EXHIBIT 10.4
MASTER SHELF AND
REVOLVING CREDIT AGREEMENT
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NRG ENERGY CENTER, INC.
MASTER SHELF AND
REVOLVING CREDIT AGREEMENT
DATED AUGUST 20, 1993
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TABLE OF CONTENTS
1. Term Note Shelf Facility 1
lA. Authorization of Issue of Term Notes 1
1B. Facility 1
1C. Issuance Period 1
1D. Periodic Spread Information 2
1E. Request for Xxxxxxxx 0
0X. Rate Quotes 2
1G. Acceptance 3
1H. Market Disruption 3
1I. Closing 3
1J. Delayed Delivery Fee 4
1K. Cancellation Fee 4
1L. Term Note Prepayments 4
1L(1). Optional Prepayment With Yield-Maintenance Amount 5
1L(2). Notice of Optional Prepayment 5
1L(3). Application of Prepayments 5
1L(4). Retirement of Term Notes 5
2. Revolving Credit Facility 5
2A. The Revolving Loans 5
2B. Prepayments of Revolving Notes 6
2B(1). Prepayment at the Company's Option 6
2B(2). Prepayment Under Paragraph 5 or the Mortgage 6
2C. Manner of Borrowings 6
2D. Non-Usage Fee 7
2E. Cancellation of Commitment 7
2F. Interest and Non-Usage Fee Payments 7
2G. Extension of Revolving Loans Termination Date 7
2H. Illegality 7
3. Conditions Precedent 7
3A. Conditions to Availability of Facility and Revolving Commitment 7
3A(1). Opinion of Purchasers' Special Counsel 7
3A(2). Opinion of Company's Counsel 7
3A(3). Purchase of Assets 8
3A(4). Management Agreement 8
3A(5). Security 8
3A(6). Capitalization 8
3A(7). Reports of Consultants 8
3A(8). Title Insurance 8
3A(9). Other Insurance 8
3A(10). Estoppel Certificates 8
3A(11). Lien Searches 9
3A(12). Proceedings 9
3A(13). Existing Indebtedness 9
3A(14). Note Agreement 9
3B. Conditions of Each Term Note Closing 9
3B(1). Term Notes 9
3B(2). Representations and Warranties; No Default 9
3B(3). Purchase Permitted by Applicable Laws 10
i
3B(4). Legal Matters 10
3B(5). Proceedings 10
3B(6). Change in the Company's Condition 10
3B(7). Subsequent Opinions, etc. 10
3C. Conditions Precedent to Each Revolving Loan 10
3C(1). Revolving Notes 11
3C(2). Representations and Warranties; No Default 11
3C(3). Revolving Loan Permitted by Applicable Laws 11
3C(4). Legal Matters 12
3C(5). Proceedings 12
3C(6). Change in the Company's Condition 12
3C(7). Subsequent Opinions, etc. 12
4. [INTENTIONALLY OMITTED] 12
5. Affirmative Covenants 12
5A. Financial Statements 12
5B. Information Required by Rule 144A 13
5C. Inspection of Property 13
5D. Agreement Assuming Liability on Notes 13
5E. Maintenance of Insurance 14
5F. Payment if Control Changes 14
5G. Rights Under Purchase Documents 14
5H. Notice of Defaults and Violations 14
5H(1). Defaults 14
5H(2). Xxxxxxxxxx 00
0X. Xxxxxxxxxxx of Licenses, Permits and Registrations 14
5J. Action Regarding Licenses, Etc. and Environmental Matters 14
6. Negative Covenants 14
6A. Fees Limitation 14
6B. Lien, Debt and Other Restrictions 15
6B(1). Liens 15
6B(2). Debt 15
6B(3). Loans, Advances, Investments and Contingent
Liabilities 16
6B(4). Merger and Sale of Assets 16
6B(5). Lease Rentals 16
6B(6). Sale or Discount of Receivables 17
6B(7). Certain Contracts 17
6B(8). Sale and Lease-Back 17
6B(9). Transactions With Affiliates 17
6C. Amendment of Management Agreement 17
6D. Maintenance of Present Business 17
7. Events of Default 17
7A. Acceleration 17
7B. Rescission of Acceleration 20
7C. Notice of Acceleration or Rescission 20
7D. Other Remedies 20
7D(1). Exercise 20
7D(2). Agency 20
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8. Representations, Covenants and Warranties 20
8A. Organization 20
8B. Financial Statements 21
8B(1). Financial Statements of ECPLP 21
8B(2). Pro Forma Financial Statements of the Company 21
8C. Actions Pending 21
8D. Outstanding Debt 21
8E. Title to Xxxxxxxxxx 00
0X. Taxes 22
8G. Conflicting Agreements and Other Matters 22
8H. Offering of Notes 22
8I. Use of Proceeds 22
8J. ERISA 22
8K. Governmental Consent 23
8L. Utility Status 23
8M. Investment Company Status 23
8N. Licenses, Permits and Xxxxxxxxxxxxx 00
0X. Purchase Agreement Representations 24
8P. Sufficiency and Condition of Acquired Assets 24
8Q. No Defaults 24
8R. Assignability of Permits 24
8S. Environmental Matters; Xxxxx 24
8T. Hostile Tender Offers 25
8U. Disclosure 25
9. Representations of the Xxxxxxxxxx 00
0X. Nature of Purchase 25
9B. Source of Funds 25
10. Definitions 25
10A. Yield-Maintenance Terms 25
10B. Other Terms 26
10C. Accounting Principles, Terms and Determinations 32
11. Miscellaneous 32
11A. Note Payments 33
11B. Expenses 33
11C. Consent to Amendments 33
11D. Form, Registration, Transfer and Exchange of Notes; Lost
Notes 34
11E. Persons Deemed Owners; Participations 34
11F. Survival of Representations and Warranties; Entire Agreement 34
11G. Successors and Assigns 35
11H. Disclosure to Other Persons 35
11I. Notices 35
11J. Payments Due on Non-Business Days 35
11K. Satisfaction Requirement 36
11L. Governing Law 36
11M. Severability 36
11N. Descriptive Headings 36
11O. Counterparts 36
11P. Binding Agreement 36
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INFORMATION SCHEDULE
EXHIBIT A -- FORM OF TERM NOTE
EXHIBIT B -- FORM OF REQUEST FOR PURCHASE
EXHIBIT C -- FORM OF CONFIRMATION OF ACCEPTANCE
EXHIBIT D -- FORM OF REVOLVING NOTE
EXHIBIT E-1 -- FORM OF OPINION -- XXXXXX AND XXXXXX
EXHIBIT E-2 -- FORM OF OPINION -- XXXXXX X. XXXXXXX, XX.
EXHIBIT F -- MORTGAGE
EXHIBIT G -- COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
EXHIBIT H -- TITLE INSURANCE COMMITMENT
EXHIBIT I -- FORM OF SUBSEQUENT OPINION OF COMPANY'S COUNSEL
EXHIBIT J -- DISCLOSURE SCHEDULE
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NRG ENERGY CENTER, INC.
0000 XXXXXXXX XXXX, XXXXX 000
XXXXXXXXXXX, XXXXXXXXX 00000-0000
August 20, 1993
The Prudential Insurance Company
of America (herein called "PRUDENTIAL")
Each Prudential Affiliate which becomes
bound hereby
c/o Prudential Capital Group
Xxx Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Gentlemen:
The undersigned, NRG Energy Center, Inc. (herein called the "COMPANY"),
hereby agrees with you as follows:
1. TERM NOTE SHELF FACILITY.
1A. AUTHORIZATION OF ISSUE OF TERM NOTES. The Company will authorize
the issue of its senior secured term notes (herein called the "Term Notes")
in the aggregate principal amount of $10,000,000, to be dated the date of
issue thereof, to mature, in the case of each Term Note so issued, no less
than three years and no more than twenty years after the date of original
issuance thereof (but in no event with a maturity subsequent to June 15,
2013), to bear interest on the unpaid balance thereof from the date thereof
at the rate per annum, and to have such other particular terms, as shall be
set forth, in the case of each Term Note so issued, in the Confirmation of
Acceptance with respect to such Term Note delivered pursuant to paragraph 1G,
and to be substantially in the form of Exhibit A attached hereto. The term
"Term Notes" as used herein shall include each Term Note delivered pursuant
to any provision of this Agreement and each Term Note delivered in
substitution or exchange for any such Term Note pursuant to any such
provision. Term Notes which have (i) the same final maturity, (ii) the same
installment payment dates, (iii) the same installment payment amounts (as a
percentage of the original principal amount of each Term Note), (iv) the same
interest rate, and (v) the same interest payment periods, are herein called a
"SERIES" OF TERM NOTES.
1B. FACILITY. Prudential is willing to consider, in its sole discretion
and within limits which may be authorized for purchase by Prudential and
Prudential Affiliates from time to time, the purchase of Term Notes pursuant
to this Agreement. The willingness of Prudential to consider such purchase of
Term Notes is herein called the "FACILITY". At any time, the aggregate
principal amount of Term Notes stated in paragraph 1A, minus the aggregate
principal amount of Term Notes purchased and sold pursuant to this Agreement
prior to such time, minus the aggregate principal amount of Accepted Notes
(as hereinafter defined) which have not yet been purchased and sold hereunder
prior to such time is herein called the "AVAILABLE FACILITY AMOUNT" at such
time. Notwithstanding the willingness of Prudential to consider purchases of
Term Notes, this Agreement is entered into on the express understanding that
neither Prudential nor any Prudential Affiliate shall be obligated to make or
accept offers to purchase Term Notes, or to quote rates, spreads or other
terms with respect to specific purchases of Term Notes, and the Facility
shall in no way be construed as a capital commitment by Prudential or any
Prudential Affiliate.
1C. ISSUANCE PERIOD. Subject to and upon the terms and conditions
herein set forth, Term Notes may be issued and sold pursuant to this
Agreement from time to time on any Business Day during the period from the
date hereof to the earlier to occur of (i) the date on which (A) the Company
pays (other than pursuant to paragraph 2B(1)) in their entirety any Notes
issued under this Agreement or any 1993 Notes, (B) Prudential or any
Prudential Affiliate exercises its option to require prepayment in their
entirety of any Notes issued under this Agreement or any 1993 Notes, or (c)
any Notes issued under this Agreement or any 1993 Notes are otherwise prepaid
in their entirety or required to be so prepaid, including without limitation
by automatic acceleration, demand for payment or pursuant to the Mortgage,
(ii) June 15, 1996 (or if such date is not a Business Day, the Business Day
next preceding such date) and (iii) the thirtieth day after Prudential shall
have given to the Company, or the Company shall have given to Prudential, a
notice stating that it elects to terminate the issuance and sale of Term
Notes pursuant to this Agreement (or if such thirtieth day is not a Business
Day, the Business Day next preceding such thirtieth day). The period during
which Term Notes may be issued and sold pursuant to this Agreement is herein
called the "Issuance Period".
1D. PERIODIC SPREAD INFORMATION. Not later than 9:30 A.M. (New York
City local time) on a Business Day during the Issuance Period if there is an
Available Facility Amount on such Business Day, the Company may request by
telecopier or telephone, and within a reasonable time after such request,
Prudential will, to the extent reasonably practicable, provide to the Company
on such Business Day (or, if such request is received after 9:30 A.M. (New
York City local time) on such Business Day, on the following Business Day),
information (by telecopier or telephone) with respect to various spreads at
which Prudential or Prudential Affiliates might be interested in purchasing
Term Notes of different average lives; provided, however, that the Company
may not make such requests more frequently than once in every five Business
Days or such other period as shall be mutually agreed to by the Company and
Prudential. The amount and content of information so provided shall be in the
sole discretion of Prudential but it is the intent of Prudential to provide
information which will be of use to the Company in determining whether to
initiate procedures for use of the Facility. Information so provided shall
not constitute an offer to purchase Term Notes, and neither Prudential nor
any Prudential Affiliate shall be obligated to purchase Term Notes at the
spreads specified. Information so provided shall be representative of
potential interest only for the period commencing on the day such information
is provided and ending on the earlier of the fifth Business Day after such
day and the first day after such day on which further spread information is
provided. Prudential may suspend or terminate providing information pursuant
to this paragraph 1D if, in its sole discretion, it determines that there has
been an adverse change in the credit quality of the Company after the date of
this Agreement.
1E. REQUEST FOR PURCHASE. The Company may from time to time during the
Issuance Period make requests for purchases of Term Notes (each such request
being herein called a "Request for Purchase"). Each Request for Purchase
shall be made to Prudential by telecopier and confirmed by nationwide
overnight delivery service, and shall (i) specify the aggregate principal
amount of Term Notes covered thereby, which shall not be less than $2,500,000
(or, if the then Available Facility Amount is less than $2,500,000, but at
least $1,000,000, such Request for Purchase may be for the Available Facility
Amount) and not be greater than the Available Facility Amount at the time
such Request for Purchase is made, (ii) specify the principal amounts, final
maturities, installment payment dates and amounts and interest payment period
(which interest payment period shall be quarterly in arrears) of the Term
Notes covered thereby, (iii) specify the use of proceeds of such Term Notes,
(iv) specify the proposed day for the closing of the purchase and sale of
such Term Notes, which shall be a Business Day during the Issuance Period not
less than 10 days and not more than 25 days after the making of such Request
for Purchase, (v) specify the number of the account and the name and address
of the depository institution to which the purchase prices of such Term Notes
are to be transferred on the Closing Day for such purchase and sale, (vi)
certify that the representations and warranties contained in paragraph 8 and
contemplated by paragraph 3B(2) hereof are true on and as of the date of such
Request for Purchase, except to the extent of changes caused by the
transactions herein contemplated and to the extent such representations and
warranties by their express terms relate solely to an earlier date, and that
there exists on the date of such Request for Purchase no Event of Default or
Default, and (vii) be substantially in the form of Exhibit B attached hereto.
Each Request for Purchase shall be in writing and shall be deemed made when
received by Prudential.
1F. RATE QUOTES. Not later than five Business Days after the Company
shall have given Prudential a Request for Purchase pursuant to paragraph 1E,
Prudential may (but shall not be obligated to) provide (by telephone promptly
thereafter confirmed by telecopier, in each case no earlier than
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9:30 A.M. and no later than 1:00 P.M. New York City local time) interest rate
quotes for the several principal amounts, maturities, installment payment
schedules, and interest payment periods of Term Notes specified in such
Request for Purchase. Each quote shall represent the interest rate per annum
payable on the outstanding principal balance of such Term Notes until such
balance shall have become due and payable, at which Prudential or a
Prudential Affiliate would be willing to purchase such Term Notes at 100% of
the principal amount thereof.
1G. ACCEPTANCE. Within 30 minutes after Prudential shall have provided
any interest rate quotes pursuant to paragraph 1F or in the event that due to
conditions in the market place it shall not be feasible to hold such interest
rate quotes open 30 minutes, such shorter period as Prudential may specify to
the Company (such period herein called the "ACCEPTANCE WINDOW"), the Company
may, subject to paragraph 1H, elect to accept such interest rate quotes as to
not less than $2,500,000 aggregate principal amount of the Term Notes
specified in the related Request for Purchase, unless the Available Facility
Amount at such time is less than $2,500,000, in which case the Company may
elect to accept such interest rate quotes as to the then Available Facility
Amount. Such election shall be made by an Authorized Officer of the Company
notifying Prudential by telephone or telecopier within the Acceptance Window
(but not earlier than 9:30 A.M. or later than 2:00 P.M., New York City local
time) that the Company elects to accept such interest rate quotes, specifying
the Term Notes (each such Term Note being herein called an "ACCEPTED NOTE")
as to which such acceptance (herein called an "ACCEPTANCE") relates. The day
the Company notifies an Acceptance with respect to any Accepted Notes is
herein called the "ACCEPTANCE DAY" for such Accepted Notes. Any interest rate
quotes as to which Prudential does not receive an Acceptance within the
Acceptance Window shall expire, and no purchase or sale of Term Notes
hereunder shall be made based on such expired interest rate quotes. Subject
to paragraph 1H and the other terms and conditions hereof, the Company agrees
to sell to Prudential or a Prudential Affiliate, and Prudential agrees to
purchase, or to cause the purchase by a Prudential Affiliate of, the Accepted
Notes at 100% of the principal amount thereof. Prior to the close of business
on the Business Day next following the Acceptance Day, the Company,
Prudential and each Prudential Affiliate which is to purchase any such
Accepted Notes will execute a confirmation of such Acceptance substantially
in the form of Exhibit C attached hereto (herein called a "CONFIRMATION OF
ACCEPTANCE").
1H. MARKET DISRUPTION. Notwithstanding the provisions of paragraph 1G,
if Prudential shall have provided interest rate quotes pursuant to paragraph
1F and thereafter prior to the time an Acceptance with respect to such quotes
shall have been notified to Prudential in accordance with paragraph 1G there
shall occur a general suspension, material limitation, or significant
disruption of trading in securities generally on the New York Stock Exchange
or in the market for U.S. Treasury securities and other financial
instruments, then such interest rate quotes shall expire, and no purchase or
sale of Term Notes hereunder shall be made based on such expired interest
rate quotes. If the Company thereafter notifies Prudential of the Acceptance
of any such interest rate quotes, such Acceptance shall be ineffective for
all purposes of this Agreement, and Prudential shall promptly notify the
Company that the provisions of this paragraph 1H are applicable with respect
to such Acceptance.
1I. CLOSING. Not later than 11:30 A.M. (New York City local time) on
the Closing Day for any Accepted Notes, the Company will deliver to each
Purchaser listed in the Confirmation of Acceptance relating thereto at the
Chicago offices of Prudential Capital Group, the Term Notes to be purchased
by such Purchaser in the form of a single Accepted Note for the Accepted
Notes which have exactly the same terms (or such greater number of Term Notes
in authorized denominations as such Purchaser may request) dated the Closing
Day and registered in such Purchaser's name (or in the name of its nominee),
against payment of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account specified in the Request
for Purchase of such Term Notes. If the Company fails to tender to any
Purchaser the Accepted Notes to be purchased by such Purchaser on the
scheduled Closing Day for such Accepted Notes as provided above in this
paragraph 1I, or any of the conditions specified in paragraph 3B shall not
have been fulfilled by the time required on such scheduled Closing Day, the
Company shall, prior to 1:00 P.M., New York City local time, on such
scheduled Closing Day notify such Purchaser in writing whether (x) such
closing is to be rescheduled (such rescheduled date to be a Business Day
during the Issuance Period not less than one Business Day and not more than
3
30 Business Days after such scheduled Closing Day (the "RESCHEDULED CLOSING
DAY") and certify to such Purchaser that the Company reasonably believes that
it will be able to comply with the conditions set forth in paragraph 3B on
such Rescheduled Closing Day and that the Company will pay the Delayed
Delivery Fee in accordance with paragraph 1J or (y) such closing is to be
canceled as provided in paragraph 1K. In the event that the Company shall
fail to give such notice referred to in the preceding sentence, such
Purchaser may at its election, at any time after 1:00 P.M., New York City
local time, on such scheduled Closing Day, notify the Company in writing that
such closing is to be canceled as provided in paragraph 1K.
1J. DELAYED DELIVERY FEE. If the closing of the purchase and sale of
any Accepted Note is delayed for any reason beyond the original Closing Day
for such Accepted Note, the Company will pay to Prudential on the last
Business Day of each calendar month, commencing with the first such day to
occur more than 30 days after the Acceptance Day for such Accepted Note and
ending with the last such day to occur prior to the Cancellation Date or the
actual closing date of such purchase and sale, and on the Cancellation Date
or actual closing date of such purchase and sale (if such Cancellation Date
or closing date occurs more than 30 days after the Acceptance Day for such
Accepted Note), a fee (herein called the "DELAYED DELIVERY FEE") calculated
as follows:
(BEY -MMY) x DTS/360 x PA
where "BEY" means Bond Equivalent Yield, i.e., the bond equivalent yield per
annum of such Accepted Note, "MMY" means Money Market Yield, i.e., the yield
per annum on an alternative investment selected by Prudential on the date
Prudential receives notice of the delay in the closing for such Accepted
Notes having a maturity date or dates the same as, or closest to, the
Rescheduled Closing Day or Rescheduled Closing Days (a new alternative
investment being selected by Prudential each time such closing is delayed);
"DTS" means Days to Settlement, i.e., the number of actual days elapsed from
and including the thirty-first day after the Acceptance Day for such Accepted
Note (in the case of the first such payment with respect to such Accepted
Note) or from and including the date of the next preceding payment (in the
case of any subsequent delayed delivery fee payment with respect to such
Accepted Note) to but excluding the date of such payment; and "PA" means
Principal Amount, i.e., the principal amount of the Accepted Note for which
such calculation is being made. In no case shall the Delayed Delivery Fee be
less than zero. Nothing contained herein shall obligate any Purchaser to
purchase any Accepted Note on any day other than the Closing Day for such
Accepted Note, as the same may be rescheduled from time to time in compliance
with paragraph 1I.
1K. CANCELLATION FEE. If the Company at any time notifies Prudential in
writing that the Company is canceling the closing of the purchase and sale of
any Accepted Note, or if Prudential notifies the Company in writing under the
circumstances set forth in the last sentence of paragraph 1I that the closing
of the purchase and sale of such Accepted Note is to be canceled, or if the
closing of the purchase and sale of such Accepted Note is not consummated on
or prior to the last day of the Issuance Period (the date of any such
notification, or the last day of the Issuance Period, as the case may be,
being herein called the "CANCELLATION DATE"), the Company will pay Prudential
in immediately available funds an amount (the "CANCELLATION FEE") calculated
as follows:
PI x PA
where "PI" means Price Increase, i.e., the quotient (expressed in decimals)
obtained by dividing (a) the excess of the ask price (as determined by
Prudential) of the Hedge Treasury Note(s) on the Cancellation Date over the
bid price (as determined by Prudential) of the Hedge Treasury Notes(s) on the
Acceptance Day for such Accepted Note by (b) such bid price. The foregoing
bid and ask prices shall be as reported by Telerate Systems, Inc. (or, if
such data for any reason ceases to be available through Telerate Systems,
Inc., any publicly available source of similar market data). Each price shall
be based on a U.S. Treasury security having a par value of $100.00 and shall
be rounded to the second decimal place. In no case shall the Cancellation Fee
be less than zero.
1L. TERM NOTE PREPAYMENTS. The Term Notes shall be subject to
prepayment with respect to the required prepayments specified therein and
also (i) in whole as provided in paragraph 5F hereof,
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(ii) in whole or in part as provided in the Mortgage, it being contemplated
that the Terms Notes shall upon issuance be secured thereby, and (iii) at the
option of the Company as provided in paragraph lL(1). In the event pursuant
to the Mortgage proceeds from any insurance policy or taking or condemnation
awards with respect to the Mortgaged Property (as defined in the Mortgage)
shall be distributed to the holders of the Term Notes as a prepayment of the
Term Notes, the Company shall pay interest on each Term Note on the amount so
distributed with respect to such Term Note to the date of such distribution,
together with the Yield-Maintenance Amount, if any, with respect to each Term
Note. Any such distribution constituting a partial prepayment of the Term
Notes shall be applied in proportion to the respective unpaid principal
amounts thereof in satisfaction of required payments of principal in inverse
order of their scheduled due dates.
1L(1). OPTIONAL PREPAYMENT WITH YIELD-MAINTENANCE AMOUNT. Each Series of
Term Notes shall be subject to prepayment, in whole at any time or from time
to time in part (in integral multiples of $100,000, and in the minimum amount
of $1,000,000 per prepayment), at the option of the Company, at 100% of the
principal amount so prepaid plus interest thereon to the prepayment date and
the Yield-Maintenance Amount, if any, with respect to each Term Note of such
Series. The amounts so prepaid on each outstanding Term Note of such Series
so prepaid shall be applied in satisfaction of required payments of principal
in inverse order of their scheduled due dates.
1L(2). NOTICE OF OPTIONAL PREPAYMENT. The Company shall give the holder
of each Term Note to be prepaid pursuant to paragraph 1L(1) irrevocable
written notice of such prepayment not less than 30 days prior to the
prepayment date, specifying such prepayment date, specifying the aggregate
principal amount of the Term Notes of the same Series as such Term Note to be
prepaid on such date, identifying each Term Note held by such holder, and the
principal amount of each such Term Note, to be prepaid on such date and
stating that such prepayment is to be made pursuant to paragraph 1L(1).
Notice of prepayment having been given as aforesaid, the principal amount of
the Term Notes specified in such notice, together with interest thereon to
the prepayment date and together with the Yield-Maintenance Amount, if any,
herein provided, shall become due and payable on such prepayment date. The
Company shall, on or before the day on which it gives written notice of any
prepayment pursuant to paragraph 1L( 1), give telephonic notice of the
principal amount of the Term Notes to be prepaid and the prepayment date to
each Significant Holder which shall have designated a recipient for such
notices in the Information Schedule attached hereto or by notice in writing
to the Company.
1L(3). APPLICATION OF PREPAYMENTS. In the case of each prepayment of less
than the entire unpaid principal amount of all outstanding Term Notes of any
Series, the amount to be prepaid shall be allocated to all outstanding Term
Notes of such Series (including, for the purpose of this paragraph 1L(3)
only, all Term Notes of such Series prepaid or otherwise retired or purchased
or otherwise acquired by the Company or any of its Subsidiaries or Affiliates
other than by payment of installments as stated therein or prepayment
pursuant to the Mortgage, paragraph 1L(1) or paragraph 5F) in proportion to
the respective unpaid principal amounts thereof.
1L(4). RETIREMENT OF TERM NOTES. The Company shall not, and shall not
permit any of its Subsidiaries or Affiliates to, prepay or otherwise retire
in whole or in part prior to their stated installments (other than by
prepayment pursuant to the Mortgage, paragraph 1L(1), paragraph 5F or upon
acceleration of such final maturity pursuant to paragraph 7A), or purchase or
otherwise acquire, directly or indirectly, Term Notes held by any holder,
unless the Company or such Subsidiary or Affiliate shall have offered to
prepay or otherwise retire or purchase or otherwise acquire, as the case may
be, the same proportion of the aggregate principal amount of Term Notes of
the same Series held by each other holder of Term Notes at the time
outstanding upon the same terms and conditions. Any Term Notes so prepaid or
otherwise retired or purchased or otherwise acquired by the Company or any of
its Subsidiaries or Affiliates shall not be deemed to be outstanding for any
purpose under this Agreement, except as provided in paragraph 1L(3).
2. REVOLVING CREDIT FACILITY.
2A. THE REVOLVING LOANS. Subject to and upon the terms and conditions
herein set forth, Prudential shall lend to the Company from time to time on
any Business Day during the period from the
5
date hereof to the earlier to occur of (i) the date on which (A) the Company
pays (other than pursuant to paragraph 2B(1)) in their entirety any Notes
issued under this Agreement or any 1993 Notes, (B) Prudential or any
Prudential Affiliate exercises its option to require prepayment in their
entirety of any Notes issued under this Agreement or any 1993 Notes, or (c)
any Notes issued under this Agreement or any 1993 Notes are otherwise prepaid
in their entirety or required to be so prepaid, including without limitation
by automatic acceleration, demand for payment or pursuant to the Mortgage,
and (ii) June 15, 2000, or such later date or dates as Prudential and the
Company shall agree pursuant to paragraph 2G (the "REVOLVING LOANS
TERMINATION DATE") sums (each a "REVOLVING LOAN" and collectively the
"REVOLVING LOANS") which in the aggregate principal amount outstanding shall
not exceed at any one time $5,000,000 (such maximum aggregate amount being
herein referred to as the "REVOLVING COMMITMENT"). Within the limits of the
Revolving Commitment and subject to the terms and conditions herein set
forth, the Company may borrow, prepay pursuant to paragraph 2B and reborrow
under paragraph 2C.
The principal amount of each Revolving Loan shall be $100,000 or an
integral multiple thereof. Revolving Loans shall be evidenced by an original
senior secured revolving note of the Company or a replacement therefor as
provided for herein in the form of Exhibit D hereto (each a "REVOLVING NOTE",
collectively the "REVOLVING NOTES" and, together with the Term Notes, the
"NOTES"). Each Revolving Note shall (i) be dated the date of this Agreement,
(ii) be in a principal amount equal to the Revolving Commitment, (iii) bear
interest with respect to the principal amount from time to time outstanding
(x) from the date thereof until the principal thereof shall have become due
and payable (whether by acceleration or otherwise) at the LIBOR Rate
calculated as specified in paragraph 2F and (y) after such date until paid at
a rate per annum which shall be the greater of 2% per annum in excess of the
LIBOR Rate or 2% per annum in excess of the rate of interest publicly
announced from time to time by Xxxxxx Guaranty Trust Company of New York as
its "prime rate", in each case calculated as provided in paragraph 2F and (v)
be payable on or before the Revolving Loans Termination Date. Prudential
shall maintain internal records showing each Revolving Loan made by
Prudential hereunder and each principal payment thereon and shall note such
information on the reverse side of the Revolving Note prior to any transfer
thereof. If necessary to evidence any change in the provisions of this
Agreement relating to the Revolving Note and agreed to in writing by
Prudential and the Company, the Company shall furnish a replacement Revolving
Note to Prudential in substitution for, but not in discharge of the liability
evidenced by, the prior Revolving Note. Upon issuance of such replacement
Revolving Note by the Company, Prudential shall return the previously
outstanding Revolving Note to the Company.
2B. PREPAYMENTS OF REVOLVING NOTES.
2B(1). PREPAYMENT AT THE COMPANY'S OPTION. The Company shall have the
right, upon at least two Business Days' prior written notice, to prepay in
whole or in part, in amounts of $100,000 or integral multiples thereof,
without premium, prior to the express maturity date thereof, any Revolving
Note on any Business Day. Each notice of a prepayment under this paragraph
2B(1) shall specify the date and the principal amount of the prepayment.
2B(2). PREPAYMENT UNDER PARAGRAPH 5 OR THE MORTGAGE. The Revolving Notes
shall be subject to prepayment (i) in whole as provided in paragraph 5
hereof, and (ii) in whole or in part as provided in the Mortgage. In the
event pursuant to the Mortgage proceeds from any insurance policy or taking
or condemnation awards with respect to the Mortgaged Property (as defined in
the Mortgage) shall be distributed as a prepayment of the Revolving Notes,
the Company shall pay interest on each Revolving Note on the amount to be
distributed with respect to such Note to the date of such distribution.
2C. MANNER OF BORROWINGS. Unless otherwise specifically provided in
this Agreement, Prudential shall receive from the Company at least three
Business Days' prior written, telex, telecopier or telegraphic notice of its
intention to borrow hereunder, specifying the date on which it proposes to
borrow (which shall be a LIBOR Business Day) and the principal amount of the
proposed Revolving Loan. No later than 11:00 A.M. (New York City local time)
on the Business Day prior to the date of the proposed Loan, the Company will
deliver to Prudential a Revolving Note (unless an appropriate Revolving Note
has been previously delivered), together with such other documents and papers
as are
6
required under this Agreement, which materials shall be delivered to the
address set forth on the Information Schedule (or to such other place or in
such other manner as Prudential may by written notice to the Company
designate from time to time). Upon receipt of such Revolving Note (if
required), the notice provided for hereinabove, an Officer's Certificate as
provided for in paragraph 3B and such other documentation as may be required,
in form and substance satisfactory to Prudential, Prudential shall make the
proceeds of such Revolving Loan available to the Company on the date of the
proposed Revolving Loan designated in said notice by wire transfer for credit
to the Company's account #6355002280 at Norwest Bank Minnesota, National
Association, Norwest Center, 6th and Marquette, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, ABA #000-000-000, or to such other account or place as the
Company may hereafter designate by written notice to Prudential.
2D. NON-USAGE FEE. The Company shall pay to Prudential a non-usage fee
on the amount, if any, by which the average daily outstanding balance of
Revolving Loans during any full or partial calendar month from the date of
this Agreement to and including the Revolving Loans Termination Date is less
than the average daily amount of the Revolving Commitment during such month,
at the rate of 1/2 of 1% per annum.
2E. CANCELLATION OF COMMITMENT. At any time on or after June 15, 1994,
the Company shall have the right, upon at least 90 days' prior written notice
and upon prepayment of all Revolving Loans, to cancel the Revolving
Commitment. Upon such cancellation, no further Revolving Loans shall be made
pursuant to paragraph 2A and no further non-usage fees shall be payable
pursuant to xxxxxxxxx 0X.
0X. INTEREST AND NON-USAGE FEE PAYMENTS. Interest and non-usage fees
in connection with the Revolving Loans for any month shall be payable in
arrears on the first Business Day of the following month and shall be
calculated on the basis of actual days outstanding during the month
(exclusive of any days for which payment was made in the preceding payment)
plus the number of days after such period to but not including the payment
day and on the basis of a year of 360 days. If any interest or non-usage fee
on any Revolving Loan is not paid when due, interest thereon at the default
rate applicable to such Revolving Loan specified in paragraph 2A shall be
payable from and including the due date until paid.
2G. EXTENSION OF REVOLVING LOANS TERMINATION DATE. If agreed in writing
by Prudential and the Company prior to one year in advance of the Revolving
Loans Termination Date or any extension thereof, the Revolving Loans
Termination Date shall be extended for one year. No Revolving Loans shall be
made after the Revolving Loans Termination Date.
2H. ILLEGALITY. If it shall become unlawful for United States banks to
obtain funds in the London interbank market, or if Prudential is otherwise
unable to make or maintain Revolving Loans hereunder utilizing the LIBOR
Rate, upon at least five Business Days' notice by Prudential to the Company
the rate of interest per annum on all Revolving Loans shall be the Adjusted
Commercial Paper Rate.
3. CONDITIONS PRECEDENT.
3A. CONDITIONS TO AVAILABILITY OF FACILITY AND REVOLVING
COMMITMENT. The availability of the Facility pursuant to paragraph 1, and the
obligation of Prudential to make Revolving Loans available to the Company
pursuant to paragraph 2, are subject to the satisfaction of the following
conditions on the date of this Agreement:
3A(1). OPINION OF PURCHASERS' SPECIAL COUNSEL. Prudential shall have
received from Faegre & Xxxxxx, who are acting as special counsel for
Prudential in connection with this transaction, a favorable opinion
satisfactory to Prudential as to such matters incident to the matters herein
contemplated as it may reasonably request.
3A(2). OPINION OF COMPANY'S COUNSEL. Prudential shall have received (i)
from Xxxxxx and Xxxxxx, special counsel for the Company, a favorable opinion
satisfactory to Prudential and substantially in the form of Exhibit E-1
attached hereto, and (ii) from Xxxxxx X. Xxxxxxx, Xx., General Counsel to the
7
Company and counsel to Manager, a favorable opinion satisfactory to
Prudential and substantially in the form of Exhibit B-2 attached hereto. The
Company hereby directs each such counsel to deliver such opinion, agrees that
the delivery by the Company of an appropriate Revolving Note or Revolving
Notes will constitute a reconfirmation of such direction, and understands and
agrees that Prudential will and is hereby authorized to rely on each such
opinion.
3A(3). PURCHASE OF ASSETS. The Company shall have acquired the Project
from ECPLP pursuant to the terms and conditions of the Master Purchase
Agreement, a copy of which has been delivered to Prudential. All counsel
rendering opinions to the Company pursuant to the Master Purchase Agreement
shall have named Prudential as an additional addressee of such opinions or
shall have otherwise consented to reliance thereon by Prudential.
3A(4). MANAGEMENT AGREEMENT. The Company shall have entered into a
management agreement (the "Management Agreement") with Manager in form and
substance acceptable to Prudential.
3A(5). SECURITY.
(i) The Company shall have executed and delivered to the Collateral
Agent, as security for the Revolving Note or Revolving Notes, a
Combination Mortgage, Security Agreement and Fixture Financing
Statement substantially in the form of Exhibit F hereto
attached (as from time to time amended, the "Mortgage").
(ii) Prudential, the holders of the 1993 Notes and the Collateral
Agent shall have executed and delivered a Collateral Agency and
Intercreditor Agreement (as from time to time amended to add
additional parties thereto and as otherwise amended from time
to time, the "Collateral Agency Agreement"), and the Company
shall have executed and delivered an Acknowledgment and
Agreement to be appended thereto (the "Acknowledgment"), all
substantially in the form of Exhibit G hereto attached.
3A(6). CAPITALIZATION. The capital structure of the Company shall be
acceptable to Prudential. Without limiting the generality of the foregoing,
the Company shall have (i) received on or prior to the date of closing cash
contributions to its capital in an aggregate amount not less than the greater
of (1) $20,000,000, or (2) an amount equal to 20% of Total Capitalization,
and (ii) delivered to Prudential an Officer's Certificate, dated the date of
this Agreement, to such effect.
3A(7). REPORTS OF CONSULTANTS. The Company shall have received a report
or reports in form and substance satisfactory to Prudential from (i) the
Engineer, as to matters described in The Scope of Services Agreement for
Engineering Services appended to the letter agreement dated March 15, 1993 by
the Engineer in favor of NRG and such other matters as the Engineer shall
have been engaged to address, and (ii) Twin City, as to certain storage tank
matters. Each of the Consultants shall have named Prudential as an additional
addressee of such reports or shall have otherwise consented to reliance
thereon by Prudential.
3A(8). TITLE INSURANCE. The Collateral Agent shall have received from
Commonwealth a policy of mortgagee's title insurance in an amount not less
than $89,000,000, which insurance (i) shall designate the Collateral Agent as
insured, (ii) shall be substantially in conformity with Exhibit H (the "Title
Insurance Commitment") and (iii) shall be underwritten with reinsurance in a
manner and to an extent satisfactory to Prudential.
3A(9). OTHER INSURANCE. Prudential shall have been provided with
certificates and such other evidence as Prudential may reasonably request
indicating that the Company is in compliance with the requirements of
paragraph 5E, including without limitation the insurance consultant's
certificate required pursuant to paragraph 9 of the Mortgage.
3A(10). ESTOPPEL CERTIFICATES. The Company shall have obtained estoppel
certificates in form and substance satisfactory to Prudential with respect to
(i) any of the existing Service Contracts as to which Prudential may require
such an estoppel certificate, (ii) the building lease covering the Soo Line
facility, (iii) the ground lease covering the Convention Center facility,
(iv) the air rights lease covering the
8
Target Arena facility, and (v) the agreement covering the Xxxxx Plant. The
estoppel certificates referred to in the foregoing clauses (ii) through and
including (v) shall contain an express consent to the collateral assignment
thereof contained in the Mortgage, and the estoppel certificate referred to
in the foregoing clause (ii) shall contain the consent of the lessor's
mortgagee.
3A(11). LIEN SEARCHES. Prudential shall have received such Uniform
Commercial Code, tax lien, judgment and bankruptcy searches and real estate
title reports against the Company and ECPLP as Prudential may request,
certified by reporting services satisfactory to Prudential, and disclosing no
security interests, liens or other encumbrances other than those permitted
under paragraph 6B(l).
3A(12). PROCEEDINGS. All corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby and by the
Master Purchase Agreement and all documents incident thereto shall be
satisfactory in substance and form to Prudential, and Prudential shall have
received all such counterpart originals or certified or other copies of such
documents as it may reasonably request.
3A(13). EXISTING INDEBTEDNESS. The Indebtedness of ECPLP evidenced by
promissory notes issued pursuant to the Existing Loan Agreements shall have
been paid in whole in accordance with the terms of the Existing Loan
Agreements or on other terms acceptable to the holders of such notes.
3A(14). NOTE AGREEMENT. The Company shall have entered into a Note
Agreement (as from time to time amended, the "Note Agreement") with
Prudential, Connecticut General Life Insurance Company, The North Atlantic
Life Insurance Company of America, Northwestern National Life Insurance
Company, Allegiance Insurance Company, and Connecticut General Life Insurance
Company, on behalf of one or more separate accounts, in form and substance
acceptable to Prudential.
3B. CONDITIONS OF EACH TERM NOTE CLOSING. The obligation of any
Purchaser to purchase and pay for any Accepted Notes is subject to the
satisfaction, on or before the Closing Day for such Accepted Notes, of the
following conditions:
3B(1). TERM NOTES. There shall have been delivered to such Purchaser an
appropriate Term Note or Term Notes duly completed and executed.
3B(2). REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The representations
and warranties contained in paragraph 8 shall be true on and as of such
Closing Day, except to the extent of changes caused by the transactions
herein contemplated and to the extent such representations and warranties by
their express terms relate solely to an earlier date; there shall exist on
such Closing Day no Event of Default or Default; and the Company shall have
delivered to such Purchaser an Officer's Certificate, dated such Closing Day,
to both such effects. In addition to the foregoing, the Company shall include
in the Officer's Certificate delivered pursuant to the next preceding
sentence further representations and warranties to the following effects:
(i) the latest financial statements delivered by the Company
pursuant to paragraphs 5A(i) and 5A(ii) (including any related
schedules and/or notes) are true and correct in all material
respects (subject, as to interim statements, to changes
resulting from audits and year-end adjustments), have been
prepared in accordance with generally accepted accounting
principles consistently followed throughout the periods
involved and show all liabilities, direct and contingent, of
the Company required to be shown in accordance with such
principles; the balance sheets fairly present the condition of
the Company as of the dates thereof, and the statements of
income, stockholders' equity and cash flows fairly present the
results of operations of the Company and its cash flows for the
periods indicated; and there has been no material adverse
change in the business, property or assets, condition
(financial or otherwise) or operations of the Company or the
Project since the date of the most recent balance sheet
furnished pursuant to paragraph 5A(i) or 5A(ii);
(ii) there is no action, suit, investigation or proceeding pending
or, to the knowledge of the Company, threatened against the
Company or the Project, or any properties or rights of the
9
Company or the Project, by or before any court, arbitrator or
administrative or governmental body which might result in any
material adverse change in the business, property or assets,
condition (financial or otherwise) or operations of the Company
or the Project;
(iii) the Company has filed all federal, state and other income tax
returns which, to the knowledge of the officers of the Company,
are required to be filed, and has paid all taxes shown on such
returns and on all assessments received by it to the extent
that such taxes have become due, except such taxes as are being
contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with
generally accepted accounting principles;
(iv) each of the Company and Manager has procured and is in
possession of all licenses, permits or registrations required
by federal, state or local laws for the ownership, operation
and maintenance of the Project, as the case may be;
(v) the Company and all of its properties and facilities (including
without limitation the Project) have complied at all times and
in all respect with all Environmental Laws except, in any such
case, where failure to comply would not result in a material
adverse effect on the business, properties or assets, condition
(financial or otherwise) or operations of the Company or the
Project; and
(vi) in accordance with the provisions of the Collateral Agency
Agreement, all actions required to subject such Accepted Notes
and the holders thereof thereto and to cause such Accepted
Notes to be secured by the Mortgage have been taken.
3B(3). PURCHASE PERMITTED BY APPLICABLE LAWS. The purchase of and payment
for the Accepted Notes to be purchased by such Purchaser on the terms and
conditions herein provided (including the use of the proceeds of the Accepted
Notes by the Company) shall not violate any applicable law or governmental
regulation (including, without limitation, Section 5 of the Securities Act or
Regulation G, T or X of the Board of Governors of the Federal Reserve System)
and shall not subject such Purchaser to any tax, penalty, liability or other
onerous condition under or pursuant to any applicable law or governmental
regulation, and such Purchaser shall have received such certificates or other
evidence as it may request to establish compliance with this condition.
3B(4). LEGAL MATTERS. Counsel for such Purchaser, including any special
counsel for the Purchasers retained in connection with the purchase and sale
of such Accepted Notes, shall be satisfied as to all legal matters relating
to such purchase and sale, and such Purchaser shall have received from such
counsel favorable opinions as to such legal matters as it may request.
3B(5). PROCEEDINGS. All corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in substance and form to
such Purchaser, and it shall have received all such counterpart originals or
certified or other copies of such documents as it may reasonably request.
3B(6). CHANGE IN THE COMPANY'S CONDITION. There shall not have occurred
or be threatened (i) a material and adverse change in the Company's financial
position, or (ii) any condition, event or act which would materially and
adversely affect the Project, the Company's business or its ability to repay
any Accepted Note.
3B(7). SUBSEQUENT OPINIONS, ETC. Such Purchaser shall have received (i)
from Xxxxxx and Xxxxxx, special counsel for the Company (or such other
counsel as shall be acceptable to such Purchaser), a favorable opinion in
form and substance satisfactory to such Purchaser, which opinion shall be
substantially in the form of Exhibit I hereto as to the matters covered
thereby and shall cover such additional matters incident to the purchase of
such Accepted Note and the transactions contemplated by this Agreement as
such Purchaser shall reasonably specify, and (ii) such other approvals or
documents as such Purchaser may reasonably request.
3C. CONDITIONS PRECEDENT TO EACH REVOLVING LOAN. Prudential's
obligation to make each Revolving Loan to the Company is subject to the
satisfaction of the following conditions:
10
3C(1). REVOLVING NOTES. There shall have been delivered to Prudential an
appropriate Revolving Note or Revolving Notes duly completed and executed.
3C(2). REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The representations
and warranties contained in paragraph 8 shall be true on and as of the date
of such Revolving Loan, except to the extent of changes caused by the
transactions herein contemplated and to the extent such representations and
warranties by their express terms relate solely to an earlier date; there
shall exist on the date of such Revolving Loan no Event of Default or
Default; and the Company shall have delivered to Prudential an Officer's
Certificate, dated the date of such Revolving Loan, to both such effects. In
addition to the foregoing, the Company shall further include in the Officer's
Certificate delivered pursuant to the next preceding sentence further
representations and warranties to the following effects:
(i) the latest financial statements delivered by the Company
pursuant to paragraphs 5A(i) and 5A(ii) (including any related
schedules and/or notes) are true and correct in all material
respects (subject, as to interim statements, to changes
resulting from audits and year-end adjustments), have been
prepared in accordance with generally accepted accounting
principles consistently followed throughout the periods
involved and show all liabilities, direct and contingent, of
the Company required to be shown in accordance with such
principles; the balance sheets fairly present the condition of
the Company as of the dates thereof, and the statements of
income, stockholders' equity and cash flows fairly present the
results of operations of the Company and its cash flows for the
periods indicated; and there has been no material adverse
change in the business, property or assets, condition
(financial or otherwise) or operations of the Company or the
Project since the date of the most recent balance sheet
furnished pursuant to paragraph 5A(i) or 5A(ii);
(ii) there is no action, suit, investigation or proceeding pending
or, to the knowledge of the Company, threatened against the
Company or the Project, or any properties or rights of the
Company or the Project, by or before any court, arbitrator or
administrative or governmental body which might result in any
material adverse change in the business, property or assets,
condition (financial or otherwise) or operations of the Company
or the Project;
(iii) the Company has filed all federal, state and other income tax
returns which, to the knowledge of the officers of the Company,
are required to be filed, and has paid all taxes shown on such
returns and on all assessments received by it to the extent
that such taxes have become due, except such taxes as are being
contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with
generally accepted accounting principles;
(iv) each of the Company and Manager has procured and is in
possession of all licenses, permits or registrations required
by federal, state or local laws for the ownership, operation
and maintenance of the Project, as the case may be; and
(v) the Company and all of its properties and facilities (including
without limitation the Project) have complied at all times and
in all respects with all Environmental Laws except, in any such
case, where failure to comply would not result in a material
adverse effect on the business, properties or assets, condition
(financial or otherwise) or operations of the Company or the
Project.
Each of the giving of the applicable notice of borrowings pursuant to
paragraph 2C and the acceptance by the Company of the proceeds of such
Revolving Loan shall constitute a representation and warranty by the Company
to all such effects on the date of such Revolving Loan.
3C(3). REVOLVING LOAN PERMITTED BY APPLICABLE LAWS. The Revolving Loan
(including the use of the proceeds of such Revolving Loan by the Company)
shall not violate any applicable law or governmental regulation (including,
without limitation, section 5 of the Securities Act or Regulation G, T or X
of the Board of Governors of the Federal Reserve System) and shall not
subject Prudential to any tax, penalty, liability or other onerous condition
under or pursuant to any applicable law or governmental regulation, and
Prudential shall have received such certificates or other evidence as it may
request to establish compliance with this condition.
11
3C(4). LEGAL MATTERS. Prior to the initial Revolving Loan hereunder,
Prudential's counsel, including any special counsel retained by it in
connection with the purchase and sale of the Revolving Notes, shall be
satisfied as to all legal matters relating to such purchase and sale, and
Prudential shall have received from such counsel favorable opinions as to
such legal matters as it may request.
3C(5). PROCEEDINGS. Prior to the initial Revolving Loan hereunder, all
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident thereto shall be
satisfactory in substance and form to Prudential, and Prudential shall have
received all such counterpart originals or certified or other copies of such
documents as it may reasonably request.
3C(6). CHANGE IN THE COMPANY'S CONDITION. There shall not have occurred
or be threatened (i) a material and adverse change in the Company's financial
position, or (ii) any condition, event or act which would materially and
adversely affect the Project, the Company's business or its ability to repay
any Revolving Loan.
3C(7). SUBSEQUENT OPINIONS, ETC. If Prudential so requires as a condition
precedent to the making of any Revolving Loan, Prudential shall have received
(i) from Xxxxxx and Xxxxxx, special counsel for the Company (or such other
counsel as shall be acceptable to Prudential), a favorable opinion in form
and substance satisfactory to Prudential covering such matters incident to
such Revolving Loan and the transactions contemplated by this Agreement as
Prudential shall reasonably specify, and (ii) such other approvals or
documents as Prudential may reasonably request.
4. [INTENTIONALLY OMITTED]
5. AFFIRMATIVE COVENANTS.
5A. FINANCIAL STATEMENTS. The Company covenants that it will deliver to
each Significant Holder in triplicate:
(i) as soon as practicable and in any event within 45 days after
the end of each quarterly period in each fiscal year (including
the fourth quarterly period), statements of income,
stockholders' equity and cash flows of the Company for the
period from the beginning of the current fiscal year to the end
of such quarterly period, and a balance sheet of the Company as
at the end of such quarterly period, setting forth in each case
in comparative form figures for the corresponding period in the
preceding fiscal year, all in reasonable detail and
satisfactory in form to the Required Holder(s) of the Revolving
Notes and the Term Notes of each Series and certified by an
authorized financial officer of the Company, subject to changes
resulting from year-end adjustments and, in the case of the
fourth quarterly period only, a detailed financial budget for,
at minimum, the then current fiscal year;
(ii) as soon as practicable and in any event within 120 days after
the end of each fiscal year, statements of income and cash
flows and a statement of stockholders' equity of the Company
for such year, and a balance sheet of the Company as at the end
of such year, setting forth in each case in comparative form
corresponding figures from the preceding annual audit, all in
reasonable detail and satisfactory in form to the Required
Holder(s) of the Revolving Notes and of the Term Notes of each
Series and reported on by independent public accountants of
recognized national standing selected by the Company whose
report shall be without limitation as to scope of the audit and
satisfactory in substance to the Required Holder(s) of the
Revolving Notes and of the Term Notes of each Series;
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as
it shall send to its public stockholders and copies of all
registration statements (without exhibits) and all reports
which it files with the Securities and Exchange Commission (or
any governmental body or agency succeeding to the functions of
the Securities and Exchange Commission);
12
(iv) promptly upon receipt thereof, a copy of each other report
submitted to the Company by independent accountants in
connection with any annual, interim or special audit made by
them of the books of the Company; and
(v) with reasonable promptness, such other financial data as such
Significant Holder may reasonably request.
Together with each delivery of financial statements required by clause (i)
above, the Company will deliver to each Significant Holder (A) a copy of each
Service Agreement or renewal thereof entered into by the Company during the
quarterly period to which such financial statements relate, and (B) an
Officer's Certificate identifying each Service Contract which terminated and
was not renewed during such quarterly period. Together with each delivery of
financial statements required by clauses (i) and (ii) above, the Company will
deliver to each Significant Holder an Officer's Certificate demonstrating
(with computations in reasonable detail) compliance by the Company with the
provisions of paragraphs 6B(2) and 6B(5), and stating that there exists no
Event of Default or Default, or, if any Event of Default or Default exists,
specifying the nature and period of existence thereof and what action the
Company proposes to take with respect thereto. Together with each delivery of
financial statements required by clause (ii) above, the Company will deliver
to each Significant Holder (A) a schedule of Service Contracts in force as of
the end of the fiscal year to which such financial statements relate (which
schedule shall specify the termination date of each such Service Contract and
the actual demand for and consumption of services pursuant to each such
Service Contract during such fiscal year in terms of aggregate amounts paid
by the customer therefor and aggregate volume per customer), and (B) a
certificate of the accountants reporting on such financial statements stating
that, in making the audit necessary for their report on such financial
statements, they have obtained no knowledge of any Event of Default or
Default, or, if they have obtained knowledge of any Event of Default or
Default, specifying the nature and period of existence thereof. Such
accountants, however, shall not be liable to anyone by reason of their
failure to obtain knowledge of any Event of Default or Default which would
not be disclosed in the course of an audit conducted in accordance with
generally accepted auditing standards. The Company also covenants that
immediately after any Responsible Officer obtains knowledge of an Event of
Default or Default, it will deliver to each Significant Holder an Officer's
Certificate specifying the nature and period of existence thereof and what
action the Company proposes to take with respect thereto.
5B. INFORMATION REQUIRED BY RULE 144A. The Company covenants that it
will, upon the request of the holder of any Note, provide such holder, and
any qualified institutional buyer designated by such holder, such financial
and other information as such holder may reasonably determine to be necessary
in order to permit compliance with the information requirements of Rule l44A
under the Securities Act in connection with the resale of Notes, except at
such times as the Company is subject to the reporting requirements of section
13 or 15(d) of the Exchange Act. For the purpose of this paragraph 5B, the
term "qualified institutional buyer" shall have the meaning specified in Rule
144A under the Securities Act.
5C. INSPECTION OF PROPERTY. The Company covenants that it will permit
any Person designated by any Significant Holder in writing, at such
Significant Holder's expense, to visit and inspect any of the properties of
the Company, to examine the corporate books and financial records of the
Company and make copies thereof or extracts therefrom and to discuss the
affairs, finances and accounts of the Company with the principal officers of
the Company and its independent public accountants, all at such reasonable
times and as often as such Significant Holder may reasonably request, it
being understood that such Significant Holder shall direct such Person to use
its best efforts to hold in confidence and not disclose any Confidential
Information except to such Significant Holder or to any party to which such
Significant Holder would be permitted to disclose such Confidential
Information pursuant to paragraph 11H.
5D. AGREEMENT ASSUMING LIABILITY ON NOTES. The Company covenants that,
if at any time any Person should become liable (as co-obligor, endorser,
guarantor or surety) on any other obligation of the Company for borrowed
money, the Company will, at the same time, cause such Person to deliver to
each holder of Notes an agreement pursuant to which such Person becomes
similarly liable on the Notes.
13
5E. MAINTENANCE OF INSURANCE. The Company covenants that it will
maintain the insurance required to be maintained pursuant to the Mortgage,
and together with each delivery of financial statements under clause (ii) of
paragraph 5A, it will, upon the request of any Significant Holder, deliver to
each Significant Holder an Officer's Certificate specifying the details of
such insurance in effect.
5F. PAYMENT IF CONTROL CHANGES. The Company covenants that, in the
event that at any time (i) NRG shall directly own less than a Controlling
Interest in the Company or the Manager, and as a result thereof the Company
or the Manager shall become subject to regulation under the Public Utility
Holding Company Act of 1935, as amended, or the Federal Power Act, as
amended, or otherwise as a public utility under federal law or the law of the
State of Minnesota, or (ii) NSP shall own, directly or indirectly, less than
a Controlling Interest in NRG, the Company or the Manager, then in either
case the Company will promptly give to each holder of a Note written notice
thereof and will, upon the demand of the Required Holder(s) of the Term Notes
of any Series or of the Revolving Notes in writing given to the Company
within 30 days after such notice, prepay the Term Notes of such Series or the
Revolving Notes (as the case may be) in whole together with interest accrued
thereon to the prepayment date, non-usage fees in connection therewith (in
the case of the Revolving Notes) and together with the Yield-Maintenance
Amount, if any, with respect to each Term Note of such Series (in the case of
Term Notes), on the date specified in such demand, which shall be not less
than 30 days after such demand.
5G. RIGHTS UNDER PURCHASE DOCUMENTS. The Company covenants that it will
enforce all material rights under the Purchase Documents, including but not
limited to its indemnification rights.
5H. NOTICE OF DEFAULTS AND VIOLATIONS. The Company covenants that it
will give each holder of a Note written notice within seven (7) Business Days
of:
5H(1). DEFAULTS. Receipt by the Company of (i) oral or written notice of
breach or default by the Company or Manager under the Management Agreement,
(ii) written notice of default by the Company under any agreement for the
sale of steam, hot water and/or chilled water produced by the Project,
whether now existing or entered into after the date hereof (such agreements
being referred to herein as "Service Contracts"), including without
limitation the Service Agreements (as defined in the Personal Property
Agreement), (iii) written notice of material default by the Company under, or
termination or revocation of any easements, permits, supply contracts, leases
or similar agreements comprising part of or benefiting the Project, whether
now existing or created after the date hereof, including without limitation
the Easements (as referred to in the Real Property Agreement), the
Environmental Permits, the Encroachment Permits, the Miscellaneous Permits,
the Supply Contracts and the Leases (each such capitalized term as defined in
the Personal Property Agreement), including the building lease covering the
500 Line facility, the ground lease covering the Convention Center facility,
the air rights lease covering the Target Arena facility, and the agreement
covering the Xxxxx Plant.
5H(2). VIOLATIONS. Receipt by the Company of oral or written notice of
any material violation by the Company or Manager, in connection with the
ownership, operation and maintenance of the Project, of (i) the terms or
conditions of any license, permit or registration required by federal, state
or local laws for the ownership, operation and maintenance of the Project, or
(ii) any Environmental Laws.
5I. MAINTENANCE OF LICENSES, PERMITS AND REGISTRATIONS. The Company
covenants that it will take, and will require Manager to take all action to
maintain all licenses, permits and registrations required by federal, state
or local laws for the ownership, operation and maintenance of the Project.
5J. ACTION REGARDING LICENSES, ETC. AND ENVIRONMENTAL MATTERS. With
respect to any license, permit, exemption or registration in respect of which
further action is hereafter appropriate (as reflected in paragraph 8N), the
Company covenants that it will use its best efforts to accomplish such action
as promptly hereafter as practicable. With respect to any environmental
matter in respect of which remedial or other action is required (as reflected
in paragraph 8S), the Company covenants that it will use its best efforts to
accomplish such action as promptly hereafter as practicable.
6. NEGATIVE COVENANTS.
6A. FEES LIMITATION. The Company covenants (i) that the Management Fee
shall be the sole compensation payable by the Company to Manager for the
services rendered by Manager pursuant
14
to the Management Agreement, and (ii) that the Management Fee shall not be
paid except out of Operating Income remaining after payment of (A) accrued
interest on the Notes and the other Debt permitted by paragraph 6B(2), and
(B) required prepayments of principal of the Notes and the other Debt
permitted by paragraph 6B(2). Nothing herein contained shall prohibit the
payment of such fees during the course of the year pending the determination
of Operating Income, subject to the repayment obligations of Manager
contained in the Management Agreement.
6B. LIEN, DEBT AND OTHER RESTRICTIONS. The Company covenants that it
will not
6B(1). LIENS. Create, assume or suffer to exist any Lien upon any of its
property or assets, whether now owned or hereafter acquired, except:
(i) Liens under the Mortgage in the favor of the Collateral Agent,
which Liens shall secure equally and ratably the 1993 Notes and
the Debt permitted by the provisions of clauses (ii) and (iii)
of paragraph 6B(2);
(ii) existing Liens which were not incurred in connection with the
borrowing of money or the obtaining of advances of credit and
which are listed in Schedule B to the Title Insurance
Commitment or in Exhibit B to the Mortgage;
(iii) Liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings; and
(iv) other Liens incidental to the conduct of its business or the
ownership of its property and assets which were not or are not
incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the
aggregate materially detract from the value of its property or
assets or materially impair the use thereof in the operation of
its business.
6B(2). DEBT. Create, incur, assume or suffer to exist any Funded Debt or
Current Debt, except:
(i) Funded Debt represented by the 1993 Notes;
(ii) additional Funded Debt, including without limitation Funded
Debt represented by Term Notes, provided that the Company shall
not create, incur or assume any such Funded Debt unless (A) as
of the end of the fiscal quarter most recently completed at the
time such Funded Debt is proposed to be created, incurred or
assumed, and as of the end of each of the eleven consecutive
fiscal quarters completed immediately prior thereto, Operating
Income Available for Debt Expense for the immediately preceding
twelve-month period shall have been not less than 125 % of Debt
Expense for such twelve-month period, (B) upon giving effect
thereto and the application of the proceeds thereof, on a pro
forma projected basis (such projections to fairly present the
Company's proposed business plans and the Company's good faith
estimate as to matters projected therein based on reasonable
business assumptions, and to be reasonably based on such
assumptions and the best information available to the officers
of the Company) as of the end of each fiscal year thereafter
ending through and including the fiscal year ending December
3.1, 2013, Operating Income Available for Debt Expense for the
immediately preceding twelve-month period shall be projected to
be not less than 135% of Debt Expense for such twelve-month
period, (C) the proceeds of such Funded Debt shall be used
exclusively to acquire assets which will constitute part of the
Project and the amount of such Funded Debt shall not exceed 80%
of the lesser of the cost or the fair value of the assets to be
acquired with the proceeds thereof, such fair value to be
reasonably established by the board of directors of the
Company, (D) the terms of such Funded Debt shall (1) with
respect to Funded Debt other than Funded Debt represented by
Term Notes, include a maturity date which shall be on or after
June 15, 2013, (2) require payment in equal quarterly
installments of principal and interest from incurrence through
maturity (i.e., quarterly mortgage-style amortization) and (3)
not be amended after issuance with respect to interest rate or
payment terms without the consent of the Required Holder(s),
and (E) in accordance with the provisions
15
of the Collateral Agency Agreement, such Funded Debt shall
become subject thereto and secured by Liens under the Mortgage
in favor of the Collateral Agent and any holder of such Funded
Debt not already a party thereto shall become a party thereto;
and
(iii) Current Debt evidenced by the Revolving Note or Revolving
Notes, provided that the Company shall be free of all such
Current Debt for a period of 60 consecutive days in each
calendar year commencing with the calendar year ending December
31,1994.
6B(3). LOANS, ADVANCES, INVESTMENTS AND CONTINGENT LIABILITIES. Make or
permit to remain outstanding any loan or advance to, or guarantee, endorse or
otherwise be or become contingently liable, directly or indirectly, in
connection with the obligations, stock or dividends of, or own, purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any Person (including any corporation
proposed to be acquired or created as a Subsidiary), except that the Company
may
(i) own, purchase or acquire (x) prime taxable and tax-exempt
commercial paper rated "P-1" or better by Xxxxx'x Investors
Service, Inc. or "A-1" or better by Standard & Poor Corporation
and certificates of deposit in United States commercial banks
having capital resources in excess of $250,000,000 and (y)
obligations of the United States Government or any agency
thereof in each case due within one year from the date of
purchase;
(ii) own, purchase or acquire shares of mutual funds that invest
exclusively in commercial paper, certificates of deposit and
obligations of the type described in the foregoing clause (i)
or other readily marketed corporate debt due within one year
from the date of purchase, provided such investments are rated
"Aa3" or better by Xxxxx'x Investors Service, Inc. or "AA-" or
better by Standard & Poor Corporation;
(iii) endorse negotiable instruments for collection in the ordinary
course of business;
(iv) make or permit to remain outstanding travel and other like
advances to officers and employees in the ordinary course of
business; and
(v) make or permit to remain outstanding loans or advances to, or
own, purchase or acquire stock, obligations or securities of,
any other Person (other than any corporation or other Person
proposed to be acquired or created as a Subsidiary, it being
understood that the acquisition or creation of any such
Subsidiary by the Company is expressly prohibited hereby),
provided that the aggregate principal amount of such loans and
advances, plus the aggregate amount of the investment (at
original cost) in such stock, obligations and securities, shall
not exceed $2,500,000 at any time outstanding.
6B(4). MERGER AND SALE OF ASSETS. Merge or consolidate with any other
corporation or sell, lease or transfer or otherwise dispose of all or a
substantial part (i.e., assets which individually or taken as a whole (i) are
an integral part of the Project, (ii) constitute more than 10% of the assets
of the Company, or (iii) have contributed more than 10% of Operating Income
of the Company or ECPLP for any of the three fiscal years then most recently
ended) of its assets to any Person.
6B(5). LEASE RENTALS. Enter into, or permit to remain in effect, any
agreements to rent or lease (as lessee) any real or personal property, for
initial terms (including options to renew or extend any term, whether or not
exercised) of more than one year providing for payments by the Company to
lessors during any period of 12 consecutive calendar months in excess of the
following aggregate amounts per annum:
(i) through and including December 31, 1993, $500,000 (the initial
"Rent Limit"); and
(ii) thereafter, and through and including December 31 of each year
thereafter, an amount equal to the product of the Rent Limit
for the immediately preceding twelve-month period multiplied by
a fraction, the numerator of which shall be the CPI for the
last month of such immediately preceding twelve-month period
and the denominator of which shall be the CPI for the month
immediately preceding such twelve-month period.
16
6B(6). SALE OR DISCOUNT OF RECEIVABLES. Sell with recourse, or discount
or otherwise sell for less than the face value thereof, any of its notes or
accounts receivable.
6B(7). CERTAIN CONTRACTS. Enter into or be a party to any contract for
the purchase of materials, supplies or other property or services if such
contract (or any related document) requires that payment for such materials,
supplies or other property or services shall be made regardless of whether or
not delivery of such materials, supplies or other property or services is
ever made or tendered, except that the Company may enter into "take or pay"
contracts with Persons not affiliated with the Company for the purchase of
oil or natural gas to be consumed in the operation of the Project, provided
that (i) no such contract has a term exceeding five years and (ii) the
aggregate purchase obligations under all such contracts for any twelve-month
period do not exceed 100% of the estimated fuel consumption for such period.
6B(8). SALE AND LEASE-BACK. Enter into any arrangement with any lender or
investor or to which such lender or investor is a party providing for the
leasing by the Company of real or personal property which has been or is to
be sold or transferred by the Company to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or rental obligations of the
Company.
6B(9). TRANSACTIONS WITH AFFILIATES. Except on terms no less favorable to
the Company than would be obtainable if no such relationship existed, and
except with respect to the Management Agreement and to tax-sharing
arrangements between the Company and any of its Affiliates (provided that
giving effect to such tax-sharing arrangements the Company shall not be
required to pay taxes in an amount in excess of that for which it would be
liable, assuming the application of the highest marginal tax rate paid by the
Company and its Affiliates on a consolidated basis, if it were to file its
own separate tax returns), directly or indirectly, purchase, acquire or lease
any property from, or sell, transfer or lease any property to, or otherwise
deal with, in the ordinary course of business or otherwise, any Affiliate.
6C. AMENDMENT OF MANAGEMENT AGREEMENT. The Company covenants that it
will not, without the prior written consent of the Required Holder(s) of the
Revolving Notes and of the Term Notes of each Series, amend or waive
enforcement of any provision of the Management Agreement, terminate or permit
the Management Agreement to be terminated, assign its rights and obligations
under the Management Agreement, or permit Manager to assign its rights and
obligations under the Management Agreement.
6D. MAINTENANCE OF PRESENT BUSINESS. The Company covenants that it will
not, without the prior written consent of the Required Holder(s) of the
Revolving Notes and of the Term Notes of each Series, engage in any business
other than the ownership, operation and maintenance of the Project.
7. EVENTS OF DEFAULT.
7A. ACCELERATION. If any of the following events shall occur and be
continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise):
(i) the Company defaults in the payment of any principal of or
Yield-Maintenance Amount payable with respect to any Note when
the same shall become due, either by the terms thereof or
otherwise as herein provided; or
(ii) the Company defaults in the payment of any interest on any Note
or any non-usage fee for more than 10 days after the date due;
or
(iii) the Company defaults (whether as primary obligor or as
guarantor or other surety) in any payment of principal of or
interest on any other obligation for money borrowed (or any
Capital Lease Obligation, any obligation under a conditional
sale or other title retention agreement, any obligation issued
or assumed as full or partial payment for property whether or
not secured by a purchase money mortgage or any obligation
under notes payable or drafts accepted representing extensions
of credit) beyond any period of grace provided with respect
thereto, or the Company fails to perform or observe any other
17
agreement, term or condition contained in any agreement under
which any such obligation is created (or if any other event
thereunder or under any such agreement shall occur and be
continuing) and the effect of such failure or other event is to
cause, or to permit the holder or holders of such obligation
(or a trustee on behalf of such holder or holders) to cause,
any such obligations in an aggregate principal amount exceeding
$500,000 to become due (or to be repurchased by the Company)
prior to the stated maturity thereof; or
(iv) any representation or warranty made by the Company herein or in
the Notes, the Mortgage or the Acknowledgment or by the Company
or any of its officers in any writing furnished in connection
with or pursuant to this Agreement, the Notes, the Mortgage or
the Acknowledgment shall be false in any material respect on
the date as of which made (it being understood that,
notwithstanding that certain representations and warranties of
the Company set out in paragraphs 8B(1), 8Q and 8S hereof are
qualified as to the knowledge of the Company, such
representations and warranties shall be deemed to have been
made without such qualification for purposes of this clause
iv)); or
(v) the Company fails to perform or observe the agreements
contained in paragraphs 5D, 5F, 5H or 5I or any agreement
contained in paragraph 6; or
(vi) the Company fails to perform or observe any other agreement,
term or condition contained herein or in the Notes, the
Mortgage or the Acknowledgment and such failure shall not be
remedied within 30 days after any Responsible Officer obtains
actual knowledge thereof; or
(vii) the Company makes an assignment for the benefit of creditors or
is generally not paying its debts as such debts become due; or
(viii) any decree or order for relief in respect of the Company is
entered under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law, whether now or hereafter in effect
(herein called the "BANKRUPTCY LAW"), of any jurisdiction; or
(ix) the Company petitions or applies to any tribunal for, or
consents to, the appointment of, or taking possession by, a
trustee, receiver, custodian, liquidator or similar official of
the Company, or of any substantial part of the assets of the
Company, or commences a voluntary case under the Bankruptcy Law
of the United States or any proceedings relating to the Company
under the Bankruptcy Law of any other jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company and the Company
by any act indicates its approval thereof, consent thereto or
acquiescence therein, or an order, judgment or decree is
entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in
any such proceedings, and such order, judgment or decree
remains unstayed and in effect for more than 60 days; or
(xi) any order, judgment or decree is entered in any proceedings
against the Company decreeing the dissolution of the Company
and such order, judgment or decree remains unstayed and in
effect for more than 60 days; or
(xii) any order, judgment or decree is entered in any proceedings
against the Company decreeing a split-up of the Company which
requires the divestiture of assets representing a substantial
part of the assets of the Company (determined in accordance
with generally accepted accounting principles) or which
requires the divestiture of assets which shall have contributed
a substantial part of the net income of the Company or ECPLP
(determined in accordance with generally accepted accounting
principles) for any of the three fiscal years then most
recently ended, and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
18
(xiii) a final judgment in an amount in excess of $250,000 is rendered
against the Company and, within 60 days after entry thereof,
such judgment is not discharged or execution thereof stayed
pending appeal, or within 60 days after the expiration of any
such stay, such judgment is not discharged; or
(xiv) the Company, in its capacity as an employer under a
Multiemployer Plan, makes a complete or partial withdrawal from
such Multiemployer Plan resulting in the incurrence by the
Company of a withdrawal liability in an amount exceeding
$500,000, or any ERISA Affiliate, in its capacity as an
employer under a Multiemployer Plan, makes a complete or
partial withdrawal from such Multiemployer Plan resulting in
the incurrence by such ERISA Affiliate of a withdrawal
liability in an amount exceeding $10,000, if the incurrence by
such ERISA Affiliate of such withdrawal liability has a
material and adverse effect on the business, property or
assets, condition (financial or otherwise) or operations of the
Company or the Project; or
(xv) there shall occur any other "Event of Default" under the
Mortgage, as such term is defined therein; or
(xvi) there shall occur any other "Event of Default" under the Note
Agreement, as such term is defined therein;
then (a) if such event is an Event of Default specified in clause (i) or (ii)
of this paragraph 7A, any holder of any Note with respect to which payment
has not been made (other than the Company or any if its Affiliates) may at
its option, during the continuance of such Event of Default, by notice in
writing to the Company, declare all of the Notes held by such holder to be,
and all of the Notes held by such holder shall thereupon be and become,
immediately due and payable at par together with interest accrued thereon,
non-usage fees in connection therewith (in the case of Revolving Notes), and
together with the Yield-Maintenance Amount, if any, with respect to each such
Note (in the case of Term Notes), without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Company, (b) if
such event is an Event of Default specified in clause (viii), (ix) or (x) of
this paragraph 7A, all of the Notes at the time outstanding shall
automatically become immediately due and payable at par together with
interest accrued thereon, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Company, (c) if such event is
any other Event of Default, the Required Holder(s) of the Term Notes of any
Series or of the Revolving Notes may at its or their option during the
continuance of such Event of Default, by notice in writing to the Company,
declare all of the Term Notes of such Series or of the Revolving Notes (as
the case may be) to be, and all of the Term Notes of such Series or of the
Revolving Notes (as the case may be) shall thereupon be and become,
immediately due and payable together with interest accrued thereon, non-usage
fees in connection therewith (in the case of Revolving Notes) and together
with the Yield-Maintenance Amount, if any, with respect to each Term Note of
such Series (in the case of Term Notes), without presentment, demand, protest
or notice of any kind, all of which are hereby waived by the Company, and (d)
if any Note shall have been declared to be due and payable pursuant to clause
(c) above (and such declaration shall not have been rescinded pursuant to
paragraph 7B), any holder of any other Note may at any time thereafter,
regardless of whether any Event of Default shall at such time be continuing,
by notice in writing to the Company, declare all of the Notes held by such
holder to be, and all of the Notes held by such holder shall thereupon be and
become, immediately due and payable together with interest accrued thereon,
non-usage fees in connection therewith (in the case of Revolving Notes) and
together with the Yield-Maintenance Amount, if any, with respect to each such
Note (in the case of Term Notes), without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Company, provided
that the Yield-Maintenance Amount, if any, with respect to each Term Note
shall be due and payable upon any declaration pursuant to this paragraph 7A
only if (x) the event whose occurrence permits such declaration is an Event
of Default specified in any of clauses (i) to (vi), inclusive, of this
paragraph 7A, (y) the Required Holder(s) of the Term Notes of any Series
(whether or not of the same Series as the Term Notes the maturity of which
shall have been accelerated by such declaration) shall have given to the
Company, at least 10 Business Days before such declaration, written notice
stating its or their intention to declare or join in declaring the Notes held
by such Required Holder(s) (or all of the
19
Notes of such Series) to be immediately due and payable and identifying one
or more such Events of Default whose occurrence on or before the date of such
notice permits such declaration, and (z) one or more of the Events of Default
so identified shall be continuing at the time of such declaration.
7B. RESCISSION OF ACCELERATION. At any time after any or all of the
Term Notes of any Series or of the Revolving Notes (as the case may be) shall
have been declared immediately due and payable pursuant to paragraph 7A, the
Required Holder(s) of the Term Notes of such Series or of the Revolving Notes
(as the case may be) may, by notice in writing to the Company, rescind and
annul such declaration and its consequences if (i) the Company shall have
paid all overdue interest and non-usage fees, if any, on the Term Notes of
such Series or of the Revolving Notes (as the case may be), the principal of
and Yield-Maintenance Amount, if any, payable with respect to any Term Notes
of such Series or of the Revolving Notes (as the case may be) which have
become due otherwise than by reason of such declaration, and interest on such
overdue interest, non-usage fee and overdue principal and Yield-Maintenance
Amount at the rate specified in the Term Notes of such Series or of the
Revolving Notes (as the case may be), (ii) the Company shall not have paid
any amounts which have become due solely by reason of such declaration, (iii)
all Events of Default and Defaults, other than non-payment of amounts which
have become due solely by reason of such declaration, shall have been cured
or waived pursuant to paragraph 11C, (iv) no judgment or decree shall have
been entered for the payment of any amounts due pursuant to the Term Notes of
such Series, the Revolving Notes or this Agreement, and (v) no action shall
have been taken by the Collateral Agent to foreclose upon the Mortgaged
Property (as defined in the Mortgage) or to exercise any other rights with
respect to the Mortgaged Property pursuant to the Mortgage. No such
rescission or annulment shall extend to or affect any subsequent Event of
Default or Default or impair any right arising therefrom.
7C. NOTICE OF ACCELERATION OR RESCISSION. Whenever any Note shall be
declared immediately due and payable pursuant to paragraph 7A or any such
declaration shall be rescinded and annulled pursuant to paragraph 7B, the
Company shall forthwith give written notice thereof to the holder of each
Note at the time outstanding other than any such holder as shall have
participated in such acceleration or rescission, as the case may be.
7D. OTHER REMEDIES.
7D(1). EXERCISE. If any Event of Default or Default shall occur and be
continuing, the holder of any Note may proceed to protect and enforce its
rights under this Agreement and such Note by exercising such remedies as are
available to such holder in respect thereof under applicable law, either by
suit in equity or by action at law, or both, whether for specific performance
of any covenant or other agreement contained in this Agreement, the Mortgage
or the Acknowledgment, as the case may be, or in aid of the exercise of any
power granted in this Agreement, the Mortgage, or the Acknowledgment, as the
case may be. No remedy conferred in this Agreement, the Mortgage or the
Acknowledgment upon the holder of any Note or upon the Collateral Agent for
the benefit of such holder, as the case may be, is intended to be exclusive
of any other remedy, and each and every such remedy shall be cumulative and
shall be in addition to every other remedy conferred herein or in the
Mortgage or the Acknowledgment or now or hereafter existing at law or in
equity or by statute or otherwise.
7D(2). AGENCY. The Company hereby acknowledges that the Lien of the
Mortgage has been granted to the Collateral Agent solely in its capacity as
collateral agent for Prudential, among other parties, and that all rights of
the Collateral Agent thereunder have been granted for the benefit of such
parties. Without limiting the generality of the foregoing, the Company
further acknowledges and agrees that each and every obligation of the Company
under the Mortgage to the Collateral Agent shall benefit Prudential and each
other party for which the Collateral Agent from time to time acts as
collateral agent pursuant to the Collateral Agency Agreement, including
without limitation each Purchaser.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company represents,
covenants and warrants, on and as of the date hereof, as follows:
8A. ORGANIZATION.
(i) The Company is a corporation duly organized and existing in
good standing under the laws
20
of the State of Minnesota and has the corporate power to own
its property and assets and to conduct its business in the
manner and in the places in which it is now being and is
presently proposed to be conducted and to perform its
obligation under this Agreement, the Notes, the Mortgage and
the Acknowledgment.
(ii) The Company is not required to be qualified as a foreign
corporation in any other jurisdiction.
(iii) The Company has no Subsidiaries, and the Company does not own,
directly or indirectly, capital stock of any class of any
corporation or any other equity or other interest in any
Person. Both the Company and the Manager are wholly-owned
subsidiaries of NRG, which is a wholly-owned subsidiary of NSP.
(iv) The Company has taken all action which may be required by its
articles of incorporation, its bylaws, the laws of the State of
Minnesota and all other applicable laws to authorize the
execution and delivery and performance of this Agreement, the
Notes, the Mortgage and the Acknowledgment.
8B. FINANCIAL STATEMENTS.
8B(1). FINANCIAL STATEMENTS OF ECPLP. The Company has furnished each
Purchaser with the financial statements of ECPLP (the "ECPLP Financial
Statements") received by the Company pursuant to the Master Purchase
Agreement, including without limitation such financial statements as are
referred to in Section 4.4 thereto. To the knowledge of the Company, the
ECPLP Financial Statements fairly present the financial position, results of
operations and retained earnings of ECPLP's business as of the dates and for
the periods set forth in each case in accordance with generally accepted
accounting principles consistently applied on the same basis as in the prior
year. To the knowledge of the Company, there has been no material adverse
change in the business, condition (financial or otherwise) or operations of
the Project since December 31, 1992.
8B(2). PRO FORMA FINANCIAL STATEMENTS OF THE COMPANY. The Company has
furnished each Purchaser a pro forma balance sheet of the Company as of the
date hereof, giving effect to the transactions contemplated by the Master
Purchase Agreement and this Agreement. The Company has also furnished each
Purchaser with pro forma projections of operating cash flow, net cash flow
and net income, senior debt coverage and capital expenditures of the Company
for the fiscal year ending on December 31 in each of the years 1993 through
2013. Said pro forma financial statements fairly present the Company's
proposed business plans and the Company's good faith estimates as to matters
projected therein based on reasonable business assumptions. Such projections
are reasonably based on such assumptions and the best information available
to the officers of the Company. No event has occurred which would make such
projections materially inaccurate or misleading. Without limiting the
generality of the foregoing, such financial statements of the Company reflect
reasonable assumptions regarding capital expenditures required to maintain
the Project or to bring the Project into compliance with existing
Environmental Laws (whether such laws have immediate or future effective
dates).
8C. ACTIONS PENDING. Except as set forth in Exhibit J hereto, there is
no action, suit, investigation or proceeding pending or, to the knowledge of
the Company, threatened against the Company or any properties or rights of
the Company, ECPLP or the Project, by or before any court, arbitrator or
administrative or governmental body. No action, suit, investigation or
proceeding described in Exhibit J, if decided adversely to the Company, ECPLP
or the Project, would involve the possibility of any material adverse change
in the business, property or assets, condition (financial or otherwise) or
operations of the Company or the Project.
8D. OUTSTANDING DEBT. The Company does not have outstanding any Debt
other than as permitted by paragraph 6B(2). There exists no default under the
provisions of any instrument evidencing such Debt or of any agreement
relating thereto.
8E. TITLE TO PROPERTIES. The Company has good and indefeasible title to
its real properties (other than properties which it leases) and good title to
all of its other properties and assets, including
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without limitation all properties and assets comprising the Project and
reflected in the most recent audited balance sheet of the Company delivered
by the Company pursuant to paragraph 5A (or, if no audited balance sheet has
been delivered, the most recent unaudited balance sheet of the Company
delivered by the Company pursuant to paragraph 5A, or, if no unaudited
balance sheet has been delivered, the pro forma balance sheet as of the date
hereof referred to in paragraph 8B(2)), subject to no Lien of any kind except
Liens permitted by paragraph 6B(1). All leases necessary in any material
respect for the conduct of the business of the Company are valid and
subsisting and are in full force and effect.
8F. TAXES. The Company has a fiscal year ending December 31 for
reporting and tax purposes and has no tax liability for fiscal years prior to
1993. The Company has not filed and has not been required to file any
federal, state and other income tax returns as of the date of this Agreement.
8G. CONFLICTING AGREEMENTS AND OTHER MATTERS. The Company is not a
party to any contract or agreement or subject to any restriction in its
articles of incorporation or other corporate restriction which materially and
adversely affects the business, property or assets, condition (financial or
otherwise) or operations of the Company or the Project. Neither the execution
nor delivery of this Agreement, the Notes, the Mortgage, or the
Acknowledgment, nor the offering, issuance and sale of the Notes or making of
any Revolving Loan, nor fulfillment of nor compliance with the terms and
provisions of this Agreement, the Notes, the Mortgage or the Acknowledgment
will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in any violation of,
or result in the creation of any Lien (other than the Mortgage) upon any of
the properties or assets of the Company pursuant to, the articles of
incorporation or by-laws of the Company, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which the Company is
subject. The Company is not a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the Company, any
agreement relating thereto or any other contract or agreement (including its
articles of incorporation) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the Company of the type to be
evidenced by the Notes, except the Note Agreement.
8H. OFFERING OF NOTES. Neither the Company nor any agent acting on its
behalf has, directly or indirectly, offered the Notes or any similar security
of the Company for sale to, or solicited any offers to buy the Notes or any
similar security of the Company from, or otherwise approached or negotiated
with respect thereto with, any Person other than institutional investors, and
neither the Company nor any agent acting on its behalf has taken or will take
any action which would subject the issuance or sale of the Notes to the
provisions of Section 5 of the Securities Act or to the provisions of any
securities or Blue Sky law of any applicable jurisdiction.
8I. USE OF PROCEEDS. The Company does not own or have any present
intention of acquiring any "margin stock" as defined in Regulation G (12 CFR
Part 207) of the Board of Governors of the Federal Reserve System (herein
called "margin stock"). None of the proceeds of any Revolving Loan or of the
sale of any Term Notes will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any
margin stock or for the purpose of maintaining, reducing or retiring any
Indebtedness which was originally incurred to purchase or carry any stock
that is then currently a margin stock or for any other purpose which might
constitute the making of such Revolving Loan or the purchase of such Term
Notes a "purpose credit" within the meaning of such Regulation G, unless the
Company shall have delivered to Prudential or such Purchaser which is
purchasing such Term Notes (as the case may be), on the date funds are
advanced in connection therewith, an opinion of counsel satisfactory to
Prudential or such Purchaser stating that the Revolving Loan or purchase of
such Term Notes (as the case may be) does not constitute a violation of such
Regulation G. Neither the Company nor any agent acting on its behalf has
taken or will take any action which might cause this Agreement, the Notes or
any Revolving Loan to violate Regulation G, Regulation T or any other
regulation of the Board of Governors of the Federal Reserve System or to
violate the Exchange Act, in each case as in effect now or as the same may
hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined in section
302 of ERISA and section 412 of the Code), whether or not waived, exists with
respect to any Plan (other than a
22
Multiemployer Plan). No liability to the Pension Benefit Guaranty Corporation
has been or is expected by the Company or any ERISA Affiliate to be incurred
with respect to any Plan (other than a Multiemployer Plan) by the Company or
any ERISA Affiliate which is or would be materially adverse to the business,
property or assets, condition (financial or otherwise) or operations of the
Company or the Project. Neither the Company nor any ERISA Affiliate has
incurred or presently expects to incur any withdrawal liability under Title
IV of ERISA with respect to any Multiemployer Plan which is or would be
materially adverse to the business, property or assets, condition (financial
or otherwise) or operations of the Company or the Project. The execution and
delivery of this Agreement, the issuance and sale of each Note and each
Revolving Loan will be exempt from or will not involve any transaction which
is subject to, the prohibitions of section 406 of ERISA and will not involve
any transaction in connection with which a penalty could be imposed under
section 502(i) of ERISA or a tax could be imposed pursuant to section 4975 of
the Code. The representation by the Company in the next preceding sentence is
made in reliance upon and subject to the accuracy of the representation of
Prudential and each Purchaser in paragraph 9B as to the source of funds to be
used by it to purchase any Notes and make Revolving Loans.
8K. GOVERNMENTAL CONSENT. Neither the nature of the Company, nor any of
its business or properties, including without limitation ownership, operation
and maintenance of the Project, nor any relationship between the Company and
any other Person, nor any circumstance in connection with the execution and
delivery of this Agreement, the offering, issuance, sale or delivery of the
Notes or the making of Revolving Loans, the execution and delivery of the
Mortgage or the Acknowledgment, or the purchase of the Project pursuant to
the Master Purchase Agreement is such as to require any authorization,
consent, approval, exemption or any action by or notice to or filing with any
court or administrative or governmental body (other than (i) notification to
the Federal Trade Commission and the Department of Justice under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, which has been
accomplished, and expiration of the waiting period thereunder, which has
occurred, (ii) such as otherwise have been obtained on or prior to the date
hereof, (iii) routine filings after the Closing Day for any Notes with the
Securities and Exchange Commission and/or state Blue Sky authorities, and
(iv) as otherwise set forth in Exhibit J hereto) in connection with the
execution and delivery of this Agreement, the offering, issuance, sale or
delivery of the Notes, the fulfillment of or compliance with the terms and
provisions hereof or of the Notes, the Mortgage, or the Acknowledgment, or
the purchase of the Project pursuant to the Master Purchase Agreement.
8L. UTILITY STATUS. NSP is a "holding company" as such term is defined
in the Public Utility Holding Company Act of 1935, as amended, but is exempt
from all provisions of such Act, except Section 9(a)(2) thereof (relating to
the acquisition of securities of a "public utility company"), because of its
status as predominantly an operating company whose utility operations are
confined to the state of its incorporation and states contiguous thereto and
its filing with the Securities and Exchange Commission of all required forms
in connection therewith. Neither NRG, the Company nor the Manager is (i) a
"holding company", or, in each case with the exception of its relationship
with NSP, a "subsidiary company" of a "holding company," an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended,
(ii) a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or the Federal Power Act, as amended, or
(iii) otherwise subject to regulation as a public utility under federal law
or the law of the State of Minnesota.
8M. INVESTMENT COMPANY STATUS. The Company is not an "investment
Company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended or an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as
amended.
8N. LICENSES, PERMITS AND REGISTRATIONS. Except as set forth in Exhibit
J hereto, each of the Company and Manager has procured and is in possession
of all licenses, permits, exemptions or registrations required by federal,
state or local laws for the ownership, operation and maintenance of the
Project, as the case may be. With respect to any license, permit, exemption
or registration that either (i) is currently required under applicable law,
but is not currently in effect or has not been obtained as required, or (ii)
must be amended or transferred after the closing, the Company reasonably
expects that
23
such license, permit or registration will be obtained, amended or transferred
in the ordinary course of business after the closing without any material
expense to the Company (except as reflected in the Company's pro forma
financial statements referred to in paragraph 8B(2)) or any material change
in the operation of the Project.
0X. XXXXXXXX AGREEMENT REPRESENTATIONS. The Master Purchase Agreement
and the other Purchase Documents have been duly executed and delivered by the
parties thereto and are in full force and effect. All representations and
warranties made by the Company in the Purchase Documents, and, to the best
knowledge of the Company, all representatives and warranties made by ECPLP in
the Purchase Documents are true and correct in all material respects.
8P. SUFFICIENCY AND CONDITION OF ACQUIRED ASSETS. The Acquired Assets
(as defined in the Master Purchase Agreement), as the same exist on the date
of this Agreement, are in all respects sufficient and adequate to enable the
Company to carry on the business of the Project at its normal level of
operations as such business was carried on by ECPLP in the ordinary course
prior to the date hereof, except as set forth in Exhibit J, and the items of
tangible property constituting Acquired Assets have been properly maintained
and are in good condition, ordinary wear and tear excepted.
8Q. NO DEFAULTS. As of the date of this Agreement, except as set forth
in Schedule 4.11 to the Master Purchase Agreement, to the knowledge of the
Company:
(a) ECPLP has performed all obligations and satisfied all liabilities
required to be performed or satisfied by ECPLP under all Service
Agreements;
(b) no other party to any Service Agreement is in default and no event or
condition exists or has occurred which, after notice or lapse of time, or
both, would constitute a default thereunder, where such default, event or
condition would have an adverse effect on the Project taken as a whole;
(c) ECPLP has complied in all material respects with the requirements and
conditions upon which all Encroachment Permits, Environmental Permits,
Miscellaneous Permits and Easements were issued or granted; and
(d) neither ECPLP nor MECI, which is the current manager of the Project,
has received from any governmental authority or any other person written
notice of contemplated, threatened or pending rescission, cancellation or
non-renewal of any of the Environmental Permits, Encroachment Permits,
Miscellaneous Permits or Easements, or that any other permits,
authorizations or easements are required for the occupancy or operation of
the Project.
8R. ASSIGNABILITY OF PERMITS. Any provision of this Agreement to the
contrary notwith-standing, no representation or warranty is made by the
Company with respect to the transferability of any permit, including any
Encroachment Permit, Environmental Permit or Miscellaneous Permit.
8S. ENVIRONMENTAL MATTERS; XXXXX. As of the date of this Agreement,
except as set forth in Schedule 4.13 to the Master Purchase Agreement, to the
knowledge of the Company:
(a) ECPLP is in compliance with all federal, state and local
environmental laws and regulations and neither ECPLP nor MECI has received
any notices or warnings with respect to any violation or suspected
violation of any such laws from any federal, state or local regulatory
authority; and
(b) the only well located on the tracts and parcels constituting Real
Property (as defined in the Real Property Agreement) is as described in
the Well Disclosure Statement attached as Exhibit E to the Master Purchase
Agreement, except for xxxxx which have been sealed in accordance with the
requirements of Minn. Stat. ch. 103I and as to which a Sealed Well
Certificate has been delivered to the Minnesota Department of Health.
With respect to any remedial or other action that is required for the matters
listed in Schedule 4.13 to the Master Purchase Agreement, the Company
reasonably expects that such remedial or other action will be accomplished in
the ordinary course of business after the closing without any material
expense to the Company (except as reflected in the Company's pro forma
financial statements referred to in paragraph 8B(2)) or any material change
in the operation of the Project.
24
8T. HOSTILE TENDER OFFERS. None of the proceeds of any Revolving Loan
or the sale of any Term Notes will be used to finance a Hostile Tender Offer.
8U. DISCLOSURE. Neither this Agreement, the Notes, the Mortgage, the
Acknowledgment nor any other document, certificate or statement furnished to
Prudential or any Purchaser by or on behalf of the Company in connection
herewith or therewith contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact peculiar to the
Company or the Project which materially adversely affects or in the future
may (so far as the Company can now foresee) materially adversely affect the
business, property or assets, condition (financial or otherwise) or
operations of the Company or the Project and which has not been set forth in
this Agreement, the Mortgage or the Acknowledgment or in the other documents,
certificates and statements furnished to Prudential or any Purchaser by or on
behalf of the Company prior to the date hereof in connection with the
transactions contemplated hereby.
9. REPRESENTATIONS OF THE PURCHASERS.
Prudential and each Purchaser represents as follows:
9A. NATURE OF PURCHASE. It is acquiring the Notes to be purchased by it
hereunder for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof within the meaning of the Securities
Act, provided that the disposition of its property shall at all times be and
remain within its control.
9B. SOURCE OF FUNDS. No part of the funds used by it to pay the
purchase price of the Notes purchased by it hereunder constitutes assets
allocated to any separate account maintained by it in which any employee
benefit plan, other than employee benefit plans identified on a list which
has been furnished by it to the Company, participates to the extent of 10% or
more. For the purpose of this paragraph 9B, the terms "separate account" and
"employee benefit plan" shall have the respective meanings specified in
section 3 of ERISA.
10. DEFINITIONS. For the purpose of this Agreement, the terms defined
in the text of any paragraph shall have the respective meanings specified
therein, and the following terms shall have the meanings specified with
respect thereto below:
10A. YIELD-MAINTENANCE TERMS.
"CALLED PRINCIPAL" shall mean, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to the Mortgage, paragraph 1L(1) or
paragraph 5F or is declared to be immediately due and payable pursuant to
paragraph 7A, as the context requires.
"DISCOUNTED VALUE" shall mean, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due
dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor (applied
on the same periodic basis as that on which interest on such Note is payable)
equal to the Reinvestment Yield with respect to such Called Principal.
"REINVESTMENT YIELD" shall mean, with respect to the Called Principal of
any Note, 0.5% over the yield to maturity implied by (a) the yields reported,
as of 10:00 A.M. (New York City local time) on the Business Day next
preceding the Settlement Date with respect to such Called Principal, on the
display designated as "Page 678" on the Telerate Service (or such other
display as may replace page 678 on the Telerate Service) for actively traded
U.S. Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or if such yields
shall not be reported as of such time or the yields reported as of such time
shall not be ascertainable, (b) the Treasury Constant Maturity Series yields
reported, for the latest day for which such yields shall have been so
reported as of the Business Day next preceding the Settlement Date with
respect to such Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining Average
25
Life of such Called Principal as of such Settlement Date. Such implied yield
shall be determined, if necessary, by (x) converting U.S. Treasury xxxx
quotations to bond-equivalent yields in accordance with accepted financial
practice and (y) interpolating linearly between yields reported for various
maturities.
"REMAINING AVERAGE LIFE" shall mean, with respect to the Called Principal
of any Note, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) such Called Principal into (ii) the sum of the
products obtained by multiplying (a) each Remaining Scheduled Payment of such
Called Principal (but not of interest thereon) by (b) the number of years
(calculated to the nearest one-twelfth year) which will elapse between the
Settlement Date with respect to such Called Principal and the scheduled due
date of such Remaining Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" shall mean, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due on or alter the Settlement Date with respect to
such Called Principal if no payment of such Called Principal were made prior
to its scheduled due date.
"SETTLEMENT DATE" shall mean, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
the Mortgage, paragraph 1L(1) or paragraph 5F or is declared to be
immediately due and payable pursuant to paragraph 7A, as the context
requires.
"YIELD-MAINTENANCE AMOUNT" shall mean, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Called Principal
of such Note over the sum of (i) such Called Principal plus (ii) interest
accrued thereon as of (including interest due on) the Settlement Date with
respect to such Called Principal. The Yield-Maintenance Amount shall in no
event be less than zero.
10B. OTHER TERMS.
"ACCEPTANCE" shall have the meaning set forth in paragraph 1G.
"ACCEPTANCE DAY" shall have the meaning set forth in paragraph 1G.
"ACCEPTANCE WINDOW" shall have the meaning set forth in paragraph 1G.
"ACCEPTED NOTE" shall have the meaning set forth in paragraph 1G.
"ACKNOWLEDGMENT" shall have the meaning set forth in paragraph 3A(5).
"ADJUSTED COMMERCIAL PAPER RATE" shall mean a rate per annum equal to the
sum of (a) 2% plus (b) the yield-adjusted rate (i.e., the nominal rate
increased by the cost of any discount) charged or quoted to Prudential
Funding Corporation for dealer-placed, 30-day promissory notes issued by
Prudential Funding Corporation on the Rate Day.
"AFFILIATE" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the Company,
except a Subsidiary (the acquisition or creation of which is expressly
prohibited pursuant to paragraph 6B(3)). A Person shall be deemed to control
a corporation if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract
or otherwise.
"AUTHORIZED OFFICER" shall mean (i) in the case of the Company, its
President, Vice President, Treasurer or Secretary or any other officer of the
Company designated as an "Authorized Officer" of the Company for the purpose
of this Agreement in an Officer's Certificate executed by the Company's
President and delivered to Prudential, and (ii) in the case of Prudential,
any officer of Prudential designated as an "Authorized Officer" in the
Information Schedule or any officer of Prudential designated as an
"Authorized Officer" for the purpose of this Agreement in a certificate
executed by one of its Authorized Officers. Any action taken under this
Agreement on behalf of the Company by any individual who on or after the date
of this Agreement shall have been an Authorized Officer of the Company and
whom Prudential in good faith believes to be an Authorized Officer of the
Company at the time of such action shall be binding on the Company even
though such individual shall have ceased to be an Authorized Officer of the
Company, and any action taken under this Agreement on behalf of Prudential
26
by any individual who on or after the date of this Agreement shall have been
an Authorized Officer of Prudential and whom the Company in good faith
believes to be an Authorized Officer of Prudential at the time of such action
shall be binding on Prudential even though such individual shall have ceased
to be an Authorized Officer of Prudential.
"AVAILABLE FACILITY AMOUNT" shall have the meaning set forth in paragraph
1B.
"BANKRUPTCY LAW" shall have the meaning set forth in clause (viii) of
paragraph 7A.
"BUSINESS DAY" shall mean any day other than (i) a Saturday or a Sunday,
(ii) a day on which commercial banks in New York City are required or
authorized to be closed and (iii) for purposes of paragraph 1C hereof only, a
day on which The Prudential Insurance Company of America is not open for
business.
"CANCELLATION DATE" shall have the meaning set forth in paragraph 1K.
"CANCELLATION FEE" shall have the meaning set forth in paragraph 1K.
"CAPITALIZED LEASE OBLIGATION" shall mean any rental obligation which,
under generally accepted accounting principles, would be required to be
capitalized on the books of the Company, taken at the amount thereof
accounted for as indebtedness (net of interest expenses) in accordance with
such principles.
"CLOSING DAY" for any Accepted Note shall mean the Business Day specified
for the closing of the purchase and sale of such Note in the Request for
Purchase of such Note, provided that (i) if the Acceptance Day for such
Accepted Note is less than five Business Days after the Company shall have
made such Request for Purchase and the Company and the Purchaser which is
obligated to purchase such Note agree on an earlier Business Day for such
closing, the "CLOSING DAY" for such Accepted Note shall be such earlier
Business Day, and (ii) if the closing of the purchase and sale of such
Accepted Note is rescheduled pursuant to paragraph 1I, the Closing Day for
such Accepted Note, for all purposes of this Agreement except paragraph 1K,
shall mean the Rescheduled Closing Day with respect to such Closing.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL AGENCY AGREEMENT" shall have the meaning set forth in
paragraph 3A(5).
"COLLATERAL AGENT" shall mean Norwest Bank Minnesota, National
Association, until a successor collateral agent is appointed in accordance
with the terms of the Collateral Agency Agreement, and thereafter such
successor.
"COMMONWEALTH" shall mean Commonwealth Land Title Insurance Company.
"CONFIDENTIAL INFORMATION" shall mean any written information delivered or
made available by or on behalf of the Company, either directly or through any
Person referred to in paragraph 5C, to Prudential, a Purchaser or a
Transferee pursuant to this Agreement which is clearly marked or labeled as
being confidential information, but in no event shall include information (i)
which was publicly known or otherwise known to Prudential or such Purchaser
or Transferee at the time of disclosure, (ii) which subsequently becomes
publicly known through no act or omission by Prudential, such Purchaser or
Transferee, or (iii) which otherwise becomes known to Prudential, such
Purchaser or Transferee, other than through disclosure by or on behalf of the
Company.
"CONFIRMATION OF ACCEPTANCE" shall have the meaning set forth in paragraph
1G.
"CONSULTANTS" shall mean, collectively, the Engineer and Twin City.
"CONTROLLING INTEREST" shall mean a percentage of the outstanding Voting
Stock or other equity securities of any Person sufficient to permit or
require that, under generally accepted accounting principles, the financial
statements of such Person be consolidated with those of the owner of such
equity securities, but in no event less than a majority of the total combined
voting power of all classes of Voting Stock of such Person.
27
"CPI" shall mean (i) the Consumer Price Index for Urban Consumers (Base
1982 = 100), or (ii) if at any time such Consumer Price Index is no longer
published or issued or is changed from its present form or the bases used for
the calculation thereof shall be changed from the present form, such other
measures of relative purchasing power as then shall be recognized and
accepted generally for similar use or purpose as such Consumer Price Index.
"CURRENT DEBT" shall mean, with respect to any Person, all Indebtedness of
such Person for borrowed money which by its terms or by the terms of any
instrument or agreement relating thereto matures on demand or within one year
from the date of the creation thereof and is not directly or indirectly
renewable or extendible at the option of the debtor to a date more than one
year from the date of the creation thereof, provided that Indebtedness for
borrowed money outstanding under a revolving credit or similar agreement
which obligates the lender or lenders to extend credit over a period of more
than one year shall constitute Funded Debt and not Current Debt, even though
such Indebtedness by its terms matures on demand or within one year from the
date of the creation thereof and, provided further, in the case of the
Company, all outstanding Indebtedness evidenced by the Revolving Notes shall
be deemed Current Debt, and not Funded Debt, hereunder.
"DEBT" shall mean Current Debt and Funded Debt.
"DEBT EXPENSE" shall mean, for any period, the sum of (i) the aggregate
amount of principal and interest payments (including lease payments under
Capitalized Lease Obligations) of the Company and/or of ECPLP, as the case
may be, determined in accordance with generally accepted accounting
principles, and (ii) the amount of principal and interest payable with
respect to the Funded Debt proposed to be created, incurred or assumed.
"DELAYED DELIVERY FEE" shall have the meaning set forth in paragraph 1J.
"EASEMENTS" shall have the meaning set forth in paragraph 5H(1).
"ECPLP" shall mean ENERGY CENTER PARTNERS, A LIMITED PARTNERSHIP, a
Minnesota limited partnership.
"ENGINEER" shall mean HDR Engineering, Inc.
"ENVIRONMENTAL LAWS" shall mean, collectively, all federal, state, local
and regional statutes, laws, ordinances and judicial or administrative
orders, judgments, rulings and regulations relating to protection of the
environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" shall mean any corporation which is a member of the same
controlled group of corporations as the Company within the meaning of section
414(b) of the Code, or any trade or business which is under common control
with the Company within the meaning of section 414(c) of the Code.
"ESCROW AGREEMENT" shall mean the Security (Pledge) and Escrow Agreement
of even date herewith among the Company, ECPLP and First Trust National
Association executed pursuant to the Master Purchase Agreement.
"EVENT OF DEFAULT" shall mean any of the events specified in paragraph 7A,
provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening
of any further condition, event or act, and "DEFAULT" shall mean any of such
events, whether or not any such requirement has been satisfied.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EXISTING LOAN AGREEMENTS" shall mean, collectively (i) the Note
Agreements dated July 27, 1984 between ECPLP and each of Prudential
Interfunding Corp., Northwestern National Life Insurance Company, Northern
Life Insurance Company and The North Atlantic Life Insurance Company of
America, as amended, (ii) the Note Agreement dated August 1, 1986 between
ECPLP and Prudential, as amended, (iii) the Note Agreement dated December
30,1988 between ECPLP and Pruco Life Insurance Company, as amended, and (iv)
the Note Agreement dated September 28, 1990 between ECPLP and Prudential, as
amended.
28
"FACILITY" shall have the meaning set forth in paragraph 1B.
"FUNDED DEBT" shall mean, with respect to any Person, all Indebtedness of
such Person which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, more than
one year from, or is directly or indirectly renewable, or extendible at the
option of the debtor to a date more than one year (including an option of
debtor under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of more than one year) from, the date
of the creation thereof.
"GUARANTEE" shall mean, with respect to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including,
without limitation, any such obligation directly or indirectly guaranteed,
endorsed (otherwise than for collection or deposit in the ordinary course of
business) or discounted or sold with recourse by such Person, or in respect
of which such Person is otherwise directly or indirectly liable, including,
without limitation, any such obligation in effect guaranteed by such Person
through any agreement (contingent or otherwise) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to
maintain the solvency or any balance sheet or other financial condition of
the obligor of such obligation, or to make payment for any products,
materials or supplies or for any transportation or service, regardless of the
non-delivery or non-furnishing thereof, in any such case if the purpose or
intent of such agreement is to provide assurance that such obligation will be
paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such obligation will be protected against loss
in respect thereof. The amount of any Guarantee shall be equal to the
outstanding principal amount of the obligation guaranteed or such lesser
amount to which the maximum exposure of the guarantor shall have been
specifically limited.
"HEDGE TREASURY NOTE(S)" shall mean, with respect to any Accepted Note,
the United States Treasury Note or Notes whose duration (as determined by
Prudential) most closely matches the duration of such Accepted Note.
"HOSTILE TENDER OFFER" shall mean, with respect to the use of proceeds of
any Note or Revolving Loan, any offer to purchase, or any purchase of, shares
of capital stock of any corporation or equity interests in any other entity,
or securities convertible into or representing the beneficial ownership of,
or rights to acquire, any such shares or equity interests, if such shares,
equity interests, securities or rights are of a class which is publicly
traded on any securities exchange or in any over-the-counter market, other
than purchases of such shares, equity interests, securities or rights
representing less than 5% of the equity interests or beneficial ownership of
such corporation or other entity for portfolio investment purposes, and such
offer or purchase has not been duly approved by the board of directors of
such corporation or the equivalent governing body of such other entity prior
to the date on which the Company makes the Request for Purchase of such Note
or the borrowing request with respect to such Revolving Loan pursuant to
paragraph 2C, as the case may be.
"INDEBTEDNESS" shall mean, with respect to any Person, without
duplication, (i) all items (including Capitalized Lease Obligations but
excluding reserves for deferred income taxes and other reserves to the extent
that such reserves do not constitute an obligation) which in accordance with
generally accepted accounting principles would be included in determining
total liabilities as shown on the liability side of a balance sheet of such
Person as of the date on which Indebtedness is to be determined, (ii) all
indebtedness secured by any Lien on any property or asset owned or held by
such Person subject thereto, whether or not the indebtedness secured thereby
shall have been assumed, and (iii) all indebtedness of others with respect to
which such Person has become liable by way of a Guarantee.
"INSTITUTIONAL INVESTOR" shall mean Prudential, any Prudential Affiliate
and any bank, bank affiliate, financial institution, insurance company,
pension fund, mutual fund, endowment or other organization which regularly
acquires debt instruments for investment.
"ISSUANCE PERIOD" shall have the meaning set forth in paragraph lC.
29
"LIBOR BUSINESS DAY" shall mean a day of the year on which dealings are
carried on in the London interbank market and banks are open for business in
London and not required or authorized to close in New York City.
"LIBOR RATE" shall mean, for any Rate Period, for any Revolving Loan
outstanding during such Rate Period, the sum of 2% plus the One Month London
Interbank Offered Rate, at 11:00 A.M. (London Time) two LIBOR Business Days
prior to Rate Day, for U.S. dollar deposits in the London interbank market as
such rate is reported on page 3750 by Telerate -The Financial Information
Network published by Telerate Systems Incorporated (Telerate), or its
successor company. If Telerate shall cease to report such rates on a regular
basis, the LIBOR Rate shall mean, for any Rate Period, the sum of 2% plus the
rate determined by Prudential to be the arithmetic average (rounded upwards,
if necessary, to the nearest 1/16 of 1 %) of the rates quoted to Prudential
by the Reference Banks two LIBOR Business Days prior to Rate Day, for U.S.
dollar deposits in the London interbank market.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien (statutory or otherwise) or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction) or any other type of preferential arrangement for the purpose,
or having the effect, of protecting a creditor against loss or securing the
payment or performance of an obligation.
"MANAGEMENT AGREEMENT" shall have the meaning set forth in paragraph
3A(4).
"MANAGEMENT FEE" shall mean a monthly fee equal to 4% of the steam, hot
water and chilled water gross revenues of the Company collected during the
immediately preceeding month, payable in arrears by the Company to Manager
for the services rendered by Manager during such month pursuant to the
Management Agreement.
"MANAGER" shall mean NRG Operating Services, Inc., a Delaware corporation.
"MASTER PURCHASE AGREEMENT" shall mean the Master Purchase Agreement of
even date herewith between ECPLP and the Company.
"MECI" shall mean Minneapolis Energy Center Inc.
"MISCELLANEOUS PERMITS" shall have the meaning set forth in paragraph
5H(1).
"MORTGAGE" shall have the meaning set forth in paragraph 3A(5).
"MULTIEMPLOYER PLAN" shall mean any Plan which is a "multiemployer plan"
(as such term is defined in section 4001(a)(3) of ERISA.
"1993 NOTES" shall mean the notes issued by the Company pursuant to the
Note Agreement.
"NOTE AGREEMENT" shall have the meaning set forth in paragraph 3A(14).
"NOTES" shall have the meaning set forth in paragraph 2A.
"NRG" shall mean NRG Energy, Inc., a Delaware corporation.
"NSP" shall mean Northern States Power Company, a Minnesota corporation.
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of the
Company by an Authorized Officer of the Company.
"OPERATING INCOME" shall mean, for any period, (i) the sum of (A) the net
earnings (or loss) of the Company and/or of ECPLP, as the case may be, for
such period, (B) any net loss, net of applicable tax effect, realized (1) in
connection with extraordinary items or transactions of a non-recurring or
non-operating and material nature or (2) upon disposition of capital assets
or the discontinuance of capital assets or the discontinuance of operations
for such period, (C) tax expense for such period, and (D) interest expense
(including the interest component of Capitatized Lease Obligations) for such
period, less (ii) the sum of (A) any net gain, net of applicable tax effect,
realized (1) in connection with
30
extraordinary items or transactions of a non-recurring or non-operating and
material nature or (2) upon disposition of capital assets or the
discontinuance of operations for such period and (B) income attributable to
sources other than operations for such period, including without limitation
interest income, in each case determined in accordance with generally
accepted accounting principles.
"OPERATING INCOME AVAILABLE FOR DEBT EXPENSE" shall mean, for any period,
the sum of (i) Operating Income of the Company and/or of ECPLP, as the case
may be, for such period, (ii) depreciation and amortization for such period
determined in accordance with generally accepted accounting principles, and
(iii) the aggregate amount of the Management Fee accrued for such period.
"PERSON" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"PERSONAL PROPERTY AGREEMENT" shall mean the Purchase Agreement of even
date herewith between ECPLC and the Company executed pursuant to the Master
Purchase Agreement.
"PLAN" shall mean any employee pension benefit plan (as such term is
defined in section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company
or any ERISA Affiliate.
"PROJECT" shall mean, collectively, the steam, hot water and chilled water
plant, parking structure and commercial space located in Minneapolis,
Minnesota and known as the Minneapolis Energy Center, satellite steam and
chilled water generation facilities, and other offsite property located on
the property of others, all in Minneapolis, Minnesota and now or hereafter
comprising the assets, properties and rights of the business of and known as
the Minneapolis Energy Center, including without limitation all developments
and improvements relating to the expansion of the productive capacity of any
component thereof.
"PRUDENTIAL" shall mean The Prudential Insurance Company of America.
"PRUDENTIAL AFFILIATE" shall mean any corporation or other entity all of
the Voting Stock (or equivalent voting securities or interests) of which is
owned by Prudential either directly or through Prudential Affiliates.
"PURCHASE AGREEMENTS" shall mean, collectively, the Master Purchase
Agreement, the Personal Property Agreement and the Real Property Agreement.
"PURCHASE DOCUMENTS" shall mean, collectively, the Purchase Agreements,
the Escrow Agreement, and all other agreements, documents and instruments
executed in connection with the transactions contemplated by the Master
Purchase Agreement.
"PURCHASERS" shall mean, with respect to any Accepted Notes, the Persons
(which shall be Prudential and/or Prudential Affiliate(s)) which propose to
purchase such Accepted Notes.
"RATE DAY" shall mean for each Rate Period the first day of each calendar
month of such Rate Period; provided, however, that if such day is not a LIBOR
Business Day, then on the next LIBOR Business Day succeeding the first day of
such calendar month.
"RATE PERIOD" shall mean the period during which the LIBOR Rate remains in
effect and unchanged. For purposes of this Agreement, the Rate Period shall
begin on the first day of each calendar month and shall end on the last day
of such calendar month.
"REAL PROPERTY AGREEMENT" shall mean the Real Property Purchase Agreement
of even date herewith between ECPLP and the Company executed pursuant to the
Master Purchase Agreement.
"RENT LIMIT" shall have the meaning set forth in paragraph 6B(5).
"REFERENCE BANKS" shall mean Xxxxxx Guaranty Trust Company of New York,
Citibank, N.A. and Chase Manhattan Bank, N.A.
"REQUEST FOR PURCHASE" shall have the meaning set forth in paragraph 1E.
31
"REQUIRED HOLDER(S)" shall mean, with respect to the Revolving Notes and
the Term Notes of any Series, at any time, the holder or holders of at least
66 2/3% of the aggregate principal amount of the Revolving Notes or the Term
Notes of such Series (as the case may be) outstanding at such time.
"RESCHEDULED CLOSING DAY" shall have the meaning set forth in xxxxxxxxx
0X.
"RESPONSIBLE OFFICER" shall mean the chief executive officer, chief
operating officer, chief financial officer or chief accounting officer of the
Company or any other officer of the Company involved principally in its
financial administration or its controllership function.
"REVOLVING COMMITMENT" shall have the meaning set forth in paragraph 2A.
"REVOLVING LOAN" and "REVOLVING LOANS" shall have the meanings set forth
in paragraph 2A.
"REVOLVING LOANS TERMINATION DATE" shall have the meaning set forth in
paragraph 2A.
"REVOLVING NOTE" and "REVOLVING NOTES" shall have the meaning set forth in
paragraph 2A.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SERIES" shall have the meaning set forth in paragraph 1A.
"SERVICE AGREEMENTS" shall have the meaning set forth in paragraph 5H(1).
"SERVICE CONTRACTS" shall have the meaning set forth in paragraph 5H(1).
"SIGNIFICANT HOLDER" shall mean (i) in the case of the Term Notes (a) each
Purchaser, so long as such Purchaser shall hold (or be committed under this
Agreement to purchase) any Term Note and (b) any other holder of at least 5%
of any Series of Term Notes from time to time outstanding, and (ii) in the
case of the Revolving Notes, (x) Prudential and (y) any other holder of at
least 5% of the Revolving Notes from time to time outstanding.
"SUBSIDIARY" shall mean any corporation or other Person in which, at the
time of which any determination is being made, the Company owns a Controlling
Interest either directly or through Subsidiaries.
"TERM NOTES" shall have the meaning set forth in paragraph 1A.
"TITLE INSURANCE COMMITMENT" shall have the meaning set forth in paragraph
3A(8).
"TOTAL CAPITALIZATION" shall mean the sum of stockholders' equity and
Funded Debt of the Company.
"TRANSFEREE" shall mean any direct or indirect transferee of all or any
part of any Note purchased under this Agreement.
"TWIN CITY" shall mean Twin City Testing Corporation.
"VOTING STOCK" shall mean, with respect to any corporation, any shares of
stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
10C. ACCOUNTING PRINCIPLES, TERMS AND DETERMINATIONS. All references in
this Agreement to "generally accepted accounting principles" shall be deemed
to refer to generally accepted accounting principles in effect in the United
States at the time of application thereof. Unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all determinations
with respect to accounting matters hereunder shall be made, and all unaudited
financial statements and certificates and reports as to financial matters
required to be furnished hereunder shall be prepared, in accordance with
generally accepted accounting principles applied on a basis consistent with
the most recent audited financial statements of the Company delivered
pursuant to clause (ii) of paragraph 5A or, if no such statements have been
so delivered, the pro forma financial statements referred to in paragraph
8B(2).
11. MISCELLANEOUS.
32
11A. NOTE PAYMENTS. The Company agrees that, so long as Prudential or
any Purchaser shall hold any Note, it will make payments of principal of,
interest on, and any Yield-Maintenance Amount and non-usage fee payable with
respect to, such Note, which comply with the terms of this Agreement, by wire
transfer of immediately available funds for credit (not later than 12:00
noon, New York City local time, on the date due) to the applicable account or
accounts of Prudential or such Purchaser, if any, as are specified in the
Information Schedule attached hereto, or, in the case of any Purchaser not
named in the Information Schedule or Prudential or any Purchaser wishing to
change the account specified for it right the Information Schedule, such
account or accounts in the United States as it may from time to time
designate in writing, notwithstanding any contrary provision herein or in any
Note with respect to the place of payment. Prudential and each Purchaser
agree that, before disposing of any Note, it will make a notation thereon (or
on a schedule attached thereto) of all principal payments previously made
thereon and of the date to which interest thereon has been paid. The Company
agrees to afford the benefits of this paragraph 11A to any Transferee which
shall have made the same agreement as Prudential and the Purchasers have made
in this paragraph 11A.
11B. EXPENSES. The Company agrees, whether or not the transactions
contemplated hereby shall be consummated, to pay, and save Prudential, each
Purchaser, the Collateral Agent, and, to the extent provided herein, any
Transferee harmless against liability for the payment of all out-of-pocket
expenses arising in connection with such transactions, including (i) all
reasonable document production and duplication charges and the fees and
expenses of any special counsel engaged by Prudential, the Purchasers, or the
Collateral Agent in connection with this Agreement, the Mortgage, the
Collateral Agency Agreement, the Acknowledgment or the Notes or the
transactions contemplated hereby and thereby, (ii) all reasonable document
production and duplication charges and fees and expenses of any special
counsel engaged by the holder of any Note in connection with any subsequent
proposed modification of, or proposed consent under, or proposed notice,
instruction or direction given pursuant to this Agreement, the Mortgage, the
Collateral Agency Agreement, the Acknowledgment or the Notes, whether or not
such proposed modification shall be effected, proposed consent granted, or
proposed notice, instruction or direction given, (iii) the costs and
expenses, including attorneys' fees, incurred by the holder of any Note, or
(with respect to the Mortgage) by the Collateral Agent on behalf of any
holder of any Note, in enforcing (or determining whether or how to enforce)
any rights under this Agreement, the Mortgage, the Acknowledgment or the
Notes, and (iv) the costs and expenses, including attorneys' fees, incurred
by Prudential, any Purchaser or any Transferee in responding to any subpoena
or other legal process or informal investigative demand issued in connection
with this Agreement, the Mortgage, the Collateral Agency Agreement, the
Acknowledgment or the Notes or the transactions contemplated hereby or
thereby or by reason of Prudential's or any Purchaser's or any Transferee's
having acquired any Note, including without limitation costs and expenses
incurred in any bankruptcy case. The obligations of the Company under this
paragraph 11B shall survive the transfer of any Note or portion thereof or
interest therein by Prudential, any Purchaser or any Transferee and the
payment of any Note.
11C. CONSENT TO AMENDMENTS. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, if the Company shall obtain the
written consent to such amendment, action or omission to act, of the Required
Holder(s) of the Revolving Notes and of the Term Notes of each Series except
that, (i) with the written consent of the holders of all Revolving Notes or
Term Notes of a particular Series, and if an Event of Default shall have
occurred and be continuing, of the holders of all Notes at the time
outstanding (and not without such written consents), the Revolving Notes or
Term Notes of such Series (as the case may be) may be amended or the
provisions thereof waived to change the maturity thereof, to change or affect
the principal thereof, or to change or affect the rate or time of payment of
interest on or any non-usage fee or Yield-Maintenance Amount payable with
respect to the Revolving Notes or Term Notes of such Series (as the case may
be), (ii) without the written consent of the holder or holders of all Notes
at the time outstanding, no amendment to or waiver of the provisions of this
Agreement shall change or affect the provisions of paragraph 7A or this
paragraph 11C insofar as such provisions relate to proportions of the
principal amount of the Notes, or the rights of any individual holder of
Notes, required with respect to any declaration of Notes to be due and
payable or with respect to any consent, amendment, waiver or declaration,
(iii) with the written consent of Prudential (and not without the written
consent of
33
Prudential) the provisions of paragraph 1, 2 and 3C may be amended or waived
(except insofar as any such amendment or waiver would affect any rights or
obligations with respect to the purchase and sale of Term Notes which shall
have become Accepted Notes prior to such amendment or waiver), and (iv) with
the written consent of all of the Purchasers which shall have become
obligated to purchase Accepted Notes of any Series (and not without the
written consent of all such Purchasers), any of the provisions of paragraphs
1 and 3B may be amended or waived insofar as such amendment or waiver would
affect only rights or obligations with respect to the purchase and sale of
the Accepted Notes of such Series or the terms and provisions of such
Accepted Notes. Each holder of any Note at the time or thereafter outstanding
shall be bound by any consent authorized by this paragraph 11C, whether or
not such Note shall have been marked to indicate such consent, but any Notes
issued thereafter may bear a notation referring to any such consent. No
course of dealing between the Company and the holder of any Note nor any
delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any rights of any holder of such Note. As used herein and in the
Notes, the term "this Agreement" and references thereto shall mean this
Agreement as it may from time to time be amended or supplemented.
11D. FORM, REGISTRATION, TRANSFER AND EXCHANGE OF NOTES; LOST NOTES. The
Notes are issuable as registered notes without coupons in denominations of at
least $100,000, except as may be necessary to reflect any principal amount
not evenly divisible by $100,000. The Company shall keep at its principal
office a register in which the Company shall provide for the registration of
Notes and of transfers of Notes. Upon surrender for registration of transfer
of any Note at the principal office of the Company, the Company shall, at its
expense, execute and deliver one or more new Notes of like tenor and of a
like aggregate principal amount, registered in the name of such transferee or
transferees. At the option of the holder of any Note, such Note may be
exchanged for other Notes of like tenor and of any authorized denominations,
of a like aggregate principal amount, upon surrender of the Note to be
exchanged at the principal office of the Company. Whenever any Notes are so
surrendered for exchange, the Company shall, at its expense, execute and
deliver the Notes which the holder making the exchange is entitled to
receive. Every Note surrendered for registration of transfer or exchange
shall be duly endorsed, or be accompanied by a written instrument of transfer
duly executed, by the holder of such Note or such holder's attorney duly
authorized in writing. Any Note or Notes issued in exchange for any Note or
upon transfer thereof shall carry the rights to unpaid interest and interest
to accrue which were claimed by the Note so exchanged or transferred, so that
neither gain nor loss of interest shall result from any such transfer or
exchange. Upon receipt of written notice from the holder of any Note of the
loss, theft, destruction or mutilation of such Note and, in the case of any
such loss, theft or destruction, upon receipt of such holder's unsecured
indemnity agreement, or in the case of any such mutilation upon surrender and
cancellation of such Note, the Company will make and deliver a Note, of like
tenor, in lieu of the lost, stolen, destroyed or mutilated Note.
Notwithstanding to the contrary herein, each Prudential and Purchaser agrees,
and each Transferee by its acceptance of an interest in a Note agrees, that
no Note (or any interest therein) shall be transferred to any Person which is
not an Institutional Investor.
11E. PERSONS DEEMED OWNERS; PARTICIPATIONS. Prior to due presentment for
registration of transfer, the Company may treat the Person in whose name any
Note is registered as the owner and holder of such Note for the purpose of
receiving payment of principal of, interest on, and any Yield-Maintenance
Amount and non-usage fee payable with respect to such Note and for all other
purposes whatsoever, whether or not such Note shall be overdue, and the
Company shall not be affected by notice to the contrary. Subject to the
preceding sentence, the holder of any Note may from time to time grant
participations in all or any part of such Note to any Person on such terms
and conditions as may be determined by such holder in its sole and absolute
discretion.
11F. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. All
representations and warranties contained herein or in the Notes, the Mortgage
or the Acknowledgment or made in writing by or on behalf of the Company in
connection herewith shall survive the execution and delivery of this
Agreement, the Notes, the Mortgage and the Acknowledgment, the transfer by
Prudential or any Purchaser of any Note or portion thereof or interest
therein and the payment of any Note, and may be relied upon by any
Transferee, regardless of any investigation made at any time by or on behalf
of Prudential, any Purchaser or any Transferee. Subject to the preceding
sentence, this Agreement, the
34
Notes, the Mortgage and the Acknowledgment embody the entire agreement and
understanding between the parties hereto (the Collateral Agency Agreement
being among Prudential, the holders of the 1993 Notes and the Collateral
Agent only) with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter.
11G. SUCCESSORS AND ASSIGNS. All covenants and other agreements in this
Agreement made by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto (including, without limitation, any Transferee) whether so expressed
or not.
11H. DISCLOSURE TO OTHER PERSONS. Each of Prudential and each Purchaser
agrees, and each Transferee by its acceptance of an interest in any Note
agrees, to use its best efforts to hold in confidence and not disclose any
Confidential Information; provided that nothing herein shall prevent
Prudential, a Purchaser or a Transferee from delivery or disclosing (and the
Company acknowledges that Prudential, each Purchaser and each Transferee may
deliver or disclose) any financial statements and other documents delivered
to it, and any other information disclosed to it (including, but not limited
to, Confidential Information), by or on behalf of the Company, either
directly or through any Person referred to in paragraph 5C, in connection
with or pursuant to this Agreement to (i) its directors, officers, employees,
agents and professional consultants, (ii) any other holder of any Note, (iii)
any Person to which it offers to sell such Note or any part thereof, (iv) any
Person to which it sells or offers to sell a participation in all or any part
of such Note, (v) any Person from which it offers to purchase any security of
the Company, (vi) any federal or state regulatory authority having
jurisdiction over it, (vii) the National Association of Insurance
Commissioners or any similar organization or (viii) any other Person to which
such delivery or disclosure may be necessary or appropriate (a) to effect
compliance with any law, rule, regulation or order applicable to it, (b) in
response to any subpoena or other legal process or informal investigative
demand, (c) in connection with any litigation to which it is a party or (d)
in order to protect its investment in any Note.
11I. NOTICES. All written communications provided for hereunder shall
be sent by first class mail or nationwide overnight delivery service (except
as provided in paragraph 1 or 2) with charges prepaid and (i) if to any
Person listed in the Information Schedule attached hereto, addressed to it at
the address specified for such communications in such Information Schedule,
or at such other address as it shall have specified in writing to the Person
sending such communication, (ii) if to any Purchaser or holder of any Note
which is not a Person listed in such Information Schedule, addressed to it at
such address as it shall have specified in writing to the Person sending such
communication or, if any such holder shall not have so specified an address,
then addressed to such holder in care of the last holder of such Note which
shall have so specified an address to the Person sending such communication,
and (iii) if to the Company, addressed to it at 0000 Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: President, or at such
other address as the Company shall have specified to the holder of each Note
in writing, provided; however, that any such communication to the Company may
also, at the option of the Person sending such communication, be delivered by
any other means either to the Company at its address specified above or to
any Authorized Officer of the Company. Any communication pursuant to
paragraph 1 or 2 shall be made by the method specified for such communication
therein, and shall be effective to create any rights or obligations under
this Agreement only if, in the case of a telephone communication, an
Authorized Officer of the party conveying the information and of the party
receiving the information are parties to the telephone call, and in the case
of a telecopier communication, the communication is signed by an Authorized
Officer of the party conveying the information, addressed to the attention of
an Authorized Officer of the party receiving the information, and in fact
received at the telecopier terminal the number of which is listed for the
party receiving the communication in the Information Schedule or at such
other telecopier terminal as the party receiving the information shall have
specified in writing to the party sending such information.
11J. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this Agreement or
the Notes to the contrary notwithstanding, any payment of principal of or
interest on, or Yield-Maintenance Amount or non-usage fee payable with
respect to, any Note that is due on a date other than a Business Day shall
35
be made on the next succeeding Business Day. If the date for any payment is
extended to the next succeeding Business Day by reason of the preceding
sentence, the period of such extension shall be included in the computation
of the interest payable on such Business Day.
11K. SATISFACTION REQUIREMENT. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to Prudential or any Purchaser, to any
holder of Notes or to the Required Holder(s), the determination of such
satisfaction shall be made by Prudential, such Purchaser, such holder or the
Required Holder(s), as the case may be, in the sole and exclusive judgment
(exercised in good faith) of the Person or Persons making such determination.
11L. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law
of the State of Minnesota.
11M. SEVERABILITY. Any provision of this Agreement which 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.
11N. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
11O. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
11P. BINDING AGREEMENT. When this Agreement is executed and delivered
by the Company and Prudential, it shall become a binding agreement between
the Company and Prudential. This Agreement shall also inure to the benefit of
each Purchaser which shall have executed and delivered a Confirmation of
Acceptance, and each such Purchaser shall be bound by this Agreement to the
extent provided in such Confirmation of Acceptance.
Very truly yours,
NRG ENERGY CENTER, INC.
By: /s/ Xxxxxx X. Will
-------------------------------
Title: President
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By /s/ P. Xxxxx xxx Xxxxxxx, Xx.
-------------------------------------
Vice President
36
INFORMATION SCHEDULE
Authorized Officers for Prudential
Xxxx X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx XX
Vice President Vice President
Prudential Capital Group Prudential Capital Group
Two Prudential Plaza Two Prudential Plaza
Suite 5600 Suite 5600
Chicago, Illinois 60601 Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
P. Xxxxx xxx Xxxxxxx Xxxxx X. Xxxxxx
Senior Vice President Managing Director
Prudential Capital Group Prudential Capital Group
Two Prudential Plaza Two Prudential Plaza
Suite 5600 Suite 5600
Chicago, Illinois 60601 Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Senior Vice President
Central Credit
Prudential Capital Group
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Revolving Credit Facility Payments to Prudential
Payments of principal of and interest on the Revolving Notes, and of
non-usage fees due pursuant to the Agreement, shall be made by wire transfer
of immediate funds for credit to: Account Xx. 000-00-000, Xxxxxx Xxxxxxxx
Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, ABA No.
000-000-000. Each such wire transfer shall set forth the name of the Company,
a reference to "Revolving Note due June 15, 2000" and the due date and
application (as among principal, interest and non-usage fees) of the payment
being made.
EXHIBIT A
[FORM OF TERM NOTE]
NRG ENERGY CENTER, INC.
SENIOR SBCURED SERIES TERM NOTE
[DATE]
No. R-
ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE:
INTEREST PAYMENT DATES:
FINAL MATURITY DATE:
PRINCIPAL INSTALLMENT DATES AND AMOUNTS:
FOR VALUE RECEIVED, the undersigned, NRG ENERGY CENTER, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Minnesota, hereby promises to pay to
, or registered assigns, the principal sum of
DOLLARS ($ ) [on the Final Maturity Date
specified above] [, payable in installments on the Principal Installment
Dates and in the amounts specified above, and on the Final Maturity Date
specified above in an amount equal to the unpaid balance of the principal
hereof,] with interest (computed on the basis of a 360-day year--30-day
month) (a) on the unpaid balance thereof at the Interest Rate per annum
specified above, payable on each Interest Payment Date specified above and on
the Final Maturity Date specified above, commencing with the Interest Payment
Date next succeeding the date hereof, until the principal hereof shall have
become due and payable, and (b) on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest, and any overdue
payment of any Yield-Maintenance Amount (as defined in the Agreement referred
to below), payable on each Interest Payment Date as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) %* or (ii) 2% over the rate of
interest publicly announced from time to time by Xxxxxx Guaranty Trust
Company of New York as its "prime rate".
Payments of principal of, and interest on, and any Yield-Maintenance
Amount payable with respect to, this Note are to be made at the main office
of Xxxxxx Guaranty Trust Company of New York in New York City or at such
other place as the holder hereof shall designate to the Company in writing,
in lawful money of the United States of America.
This Note is one of a series of Term Notes (herein called the "Notes")
issued pursuant to a Master Shelf and Revolving Credit Agreement, dated
August , 1993 (herein called the "Agreement"), between the Company and The
Prudential Insurance Company of America and is entitled to the benefits
thereof. As provided in the Agreement, this Note is secured by the Mortgage
referred to therein.
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and in the Company shall not be affected by any
notice to the contrary.
------------
* 2% plus coupon rate.
This Note is subject to optional prepayment, in whole or from time to time
in part, on the terms specified in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the Agreement.
The Company agrees to pay, and save the holder hereof harmless against any
liability for expenses arising in connection with the enforcement by such
holder of any of its rights with respect to this Note or the Agreement, the
Acknowledgement referred to therein or the Mortgage.
This Note is intended to be performed in the State of Minnesota and shall
be construed and enforced in accordance with the law of such State.
NRG ENERGY CENTER, INC.
By: _________________________
Its: ________________________
EXHIBIT B
[FORM OF REQUEST FOR PURCHASE]
NRG ENERGY CENTER, INC.
Reference is made to the Master Shelf and Revolving Credit Agreement (the
"Agreement"), dated August ,1993, between NRG Energy Center, Inc. (the
"Company") and The Prudential Insurance Company of America. All terms used
herein that are defined in the Agreement have the respective meanings
specified in the Agreement.
Pursuant to Paragraph 1E of the Agreement, the Company hereby makes the
following Request for Purchase:
1. Aggregate principal amount of the Term Notes covered hereby (the "Term
Notes")
$___________
2. Individual speciflcations of the Term Notes :
PRINCIPAL
INSTALLMENT
PRINCIPAL FINAL MATURITY DATES AND INTEREST
AMOUNT* DATE AMOUNTS PAYMENT PERIOD
------------- --------------- ------------- ----------------
Quarterly
3. Use of proceeds of the Term Notes:
4. Proposed day for the closing of the purchase and sale of the Term Notes:
5. The purchase price of the Term Notes is to be transferred to:
NAME AND TELEPHONE
NAME AND ADDRESS NUMBER OF BANK
OF BANK NUMBER OF ACCOUNT OFFICER
-------------------- --------------------- ----------------------
6. The Company certifies (a) that the representations and warranties
contained in paragraph 8 of the Agreement are true on and as of the date
of this Request for Purchase except to the extent of changes caused by the
transactions contemplated in the Agreement and to the extent such
representations and warranties by their express terms relate solely to an
earlier date, and (b) that there exists on the date of this Request for
Purchase no Event of Default or Default.
Dated: NRG ENERGY CENTER, INC.
By:
____________________________
Authorized Officer
------------
* Minimum principal amount of $2,500,000, except as otherwise provided in
paragraph 1E of the Agreement.
EXHIBIT C
[FORM OF CONFIRMATION OF ACCEPTANCE]
NRG ENERGY CENTER, INC.
Reference is made to the Master Shelf and Revolving Credit Agreement (the
"Agreement"), dated August , 1993, between NRG Energy Center, Inc. (the
"Company") and The Prudential Insurance Company of America. All terms used
herein that are defined in the Agreement have the respective meanings
specified in the Agreement.
Each of the undersigned institutions which is named below as a Purchaser
of any Accepted Notes hereby confirms the representations as to such Accepted
Notes set forth in paragraph 9 of the Agreement, and agrees to be bound by
the provisions of paragraphs 1G and 1I of the Agreement relating to the
purchase and sale of such Accepted Notes.
Pursuant to paragraph 1G of the Agreement, an Acceptance with respect to
the following Accepted Notes is hereby confirmed:
I. Aggregate principal amount $_________
(A) (a) Name of Purchaser:
(b) Principal amount:
(c) Final maturity date:
(d) Principal installment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(B) (a) Name of Purchaser:
(b) Principal amount:
(c) Final maturity date:
(d) Principal installment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
[(C), (D)...: same information as to any other Purchaser]
II. Closing Day:
Dated: NRG ENNRGY CENTER, INC.
By:___________________________
Title:
[THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA]
By:___________________________
Vice President
[Signature block for each
named Purchaser other than
Prudential]
EXHIBIT D
NRG ENERGY CENTER, INC.
SENIOR SECURED REVOLVING NOTE
No. R-1 August , 1993
$5,000,000
FOR VALUE RECEIVED, the undersigned, NRG ENERGY CENTER, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Minnesota, hereby promises to pay to The Prudential Insurance
Company of America (herein called the "Lender"), or registered assigns, the
principal sum of FIVE MILLION DOLLARS ($5,000,000) or, if less, the aggregate
principal amount of all Revolving Loans made by Lender to the Company
pursuant to the Agreement referred to below, in lawful money of the United
States of America, on or before the Revolving Loans Termination Date (as
defined in the Agreement).
The Company also promises to pay to Lender interest monthly, computed on
the basis of actual days outstanding during the month (but excluding any days
for which payment of interest was made in the preceding payment) plus the
number of days after such month but not including the payment day, a year of
360 days and on the first Business Day (as defined in the Agreement) of the
following month, on the unpaid principal balance outstanding hereunder, in
like money at such office (i) from the date hereof until maturity (whether by
acceleration or otherwise) at the rate per annum specified in the Agreement,
such interest rate to change when and as provided therein, and (ii) from such
maturity until paid, at a rate per annum which shall be the lesser of (a) the
highest interest rate permitted by law and (b) the higher of 2% in excess of
the rate per annum specified in the foregoing clause (i) and 2% in excess of
the rate of interest publicly announced from time to time by Xxxxxx Guaranty
Trust Company of New York as its "prime rate".
Payments of principal, interest and non-usage fees are to be made at
Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (ABA No.: 021-000-238), Account No. 000-00-000, or at such place or
other account as the holder hereof shall designate to the Company in writing,
in lawful money of the United States of America.
This Note is one of the Notes issued pursuant to a Master Shelf and
Revolving Credit Agreement, of even date herewith (herein called the
"Agreement"), between the Company and The Prudential Insurance Company of
America and is entitled to the benefits thereof. As provided in the
Agreement, this Note is secured by the Mortgage referred to therein.
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and the Company shall not be affected by any
notice to the contrary.
This Note is subject to optional prepayment, in whole or from time to time
in part, on the terms specified in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the Agreement.
The Company agrees to pay, and save the holder hereof harmless against any
liability for expenses arising in connection with the enforcement by such
holder of any of its rights with respect to this Note or the Agreement, the
Acknowledgment referred to therein or the Mortgage.
This Note is intended to be performed in the State of Minnesota and shall
be construed and enforced in accordance with the law of such State.
NRG ENERGY CENTER, INC.
By ________________________________
President
