative Documents, except to
the extent provided in Section 5.2(b)(iii) above, the Security
Agent shall not transfer funds on deposit in the Priority
Commitment Account to make any payments under the Liquidation
Waterfall.
(c)
Interest Reserve Account.
(i)
On the Effective Date, there shall be deposited into the Interest
Reserve Account the proceeds of Priority Loans in the amount of
$6,000,000 (the Interest Reserve Account Deposit"). In
furtherance of the foregoing, if the Company or the Owner shall
receive any amounts in respect of the Interest Reserve Account
Deposit, it shall immediately deliver such amounts in the exact
form received to the Security Agent, and the Security Agent shall
deposit such proceeds upon receipt thereof into the Interest
Reserve Account. The Security Agent shall have the right to
receive all Interest Reserve Account Deposits directly from the
Persons owing the same. All such Interest Reserve Account
Deposits received by or on behalf of the Security Agent shall be
deposited upon receipt thereof into the Interest Reserve
Account.
(ii)
On the Effective Date, the Security Agent shall transfer from the
Interest Reserve Account to the Administrative Agent for the
account of the Interest Reserve Creditors, $4,065,887.13 (which
amount is net of amounts applied from a draw on the DSR L/C as
described in Section 13.05 of the Second Omnibus Restructuring
Agreement), in satisfaction of the accrued and unpaid interest on
the Pre-Existing Obligations and all other fees, expenses,
indemnities and other amounts due and owing (including any default
interest) with respect to the Pre-Existing Obligations which shall
be paid by the Administrative Agent to the Interest Reserve
Creditors in accordance with a schedule setting forth such amount
(the "Interest Reserve Schedule").
(iii)
On any Interest Date and prior to giving effect to the transfers
contemplated by Section 5.1 of this Agreement to be made on such
date, the Security Agent shall, at the direction of the
Administrative Agent, transfer funds on deposit in the Interest
Reserve Account (if any) to the Administrative Agent for the
account of the Interest Reserve Creditors in an amount equal to the
amount of Current Interest Reserve Obligations owed to such
Interest Reserve Creditors.
(iv)
To the extent that, on any Interest Date, there shall be
insufficient funds in the Interest Reserve Account to make all
payments referred to in clause (iii) above, the Security Agent
shall transfer any remaining funds in the Interest Reserve Account
to the Administrative Agent for distribution to the Interest
Reserve Creditors on a pro rata basis based on the aggregate amount
of the Current Interest Reserve Obligations owed to such Interest
Reserve Creditor (without regard as to whether, at the time of
payment, such Current Investor Reserve Obligations constitute
Residual Loans or Roll-Up Loans); provided that amounts so received
by an Interest Reserve Creditor shall be, notwithstanding any
provision in any of the Operative Documents to the contrary,
applied by such Interest Reserve Creditor to the applicable Series
of Pre- Existing Obligations with respect
to which such Current Interest Reserve Obligation was paid and, to
the extent that such amount is insufficient to pay all Current
Interest Reserve Obligations with respect to a Series of
Pre-Existing Obligations, then ratably against the Roll-Up Loans
and Residual Loans held by such Interest Reserve Creditor in
respect of such Series of Pre- Existing
Obligations based on the outstanding principal amount of such
Roll-Up Loans and Residual Loans of such Series.
(d)
Working Capital L/C Account.
(i)
Notwithstanding any provision in the Operative Documents (but
subject to this Section 5.2(d)(ii)), upon any drawing under a
Working Capital L/C, the Security Agent shall, in accordance with a
direction issued by the Administrative Agent, transfer funds on
deposit in the Working Capital L/C Account (if any) to the
Administrative Agent for the account of the Working Capital L/C
Issuer in an amount equal to the lesser of (A) the amount of
Working Capital L/C Reimbursement Obligations related to such
drawing and (B) the amount then on deposit in the Working Capital
L/C Account; provided, that the transfers contemplated in this
clause (i) shall occur prior to any transfer to be made pursuant to
Section 5.1 of this Agreement.
(ii)
To the extent that the outstanding Working Capital L/C is returned
or cancelled, the Security Agent shall transfer all amounts on
deposit in the Working Capital L/C Account to the Revenue Account
for application in accordance with the terms of Section 5.1 of this
Agreement."
6.06
Section 5.13 of the Security Deposit Agreement is hereby amended by
deleting clause (a) in its entirety and inserting in lieu thereof
the following clause:
"(a)
Request Letters. The Company shall not have the right to
issue a notice pursuant to Section 3 of this Agreement or otherwise
direct the transfer of funds from any Account, subject to the
provisions of this Section 5.13(a). The Company shall issue
Request Letters in respect of the transfers and disbursements
contemplated by Section 5.13(b) of this Agreement, and the Security
Agent shall (i) promptly deliver a copy of each such Request Letter
to the Priority Agent and Priority Lenders and (ii) make such
transfers and disbursements contemplated by the related Request
Letter unless otherwise directed by the Required Priority
Lenders. The Company may issue supplemental Request Letters
(each, a "Supplemental Request Letter") in respect of transfers and
disbursements for amounts contemplated by clause first of Section
5.01 of this Agreement that are due and payable on a date which is
not an Interest Date and that were not contemplated by the
then-applicable Request Letter, and the Security Agent shall, upon
confirmation by the Administrative Agent and unless otherwise
directed by the Required Priority Lenders, make such transfers and
disbursements contemplated by any such Supplemental Request
Letter."
6.07
Section 5.13 of the Security Deposit Agreement is hereby amended by
deleting clause (b) in its entirety and inserting in lieu thereof
the following clause:
"(b)
Transfer Prior to Notice of Action. Until the Security Agent
receives a Notice of Action directing that action be taken pursuant
to Section 5.13(c) of this Agreement, the Security Agent shall make
the specified transfers contemplated by priorities first through
twelfth of Section 5.1 of this Agreement and the specified
transfers contemplated by Section 5.2 of this Agreement."
6.08
Section 5.13 of the Security Deposit Agreement is hereby further
amended by deleting clause (c) in its entirety and inserting in
lieu thereof the following clause:
"(c)
Transfer After Notice of Action. Subject to the first
sentence of Section 5.13(e) of this Agreement and the provisions of
Section 5.2(a) and (b) and Section 5.19(b) of this Agreement, at
any time after the Security Agent receives (i) a Notice of Action
specifying that action be taken pursuant to this Section 5.13(c) or
(ii) written notice from the Administrative Agent that the Lease
has been terminated pursuant to Section 12.1 or 13.5 of the Lease
(other than, in the event that, in connection with any such
termination of the Lease, the Company has assumed all of the
Owner's obligations in respect of the Tranche B Loans pursuant to
Section 6.4 of the Participation Agreement), the Security Agent
shall transfer all amounts available in the Accounts in the
following order of priority:
first,
(i) to the Security Agent for any unpaid fees, costs, indemnities
and expenses then due and payable to it as Security Agent, (ii) to
the Priority Agent for any unpaid fees, costs, indemnities and
expenses then due and payable to it as Priority Agent, (iii) to the
Administrative Agent for any unpaid fees, costs, indemnities and
expenses then due and payable to it as Administrative Agent and
(iv) to the Trust Company for any unpaid fees, costs, indemnities
and expenses then due and payable to it as Trustee under the
Operative Documents,
second,
to the Priority Agent for distribution (i) to each Priority Lender,
an amount equal to the sum of (A) the aggregate outstanding
principal amount of Priority Loans and Priority L/C Reimbursement
Obligations made or held by such Priority Lender plus (B) all
accrued and unpaid interest thereon plus (C) all fees, costs,
expenses, indemnities and other amounts then payable to such
Priority Lender under, or in respect of, the Priority Credit
Agreement and (ii) into the Priority L/C Account, an amount equal
to the excess of (A) the aggregate undrawn face amount under all
Priority L/Cs over (B) the aggregate amount then on deposit in the
Priority L/C Account;
third,
to the Administrative Agent for distribution to the Priority
Lenders with Roll-Up Loans outstanding, an amount equal to the sum
of (A) the aggregate outstanding principal amount of Roll-Up Loans
made by such Creditor plus (B) (B) all accrued and unpaid interest
thereon plus (C) all fees, costs, expenses, indemnities and other
amounts then payable to such Creditor in respect of such Roll-Up
Loans;
fourth,
to the Administrative Agent for distribution (i) to each Tranche A
Lender, each Tranche B Lender, each L/C Bank and each Working
Capital Lender, the outstanding principal amount of Loans that are
Residual Loans made by such Creditor and all accrued and unpaid
interest thereon and (ii) to the Tranche A Interest Hedge Contract
Parties and the Tranche B Interest Hedge Contract Parties, the
Settlement Amounts that are Residual Loans and all accrued and
unpaid interest thereon;
fifth,
to each Creditor, all fees, costs, expenses, indemnities and other
amounts payable to such Creditor pursuant to the Operative
Documents (other than on account of amounts identified in clauses
first through fourth above); and
sixth,
any surplus then remaining shall be paid to the Administrative
Agent for distribution as directed by the Creditors, or as a court
of competent jurisdiction may direct.
6.09
Section 5.13 of the Security Deposit Agreement is hereby further
amended by deleting clause (e) in its entirety and inserting in
lieu thereof the following clause:
"(e)
NEG Guarantee. The proceeds of (1) any payment made pursuant
to Section 2.01 of the NEG Guarantee or (2) any payment made
pursuant to a Substitute Credit Support Instrument, shall be
applied promptly upon receipt thereof by the Security Agent to the
payment in whole of the Tranche A Loans as required by Section
6.5(a)(i) of the Participation Agreement, together with all accrued
interest and other amounts due in respect of the Tranche A
Loans. In the event that any proceeds of such payment under
the NEG Guarantee or the Substitute Credit Support Instrument, as
the case may be, remain after payment in full of all amounts due in
respect of the Tranche A Loans, such proceeds shall be applied by
the Security Agent in accordance with Section 6.5(a)(ii) of the
Participation Agreement."
6.10
Section 5.16 of the Security Deposit Agreement is hereby amended by
inserting the following proviso at the end of the second
sentience:
";
provided that the transfers made pursuant to clauses fourth and
fifth of Section 5.01 of this Agreement shall not be deemed to
share the same level of priority, but shall have the priority set
forth in such clauses fourth and fifth, respectively."
6.11
Section 9.6 of the Security Deposit Agreement is hereby amended by
inserting the phrase ", the Required Priority Lenders" after the
term "Required Lenders".
Section
7. Collateral Agency and Intercreditor Agreement.
7.01
Section 1.1 of the Collateral Agency and Intercreditor Agreement is
hereby amended as follows:
(i)
the definition of "Creditors" is amended by inserting the phrase ",
the Priority Lenders and the Priority Agent" at the end
thereof.
(ii)
the definition of "Participants" is deleted and replaced, in its
entirety, with the following definition:
"Participants"
means the Lenders and the Priority Lenders.
(iii)
clause (b) of the definition of "Required Participants" is deleted
and replaced, in its entirety, with the following clause:
"(b)
in all other cases, the Required Lenders and Required Priority
Lenders."
7.02
Section 3.8 of the Collateral Agency and Intercreditor Agreement is
hereby amended by inserting the following phrase after the term
"Participant":
",
"Priority Lender", "Priority L/C Issuer""
7.03
Section 8.2 of the Collateral Agency and Intercreditor Agreement is
hereby amended by inserting the following new paragraphs at the end
thereof:
"The
Priority Agent shall maintain at its address referred to in Section
12.2 of the Participation Agreement a copy of each Assignment and
Acceptance (as defined in the Priority Credit Agreement) delivered
to it pursuant the Priority Credit Agreement and a register (the
"Priority Register") for the recordation of the names and addresses
of the Priority Lenders and the Priority Commitment of, and
principal amount of the Priority Loans owing to, each Priority
Lender from time to time. The entries in the Priority
Register shall be conclusive, in the absence of manifest error, and
the Company, the Owner and the Creditors shall treat each Person
whose name is recorded as a Priority Lender in the Priority
Register as the owner of the Priority Loan and any Priority Note
evidencing such Priority Loan recorded therein for all purposes of
this Agreement, the Priority Credit Agreement and any other
Operative Document. The Priority Register shall be available
for inspection by such parties at any reasonable time and from time
to time upon reasonable prior notice.
The
Priority Agent shall also maintain a register (the "Roll-Up
Register") for the recordation of the amounts of, and character or
type of, each Roll-Up Loan held by each Priority Lender. The
entries in the Roll-Up Register shall be conclusive, in the absence
of manifest error, and the Company, the Owner and the Creditors
shall treat each Person whose name is recorded as a Roll-Up Lender
in the Roll-Up Register as the owner of the Roll-Up Loan recorded
therein for all purposes of this Agreement, the Priority Credit
Agreement and any other Operative Document. The Roll-Up
Register shall be available for inspection by such parties at any
reasonable time and from time to time upon reasonable prior
notice."
Section
8. Mandatory Prepayments.
8.01
Notwithstanding the provisions of Section 6.5 of the Participation
Agreement or any other provision of any other Operative Document to
the contrary, but subject to the proviso set out below and the
other provisions of this Section 8.01, any amounts required to be
used to prepay Secured Obligations as provided in Section 6.5 of
the Participation Agreement shall be first used to prepay the
following Priority Obligations or provide cash collateral in
respect of outstanding Priority L/Cs and Priority Commitments in
the following order of priority:
(a)
first, to pay Priority L/C Reimbursement Obligations then due and
unpaid together with accrued and unpaid interest thereon;
(b)
second, to prepay outstanding Priority Loans together with accrued
and unpaid interest thereon;
(c)
third, to provide cash collateral with respect to Priority L/Cs
through the deposit into the Priority L/C Account of an amount
equal to the excess of: (i) the total aggregate undrawn face amount
of Priority L/Cs then outstanding over (ii) the amount then on
deposit in the Priority L/C Account; and
(d)
fourth, to provide cash collateral with respect to the Priority
Commitments through the deposit into the Priority Commitment
Account of an amount equal to the excess of (i) the total Priority
Commitments over (ii) the sum of (A) the total aggregate undrawn
face amount of Priority L/Cs then outstanding plus (B) the amount
then on deposit in the Priority Commitment Account; provided that,
notwithstanding the foregoing, any proceeds of the NEG Guarantee
and the EPC Buydown Damages (and other buydown amounts received
with respect to performance related liquidated damages) shall be
applied in accordance with Sections 8.02 and 8.03 of this
Agreement. After making the prepayment referred to in clauses (a)
through (d) above, any remaining amounts required to be used to
prepay Secured Obligations shall be applied, with respect to each
tranche or class of Secured Obligations, first to such portion of
such tranche or class that consists of Roll-Up Loans and then to
such portion which consists of Residual Loans.
8.02
Any proceeds of the NEG Guarantee shall be applied in accordance
with Section 6.5 of the Participation Agreement and Section 5.13(e)
of the Security Deposit Agreement; provided that prepayments shall
be applied (a) ratably to each Tranche A Lender on the basis of the
aggregate principal amount of Tranche A Loans held by such Tranche
A Lender (without regard as to whether, at the time of prepayment,
such Tranche A Loans constitute Residual Loans or Roll-Up Loans)
and (b) with respect to each Tranche A Lender, such prepayment is
to be applied first to such Tranche A Lender's Residual Loans
consisting of Tranche A Loans and thereafter to such Tranche A
Lender's Roll-Up Loans consisting of Tranche A Loans.
8.03
All EPC Buydown Damages (including the proceeds of any letter of
credit issued in connection with the EPC Contract) and other
buydown amounts received with respect to performance related
liquidated damages shall be applied in accordance Section
6.5(a)(iii) of the Participation Agreement; provided that with
respect to prepayments to be made to a Tranche B Lender,
prepayments shall be applied (a) ratably to such Tranche B Lender
on the basis of the aggregate principal amount of Tranche B Loans
held by such Tranche B Lender (without regard as to whether, at the
time of payment, such Tranche B Loans constitute Residual Loans or
Roll-Up Loans) and (b) with respect to such Tranche B Lender, such
prepayment is to be applied first to such Tranche B Lender's
Residual Loans consisting of Tranche B Loans and thereafter to such
Tranche B Lender's Roll-Up Loans consisting of Tranche B
Loans.
Section
9. Optional Prepayments. Notwithstanding any provision
in the Operative Documents (but subject to this Section 9), the
Company may make (or require the Owner to make) optional
prepayments in accordance with Section 6.5(b) of the Participation
Agreement only after such time as (a) the Priority Loans and
Priority L/C Reimbursement Obligations have been repaid or prepaid
in full and (b) the Priority L/Cs and Priority Commitments have
been cash collateralized in full.
Section
10. Roll-Up Loans.
10.01
The parties hereto hereby agree that:
(a)
each Priority Lender shall be entitled to select three dollars of
its Existing Obligations to be designated as Roll-Up Loans for each
dollar of Priority Commitment committed by such Priority Lender as
of the Effective Date;
(b)
interest capitalized on Roll-Up Loans in accordance with the terms
of the Operative Documents shall increase the principal amount of
such Roll-Up Loans in respect of which interest was
capitalized;
(c)
any assignment of Priority Commitments and/or Priority Loans under
the Priority Credit Agreement shall adjust the Roll-Up Loans held
by the assigning Priority Lender and the purchasing Priority Lender
as set forth in Schedule I to the Assignment and Acceptance (as
defined in the Priority Credit Agreement) executed in connection
with such assignment;
(d)
if a Creditor-Provided DIP Facility is executed as contemplated
under Section 10.06 of this Agreement and, pursuant to such DIP
Facility the DIP Lenders are permitted to identify certain Residual
Obligations to be treated as Roll-Up Loans hereunder, such amounts
shall be treated as Roll-Up Loans hereunder;
(e)
if a Creditor-Provided DIP Facility described in the foregoing
clause (d) is in effect, then any assignment of commitments and/or
loans under such DIP Facility shall adjust the Roll-Up Loans held
by the assigning DIP Lender and purchasing DIP Lender as identified
in the instrument of assignment giving effect to such assignment;
and
(f)
Roll-Up Loans and Residual Loans are to be designated after giving
effect to the payments contemplated pursuant to Section 13.05(d) of
this Agreement to be made on the Effective Date.
10.02
Notwithstanding any designation or deemed designation of any
Existing Obligations consisting of Tranche A Loans, Tranche B
Loans, Settlement Amounts, Working Capital Loans or L/C
Reimbursement Loans as Roll-Up Loans, such Existing Obligations
shall maintain their character as Tranche A Loans, Tranche B Loans,
Settlement Amounts, Working Capital Loans or L/C Reimbursement
Loans under the Operative Documents.
10.03
On the date that is five Business Days following each Interest
Date, the Administrative Agent shall (a) in consultation with the
Priority Agent, update Schedule I to this Agreement to reflect each
Creditor's current Roll-Up Loans and Residual Loans as of such
corresponding Interest Date and (b) distribute such updated
Schedule I to each Creditor; provided that the obligation referred
to in this Section 9.03 shall commence in connection with the
Interest Date occurring in January, 2003.
10.04
Notwithstanding any provision in the Operative Documents (but
subject to this Section 10.04), no assignment of Roll-Up Loans or
Residual Loans may be made unless made in connection with an
assignment of (a) Priority Loans and/or Priority Commitments under
the Priority Credit Agreement and/or (b) commitments and/or loans
under a Creditor-Provided DIP Facility executed as contemplated
under Section 11.06 of this Agreement.
Section
11. Certain Agreements of the Creditors and Parties.
11.01 Subordination of Liens
Securing Primed Obligations to Liens Securing Priority Obligations
and Certain Related Bankruptcy Provisions.
(a)
Notwithstanding any provision contained herein, in the Priority
Credit Agreement or in the other Operative Documents to the
contrary but subject to Section 8.03 of this Agreement, any Liens
now existing or that may in the future be created as security for
the Primed Obligations or otherwise in connection therewith
(including the Liens created by the Security Documents to the
extent they secure the Primed Obligations and without regard to
whether there shall be a Lien on such asset securing the Priority
Obligations or whether any such Lien shall be perfected or
avoidable) and all of the Administrative Agent's and the Primed
Creditors' rights and remedies under such Liens (other than any
Lien on Excluded Collateral) are hereby expressly made, and at all
times will be, subject and subordinate in all respects to any Liens
now existing or that may in the future be created (x) as security
for the Priority Obligations or otherwise in connection therewith
(including the Liens created by the Security Documents to the
extent they secure the Priority Obligations), or (y) as security
for any of the Priority Lenders', the Priority L/C Issuer's or the
Priority Agent's claims (i) under the Priority Credit Agreement or
(ii) arising out of the Priority Credit Facility (including
Priority Lenders' and the Priority L/C Issuer's rights to receive
payment and performance of the Priority Obligations).
In
order to preserve the lien priority provided for hereunder, neither
the Administrative Agent nor any Primed Creditor shall, without
prior written consent of the Security Agent (acting on the
instruction of the Priority Agent), take a Lien to secure any
Primed Obligation in any asset in which Security Agent does not
hold a perfected Lien securing the Priority Obligations other than
Excluded Collateral. To the extent the Administrative Agent
or any Primed Creditor shall take any such Lien (whether or not the
Security Agent has consented thereto), for all purposes hereunder
the asset subject to such Lien shall be deemed "Priority
Collateral" hereunder and there shall be deemed to be a first
priority Lien securing the Priority Obligations prior to the Lien
securing the Primed Obligations as if such Lien were fully
perfected.
(b)
In exercising rights and remedies under the Priority Credit
Agreement or arising out of the Priority Credit Facility, the
Required Priority Lenders directly, or the Priority Agent or
Security Agent on behalf of the Required Priority Lenders, may
enforce the provisions of the Operative Documents and exercise
remedies thereunder or otherwise (or refrain from enforcing rights
and exercising remedies), all in such order and in such manner as
they may determine in the exercise of their sole business
judgment. Such exercise and enforcement shall include,
without limitation, the rights to collect, sell, dispose of or
otherwise realize upon all or any part of the Priority Collateral,
to incur expenses in connection with such collection, sale,
disposition or other realization and to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code of
any applicable jurisdiction or under other applicable law with
respect to the Priority Collateral. Neither the
Administrative Agent nor any Primed Creditor shall contest or
otherwise challenge any such collection, sale, disposition or other
realization of or upon all or any of the Collateral (other than the
Excluded Collateral).
(c)
Notwithstanding any provisions herein, in the Priority Credit
Agreement or in the other Operative Documents to the contrary, the
provisions of this Agreement, automatically, and without any notice
to, consent of, or action by the Administrative Agent or the Primed
Creditors, or any other Person whatsoever, shall extend to all
modifications, renewals, refinancings, restructurings, replacements
and extensions whatsoever of the Priority Credit Agreement.
In addition, no release or waiver by the Priority Lenders, the
Priority Agent or the Security Agent of any of their rights against
any Person under the Priority Credit Agreement shall require notice
to or consent of the Administrative Agent or any Primed Creditor,
nor shall any such release or waiver operate as a defense to or
release of any of the obligations of the Administrative Agent and
the Primed Creditors or affect the rights or priority of the
Priority Lenders, the Priority Agent and the Security Agent
hereunder and under the Priority Credit Agreement. The
Security Agent acknowledges that the provisions of this Agreement
nonetheless constitute notice from the Administrative Agent and the
Primed Creditors of their Liens for purposes of õ
9-608(a)(1)(c) and õ 9-615(a)(3)(A) of the New York UCC
(provided that, to the extent that the provisions of õ
9-608(a)(1)(c) or õ 9-615(a)(3)(A) of the New York UCC
conflict with the provisions hereof, the provisions hereof shall
control). In furtherance of and without limiting the
generality of the foregoing provisions of this Section, the
Administrative Agent and the Primed Creditors (by their acceptance
of the terms of this Agreement) hereby agree and consent that,
without notice to or assent by the Administrative Agent or Primed
Creditors:
(i)
the obligations and liabilities of any Person with respect to the
Priority Obligations and the terms and provisions of the Priority
Credit Agreement, may, from time to time, in whole or part, be
modified, supplemented, renewed, refinanced, restructured, replaced
or extended or accelerated;
(ii)
the Priority Lenders or the Priority Agent or the Security Agent on
their behalf may exercise or refrain from exercising any right,
remedy or power granted to them under the Priority Credit Agreement
or any other right, remedy or power at law or in equity or
otherwise; and
(iii)
the Priority Lenders or the Priority Agent or the Security Agent on
their behalf may, from time to time, release or waive, in whole or
part, any and all Priority Collateral, security, funds, accounts
and/or Liens at any time, present or future, held, given or
intended to be given in connection with the Priority Obligations
without impairing the Priority Lenders' or the Priority Agent's or
the Security Agent's rights hereunder with respect to any Priority
Collateral, or Liens not so released or waived.
(d)
Any Liens on any of the Priority Collateral heretofore,
concurrently herewith or hereafter granted to secure the Primed
Obligations (including the Liens created by the Security Documents
to the extent they secure the Primed Obligations), shall remain
subordinate to all Liens heretofore or hereafter granted to secure
the Priority Obligations (including the Liens created by the
Security Documents to the extent they secure the Priority
Obligations) irrespective of:
(i)
the time or order or method of attachment or perfection of the
Liens heretofore, concurrently herewith or hereafter created to
secure the Priority Obligations including the Liens created by any
of the Security Documents;
(ii)
the time or order of filing or recording of financing statements or
other documents filed or recorded to perfect any security interest
in any Priority Collateral;
(iii)
anything contained in any filing or agreement to which the Priority
Lenders or the Priority Agent or the Security Agent on their
behalf, or any of them collectively, now or hereafter may be a
party;
(iv)
the rules for determining priority under the Uniform Commercial
Code or any other law governing the relative priorities of secured
creditors; and
(v)
perfection of or avoidability of such Liens or claims secured
thereby.
(e)
Neither the Administrative Agent nor any Primed Creditor will
directly or indirectly oppose or otherwise defend against the
Priority Lenders', the Priority Agent's or Security Agent's effort
to obtain relief from the automatic stay with respect to the
Priority Collateral in any Proceeding. The Administrative
Agents and Primed Creditors (by their acceptance of this Agreement)
agree that the Priority Lenders, the Priority Agent and the
Security Agent shall be entitled to the lifting of the stay with
respect to the Priority Collateral without the necessity of an
evidentiary hearing and without the necessity or requirement that
the Priority Lenders, the Priority Agent or the Security Agent
establish or prove the value of the Priority Collateral, the lack
of adequate protection of the Priority Lenders', the Priority
Agent's or the Security Agent's interests in all or any portion of
the Priority Collateral, the lack of any reasonable prospect of
reorganization with respect to the Company, any other Debtor or the
Priority Collateral or any portion thereof, or the Company's, or
any other Debtor's lack of equity in the Priority Collateral.
In furtherance thereof, to the extent permitted by law, the
Administrative Agent, and by its acceptance of this Agreement, the
Primed Creditors, hereby, waive and agree not to assert or take
advantage of (as a defense or otherwise) as against the Priority
Lenders, the Priority Agent or the Security Agent in its capacity
as the Security Agent for the Priority Lenders, any assertion or
claim that the automatic stay provided by 11 U.S.C. õ 362
(arising upon any Proceeding under the Bankruptcy Code involving
the Company, any other Debtor or any other obligor under the
Priority Credit Agreement or the Priority Collateral or any portion
thereof) or any other stay provided under any other debtor relief
law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be
or become applicable, shall operate or be interpreted to stay,
interdict, condition, reduce or inhibit the ability of the Priority
Lenders, the Priority Agent or Security Agent to enforce any
rights, whether now or hereafter acquired, which the Priority
Lenders or the Priority Agent or the Security Agent on their
behalf, may have against the Company, any other Debtor, the
Priority Collateral or any portion thereof.
(f)
The Administrative Agent and Primed Creditors (by their acceptance
of this Agreement) hereby acknowledge and agree that, as between
the Priority Lenders, the Priority Agent and the Security Agent on
the one hand and the Administrative Agent and Primed Creditors on
the other hand, the Security Documents grant the Security Agent for
the benefit of Priority Lenders the benefit of first priority Liens
on and security interests in, inter alia, all rents, fees, charges,
accounts, revenues or other payments for the use or occupancy of
any portion of the Priority Collateral and any other revenues,
proceeds or profits from the Priority Collateral (the "Collateral
Proceeds"), whether existing before or after the commencement of
any Proceeding involving the Company, any other Debtor, the
Priority Collateral or any portion thereof, that such Liens on the
Priority Collateral have the benefit of full perfection under
applicable law and that the revenues generated from the Priority
Collateral will, notwithstanding any provision of the Bankruptcy
Code which could be construed to the contrary (including, without
limitation, the provisions of sections 552 and 363 of the
Bankruptcy Code), constitute cash collateral of the Priority
Lenders within the meaning of Bankruptcy Code section 363(a).
The Administrative Agent and, by their acceptance of this
Agreement, the Primed Creditors, covenant and agree that they will
not hereafter assert or cause to be asserted in any Proceeding
under the Bankruptcy Code, either as a claim or as a defense, any
contrary position as to the character of the Collateral
Proceeds.
(g)
To the extent that the Company, any other Debtor or any other
Person makes a payment or payments to the Priority Lenders (or the
Priority Agent on their behalf), which payment or proceeds or any
part thereof is subsequently invalidated, declared to be fraudulent
or preferential, set aside or required to be repaid to a trustee,
receiver or any other Person under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent of
such payment or proceeds received, the Priority Obligations or part
thereof intended to be satisfied, and any and all Liens created by
the Security Documents on the Priority Collateral in respect of the
Priority Obligations or part thereof intended to be satisfied,
shall be revived and continue in full force and effect, as if such
payment or proceeds had not been received by the Priority Lenders
and any payments or other value received by or on behalf of the
Administrative Agent or Primed Creditors from Priority Collateral
or proceeds thereof or from any other source shall be deemed to be
received in trust for the benefit of, and shall, upon request by
the Priority Lenders or the Priority Agent, be paid over to, the
Priority Agent for distribution to the Priority Lenders in
accordance with the provisions of the Priority Credit
Agreement.
(h)
Upon the occurrence of any Proceeding, the provisions of this
Agreement shall remain in full force and effect, and the court
having jurisdiction over the Proceeding is hereby authorized to
preserve the provisions hereof regarding payments and lien priority
in approving any plan of reorganization, arrangement or liquidation
without the prior written consent of the Administrative Agent or
Primed Creditors.
(i)
To the extent permitted by law, the Administrative Agent, and by
their acceptance of this Agreement, the Primed Creditors, hereby
waive and agree not to assert or to take advantage of (as a defense
or otherwise) as against the Priority Lenders, the Priority Agent
or the Security Agent in its capacity as the Security Agent for the
Priority Lenders:
(i)
any right to require the Priority Lenders, the Priority Agent or
the Security Agent on their behalf to proceed against the Company,
any other Debtor or any other obligor under the Priority Credit
Agreement or to proceed against or exhaust any security held by the
Priority Lenders or the Security Agent on their behalf at any time
or to pursue any other remedy in the Priority Lenders' or the
Priority Agent's or the Security Agent's power under any other
agreement before proceeding against the Priority Collateral;
(ii)
demand, presentment for payment, notice of nonpayment, protest,
notice of protest and all other notices of any kind, or the lack of
thereof, including notice of amendments to the Priority Credit
Agreement except to the extent any notice is expressly required to
be given hereunder;
(iii) any right of claim or right to cause a marshaling of
the assets of the Company, any Debtor or any other obligor under
the Priority Credit Agreement or proration of the Lien of Priority
Lenders (or Security Agent on their behalf) in the Priority
Collateral; or
(iv)
any lack of notice of disposition or of manner of disposition of
any Priority Collateral or any portion thereof.
(j)
In any Proceeding, if the Administrative Agent and Primed
Creditors, or any of them, has failed to file any claims or proofs
of claim in respect of the debt evidenced by the Operative
Documents (other than the Priority Credit Agreement and this
Agreement) prior to the date 30 days prior to the last date to
timely file such claim or proof of claim, the Priority Lenders and
the Priority Agent and the Security Agent on their behalf are
hereby irrevocably authorized and empowered (in their own name or
in the name of the Administrative Agent and Primed Creditors) but
shall have no obligation to file claims and proofs of claim in
respect of the secured debt evidenced by the Operative Documents
(other than the Priority Credit Agreement and this Agreement) and
take such other action (including, without limitation, voting the
secured debt of the Primed Obligations or enforcing any provision
of the Operative Documents (other than Priority Credit Agreement
and this Agreement)) as the Priority Lenders or Priority Agent or
Security Agent on their behalf may deem necessary or advisable for
the exercise or enforcement of any of the rights or interests of
Priority Lenders under this Agreement.
(k)
If any Proceeding is commenced in respect of the Company, any other
Debtor or the Priority Collateral or any portion thereof, neither
the Administrative Agent nor any Primed Creditor shall (i) vote
their secured claims in favor of any plan of the Company or any
other Debtor or any other Person except with the written consent of
the Priority Agent acting upon the direction or request of Required
Priority Lenders; and (ii) oppose any provision for adequate
protection, use of cash collateral or debtor-in-possession
financing proposed by the Priority Agent at the request or
direction of the Required Priority Lenders or propose any provision
for adequate protection, use of cash collateral or
debtor-in-possession financing opposed by Required Priority
Lenders. If requested to do so by the Priority Agent acting
upon the direction or request of Required Priority Lenders, the
Administrative Agent and Primed Creditors shall vote in favor of a
plan that is substantially equivalent to a chapter 7 liquidation or
permits the Security Agent to foreclose the Security
Documents.
(l)
Upon the occurrence of any Proceeding, any payment or distribution
of any kind (whether in cash, cash equivalents, securities or other
property) which otherwise would be payable or deliverable upon or
with respect to the Primed Obligations, including, without
limitation, any amount or distribution on account of a Primed
Obligations Deficiency, but excluding any amount received on
account of the Excluded Collateral or the NEG Guarantee, which is
received by the Administrative Agent or any Primed Creditor will be
paid or delivered directly to the Priority Agent for application to
(in the case of cash or cash equivalents) or as collateral for (in
the case of non-cash Property or securities which non-cash Property
or securities are referred to as "Turnover Property") the payment
of the Priority Obligations until Priority Agent has received, for
application to the Priority Obligations, an amount in cash or cash
equivalents equal to the full amount of the Priority Obligations
(including the amount of any Priority Obligation Deficiency).
If any such payment or distribution is received by the
Administrative Agent or any Primed Creditor before the Priority
Agent has received, for application to the Priority Obligations, an
amount in cash or cash equivalents equal to the Priority
Obligations (including the amount of any Priority Obligation
Deficiency), then the Administrative Agent and such Primed
Creditors will be deemed to have received the same in trust for the
Priority Lenders, and will immediately remit such payment or
distribution to the Priority Agent for distribution to the Priority
Lenders in accordance with the provisions of the Priority Credit
Agreement. Upon receipt by the Priority Agent of cash or cash
equivalents in an amount equal to the Priority Obligations
(including the amount of any Priority Obligation Deficiency) for
application to the Priority Obligations, the Administrative Agent
and Primed Creditors shall be entitled to receive any payments to
which they are otherwise entitled.
(m)
To the extent the payments or distributions described in clause (l)
above (i) are cash or cash equivalents, the amount thereof shall be
applied to reduce the outstanding Priority Obligations (including
the amount of any Priority Obligation Deficiency), or (ii) are
Turnover Property, the amount of cash or cash equivalents realized
by the Priority Lenders from disposition or other realization of
such Turnover Property shall be applied to reduce the outstanding
Priority Obligations (including the amount of any Priority
Obligation Deficiency). If the Priority Lenders elect to
dispose of any Turnover Property, at any time after receipt of
Turnover Property, the Priority Lenders (or the Priority Agent or
the Security Agent on their behalf) may exercise in respect of the
Turnover Property, in addition to all other rights and remedies
provided for in this Agreement or otherwise available to them, all
the rights and remedies of a secured party on default under the New
York UCC (whether or not the New York UCC applies to the affected
Turnover Property), and the Priority Lenders may also in their sole
discretion, without notice except as specified below, sell the
Turnover Property or any part thereof in one or more parcels at
public or private sale, at any exchange or broker's board or at any
of the Priority Agent's or the Security Agent's offices or
elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as
the Priority Lenders may deem commercially reasonable, irrespective
of the impact of any such sales on the market price of the Turnover
Property. Any Priority Lender may be the purchaser of any or
all of the Turnover Property at any such sale. Each purchaser
at any such sale shall hold the property sold absolutely free from
any claim or right on the part of the Administrative Agent and
Primed Creditors, and the Administrative Agent and Primed Creditors
hereby waive (to the maximum extent permitted by applicable law)
all rights of redemption, stay and/or appraisal which it now has or
may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. The Administrative Agent
and Primed Creditors (by their acceptance of this Agreement) agree
that, to the extent notice of sale shall be required by law, ten
days' notice to the Administrative Agent 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 Priority
Lenders shall not be obligated to make any sale of Turnover
Property regardless of notice of sale having been given. The
Priority Lenders or the Priority Agent or the Security Agent on
their behalf 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. The Administrative Agent and
Primed Creditors (by their acceptance of this Agreement) hereby
waive any claims against the Priority Lenders, the Priority Agent
and the Security Agent arising by reason of the fact that the price
at which any Turnover Property may have been sold at such a private
sale was less than the price which might have been obtained at a
public sale, even if the Priority Lenders or the Priority Agent or
the Security Agent on their behalf accept the first offer received
and do not offer such Turnover Property to more than one
offeree. If the proceeds of any sale or other disposition of
the Turnover Property are sufficient to pay the entire amount of
the Priority Obligations (including the Priority Credit Agreement
Deficiency) in full in cash or cash equivalents, the Priority Agent
shall promptly remit to the Administrative Agent the amount of any
excess proceeds, less the reasonable fees, costs and expenses
(including reasonable attorneys' fees) incurred by the Priority
Lenders, Priority Agent or Security Agent in conducting such sales
and collecting the proceeds thereof for distribution to the
Priority Lenders. Upon payment of the Priority Obligations in
full in cash or cash equivalents, Priority Agent or the Security
Agent (acting on the instructions of the Priority Agent) shall
promptly remit to the Administrative Agent any excess proceeds. To
the extent any of the Turnover Property constitutes securities for
which registration or other qualification is required pursuant to
the rules and regulations of the Securities and Exchange Commission
(or other Governmental Authorities), then to the extent required by
Priority Lenders, Priority Agent or Security Agent on their behalf,
the Administrative Agent and Primed Creditors shall cooperate with
the Priority Lenders in good faith to facilitate such registration
or satisfaction of other qualifications requirements.
11.02 Subordination
of Liens Securing Residual Obligations to Liens Securing Roll-Up
Obligations and Certain Related Bankruptcy Provisions. The
provisions of this Section 11.02 are subject in all respects to the
provisions of Section 11.01 of this Agreement.
(a)
Subject to Section 11.01 of this Agreement but notwithstanding any
other provision contained herein or in the other Operative
Documents to the contrary but subject to Section 8.03 of this
Agreement, any Liens now existing or that may in the future be
created as security for the Residual Obligations or otherwise in
connection therewith (including the Liens created by the Security
Documents to the extent they secure the Residual Obligations and
without regard to whether there shall be a Lien on such asset
securing the Roll-Up Obligations or whether any such Lien shall be
perfected or avoidable) and all of the Residual Holder Agent's and
the Residual Holders' rights and remedies under such Liens (other
than any Lien on Excluded Collateral) are hereby expressly made,
and at all times will be, subject and subordinate in all respects
to any Liens now existing or that may in the future be created (x)
as security for the Roll-Up Obligations or otherwise in connection
therewith (including the Liens created by the Security Documents to
the extent they secure the Roll-Up Obligations), or (y) as security
for any of the Roll-Up Holders' or the Roll-Up Holder Agent's
claims (i) under this Agreement and the other Operative Documents
or (ii) arising out of the Operative Documents to the extent that
the same relate to the Roll-Up Obligations (including Roll-Up
Holders' and the Priority L/C Issuer's rights to receive payment
and performance of the Roll-Up Obligations).
In
order to preserve the lien priority provided for hereunder, neither
the Residual Holder Agent nor any Residual Holder shall, without
prior written consent of the Security Agent (acting on the
instruction of the Required Roll-Up Holders), take a Lien to secure
any Residual Obligation in any asset in which Security Agent does
not hold a perfected Lien securing the Roll-Up Obligations other
than Excluded Collateral. To the extent the Residual Holder
Agent or any Residual Holder shall take any such Lien (whether or
not the Security Agent has consented thereto), for all purposes
hereunder the asset subject to such Lien shall be deemed "Roll-Up
Collateral" hereunder and there shall be deemed to be a first
priority Lien securing the Roll-Up Obligations prior to the Lien
securing the Residual Obligations as if such Lien were fully
perfected.
(b)
In exercising rights and remedies under the Priority Credit
Agreement or arising out of the Priority Credit Facility, the
Required Roll-Up Holders directly, or the Roll-Up Holder Agent or
Security Agent (acting on the instructions of the Required Roll-Up
Holders), may enforce the provisions of the Operative Documents and
exercise remedies thereunder or otherwise (or refrain from
enforcing rights and exercising remedies), all in such order and in
such manner as they may determine in the exercise of their sole
business judgment. Such exercise and enforcement shall
include, without limitation, the rights to collect, sell, dispose
of or otherwise realize upon all or any part of the Roll-Up
Collateral, to incur expenses in connection with such collection,
sale, disposition or other realization and to exercise all the
rights and remedies of a secured party under the Uniform Commercial
Code of any applicable jurisdiction or under other applicable law
with respect to the Roll-Up Collateral but always subject to
Section 8.03 of this Agreement. Neither the Residual Holder
Agent nor any Residual Holder shall contest or otherwise challenge
any such collection, sale, disposition or other realization of or
upon all or any of the Roll-Up Collateral except to the extent such
collection, sale, disposition or realization is inconsistent with
Section 8.03 of this Agreement.
(c)
Subject to Section 11.01 of this Agreement but notwithstanding any
other provision in the Operative Documents to the contrary, the
provisions of this Agreement, automatically, and without any notice
to, consent of, or action by the Residual Holder Agent or the
Residual Holders, or any other Person whatsoever, shall extend to
all modifications, renewals, refinancings, restructurings,
replacements and extensions whatsoever of any of the Operative
Documents to the extent that the same relate to the Roll-Up
Obligations. In addition, no release or waiver by the Roll-Up
Holders, the Roll-Up Holder Agent or the Security Agent of any of
their rights against any Person under the this Agreement or the
other Operative Documents shall require notice to or consent of the
Residual Holder Agent or any Residual Holder, nor shall any such
release or waiver operate as a defense to or release of any of the
obligations of the Residual Holder Agent and the Residual Holders
or affect the rights or priority of the Roll-Up Holders, the
Roll-Up Holder Agent and the Security Agent hereunder and under the
other Operative Documents. The Security Agent acknowledges
that the provisions of this Agreement nonetheless constitute notice
from the Residual Holder Agent and the Residual Holders of their
Liens for purposes of õ 9-608(a)(1)(c) and õ
9-615(a)(3)(A) of the New York UCC (provided that, to the extent
that the provisions of õ 9-608(a)(1)(c) or õ
9-615(a)(3)(A) of the New York UCC conflict with the provisions
hereof, the provisions hereof shall control). In furtherance
of and without limiting the generality of the foregoing provisions
of this Section, the Residual Holder Agent and the Residual Holders
(by their acceptance of the terms of this Agreement) hereby agree
and consent that, without notice to or assent by the Residual
Holder Agent or Residual Holders:
(i)
the obligations and liabilities of any Person with respect to the
Roll-Up Obligations and the terms and provisions of this Agreement
and the other Operative Documents, may, from time to time, in whole
or part, be modified, supplemented, renewed, refinanced,
restructured, replaced or extended or accelerated;
(ii)
the Roll-Up Holders or the Roll-Up Holder Agent or the Security
Agent on their behalf may exercise or refrain from exercising any
right, remedy or power granted to them under this Agreement and the
other Operative Documents or any other right, remedy or power at
law or in equity or otherwise; and
(iii) the
Roll-Up Holders or the Roll-Up Holder Agent or the Security Agent
on their behalf may, from time to time, release or waive, in whole
or part, any and all Roll-Up Collateral, security, funds, accounts
and/or Liens at any time, present or future, held, given or
intended to be given in connection with the Roll-Up Obligations
without impairing the Roll-Up Holders' or the Roll-Up Holder
Agent's or the Security Agent's rights hereunder with respect to
any Roll-Up Collateral, or Liens not so released or waived.
(d)
Except for any Lien on Excluded Collateral, any Liens on any of the
Roll-Up Collateral heretofore, concurrently herewith or hereafter
granted to secure the Residual Obligations (including the Liens
created by the Security Documents to the extent they secure the
Residual Obligations), shall remain subordinate to all Liens
heretofore or hereafter granted to secure the Roll-Up Obligations
(including the Liens created by the Security Documents to the
extent they secure the Roll-Up Obligations) irrespective of:
(i)
the time or order or method of attachment or perfection of the
Liens heretofore, concurrently herewith or hereafter created to
secure the Roll-Up Obligations including the Liens created by any
of the Security Documents;
(ii)
the time or order of filing or recording of financing statements or
other documents filed or recorded to perfect any security interest
in any Roll-Up Collateral;
(iii)
anything contained in any filing or agreement to which the Roll-Up
Holders or the Roll-Up Holder Agent or the Security Agent on their
behalf, or any of them collectively, now or hereafter may be a
party;
(iv)
the rules for determining priority under the Uniform Commercial
Code or any other law governing the relative priorities of secured
creditors; and
(v)
perfection of or avoidability of such Liens or claims secured
thereby.
(e)
Neither the Residual Holder Agent nor any Residual Holder will
directly or indirectly oppose or otherwise defend against the
Roll-Up Holders', the Roll-Up Holder Agent's or Security Agent's
effort to obtain relief from the automatic stay with respect to the
Roll-Up Collateral in any Proceeding. The Residual Holder
Agent and Residual Holders (by their acceptance of this Agreement)
agree that the Roll-Up Holders, the Roll-Up Holder Agent and the
Security Agent shall be entitled to the lifting of the stay with
respect to the Roll-Up Collateral without the necessity of an
evidentiary hearing and without the necessity or requirement that
the Roll-Up Holders, the Roll-Up Holder Agent or the Security Agent
establish or prove the value of the Roll-Up Collateral, the lack of
adequate protection of the Roll-Up Holders', the Roll-Up Holder
Agent's or the Security Agent's interests in all or any portion of
the Roll-Up Collateral, the lack of any reasonable prospect of
reorganization with respect to the Company, any other Debtor or the
Roll-Up Collateral or any portion thereof, or the Company's, or any
other Debtor's lack of equity in the Roll-Up Collateral. In
furtherance thereof, to the extent permitted by law, the Residual
Holder Agent, and by their acceptance of this Agreement, the
Residual Holders, hereby, waive and agree not to assert or take
advantage of (as a defense or otherwise) as against the Roll-Up
Holders, the Roll-Up Holder Agent or the Security Agent in its
capacity as the Security Agent for the Roll-Up Holders, any
assertion or claim that the automatic stay provided by 11 U.S.C.
õ 362 (arising upon any Proceeding under the Bankruptcy Code
involving the Company, any other Debtor or any other obligor under
the Priority Credit Agreement or the Roll-Up Collateral or any
portion thereof) or any other stay provided under any other debtor
relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which
may be or become applicable, shall operate or be interpreted to
stay, interdict, condition, reduce or inhibit the ability of the
Roll-Up Holders, the Roll-Up Holder Agent or Security Agent to
enforce any rights, whether now or hereafter acquired, which the
Roll-Up Holders or the Roll-Up Holder Agent or the Security Agent
on their behalf, may have against the Company, any other Debtor,
the Roll-Up Collateral or any portion thereof. None of the
foregoing shall affect any rights of a Tranche B Lender, whether as
a Roll-Up Holder or as a Residual Holder, pursuant to Section 8.03
of this Agreement or prevent any such Tranche B Lender from taking
any step to protect, preserve and/or enforce any such right, in
each case, in accordance with the terms of the Operative
Documents.
(f)
The Residual Holder Agent and Residual Holders (by their acceptance
of this Agreement) hereby acknowledge and agree that, as between
the Roll-Up Holders, the Roll-Up Holder Agent and the Security
Agent on the one hand and the Residual Holder Agent and Residual
Holders on the other hand, except as otherwise provided in Section
8.03 of this Agreement, the Security Documents grant the Security
Agent for the benefit of Roll-Up Holders the benefit of first
priority Liens on and security interests in, inter alia, all rents,
fees, charges, accounts, revenues or other payments for the use or
occupancy of any portion of the Roll-Up Collateral and any other
revenues, proceeds or profits from the Roll-Up Collateral (the
"Roll-Up Collateral Proceeds"), whether existing before or after
the commencement of any Proceeding involving the Company, any other
Debtor, the Roll-Up Collateral or any portion thereof, that such
Liens on the Roll-Up Collateral have the benefit of full perfection
under applicable law and that the revenues generated from the
Roll-Up Collateral will, notwithstanding any provision of the
Bankruptcy Code which could be construed to the contrary
(including, without limitation, the provisions of sections 552 and
363 of the Bankruptcy Code), constitute cash collateral of the
Roll-Up Holders within the meaning of Bankruptcy Code section
363(a). The Residual Holder Agent and, by their acceptance of
this Agreement, the Residual Holders, covenant and agree that they
will not hereafter assert or cause to be asserted in any Proceeding
under the Bankruptcy Code, either as a claim or as a defense, any
contrary position as to the character of the Roll-Up Collateral
Proceeds except as otherwise provided in Section 8.03 of this
Agreement.
(g)
To the extent that the Company, any other Debtor or any other
Person makes a payment or payments to the Roll-Up Holders (or the
Roll-Up Holder Agent on their behalf), which payment or proceeds or
any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other Person under any bankruptcy law,
state or federal law, common law or equitable cause, then, to the
extent of such payment or proceeds received, the Roll-Up
Obligations or part thereof intended to be satisfied, and any and
all Liens created by the Security Documents on the Roll-Up
Collateral in respect of the Roll-Up Obligations or part thereof
intended to be satisfied, shall be revived and continue in full
force and effect, as if such payment or proceeds had not been
received by the Roll-Up Holders and, except as otherwise provided
in Section 8.03 of this Agreement, any payments or other value
received by or on behalf of the Residual Holder Agent or Residual
Holders from Roll-Up Collateral or proceeds thereof or from any
other source shall be deemed to be received in trust for the
benefit of, and shall, upon request by the Roll-Up Holders or the
Roll-Up Holder Agent be paid over to the Roll-Up Holder Agent for
distribution to the Roll-Up Holders in accordance with the
provisions of this Agreement and the other Operative
Documents.
(h)
Upon the occurrence of any Proceeding, the provisions of this
Agreement shall remain in full force and effect, and the court
having jurisdiction over the Proceeding is hereby authorized to
preserve the provisions hereof regarding payments and lien priority
in approving any plan of reorganization, arrangement or liquidation
without the prior written consent of the Residual Holder Agent or
Residual Holders.
(i)
To the extent permitted by law, the Residual Holder Agent, and by
their acceptance of this Agreement, the Residual Holders, hereby
waive and agree, except as otherwise provided in Section 8.03 of
this Agreement, not to assert or to take advantage of (as a defense
or otherwise) as against the Roll-Up Holders, the Roll-Up Holder
Agent or the Security Agent in its capacity as the Security Agent
for the Roll-Up Holders:
(i)
any right to require the Roll-Up Holders, the Roll-Up Holder Agent
or the Security Agent on their behalf to proceed against the
Company, any other Debtor or any other obligor under the Priority
Credit Agreement or to proceed against or exhaust any security held
by the Roll-Up Holders or the Security Agent on their behalf at any
time or to pursue any other remedy in the Roll-Up Holders' or the
Roll-Up Holder Agent's or the Security Agent's power under any
other agreement before proceeding against the Roll-Up
Collateral;
(ii)
demand, presentment for payment, notice of nonpayment, protest,
notice of protest and all other notices of any kind, or the lack of
thereof, including notice of amendments to the Priority Credit
Agreement except to the extent any notice is expressly required to
be given hereunder;
(iii)
any right of claim or right to cause a marshaling of the assets of
the Company, any Debtor or any other obligor under the Priority
Credit Agreement or proration of the Lien of Roll-Up Holders (or
Security Agent on their behalf) in the Roll-Up Collateral; or
(iv)
any lack of notice of disposition or of manner of disposition of
any Roll-Up Collateral or any portion thereof.
(j)
In any Proceeding, if the Residual Holder Agent and Residual
Holders, or any of them, has failed to file any claims or proofs of
claim in respect of the debt evidenced by the Operative Documents
to the extent that the same relate to the Residual Obligations
(other than this Agreement) prior to the date 30 days prior to the
last date to timely file such claim or proof of claim, the Roll-Up
Holders and the Roll-Up Holder Agent and the Security Agent on
their behalf are hereby irrevocably authorized and empowered (in
their own name or in the name of the Residual Holder Agent and
Residual Holders) but shall have no obligation to file claims and
proofs of claim in respect of the secured debt evidenced by the
Operative Documents as the same relate to the Residual Obligations
(other than this Agreement) and take such other action (including,
without limitation, voting the secured debt of the Residual
Obligations or enforcing any provision of such other Operative
Documents (other than this Agreement)) as Lenders or Agent or
Security Agent on their behalf may deem necessary or advisable for
the exercise or enforcement of any of the rights or interests of
Roll-Up Holders under this Agreement.
(k)
If any Proceeding is commenced in respect of the Company, any other
Debtor or the Roll-Up Collateral or any portion thereof, neither
the Residual Holder Agent nor any Residual Holder shall (i) vote
their secured claims in favor of any plan of the Company or any
other Debtor or any other Person except with the written consent of
the Roll-Up Holder Agent acting upon the direction or request of
Required Roll-Up Holders; and (ii) oppose any provision for
adequate protection, use of cash collateral or debtor-in-possession
financing proposed by the Roll-Up Agent at the request or direction
of the Required Roll-Up Holders or propose any provision for
adequate protection, use of cash collateral or debtor-in-possession
financing opposed by Required Roll-Up Holders. If requested
to do so by the Roll-Up Holder Agent acting upon the direction or
request of Required Roll-Up Holders, the Residual Holder Agent and
Residual Holders shall vote in favor of a plan that is
substantially equivalent to a chapter 7 liquidation or permits the
Security Agent to foreclose the Security Documents.
(l)
Upon the occurrence of any Proceeding, any payment or distribution
of any kind (whether in cash, cash equivalents, securities or other
property) which otherwise would be payable or deliverable upon or
with respect to the Residual Obligations, including, without
limitation, any amount or distribution on account of a Residual
Obligations Deficiency, but excluding any amount received on
account of the Excluded Collateral or the NEG Guarantee, which is
received by the Residual Holder Agent or any Residual Holder will
be paid or delivered directly to the Roll-Up Holder Agent for
application to (in the case of cash or cash equivalents) or as
collateral for (in the case of non-cash Property or securities
which non-cash Property or securities are referred to as "Roll-Up
Turnover Property") the payment of the Roll-Up Obligations until
the Roll-Up Holder Agent has received, for application to the
Roll-Up Obligations, an amount in cash or cash equivalents equal to
the full amount of the Roll-Up Obligations (including the amount of
any Roll-Up Obligation Deficiency). If any such payment or
distribution is received by the Residual Holder Agent or any
Residual Holder before the Roll-Up Holder Agent has received, for
application to the Roll-Up Obligations, an amount in cash or cash
equivalents equal to the Roll-Up Obligations (including the amount
of any Roll-Up Obligation Deficiency), then the Residual Holder
Agent and such Residual Holders will be deemed to have received the
same in trust for the Roll-Up Holders, and will immediately remit
such payment or distribution to the Roll-Up Holder Agent for
distribution to the Roll-Up Holders in accordance with the
provisions of the Operative Documents to the extent that the same
relate to the Roll-Up Obligations. Upon receipt by the
Roll-Up Holder Agent of cash or cash equivalents in an amount equal
to the Roll-Up Obligations (including the amount of any Roll-Up
Obligation Deficiency) for application to the Roll-Up Obligations,
the Residual Holder Agent and Residual Holders shall be entitled to
receive any payments to which they are otherwise entitled.
(m)
To the extent the payments or distributions described in clause (l)
above (i) are cash or cash equivalents, the amount thereof shall be
applied to reduce the outstanding Roll-Up Obligations (including
the amount of any Roll-Up Obligation Deficiency), or (ii) are
Roll-Up Turnover Property, the amount of cash or cash equivalents
realized by the Roll-Up Holders from disposition or other
realization of such Roll-Up Turnover Property shall be applied to
reduce the outstanding Roll-Up Obligations (including the amount of
any Roll-Up Obligation Deficiency). If the Roll-Up Holders
elect to dispose of any Roll-Up Turnover Property, at any time
after receipt of Roll-Up Turnover Property, the Roll-Up Holders (or
the Roll-Up Holder Agent or the Security Agent on their behalf) may
exercise in respect of the Roll-Up Turnover Property, in addition
to all other rights and remedies provided for in this Agreement or
otherwise available to them, all the rights and remedies of a
secured party on default under the New York UCC (whether or not the
New York UCC applies to the affected Roll-Up Turnover Property),
and the Roll-Up Holders may also in their sole discretion, without
notice except as specified below, sell the Roll-Up Turnover
Property or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of the
Roll-Up Holder Agent's or the Security Agent's offices or
elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as
the Roll-Up Holders may deem commercially reasonable, irrespective
of the impact of any such sales on the market price of the Roll-Up
Turnover Property. Any Roll-Up Holder may be the purchaser of
any or all of the Roll-Up Turnover Property at any such sale.
Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the Residual
Holder Agent and Residual Holders, and the Residual Holder Agent
and Residual Holders hereby waive (to the maximum extent permitted
by applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted. The
Residual Holder Agent and Residual Holders (by their acceptance of
this Agreement) agree that, to the extent notice of sale shall be
required by law, ten days' notice to the Residual Holder Agent 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 Roll-Up Holders shall not be obligated to
make any sale of Roll-Up Turnover Property regardless of notice of
sale having been given. The Roll-Up Holders or the Roll-Up
Holder Agent or the Security Agent on their behalf 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. The Residual Holder Agent and Residual Holders (by
their acceptance of this Agreement) hereby waive any claims against
the Roll-Up Holders, the Roll-Up Holder Agent and the Security
Agent arising by reason of the fact that the price at which any
Roll-Up Turnover Property may have been sold at such a private sale
was less than the price which might have been obtained at a public
sale, even if the Roll-Up Holders or the Roll-Up Holder Agent or
the Security Agent on their behalf accept the first offer received
and do not offer such Roll-Up Turnover Property to more than one
offeree. If the proceeds of any sale or other disposition of
the Roll-Up Turnover Property are sufficient to pay the entire
amount of the Roll-Up Obligations (including the Roll-Up
Deficiency) in full in cash or cash equivalents, the Roll-Up Holder
Agent shall promptly remit to the Residual Holder Agent the amount
of any excess proceeds, less the reasonable fees, costs and
expenses (including reasonable attorneys' fees) incurred by the
Roll-Up Holders, the Roll-Up Holder Agent or Security Agent in
conducting such sales and collecting the proceeds thereof for
distribution to the Roll-Up Holders. Upon payment of the
Roll-Up Obligations in full in cash or cash equivalents, Roll-Up
Holder Agent shall promptly remit to the Residual Holder Agent any
excess proceeds. To the extent any of the Roll-Up Turnover Property
constitutes securities for which registration or other
qualification is required pursuant to the rules and regulations of
the Securities and Exchange Commission (or other Governmental
Authorities), then to the extent required by Roll-Up Holders, the
Roll-Up Holder Agent or Security Agent on their behalf, the
Residual Holder Agent and Residual Holders shall cooperate with
Roll-Up Holders in good faith to facilitate such registration or
satisfaction of other qualifications requirements.
(n)
Notwithstanding anything to the contrary contained in any of the
foregoing provisions of this Section 11.02, none of the rights of
the Tranche B Lenders, whether as Roll-Up Holders or as Residual
Holders, as set forth in Section 8.03 of this Agreement shall be
affected, limited or prejudiced by any provision of this Section
11.02 in accordance with the terms of the Operative Documents and
none of the Tranche B Lenders, whether as Roll-Up Holders or as
Residual Holders, or any agent therefor, shall be restricted or
prevented from asserting any such right in any manner or from
taking any steps to protect, preserve and enforce such rights under
Section 8.03 of this Agreement to the full extent permitted by law
and in accordance with the terms of the Operative Documents and any
waiver, agreement or consent of the Tranche B Lenders, whether as
Roll-Up Holders or as Residual Holders, contained in this Section
11.02 shall, in each case, be deemed to have been qualified by this
Section 11.02(n).
11.03 Amendments
to Operative Documents. Notwithstanding any provision
contained herein or in the other Operative Documents, the
Administrative Agent and, by their acceptance of this Agreement,
each Primed Creditor hereby agrees that so long as any of the
Priority Obligations remain outstanding or any Priority Commitments
remain in effect, without the prior written consent of the Priority
Agent (acting at the direction of the Required Priority Lenders),
the Primed Creditors shall not waive or agree with the Company, any
other Debtor or any other party to an Operative Document to amend,
modify or supplement any of the provisions of any Operative
Documents if the effect of such waiver, amendment, modification or
supplement, together with all other waivers, amendments,
modifications or supplements theretofore made, is (a) to confer any
additional rights on the Primed Creditors or the Administrative
Agent which is adverse in any material respect to the Priority
Lenders or the Priority Agent, (b) to otherwise adversely affect
the rights or remedies of the Priority Lenders or the Priority
Agent or (c) to adversely affect the ability of the Company, any
other Debtor or any other party to an Operative Document to perform
its obligations under, with respect to, or otherwise directly or
indirectly affecting, the Priority Credit Agreement or any other
Operative Document to the extent that the same relates to the
Priority Obligations.
11.04 Enforcement;
Forbearance; Reservation of Rights.
(a)
Notwithstanding any provision in the Operative Documents (but
subject to this Section 11.04), until all obligations arising in
connection with the Priority Credit Facility have been repaid or
prepaid in full and all Priority Commitments have been terminated:
(i) each Creditor (other than the Priority Lenders) hereby agrees
to forbear on all Defaults and Events of Default in existence as of
the Effective Date and as may arise thereafter under the
Participation Agreement unless and until the Required Priority
Lenders elect to take enforcement action by delivering a Notice of
Action to the Security Agent or otherwise; (ii) no Creditor (other
than the Priority Lenders) shall have any right to take, or to
direct the Security Agent to take, any action in respect of the
Collateral (including the issuance of a Notice of Action) unless
the Required Priority Lenders have consented to the taking of such
action; and (iii) subject to Section 11.12 of this Agreement, the
Required Priority Lenders shall have the exclusive right to direct
the Security Agent to take action (without regard to the
forbearance set out above) in respect of the Collateral during any
Enforcement Period (as defined in the Collateral Agency and
Intercreditor Agreement) and the Debtors hereby acknowledge that an
Event of Default Period and Enforcement Period are continuing from
the date hereof.
(b)
Subject to Section 11.04(a) of this Agreement and the other
intercreditor provisions set out in this Agreement, the
Administrative Agent and each of the other Creditors, expressly
reserves any and all of their rights and remedies relating to any
Default or Event of Default existing as of the date hereof (whether
known or unknown) or arising after the date hereof, including under
the Participation Agreement and other Operative Documents and
waives none of such rights by executing this Agreement. The
failure to exercise or any delay in exercising, on the part of the
Administrative Agent or any Creditor, any right, remedy, power or
privilege under the Operative Documents with respect to the
Defaults and/or Events of Default referred to in the preceding
sentence shall not be deemed, or operate as, a waiver thereof and
all such rights and remedies are hereby reserved (subject to the
intercreditor provisions in Section 11.04(a) of this Agreement and
the other intercreditor provisions set out in this
Agreement).
11.05 Priority
Credit Agreement; Authorization.
(a)
Each party hereto hereby consents and agrees to the execution of
(i) this Agreement by the other parties hereto and (ii) the
Priority Credit Agreement (substantially in the form of Exhibit A
attached hereto) by the Company, the Owner, the Priority L/C
Issuer, each Priority Lender party thereto, the Administrative
Agent and the Priority Agent.
(b)
Each party hereto hereby agrees that, notwithstanding any provision
in the Operative Documents (but subject to this Section 11.05),
until the date on which (i) the Priority Loans and the Priority L/C
Reimbursement Obligations have been repaid or prepaid in full and
(ii) the Priority L/Cs and Priority Commitments have been cash
collateralized in full, upon the written instructions of the
Required Priority Lenders, the Trustee shall take or refrain from
taking such action or actions as may be specified in such
instructions.
(c)
The Creditors hereby authorize and direct the Trustee, the Trust
Company, the Owner, the Administrative Agent and the Security Agent
to execute, deliver and perform their respective obligations, if
any, under this Agreement and the Priority Credit Agreement.
(d)
The Creditors hereby agree that with respect to matters requiring
the Independent Engineer to provide advice or otherwise assist the
Priority Agent in its administration of the Priority Credit
Agreement that they shall cause the Independent Engineer to provide
such advice or assistance in the manner and in accordance with the
terms under which it currently provides advice and assistance to
the Administrative Agent under the Participation Agreement.
11.06 DIP
Facility.
(a)
Those Creditors (the "Non-Participating Creditors") who elect not
to participate in a debtor-in-possession financing facility (a "DIP
Facility") hereby authorize the execution of a DIP facility
agreement by those Persons who are parties to this Agreement and
that elect to participate therein (the "DIP Lenders") in
substantially the form attached as Exhibit B (the "Proposed DIP
Facility Agreement"), or, if not in such form, then in such form as
is approved by the Court in an interim order or final order (the
"Creditor-Provided DIP Facility") so long as the agreement as so
approved in an interim order or final order issued in by the Court
in such Case is not materially more burdensome when taken as a
whole on the rights of the Non-Participating Creditors than the
Proposed DIP Facility Agreement. The Non-Participating
Creditors (by their acceptance of this Agreement) and to the extent
permitted by law, hereby agree (a) not to oppose or otherwise
defend against (and hereby waive any and all rights that they may
have to oppose or defend against), directly or indirectly, any
provision for adequate protection, use of cash collateral or
debtor-in-possession financing proposed by the DIP Lenders or (b)
propose any provision for adequate protection, use of cash
collateral or debtor-in-possession financing opposed by the DIP
Lenders. Notwithstanding the foregoing, in the event that a
debtor-in-possession financing facility is proposed to or approved
by the Court involving lenders other than Persons party to this
Agreement, the restrictions on activities by the Creditors to
oppose such financing set out in this Section 11.06(a) shall not
apply. Each Priority Lender party to this Agreement shall
have the right to participate in a Creditor-Provided DIP Facility
in an amount equal to its Priority Commitment Percentage of the
total amount of Commitments provided for under such Facility.
(b)
The Creditors hereby (i) authorize and direct the Trustee, the
Trust Company, the Owner, the Administrative Agent, the Priority
Agent and the Security Agent to execute, deliver and perform their
respective obligations, if any, under, or with respect to, the
Creditor-Provided DIP Facility; (ii) agree (in their capacity as
Pre-Petition Parties (as defined in the Creditor-Provided DIP
Facility)) that, by execution of the Creditor-Provided DIP Facility
by the Administrative Agent and the Priority Agent, such Creditors
accede to, and agree to be bound by, the provisions of Section 8
(or any correlative section) of the Creditor-Provided DIP Facility
with respect to any and all Pre-Petition Obligations of such
Creditors (and any Liens securing such Pre-Petition Obligations);
and (iii) acknowledge and agree to the appointment of the Security
Agent as agent of the Superpriority Parties (as defined in the
Creditor-Provided DIP Facility) for the purposes set forth in the
Creditor-Provided DIP Facility. The authorizations,
directions, acknowledgments and agreements set forth in this
Section 11.06(b) relate solely to the Creditor-Provided DIP
Facility and are not intended to (and shall not be interpreted so
as to) apply directly or indirectly to any other DIP
Facility.
11.07 Further
Assurances with respect to Recharacterization. Each of the
parties hereto confirms the intention of the parties to
characterize the transactions contemplated by the Operative
Documents as set forth in Section 6.1 of the Lease. In the
event of the commencement of a Case, NEG, the Company and the Owner
hereby agree to file such motions and take such other actions as
may be available to them to give effect to the characterization of
the transactions contemplated by the Operative Documents as set
forth in Section 6.1 of the Lease and each Creditor hereby agrees
not to oppose any motion by the Company to characterize the
transactions contemplated by the Operative Documents as a secured
financing transaction that preserves all rights of the Creditors
in, to and under all Collateral.
11.08 No
Bankruptcy Proceedings, Etc. Each of the parties hereto
hereby agrees (or shall be deemed to have covenanted and agreed)
that, prior to the date that is one year and one day after the date
that the Priority Obligations are paid in full, it will not
(without the prior written consent of the Priority Agent (acting on
the instruction of the Required Priority Lenders)) institute
against the Company or any other Debtor, or join with any other
Person in instituting against the Company or any other Debtor, any
case, proceeding or other action under any existing or future law
of any jurisdiction, relating to bankruptcy, insolvency,
reorganization, agreement, adjustment, winding-up, liquidation,
dissolution, composition, or other relief with respect to it or its
debts, or seek appointment of a receiver, trustee, custodian, or
other similar official for it or for all or any substantial part of
its assets, or make a general assignment for the benefit of its
creditors or take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts
hereinabove set forth. It is the express intent of this
Section 11.08 that the consent of Required Priority Lenders (and as
between all Creditors the consent of the Required Priority Lenders
only) shall be required in connection with the acts hereinabove set
forth and, in the event of any inconsistency between this Section
11.08 and any other the provisions of any other Operative Document
relating to the matters hereinabove set forth, this Section 11.08
shall govern. The provisions of this Section 11.08 shall
survive the termination of the Operative Documents. Nothing
contained herein shall preclude participation by any the parties
hereto in the assertion or defense of its claims in any such
proceeding involving the Company or any Debtor.
11.09 Further
Agreements of NEG.
(a)
If required by the Administrative Agent, NEG shall provide written
reaffirmation of NEG's agreement to continue to manage the
construction of the Project (in cooperation with the Company) until
requested otherwise by the Administrative Agent, and if requested
otherwise, to cooperate in a transition to a third party management
company.
(b)
To the extent requested by the Administrative Agent, NEG agrees
that it shall cooperate in a transition from PGET to third party
power purchasers and fuel suppliers;
11.10 Further
Acknowledgment by the Company. The Company hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Priority Credit
Agreement;
(b)
neither the Priority Agent, the Administrative Agent, the Security
Agent nor any Lender or Priority Lender has any fiduciary
relationship with or duty to the Company arising out of or in
connection with this Agreement, the Priority Credit Agreement or
any of the other Operative Documents, and the relationship between
the Priority Agent, the Administrative Agent, the Security Agent,
the Lenders and the Priority Lenders, on one hand, and the Company,
on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c)
no joint venture is created hereby or by the Priority Credit
Agreement or the other Operative Documents or otherwise exists by
virtue of the transactions contemplated hereby and by the Priority
Credit Agreement among the Lenders and Priority Lenders or among
the Company and the Lenders and Priority Lenders.
11.11 Accession.
(a)
The Priority Lenders and the Priority Agent agree to be bound by,
and to benefit from, the Participation Agreement as if a party
thereto. Each other party to the Participation Agreement
hereby consents and agrees to the accession by the Priority Lenders
and the Priority Agent to the Participation Agreement.
(b)
The Priority Agent, as agent for and on behalf of the Priority
Lenders, agrees to be bound by, and to benefit from, the Security
Deposit Agreement as if a party thereto. Each other party to
the Security Deposit Agreement hereby consents and agrees to the
accession by the Priority Agent, on behalf of the Priority Lenders,
to the Security Deposit Agreement.
(c)
The Priority Lenders and the Priority Agent (i) agree to be bound
by, and to benefit from, the Collateral Agency and Intercreditor
Agreement as if a party thereto and (ii) irrevocably designate and
appoint Citibank, N.A. as the Security Agent under the Transaction
Documents and authorize Citibank, N.A., in the capacity of Security
Agent, to take such action on their behalf in accordance with the
provisions of the Transaction Documents. By its signature
below, Citibank, N.A. accepts such appointment. Each other
party to the Collateral Agency and Intercreditor Agreement hereby
consents and agrees to the accession by the Priority Lenders and
the Priority Agent to the Collateral Agency and Intercreditor
Agreement.
11.12 Action
by Priority Lenders.
(a)
Notwithstanding any provision in the Operative Documents (but
subject to this Section 11.12), each Creditor hereby agrees that
unless and until the Priority Loans have been repaid in full and
the Priority Commitments have terminated (i) the 75% Priority
Lenders may or, with the consent of the 75% Priority Lenders, the
Security Agent or the Priority Agent may initiate an auction
process or otherwise solicit bids for the purchase of all or any
part of the Collateral or equity in the Project or the Company held
by the Creditors or otherwise agree to or accept a consensual
transfer of the Project (through deed in lieu of foreclosure or
otherwise) in accordance with a process approved by or otherwise on
terms acceptable to the 75% Priority Lenders, (ii) the 75% Priority
Lenders may or, with the consent of the 75% Priority Lenders, the
Security Agent or the Priority Agent may sell or otherwise transfer
all or any part of the Collateral in connection with such auction
or other sale process or otherwise accept any bids (whether
solicited or unsolicited) for purchase of any Collateral or equity
in the Project or otherwise agree to or accept a consensual
transfer of the Project (through deed in lieu of foreclosure or
otherwise) and undertake such transactions as may be necessary to
consummate such sale or other transfer and (iii) other than the
consent of the 75% Priority Lenders referred to in clauses (i) and
(ii) above, no other consent or approval of the Creditors is
required for any action provided for, or referred to, in this
Section 11.12(a).
(b)
In connection with any proposed restructuring, adjustment,
compromise or other action addressing of the liabilities of NEG
whether or not in connection with any case, proceeding or other
action under any existing or future law of any jurisdiction,
relating to bankruptcy, insolvency, reorganization, agreement,
adjustment, winding-up, liquidation, dissolution, composition, or
other relief with respect to it or its debts (an "NEG
Restructuring"), in addition to any consent from any Creditor or
class thereof required under the terms of the Operative Documents
as in effect on the Effective Date (subject to the rights granted
to the Super-Majority Priority Lenders under Section 11.12(a) of
this Agreement with respect to matters covered thereby), the
consent of the Super-Majority Priority Lenders shall be required in
connection with any release, modification or other adjustment of
any claims (howsoever described) against NEG (whether under the NEG
Guarantee or otherwise) or any amendments, modifications,
supplements or waivers with respect to any of the Operative
Documents proposed or requested in connection with any such NEG
Restructuring; provided that, notwithstanding any provision in any
Operative Document, no "Participant" (as such term is defined in
the Tranche A Loan Agreement and Tranche B Loan Agreement) shall
have or be granted by any Creditor any consent rights with respect
to any transactions undertaken in connection with an NEG
Restructuring.
11.13 Structural
Guaranty. By their execution of this Agreement and
notwithstanding any provision herein or in the other Operative
Documents (but subject to this Section 11.13), the Beneficiaries
(as such term is defined in the Structural Guaranty) hereby make
demand on the Company for payment under the Structural Guaranty in
an amount equal to the full amount of the Guaranteed Obligations
(as such term is defined in the Structural Guaranty) due and
payable through the Effective Date after giving effect to the
transactions contemplated by Section 13 of this Agreement (such
amount, the "Structural Guaranty Demand Amount"). The Company
hereby acknowledges and agrees that, notwithstanding any provision
of the Structural Guaranty to the contrary:
(a)
the demand made by the Beneficiaries hereunder is a valid and
effective demand under the Structural Guaranty;
(b)
the Structural Guaranty Demand Amount is due from it on and as of
the Effective Date;
(c)
it does not have any defenses, counterclaims, offsets,
cross-complaints, claims or demands of any kind or nature
whatsoever that can be asserted to reduce or eliminate all or any
part of liability of the Company to pay the Beneficiaries the
Structural Guaranty Demand Amount; and
(d)
nothing in this Agreement shall restrict or prevent the
Beneficiaries from making further demands under the Structural
Guaranty.
11.14 NEG
Guarantee. By their execution of this Agreement, the Tranche
A Lenders constituting Required Tranche A Lenders hereby direct the
Security Agent pursuant to Section 4.3 of the Collateral Agency and
Intercreditor Agreement to draw on the NEG Guarantee by delivery of
a Payment Demand (as defined in Section 2.1 of the NEG Guarantee)
thereunder. The Security Agent hereby demands payment on the
NEG Guarantee pursuant to Section 2.01(b) of the NEG Guarantee in
an amount equal to the full amount of the Guaranteed Obligations
(as such term is defined in the NEG Guarantee) due and payable
through the Effective Date after giving effect to the transactions
contemplated by Section 13 of this Agreement (such amount, the "NEG
Demand Amount"). NEG hereby acknowledges and agrees that,
notwithstanding any provision of the NEG Guarantee to the
contrary:
(a)
the demand made by the Security Agent pursuant to this Section
11.14 is a valid and effective Payment Demand under the NEG
Guarantee;
(b)
the lesser of the NEG Demand Amount and the Maximum Guarantee
Amount (as defined in the NEG Guarantee) in effect on the Effective
Date is due from it on the Effective Date pursuant to the terms of
the NEG Guarantee;
(c)
it does not have any defenses, counterclaims, offsets,
cross-complaints, claims or demands of any kind or nature
whatsoever that can be asserted to reduce or eliminate all or any
part of liability of NEG to pay to the Security Agent for the
benefit of the Creditors entitled thereto the amount determined
pursuant to clause (b) above; and
(d)
nothing in this Agreement shall restrict or prevent the Security
Agent from making further demands under the NEG Guarantee.
11.15 Reservation
of Lease Rights by Owner. The Owner hereby expressly reserves
any and all of its rights and remedies under the Lease relating to
(a) any Default or Event of Default existing as of the date hereof
(whether known or unknown) or arising after the date hereof and (b)
any failure by the Company to pay Basic Rent and Supplemental Rent
thereunder when due and waives none of such rights by executing
this Agreement. The failure to exercise or any delay in
exercising, on the part of the Owner, any right, remedy, power or
privilege under the Lease with respect to the Defaults and/or
Events of Default referred to in the preceding sentence shall not
be deemed, or operate as, a waiver thereof and all such rights and
remedies are hereby reserved.
11.16 Working
Capital L/C.
(a)
On the Effective Date, the Company shall be obligated to pay or
provide Cover (the "Cover Obligation") for the Working Capital L/C
(No. NY-03439-30026406) through deposit into the Working Capital
L/C Account of an amount equal to the total aggregate undrawn face
amount of such Working Capital L/C plus any accrued and unpaid
interest thereon.
(b)
In the event that, at any time on or after the Effective Date, a
draw is made on the Working Capital L/C, the Working Capital
Lenders hereby acknowledge and confirm their unconditional and
absolute obligation to purchase from the Working Capital L/C Issuer
their ratable participation in the Working Capital L/C
Reimbursement Obligation arising as a result thereof. Such
Working Capital L/C Reimbursement Obligation will be treated as a
Residual Loan hereunder unless the applicable Working Capital
Lender is then permitted or otherwise becomes permitted under
Section 10.01 of this Agreement to designate such Working Capital
L/C Reimbursement Obligation as a Roll-Up Loan and elects to so
designate such Working Capital L/C Reimbursement Obligation.
Section
12. Interest on Settlement Amounts; Roll-Up Loans; Residual
Loans.
(a)
The Company and each Interest Hedge Party hereby agree that,
notwithstanding any provision in the Operative Documents (but
subject to this Section 12) or other Interest Hedge Contracts to
the contrary, the Settlement Amounts shall accrue interest monthly
in arrears at a rate per annum equal to the ABR plus the Applicable
Margin.
(b) The Company and each Tranche A Interest Hedge Contract
Party hereby agree that, notwithstanding any provision in the
Operative Documents (but subject to this Section 12) or other
Interest Hedge Contracts to the contrary:
(i)
On the Effective Date, accrued but unpaid interest on existing
Tranche A Settlement Amounts (and all other amounts due and owing
with respect to the Tranche A Settlement Amounts) will be payable
in accordance with Section 5.2(c) of the Security Deposit
Agreement.
(ii)
From and after the Effective Date, with respect to Tranche A
Settlement Amounts that constitute Roll-Up Loans, interest will
accrue monthly in arrears and shall be payable on each Interest
Date; provided that (A) to the extent that the sum of (i) cash flow
available under the Revenue Account Waterfall and (ii) interest
paid in respect of such Tranche A Settlement Amounts from amounts
on deposit in the Interest Reserve Account is insufficient (or cash
is otherwise unavailable pursuant to the terms of the Security
Deposit Agreement) to pay in full such interest due on such
Interest Date, the portion of such interest that is not paid shall,
on such Interest Date, be capitalized and added to the principal
amount outstanding of Tranche A Settlement Amounts that constitute
Roll-Up Loans and (B) each payment of Tranche A Settlement Amounts
that constitute Roll-Up Loans shall be accompanied by accrued
interest to the date of such payment on such amount.
(iii)
From and after the Effective Date, with respect to Tranche A
Settlement Amounts that constitute Residual Loans, interest will
accrue monthly in arrears and shall be payable on each Interest
Date; provided that (A) to the extent that the sum of (i) cash flow
available under the Revenue Account Waterfall and (ii) interest
paid in respect of such Tranche A Settlement Amounts from amounts
on deposit in the Interest Reserve Account is insufficient (or cash
is otherwise unavailable pursuant to the terms of the Security
Deposit Agreement) to pay in full such interest due on such
Interest Date, the portion of such interest that is not paid shall,
on such Interest Date, be capitalized and added to the principal
amount outstanding of Tranche A Settlement Amounts that constitute
Residual Loans and (B) each payment of Tranche A Settlement Amounts
that constitute Residual Loans shall be accompanied by accrued
interest to the date of such payment on such amount.
(c)
The Company and each Tranche B Interest Hedge Contract Party hereby
agree that, notwithstanding any provision in the Operative
Documents (but subject to this Section 12) or other Interest Hedge
Contracts to the contrary:
(i)
On the Effective Date, accrued but unpaid interest on existing
Tranche B Settlement Amounts (and all other amounts due and owing
with respect to the Tranche B Settlement Amounts) will be payable
in accordance with Section 5.2(c) of the Security Deposit
Agreement.
(ii)
From and after the Effective Date, with respect to Tranche B
Settlement Amounts that constitute Roll-Up Loans, interest will
accrue monthly in arrears and shall be payable on each Interest
Date; provided that (A) to the extent that the sum of (i) cash flow
available under the Revenue Account Waterfall and (ii) interest
paid in respect of such Tranche B Settlement Amounts from amounts
on deposit in the Interest Reserve Account is insufficient (or cash
is otherwise unavailable pursuant to the terms of the Security
Deposit Agreement) to pay in full such interest due on such
Interest Date, the portion of such interest that is not paid shall,
on such Interest Date, be capitalized and added to the principal
amount outstanding of Tranche B Settlement Amounts that constitute
Roll-Up Loans and (B) each payment of Tranche B Settlement Amounts
that constitute Roll-Up Loans shall be accompanied by accrued
interest to the date of such payment on such amount.
(iii)
From and after the Effective Date, with respect to Tranche B
Settlement Amounts that constitute Residual Loans, interest will
accrue monthly in arrears and shall be payable on each Interest
Date; provided that (A) to the extent that the sum of (i) cash flow
available under the Revenue Account Waterfall and (ii) interest
paid in respect of such Tranche B Settlement Amounts from amounts
on deposit in the Interest Reserve Account is insufficient (or cash
is otherwise unavailable pursuant to the terms of the Security
Deposit Agreement) to pay in full such interest due on such
Interest Date, the portion of such interest that is not paid shall,
on such Interest Date, be capitalized and added to the principal
amount outstanding of Tranche B Settlement Amounts that constitute
Residual Loans and (B) each payment of Tranche B Settlement Amounts
that constitute Residual Loans shall be accompanied by accrued
interest to the date of such payment on such amount.
(d)
Notwithstanding any provision in the Operative Documents to the
contrary (but subject to this Section 12(d)), from and after the
Effective Date, Roll-Up Loans and Residual Loans shall accrue
interest monthly in arrears at a rate per annum equal to the ABR
plus the Applicable Margin.
Section
13. Certain Agreements and Confirmations Regarding
Termination and Acceleration.
13.01 Company
Credit and Reimbursement Agreement. The Company, Citibank,
N.A., as the Working Capital L/C Issuer, the Working Capital
Lenders party there, Soci‚t‚ G‚n‚rale, as
the DSR/RCE L/C Issuer, the L/C Banks party thereto, the
Administrative Agent and the Lenders hereby agree that the Company
Credit and Reimbursement Agreement is hereby terminated and shall
no longer be of any force or effect.
13.02 Interest
Hedge Contracts. Each Interest Hedge Party and the Company
confirm that (a) each Interest Hedge Contract has been terminated
and (b) such parties have agreed on the payment due by the Company
to such Interest Hedge Party on the Effective Date pursuant to the
terms of the relevant Interest Hedge Contract. Each Interest
Hedge Party acknowledges that it is bound by the provisions of the
Collateral Agency and Intercreditor Agreement.
13.03 Acceleration
of Obligations; Termination of Commitments. In the event that
all Loans have not been accelerated or otherwise have become due in
full, the Required Participants hereby instruct and request that
the Administrative Agent provide the notice in the succeeding
sentence. Pursuant to Section 7.1 of the Participation
Agreement, the Administrative Agent hereby (i) declares (A) the
Commitments to be terminated forthwith and (B) the Loans (with
accrued interest thereon) and all other amounts owing under the
Operative Documents to be due and payable forthwith and (ii)
provides notice to the Owner and the Company of such declaration;
provided that each party hereto agrees that the action afforded by
this Section 13.03 shall occur immediately after the events set
forth in Section 13.05 of this Agreement.
13.04 Liability
of Trustee. Each party hereto acknowledges and agrees that
the Trust Company is (except as otherwise expressly provided herein
or therein) entering into this Agreement and the other Operative
Documents to which it is a party (other than the Trust Agreement),
solely in its capacity as trustee under the Trust Agreement and not
in its individual capacity, and that the Trust Company shall not be
liable or accountable under any circumstances whatsoever in its
individual capacity for or on account of any statements,
representations, warranties, covenants or obligations stated to be
those of the Trustee, except for its own gross negligence or
willful misconduct and as otherwise expressly provided herein or in
the other Operative Documents. Except as specifically
provided in the Trust Agreement and except to the extent that the
Trust Company shall have acted in its individual capacity, all
Persons having any claim against the Owner or the Trust Company
acting in its capacity as Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for payment
or satisfaction thereof. Notwithstanding any provision in the
Operative Documents (but subject to this Section 13.04), (i) the
indemnification provisions set forth in the Trust Agreement shall
remain in full force and effect and (ii) if the Trustee is unsure
of the application of any provision of any Operative Document, the
Trustee shall promptly request and rely upon instructions of the
Required Priority Lenders and shall have no liability to the extent
it fails to act after prompt request for clarification from such
Required Priority Lenders and prior to the receipt of instructions
from such Required Priority Lenders.
13.05 DSR
L/C.
(a)
Each party hereto hereby consents, agrees and instructs (i) the
Security Agent, as Beneficiary, to draw on the DSR L/C for the
Available Amount (as defined in the DSR L/C) thereunder on the
Effective Date and (ii) Soci‚t‚ G‚n‚rale,
as DSR/RCE L/C Issuer, to permit such draw for the Available Amount
on the Effective Date. The Security Agent agrees to use the
proceeds from such draw on the DSR L/C in accordance with clause
(d) below.
(b)
Immediately following such draw on the DSR L/C, each L/C Bank
agrees to make an L/C Reimbursement Loan to the Company (in an
amount equal to such L/C Bank's Commitment Percentage), with the
proceeds of such L/C Reimbursement Loan to be applied to the DSR
L/C Reimbursement Obligation of the Company in respect of such
draw.
(c)
Immediate following the make of such L/C Reimbursement Loans
referred to in clause (b) above, each party to the Company Credit
and Reimbursement Agreement hereby agree to terminate the Available
Commitments in respect of the L/C Commitments as more fully set
forth in Section 13.03 of this Agreement.
(d)
The proceeds of the draw on the DSR L/C referred to in clause (a)
above shall be applied by the Security Agent, on the Effective
Date, to pay on a pro rata basis (i) interest on the Tranche B
Loans which is then due and payable and (ii) interest on and
outstanding principal of the Tranche B Settlement Amounts which is
then due and payable; provided that (i) with respect to payments to
be made to a Tranche B Lender, payments shall be made ratably to
each Tranche B Lender on the basis of the aggregate principal
amount of Tranche B Loans held by such Tranche B Lender and (ii)
with respect to payments to be made to a Tranche B Interest Hedge
Contract Party, payments shall be made (x) ratably to each Tranche
B Interest Hedge Contract Party on the basis of the aggregate
principal amount of Tranche B Settlement Amounts held by such
Tranche B Interest Hedge Contract Party and (y) with respect to
such Tranche B Interest Hedge Contract Party, such payment is to be
applied in the following order of priority: first, to pay interest
due and payable on such Tranche B Interest Hedge Contract Party's
Tranche B Settlement Amounts; and second, to pay the aggregate
outstanding principal amount of such Tranche B Interest Hedge
Contract Party's Tranche B Settlement Amounts. All payments
shall be made prior to the designation of Tranche B Loans and
Tranche B Settlement Amounts as Roll-Up Loans or Residual
Loans.
Section
14. Conditions Precedent. This Agreement shall become
effective on the date (the "Effective Date") on which the following
conditions precedent shall have been satisfied, or waived, in the
sole discretion of the Administrative Agent:
(a)
each of this Agreement and the Priority Credit Agreement shall have
been duly authorized, executed and delivered by the parties thereto
and shall be in full force and effect;
(b)
each of the Administrative Agent and the Priority Agent shall have
received: (i) a certified copy of the resolutions or minutes or
other appropriate documents evidencing the corporate actions of NEG
and the Company authorizing the execution, delivery and performance
of this Agreement and the Priority Credit Agreement and the
transactions contemplated thereby, certified by the Secretary or an
Assistant Secretary of NEG and the Company, as the case may be, as
of the Effective Date, which certificate shall state that such
resolutions or minutes or other appropriate documents have not been
amended, modified, revoked or rescinded; (ii) an incumbency
certificate of each of NEG and the Company regarding the officers
thereof authorized to execute and deliver on its behalf this
Agreement and the Priority Credit Agreement and any other documents
and agreements to be delivered in connection therewith, certified
by the Secretary or an Assistant Secretary of NEG and the Company,
as the case may be, as of the Effective Date; and (iii) true and
complete copies of the certificate of formation, limited liability
agreement and other organizational documents (if any) of NEG and
the Company, certified as of the Effective Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary
of NEG and the Company, as the case may be;
(c)
each of the Administrative Agent and the Priority Agent shall have
received an Officer's Certificate of each of the Company and NEG,
dated the Effective Date, stating that: (i) in the case of
the Officer's Certificate of the Company, the representations and
warranties set forth in Section 5.1 of the Priority Credit
Agreement are true and correct in all material respects as of the
date hereof, except to the extent such representations and
warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in
all material respects on and as of such earlier date; (ii) in the
case of the Officer's Certificate of NEG, the representations and
warranties set forth in Section III of the NEG Guarantee (other
than Section 3.04(d) of the NEG Guarantee) are true and correct in
all material respects as of the date hereof, except to the extent
such representations and warranties relate solely to an earlier
date, in which case such representations and warranties shall have
been true and correct in all material respects on and as of such
earlier date; and (iii) an Officer's Certificate of each of NEG and
the Company stating that (x) all conditions precedent required to
be fulfilled on the Effective Date have been fulfilled and (y) no
Post-Effective Date Default or Post-Effective Date Event of Default
has occurred or will occur on the Effective Date;
(d)
each of the Administrative Agent and the Priority Agent shall have
received such opinions of the Company, the Owner, the Trust Company
and NEG as are reasonably requested by the Administrative Agent and
the Priority Agent;
(e)
all fees payable to any Priority Lender, the Priority Agent, the
Security Agent or the Administrative Agent (including the fees of
any consultant, advisor or legal counsel to any such lender or
agent) shall have been paid;
(f)
the Administrative Agent shall have received, in its sole
discretion, sufficient information to prepare the Interest Reserve
Schedule; and
(g)
the Priority Agent shall have received a Priority Borrowing Notice
for funding the Interest Reserve Account Deposit as provided in the
last paragraph of Section 4.2 of the Priority Credit
Agreement.
Section
15. Further Representations and Warranties. To induce
the Creditors to enter into this Agreement, each of the Company and
the Owner hereby further represents and warrants that:
(i)
as of December 11, 2002, the aggregate outstanding principal amount
of (a) Tranche A Loans will be $226,973,684, (b) Tranche B Loans
will be $219,226,316, (c) Working Capital Loans will be $9,195,122
and (d) L/C Reimbursement Loans will be $9,260,539;
(ii)
as of December 11, 2002, the aggregate undrawn face amount of (a)
Working Capital L/Cs will be $4,000,000, (b) DSR L/Cs will be $0
and (c) RCE L/Cs will be $0; and
(iii)
as of and on the date hereof, the obligations of the Owner under
the Tranche A Loan Agreement, the Tranche B Loan Agreement and
other Operative Documents and the Company under the Structural
Guaranty and other Operative Documents to repay the Loans and pay
the other Secured Obligations, together with all interest, fees,
expenses, indemnities and other amounts accrued thereon, is
absolute and unconditional, and there exists no right of set off or
recoupment, counterclaim or defense of any nature whatsoever to
payment of the Secured Obligations.
Section
16. Miscellaneous.
16.01
Notices. All notices, requests, demands or other
communications given to the Company, the Owner, the Security Agent,
the Administrative Agent or any Creditor shall be given in writing
(including telex or facsimile transmission) and shall be deemed to
have been duly given when personally delivered or when duly
deposited in the mails, registered or certified mail postage
prepaid, or when transmitted by telex or facsimile transmission,
addressed (i) if to the Company, the Owner, the Security Agent, the
Administrative Agent or the Priority Agent, to such party at its
address specified in Section 12.2 of the Participation Agreement or
any other address which such party shall have specified as its
address for the purpose of communications hereunder, by notice
given in accordance with this subsection to the party sending such
communication or (ii) if to any Creditor, to it at its address as
provided by such Creditor, including the addresses specified in the
Participation Agreement, as the case may be; provided that any
notice, request or demand to the Security Agent shall not be
effective until received by the Security Agent at the office
designated by it pursuant to this subsection.
16.02
Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
16.03
Amendments. Any provision of this Agreement (other than
Sections 11.01 through 11.08 and Sections 11.11 through 11.16 of
this Agreement) may be amended, modified or supplemented only by an
instrument in writing signed by each party hereto (other than
NEG). Sections 11.01 through 11.08 and Sections 11.11 through
11.16 of this Agreement may be amended, modified or supplemented
only by an instrument in writing signed by the Creditors (other
than the Trust Company).
16.04
Headings. The headings of the various Sections of this
Agreement are for convenience of reference only and shall not
modify, define, expand or limit any of the terms or provisions
hereof.
16.05
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
16.06
Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
16.07
Further Assurances. The parties hereto shall promptly cause
to be taken, executed, acknowledged or delivered, at the sole
expense of the Company, all such further acts, conveyances,
documents and assurances as the other parties may from time to time
reasonably request in order to carry out and effectuate the intent
and purposes of this Agreement, the other Operative Documents and
the transactions contemplated hereby and thereby (including,
without limitation, the preparation, execution and filing of any
and all Uniform Commercial Code financing statements and other
filings or registrations which the parties hereto may from time to
time request to be filed or effected). The Company, at its
own expense, shall take such action as may be reasonably requested
in order to maintain and protect all security interests provided
for hereunder or under any other Operative Document.
16.08
Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns
16.09
No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Creditor, any right,
remedy, power or privilege hereunder or under the other Operative
Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
16.10
Conflicts. In case of any conflict or inconsistency between
this Agreement and any other Operative Document (other than the
Priority Credit Agreement), this Agreement shall control.
16.11
Ratification. The Company, the Owner, the Administrative
Agent, the Security Agent, the Lenders and the Interest Hedge
Parties hereby ratify and confirm the following prior amendments
and waivers to the Operative Documents:
(i)
the Omnibus Restructuring Agreement (Lake Road), dated as of April
6, 2001; and
(ii)
the Second Amendment (Lake Road), dated as of June 5, 2002;
16.12
RELEASE OF CLAIMS. EACH OF NEG, THE COMPANY AND THE OWNER
HEREBY ACKNOWLEDGES AND AGREES THAT IT DOES NOT HAVE ANY DEFENSES,
COUNTERCLAIMS, OFFSETS, CROSS-COMPLAINTS, CLAIMS OR DEMANDS OF ANY
KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF LIABILITY OF THE COMPANY AND THE OWNER
TO REPAY THE LENDERS OR THE PRIORITY LENDERS AS PROVIDED IN THE
OPERATIVE DOCUMENTS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY
KIND OR NATURE FROM THE ADMINISTRATIVE AGENT, THE PRIORITY AGENT OR
ANY OTHER CREDITOR. EACH OF NEG, THE COMPANY AND THE OWNER
HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES
THE ADMINISTRATIVE AGENT, THE PRIORITY AGENT AND THE OTHER
CREDITORS, AND THE ADMINISTRATIVE AGENT'S, THE PRIORITY AGENT'S AND
EACH OTHER CREDITOR'S PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS
AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, OR EXPENSES, AND LIABILITIES WHATSOEVER,
KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AGREEMENT IS EXECUTED, WHICH ANY OF NEG, THE COMPANY OR THE OWNER
MAY NOW OR HEREAFTER HAVE AGAINST THE ADMINISTRATIVE AGENT, THE
PRIORITY AGENT OR ANY OTHER CREDITOR, AND THE ADMINISTRATIVE
AGENT'S, THE PRIORITY AGENT'S OR ANY OTHER CREDITOR'S PREDECESSORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, IN THEIR
CAPACITIES AS SUCH, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF ANY
RIGHTS AND REMEDIES UNDER THE OPERATIVE DOCUMENTS, AND NEGOTIATION
AND EXECUTION OF THIS AGREEMENT.
16.13
Lease. Notwithstanding any provision in the Operative
Documents (but subject to this Section 16.13), each party hereto
hereby agrees that, with respect to the Lease, none of the Priority
Lenders, the Priority L/C Issuer or the Priority Agent shall have
any responsibility or liability to the Company or any other Person
with respect to any of the following: (x) any liability, loss
or damage caused or alleged to be caused directly or indirectly by
the Project or any part thereof or by any inadequacy thereof or
deficiency or defect therein or by any other circumstances in
connection therewith; (y) the use, operation or performance of the
Project or any part thereof or any risks relating thereto; or (z)
the delivery, operation, servicing, maintenance, repair,
improvement, replacement or decommissioning of the Project or any
part thereof.
16.14
Survival. All covenants, agreements, representations and
warranties made by the Company and the Owner herein and in the
certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied
upon by the other parties hereto and shall survive the execution
and delivery of this Agreement and the making of any Priority Loans
and issuance of any Priority L/C, regardless of any investigation
made by any such other party or on its behalf and notwithstanding
that the Priority Agent, the Priority L/C Issuer or any Priority
Lender may have had notice or knowledge of any Post-Effective
Default, Post-Effective Event of Default or incorrect
representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Priority Loan or
any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Priority L/C is outstanding and so
long as the Priority Commitments have not expired or
terminated. The provisions of Section 11 shall survive and
remain in full force and effect notwithstanding the termination of
this Agreement or any provision hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
[signature pages to follow]
